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Protecting citizens' rights in the courts
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  T.C. STONE,
v. No. 3-92CV0939-G DIANA KILMURY, et al.,
DEFENDANT TRF'S OPPOSITION TO
The first issue in this libel case against a Canadian citizen and a Michigan non-profit group is whether, because a tiny fraction of defendants' allegedly libelous letters was sent to Texas residents, defendants may be sued in Texas. Plaintiff apparently bases personal jurisdiction largely on others' distribution of the letter rather than on defendants' own distribution, and now seeks to identify the list of prior contributors of the non-profit group -- to which plaintiff has expressed hostility -- on the theory that this is the only way he can show the distribution by others. Despite his apparent acknowledgement of the danger of retaliation against the prior contributors if they are identified, and even though settled law bars discovery against such contributors until plaintiff has used all possible alternative ways of obtaining the information, defendant makes no effort to show that he made other attempts to learn how the letters were redistributed. And, although defendants' own discovery has been limited to facts relating to jurisdiction, plaintiff claims the right to pursue discovery on the merits -- asking for all information and sources on which the letter was based -- on the ground that, because the merits of the case relate to Texas, he should be allowed to take discovery on the merits while defendants are barred from such discovery. In this memorandum, we show why plaintiff's motion should be denied. 1. Plaintiff Should Not Be Permitted to Compel TRF to Identify Its Texas Contributors. The first part of plaintiff's motion to compel seeks an order directing TRF to provide him with the names, addresses and telephone numbers of all of the persons in Texas to whom the supposedly libelous letter was sent. The letter was sent to three different lists: TRF's prior donors, the subscribers to a labor reform newsletter entitled Labor Notes, and, after this lawsuit was filed, TRF's own Board of Directors. TRF has already provided plaintiff with a list of its own Board, and so the remaining issue is whether the Court should order TRF to turn over the other two lists. The Labor Notes list is more easily addressed, because TRF does not have it, as the answers to interrogatories make clear, and thus need not produce it: The party to whom a subpoena is issued must produce only those records which are in his "possession, custody or control." . . . Control is defined as the legal right to obtain documents upon demand. Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). The party seeking production of the documents . . . bears the burden of proving that the opposing party has such control. Norman v. Young, 422 F.2d 470, 472-473 (10th Cir. 1970). United States v. Petroleum Workers Union, 870 F.2d 1450, 1452 (9th Cir. 1989). Plaintiff does not even try to carry that burden. It argues simply that the motion to compel should be granted because TRF employee Martha Gruelle was allowed to examine the Texas part of the list "to answer interrogatories and construct her affidavit." But as Ms. Gruelle's original affidavit made clear, ¶ 14, she does not have possession of the list, and was only allowed to see it in early May, before TRF was made a defendant, and long before TRF received plaintiff's interrogatories. But when Ms. Gruelle responded to plaintiff's interrogatories, she had to make do with figures provided to her by Labor Notes; indeed, when she asked Labor Notes for the list she was rebuffed. Gruelle Affidavit, ¶ 3. Undersigned counsel also asked Labor Notes to produce the list, and was told an unequivocal "No." Levy Affidavit, ¶ 6. Plaintiff has made no effort to prove otherwise. Plaintiff may wish that TRF had the list to save itself the slight bother of sending a Rule 45 subpoena to Labor Notes, but this will not do. If plaintiff subpoenas the possessor and owner of the list, the Court will be able to pass on whatever objections Labor Notes may make to the production. Labor Notes is, however, entitled to its own day in court, and TRF, which neither has the list nor represents Labor Notes, can neither produce the list nor make arguments on its owner's behalf. Turning to the list of TRF's own subscribers, we must acknowledge that plaintiff has formulated a colorable, albeit marginal, argument for the possible relevance of the Texas portion of the list (we see no relevance whatsoever for the remaining names on the list). Plaintiff's argument is that TRF is legally responsible for the circulation of the letter in Texas by certain unidentified third parties, that each such circulation by a third party constitutes a separate tort committed in Texas, and hence that he is entitled to take depositions or engage in other formal discovery of each person who received the letter from defendant to determine whether he subsequently recirculated it. Defendants have argued in their motion to dismiss that developments in the law of Due Process in the past ten years have eliminated circulation by third persons as a valid ground for personal jurisdiction. Def. Mem. at 13-16. If the Court rejects that argument, then we would have to concede that the extent of foreseeable circulation by third persons might be one of several factors to be weighed in deciding whether defendants are subject to the Court's jurisdiction, and that the names of the Texas prior contributors might be used to discover whether they engaged in recirculation.(1) Despite the contingent relevance, however, the names are privileged from disclosure by the First Amendment, which guarantees the freedom to associate with others for the advancement of common beliefs and ideas. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 (1958). Because "compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association," the Constitution also guarantees privacy in group association. Id. at 462. The Court "recognized the vital relationship between freedom to associate and privacy in one's associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." Id. Such groups are exempt from disclosure of names of members or contributors whenever there is "a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties," Buckley v. Valeo, 424 U.S. 1, 74 (1976), or where disclosure will have "the practical effect 'of discouraging' the exercise of constitutionally protected political rights." NAACP v. Alabama, 357 U.S. at 461. There can be no question that judicial process compelling disclosure of information is subject to First Amendment scrutiny, even when it is a private party who seeks a discovery order against another private party.(2) The First Amendment discovery privilege is often invoked in opposition to compelled disclosure of the names of persons who have exercised First Amendment rights, particularly members or contributors to an organization. E.g., NAACP v. Alabama, supra; Brown v. Socialist Workers, 459 U.S. 87 (1982); Ealy v. Littlejohn, 569 F.2d 219, 226-230 (5th Cir. 1978); Familias Unidas v. Briscoe, 544 F.2d 182, 192-193 (5th Cir. 1976). Such First Amendment protection plainly applies to organizations that support Teamster reform. Plaintiff's motion to compel appears to concede the validity of TRF's fear about the possibility of retaliation against the persons whom he seeks to identify, Pl. Mem. at 7 -- at least, his motion makes no attempt to refute it, and it would be improper for him to use his reply brief to develop a point ignored in his motion papers. In any event, accompanying this memorandum are several affidavits showing the very real danger of retaliation if these names are revealed, Paff Affidavit; Harvey Affidavit; Mims Affidavit; Namirr Affidavit; Scott Affidavit, and explaining how important confidentiality of contributors is to encouraging support of Teamster reform. Paff Affidavit, ¶¶ 3, 12, 16, 17; Harvey Affidavit, ¶ 5; Reuther Affidavit, ¶¶ 3-12; Rauh Affidavit, ¶¶ 4-10. See also United States v. Teamsters (Appeal of TDU and TRF), 968 F.2d 1506, 1508 (2d Cir. 1992). As these affidavits make clear, those who support Teamster reform, both union members and others, have experienced a sorry history of violence and economic retaliation at the hands of Teamsters leaders who are determined to retain their power. The plaintiff in this case, Mr. Stone, has repeatedly expressed hostility to Teamster reformers, Stone Deposition at 50-51, 52, 61 (excerpts attached to Levy Affidavit, ¶ 2 and Exh. 1), and has shown himself willing to use violence to achieve his objectives. Mims Affidavit, ¶ 6. Nor is the problem of retaliation by members and leaders of Teamsters Local 745 just historic -- as recently as last month, in Memphis, Tennessee, TDU member Mike Namirr, was shoved and threatened by Local 745 stewards when he refused to wear Mr. Stone's beloved "TDU Sucks" button (in his deposition, at 50-53, Mr. Stone admitted wearing the button constantly and distributing it, (Levy Affidavit, ¶ 2 and Exh. 1); an officer of Local 728, a leading reform local, was threatened; and a Local 728 car was vandalized). These acts were all perpetrated by thugs who had apparently been brought to Memphis in a political show of force. Mims Affidavit, ¶¶ 5-11; Namirr Affidavit, ¶¶ 2-14; Scott Affidavit, ¶¶ 1-8.(3) Once the Court decides that the First Amendment privilege applies here, it must then decide whether plaintiff has shown a compelling government interest that requires disclosure despite its impact on First Amendment rights. See Humphreys, Hutcheson & Mosely v. Donovan, 755 F.2d 1211, 1221 (6th Cir. 1985). In applying this general First Amendment principle in the context of discovery, the courts have developed a two-part test. First, plaintiff must show that the information he seeks "goes to the heart" of the case, and second, he must exhaust other reasonable means of obtaining the information that it seeks. UAW v. National Right to Work Foundation, 590 F.2d 1139, 1152 (D.C. Cir. 1978); In re Petroleum Prod. Antitrust Litig., 680 F.2d 5, 6-9 (2d Cir. 1982). See also Hastings v. North East Indep. Sch. Dist., 615 F.2d 628, 631-632 (5th Cir. 1980) (production may only be ordered if "essential to the proper preparation and disposition" of case); Grandbouche v. Clancy, 825 F.2d 1463, 1466-1467 (10th Cir. 1987); Marrese v. American Acad. of Ortho Surgeons, 726 F.2d 1150, 1159 (7th Cir. 1984) (en banc), rev'd on other grounds, 470 U.S. 373 (1985). In Miller v. Transamerican Press, 621 F.2d 721, 723, 725-726 (5th Cir. 1980), the Fifth Circuit embraced a similar test, although it broke the relevance test into two parts: is the information relevant, and is the interest in disclosure "compelling?" None of these tests is met here. First, it is highly questionable whether the identity of any of the Texas residents who have contributed to TRF "goes to the heart of the case." Plaintiff argues that the discovery is needed in order to show the extent of circulation of the letters in Texas by third persons; he claims to have several witnesses of such circulation, but TRF knows no such persons. Of course, if the Court agrees with our argument that circulation by third parties within the forum state is not a proper basis for personal jurisdiction over the original publisher, that is sufficient to defeat the motion to compel. But even if the Court decides that circulation by third parties may properly be considered, this discovery is of marginal relevance at best. After all, plaintiff claims to know that various persons have witnessed others engaging in circulation. Defendants do not know that to be the case -- in fact, in response to an interrogatory demanding names and addresses of all persons who had allegedly reported such circulation by third parties, plaintiff provided only two names (of a Connecticut union official and a Texas employer). And in his opposition to the motion to dismiss, plaintiff does not include a single affidavit reporting such circulation, apart from the one item that is discussed in the footnote below.(4) If plaintiff does know of other witnesses, we see no reason why he cannot simply produce affidavits from such persons to show the extent of circulation by third parties, or take their depositions to the extent that they are unwilling to cooperate. If the letter was circulated by third parties, then so be it, but plaintiff has no need to learn the identities of the original recipients in order to learn whether that was so. The second reason to doubt that the discovery goes to the heart of the case is actually related to the second prong of the test -- whether plaintiff has exhausted reasonable alternate means of obtaining the information from others. See Miller v. Transamerican Press, 621 F.2d 721, 723 (5th Cir. 1980) (this Court denied three successive motions to compel for failure to exhaust alternative means, but granted fourth such motion). Part of the "goes to the heart" prong of the test requires plaintiff to show a basis for believing that the information it seeks will, in fact, help its case. Richards of Rockford v. PGE, 71 F.R.D. 388, 390-391 (N.D. Cal. 1976). Cf. Schultz v. Reader's Digest, 468 F. Supp. 551, 566-567 (E.D. Mich. 1979). Yet plaintiff has shown no reason to believe that each of the previous TRF contributors has engaged in the tortious act of circulating the alleged libel. At best, only some of the individuals may have done so. There is, however, a far more efficient way of identifying the "guilty" without subjecting the "innocent" to the perils of disclosure, and that is for plaintiff to take discovery of those who saw the circulation in the first place. Then, in turn, the third party circulators can be asked where they obtained copies of the letter, and the process traced back to the original recipients who did, in fact, receive the letter from TRF. In that way, the TRF contributors who did nothing that is even allegedly tortious will be protected from the burden on their First Amendment associational rights. And TRF will be protected from the chilling effect that compelled disclosure of its prior contributors might have on the willingness of other potential contributors to exercise their free speech rights by donating to TRF in the future. This approach would not unduly burden plaintiff, given the assertion in his motion to compel that he plans to take depositions of as many as "all . . . recipients" of the letter. Pl. Mem. at 7. If plaintiff is willing to depose fourteen TRF contributors (or 65 depositions, if he subpoenas the Labor Notes list), there is no reason why the Court should not insist that he take that many depositions to try to trace the third party circulation back to the source from which the distributions his witnesses saw originated. See Petroleum Antitrust Lit., supra, 680 F.2d at 9 n.11 (up to 65 depositions might be reasonable exhaustion of other means). That discovery will put far less burden on the right of association, and is thus the "least restrictive alternative" in First Amendment parlance, which plaintiff ought to be required to use. Plaintiff, while recognizing the danger of retaliation, offers a protective order limiting contact with the contributors "concerning Exhibit A except by Plaintiff's counsel or through the taking of discovery." Mem. at 7. This proposal is completely inadequate to the situation, and would afford no genuine protection. Quite to the contrary, it is precisely and above all their identities that the contributors want to keep confidential, and plaintiff's proposal permits the contributors to be subjected to depositions, which will of course directly reveal who they are. HIs proposed order will not in any way protect them against becoming the next Mike Namirr, or protect their cars from becoming the next to be vandalized. Nor will plaintiff's proposal diminish in the least the chilling effect that will be created, deterring future contributions to TRF. And it will leave plaintiff wholly free to use the information he obtains for his own intra-union political purposes, apart from whatever marginal value it may have in this litigation. His protective order "is the kind of lawyers' arrangement that laymen instinctively distrust" and that will not reduce in any significant respect the chilling effect of disclosure. Marrese v. American Acad. of Ortho. Surgeons, 706 F.2d 1488, 1494 (7th Cir. 1983), aff'd en banc, 726 F.2d 1150 (7th Cir. 1984), rev'd other grounds, 470 U.S. 373 (1985). See also Reuther Affidavit ¶ 10 (explaining limited utility of protective orders in intra-union context). Plaintiff is fully aware of how sensitive contributor information is to TRF, and the Court should not grant plaintiff a disclosure order that will have only marginal relevance to the issue of jurisdiction, if any, while allowing plaintiff, in Judge Posner's words, "to coerce his opponent to settle regardless of the merits rather than have to produce the documents." Marrese, supra, 726 F.2d at 1161. Instead of giving plaintiff these opportunities, the Court should direct plaintiff to pursue further discovery of actual third party circulators, without prejudice to returning to the Court in the event that he is unable to identify all appropriate persons in that fashion. 2. Plaintiff Should Not Be Permitted to Take Discovery on the Merits That Has No Bearing on Jurisdiction. Plaintiff's second contention is that defendant should be compelled to answer three interrogatories identifying all sources on which TRF relied, and all information on which TRF relied, in publishing the letter. This motion is made in the face of the general rule that when a defendant contests jurisdiction, or otherwise objects to the propriety of the forum, discovery is limited to facts going to the question of jurisdiction until that issue has been resolved. McDonnell Douglas Corp. v. Polin, 429 F.2d 30, 31 (3d Cir. 1970) ("though inquiries [on merits and proper forum] may overlap, they should not be merged and wise discretion should be exercised in preventing such discovery from leading into the merits of the claim"); Investment Prop. Int'l v. Ios, Ltd., 459 F.2d 705, 708-709 (2d Cir. 1972) (requiring district court to allow discovery limited to jurisdictional issues); Blair Holdings Corp. v. Rubinstein, 159 F. Supp. 14, 15 (S.D.N.Y. 1954); Hilton v. W.T. Grant Co., 212 F. Supp. 126, 130 (W.D. Pa. 1962) ("the burdens incident to the status of a defendant ought not to be augmented until it is certain that the party involved really is properly a defendant"); Inter-State Milk Prod. Coop. v. Metropolitan Coop. Milk Prod. Barg. Agy., 236 F. Supp. 558, 560 (M.D. Pa. 1964); Cannon v. United Ins. Co., 352 F. Supp. 1212, 1215 (D.S.C. 1973). See also United Presby. Church v. Reagan, 738 F.2d 1375, 1382-83 (D.C. Cir. 1984) (Scalia, J.) (broad discovery requests going to merits properly denied where standing was questionable). Indeed, there is some authority for denying discovery even on jurisdiction when the plaintiff has not made a sufficient showing of personal jurisdiction to warrant imposing additional expense and burden on the nonresident defendant. Washington v. Norton Mfg., 588 F.2d 441, 447 (5th Cir. 1979). Here, in order to avoid having to litigate whether plaintiff had made a sufficient showing, the parties agreed that discovery might go forward, but limited to the issue of jurisdiction. On that basis, plaintiff was permitted to take the deposition of defendant Kilmury, and defendants have taken the deposition of plaintiff Stone, limited to the issue of personal jurisdiction. Stone Deposition, at 4 and Exh. 1 (Levy Affidavit, ¶ 2 and Exh. 1). In the mandatory conference of counsel that preceded this motion, plaintiff's counsel acknowledged the agreement, but contended that the discovery sought is somehow relevant to jurisdiction. In his motion, plaintiff explains that it is reasonable to assume that the statements in the letter were based on Texas sources, and so discovery is appropriate to show that Texas is the proper place in which to contest the litigation. In the mandatory pre-motion conference, plaintiff's counsel was told that TRF would gladly stipulate that many of its sources are from Texas; we reiterate that statement here. To the extent that plaintiff wishes to argue that this fact is relevant to jurisdiction, he is welcome to do so, although we strongly dispute the relevance.(5) But that fact does not provide an excuse to demand either the names of the Texas sources, or the specific information that each provided, because, if anything is relevant to jurisdiction, it is only their Texas residence that is relevant. Perhaps plaintiff will argue that, once he knows the names of the sources and the information that each provided, he will be able to take their depositions and pursue further discovery pertaining to the facts and opinions stated in the letter that might turn up something that bears on jurisdiction. In effect, plaintiff claims the right to take discovery on the merits, while defendants have been restricted to taking discovery only on the question of jurisdiction. That would be completely unfair. It would be especially inappropriate to allow this discovery going to the merits at this time in light of the difficult constitutional questions, not to speak of federal statutory privileges, that will be raised if jurisdiction is established and the parties begin to litigate the merits, and plaintiff seeks to identify the Texas Teamsters who, in his view, have "snitched" on him by telling his arch intra-union enemy about misconduct in his own local. We do not now make those privilege arguments, which raise different considerations from the privilege questions implicated by the demand for the names of TRF contributors, but we reserve the right to raise them once it is time to respond to the interrogatories.(6) It is the Teamster member sources who are most exposed to the wrath of both Stone, who runs the union grievance procedure in Texas, Stone Deposition at 8 (Levy Affidavit, ¶ 2 and Exh. 1), and his stewards, whose willingness to engage in violence against Stone's political enemies has clearly not abated, as the recent events in Memphis make clear. This is thus a particular apt case where "wise discretion should be exercised in preventing . . . discovery from leading into the merits of the claim." McDonnell Douglas Corp., supra, 429 F.2d at 31. This portion of the discovery request should be denied as well. The motion to compel discovery should be denied. Respectfully submitted,
Paul Alan Levy (DC Bar No. 946400) Alan B. Morrison (DC Bar No. 073114) Public Citizen Litigation Group
Steven B. Thorpe (Texas Bar No. 19990500)
Of counsel: Barbara Harvey (Mich. Bar No. P25478)
Attorneys for Defendant TRF January 2, 1992 1. Plaintiff makes no effort to demonstrate the relevance of the remainder of the TRF contributor list, consisting of 1300 names in the rest of the country. Indeed, it is not even clear that plaintiff seeks to compel disclosure of those names, although the original request for production could be read that broadly. Thus, his memorandum supporting the motion to compel states that plaintiff intends to take depositions of "all" or some of the individuals in question. Pl. Mem. at 7. It is inconceivable that plaintiff plans to take 1300 depositions. We thus construe plaintiff's motion to compel as comprehending only the Texas portion of the list. If, in fact, plaintiff did intend to seek the entire list, it would simply serve to reinforce the overreaching character of the motion. 2. Gulf Oil Co. v. Bernard, 452 U.S. 89 (1982); New York Times v. Sullivan, 376 U.S. 254 (1964); Shelley v. Kraemer, 334 U.S. 1 (1948). See also 8 Wigmore on Evidence § 2214 (McNaughton rev. 1961) (recognizing qualified First Amendment privilege against compulsory disclosure). 3. Defendants are pursuing discovery to further establish the involvement of Mr. Stone and Local 745 in this wrongdoing. 4. Plaintiff attaches an affidavit from a manager of an employer professing ignorance of where or even when in a 3-month period he received the letter. Plaintiff does not explain why he accepts this affidavit at face value, rather than taking the employer's deposition under Rule 30(b)(6) in order to probe the recollections of all involved persons about where, and when, the employer obtained the document. We also note that Stone's decision to sue TRF and not the employer for its allegedly tortious recirculation -- for which Stone holds TRF responsible (!) -- suggests that this lawsuit is founded more on intra-union politics than on a desire for compensation for injury. 5. Thus, there are some cases in which the fact that a newspaper sent reporters to the forum state to investigate a story was deemed relevant to the issue of personal jurisdiction. That is not what happened here. Rather, TRF drew on its staff's store of knowledge in drafting the letter. See Gruelle Affidavit, ¶ 4. That some such information came from Texas will not support personal jurisdiction. 6. Miller v. Transamerican Press, 621 F.2d 721, 725-726 (5th Cir. 1980), makes clear that these issues are often close and highly factual. That makes it all the more inappropriate that the issue be litigated in the current context. more resources
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