Kristin Perry, et al v. Dennis Hollingsworth, et al

Filing 23

FILED OPINION (KIM MCLANE WARDLAW, RAYMOND C. FISHER and MARSHA S. BERZON) REVERSED AND REMANDED. Each party shall bear its own costs on appeal. Judge: RCF Authoring. FILED AND ENTERED JUDGMENT. [7161560] [09-17241, 09-17551] (RP)

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Kristin Perry, et al v. Dennis Hollingsworth, et al Doc. 23 Case: 09-17241 12/11/2009 Page: 1 of 38 ID: 7161560 DktEntry: 37-1 F IL E D FOR PUBLICATION U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DEC 11 2009 M O L L Y C. DW YE R , CLERK U . S . C O U R T O F APPEALS K R IS T IN M. PERRY; SANDRA B. S T IE R ; PAUL T. KATAMI; JEFFREY J. Z A R R ILLO , P la intiffs - Appellees, N o . 09-17241 D .C . No. 3:09-cv-02292-VRW O P I N IO N a nd C IT Y AND COUNTY OF SAN FR A N C IS C O , P la intiff-inte rve no r, v. A R N O LD SCHWARZENEGGER, in his o ffic ia l capacity as Governor of California; E D M U N D G. BROWN, Jr., in his official c a p a c ity as Attorney General of California; M A R K B. HORTON in his official c a p a c ity as Director of the California D e p a rtme nt of Public Health & State R e gis tra r of Vital Statistics; LINETTE S C O T T , in her official capacity as Deputy D ire c to r of Health Information & Strategic P la nning for the California Department of P ub lic Health; PATRICK O'CONNELL, in his official capacity as Clerk-Recorder fo r the County of Alameda; DEAN C. LO G A N , in his official capacity as R e gis tra r-R e c o rd e r/C o unty Clerk for the C o unty of Los Angeles, Dockets.Justia.com Case: 09-17241 12/11/2009 Page: 2 of 38 ID: 7161560 DktEntry: 37-1 D e fe n d a n t s , a nd D E N N IS HOLLINGSWORTH; GAIL J. K N IG H T ; MARTIN F. GUTIERREZ; H A K -S H IN G WILLIAM TAM; MARK A . JANSSON; P R O T E C T M A R R IA G E .C O M - YES ON 8 , A PROJECT OF CALIFORNIA R E N E W A L, D e fe nd a nt-inte rve no rs A p p e lla nts . K R IS T IN M. PERRY; SANDRA B. S T IE R ; PAUL T. KATAMI; JEFFREY J. Z A R R ILLO , P la intiffs - Appellees, a nd O U R FAMILY COALITION; LA V E N D E R SENIORS OF THE EAST B A Y ; PARENTS, FAMILIES, AND FR IE N D S OF LESBIANS AND GAYS, CITY AND COUNTY OF SAN FR A N C IS C O , P la intiff-inte rve no rs A p p e lle e s , v. A R N O LD SCHWARZENEGGER; N o . 09-17551 D .C . No. 3:09-cv-02292-VRW 2 Case: 09-17241 12/11/2009 Page: 3 of 38 ID: 7161560 DktEntry: 37-1 E D M U N D G. BROWN, Jr.; MARK B. H O R T O N ; LINETTE SCOTT; PATRICK O ' C O N N E LL; DEAN C. LOGAN, D e fe n d a n t s , a nd D E N N IS HOLLINGSWORTH; GAIL J. K N IG H T ; MARTIN F. GUTIERREZ; H A K -S H IN G WILLIAM TAM; MARK A . JANSSON; P R O T E C T M A R R IA G E .C O M - YES ON 8 , A PROJECT OF CALIFORNIA R E N E W A L, D e fe nd a nt-inte rve no rs A p p e lla nts . A p p e a l from the United States District Court fo r the Northern District of California V a ughn R. Walker, Chief District Judge, Presiding A rgue d and Submitted December 1, 2009 P a s a d e na , California File d B e fo re : K im McLane Wardlaw, Raymond C. Fisher and Marsha S. Berzon, C irc uit Judges. O p inio n by Judge Fisher R A Y M O N D C. FISHER, Circuit Judge: 3 Case: 09-17241 12/11/2009 Page: 4 of 38 ID: 7161560 DktEntry: 37-1 P ro p o s itio n 8 amended the California Constitution to provide that only ma rria ge between a man and a woman is valid or recognized in California. Two s a me -s e x couples filed this action in the district court alleging that Proposition 8 vio la te s the Due Process and Equal Protection Clauses of the Fourteenth A me nd me nt. The official proponents of Proposition 8 ("Proponents") intervened to defend the suit. Plaintiffs served a request for production of documents on P ro p o ne nts , seeking, among other things, production of Proponents' internal c a mp a ign communications relating to campaign strategy and advertising. Proponents objected to disclosure of the documents as barred by the First A me nd me nt. In two orders, the district court rejected Proponents' claim of First A me nd me nt privilege. Proponents appealed both orders. We granted Proponents' mo tio n for stay pending appeal. We have the authority to hear these appeals either under the collateral order d o c trine or through the exercise of our mandamus jurisdiction. We reverse. The fre e d o m to associate with others for the common advancement of political beliefs a nd ideas lies at the heart of the First Amendment. Where, as here, discovery w o uld have the practical effect of discouraging the exercise of First Amendment a s s o c ia tio na l rights, the party seeking discovery must demonstrate a need for the info rma tio n sufficiently compelling to outweigh the impact on those rights. 4 Case: 09-17241 12/11/2009 Page: 5 of 38 ID: 7161560 DktEntry: 37-1 P la intiffs have not on the existing record carried that burden in this case. We the re fo re reverse and remand. I . BACKGROUND In November 2008, California voters approved Proposition 8, an initiative me a s ure providing that "[o]nly marriage between a man and a woman is valid or re c o gniz e d in California." Cal. Const. art. I, 7.5. The California Supreme Court ha s upheld Proposition 8 against several state constitutional challenges. Strauss v. H o r to n , 207 P.3d 48, 63-64 (Cal. 2009). Plaintiffs, two same-sex couples p ro hib ite d from marrying, filed this 42 U.S.C. 1983 action alleging "that Prop. 8, w hic h denies gay and lesbian individuals the right to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as he te ro s e xua l individuals, is unconstitutional under the Due Process and Equal P ro te c tio n Clauses of the Fourteenth Amendment to the United States C o ns titutio n." Compl. 5, 7. They alleged among other things that "[t]he d is a d va nta ge Prop. 8 imposes on gays and lesbians is the result of disapproval or a nimus against a politically unpopular group." Id. 43. Defendants are a number o f state officials responsible for the enforcement of Proposition 8, including the G o ve rno r and the Attorney General. Id. 13-19. Plaintiffs seek declaratory and injunc tive relief. Id. 8. 5 Case: 09-17241 12/11/2009 Page: 6 of 38 ID: 7161560 DktEntry: 37-1 A fte r the Attorney General declined to defend the constitutionality of P ro p o s itio n 8, the district court granted a motion by Proponents the official p ro p o ne nts of Proposition 8 and the official Proposition 8 campaign committee to intervene as defendants. P la intiffs served requests for production of documents on Proponents under Fe d e ra l Rule of Civil Procedure 34. Plaintiffs' eighth request sought: A ll versions of any documents that constitute c o m m unic a tio ns referring to Proposition 8, between you a nd any third party, including, without limitation, members o f the public or the media. T he parties understand this request as encompassing, among other things, P ro p o ne nts ' internal campaign communications concerning strategy and me s s a ging. P ro p o ne nts objected to the request as irrelevant, privileged under the First A me nd me nt and unduly burdensome and filed a motion for a protective order. They argued that their internal campaign communications, including draft versions o f communications never actually disseminated to the electorate at large, were p rivile ge d under the First Amendment. They offered evidence that the disclosure o f internal strategy documents would burden political association rights by d is c o ura ging individuals from participating in initiative campaigns and by muting 6 Case: 09-17241 12/11/2009 Page: 7 of 38 ID: 7161560 DktEntry: 37-1 the exchange of ideas within those campaigns. They asserted that the documents p la intiffs sought were irrelevant to the issues in this case, and even if they were re le va nt, the First Amendment interests at stake outweighed plaintiffs' need for the info rma tio n. P la intiffs opposed the motion for protective order. They argued that their re q ue s t was reasonably calculated to lead to the discovery of admissible evidence c o nc e rning the purpose of Proposition 8, as well as evidence concerning the ra tio na lity and strength of Proponents' purported state interests for Proposition 8. They disputed Proponents' contention that any of the documents requested were p rivile ge d other than with respect to the names of rank-and-file members of the c a mp a ign, which they agreed to redact. In an October 1, 2009 order, the district court granted in part and denied in p a rt Proponents' motion for a protective order. The court denied Proponents' c la ims of privilege.1 The court also determined that plaintiffs' request was " re a s o na b ly calculated to lead to the discovery of admissible evidence" regarding vo te r intent, the purpose of Proposition 8 and whether Proposition 8 advances a The district court also observed that Proponents had failed to produce a p rivile ge log required by Federal Rule of Civil Procedure 26(b)(5)(A)(ii). We a gre e that some form of a privilege log is required and reject Proponents' c o nte ntio n that producing any privilege log would impose an unconstitutional b urd e n. 7 1 Case: 09-17241 12/11/2009 Page: 8 of 38 ID: 7161560 DktEntry: 37-1 le gitima te governmental interest. The court said that "communications between p ro p o ne nts and political consultants or campaign managers, even about messages c o nte mp la te d but not actually disseminated, could fairly readily lead to admissible e vid e nc e illuminating the messages disseminated to voters." 2 Fo llo w ing the court's October 1 order, Proponents submitted a sample of d o c ume nts potentially responsive to plaintiffs' document request for in camera re vie w , asserting that the documents were both irrelevant and privileged. In a N o ve mb e r 11, 2009 order following that review, the district court again rejected P ro p o ne nts ' argument that their internal campaign communications were p rivile ge d under the First Amendment: 2 The court indicated that plaintiffs' request was a p p ro p ria te to the extent it calls for (1) communications by a nd among proponents and their agents (at a minimum, S c hub e rt Flint Public Affairs) concerning campaign s tra te gy and (2) communications by and among proponents a n d their agents concerning messages to be conveyed to vo te rs , . . . without regard to whether the messages were a c tua lly disseminated or merely contemplated. In addition, c o mmunic a tio ns by and among proponents with those who a s s ume d a directorial or managerial role in the Prop 8 c a mp a ign, lik e p olitical c o ns ulta nts o r P ro te c tM a rria ge .c o m' s treasurer and executive committee, a mo ng others, would appear likely to lead to discovery of a d mis s ib le evidence. 8 Case: 09-17241 12/11/2009 Page: 9 of 38 ID: 7161560 DktEntry: 37-1 P ro p o ne nts have not . . . identified any way in which the . . . p rivile ge could protect the disclosure of campaign c o mmunic a tio ns or the identities of high ranking members o f the campaign. . . . If the . . . privilege identified by p ro p o ne nts protects anything, it is the identities of ranka nd -file volunteers and similarly situated individuals. A p p lying the usual discovery standards of Federal Rule of Civil Procedure 26, the c o urt determined that documents falling into the following categories were re a s o na b ly likely to lead to the discovery of admissible evidence: documents re la ting to "messages or themes conveyed to voters through advertising or direct me s s a ging," documents dealing "directly with advertising or messaging strategy a nd themes" and documents discussing voters' "potential reactions" to campaign me s s a ge s . The court ordered production of 21 of the 60 documents submitted for re vie w . P ro p o ne nts appealed from the October 1 and November 11 orders. We gra nte d Proponents' motion for a stay pending appeal. We have jurisdiction and w e reverse and remand. I I . JURISDICTION P ro p o ne nts contend that we have jurisdiction on two bases. First, they assert tha t the district court's orders are appealable under the collateral order doctrine. Second, they have petitioned for issuance of a writ of mandamus. 9 Case: 09-17241 12/11/2009 Page: 10 of 38 ID: 7161560 DktEntry: 37-1 W hile this appeal was pending, the Supreme Court decided Mohawk In d u s tr ie s , Inc. v. Carpenter, 558 U.S. -- (Dec. 8, 2009), holding that discovery o rd e rs concerning the attorney-client privilege are not appealable under the c o lla te ra l order doctrine. After Mohawk, it is a close question whether the c o lla te ra l order doctrine applies to discovery orders addressing the First A me nd me nt privilege, and one we ultimately need not decide. On balance, we are inc line d to believe that the First Amendment privilege is distinguishable from the a tto rne y-c lie nt privilege and that we may have jurisdiction under the collateral o rd e r doctrine in this case. But if we do not have collateral order jurisdiction, we w o uld have, and would exercise, our mandamus jurisdiction. We have repeatedly e xe rc is e d our mandamus authority to address important questions of first imp re s s io n concerning the scope of a privilege. As this case falls within that class o f extraordinary cases, mandamus would establish a basis of our jurisdiction if the re is no collateral order appeal available after Mohawk. A . Collateral Order Doctrine W e have jurisdiction to review "final decisions of the district courts." 28 U .S .C . 1291. Under the collateral order doctrine, a litigant may appeal "from a na rro w class of decisions that do not terminate the litigation, but must, in the inte re s t of `achieving a healthy legal system,' nonetheless be treated as `final.'" 10 Case: 09-17241 12/11/2009 Page: 11 of 38 ID: 7161560 DktEntry: 37-1 D ig ita l Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (quoting C o b b le d ic k v. United States, 309 U.S. 323, 326 (1940)). To be immediately a p p e a la b le , a collateral decision "must conclusively determine the disputed q ue s tio n, resolve an important issue completely separate from the merits of the a c tio n, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). T he first prong is easily satisfied in this case. Taken together, the October 1 a nd November 11 discovery orders conclusively determined the scope of the First A me nd me nt privilege. The district court concluded that the privilege does not e xte nd to internal campaign communications and that it is limited to the disclosure o f identities of rank-and-file members and other similarly situated individuals. Furthermore, in the November 11 order, the district court conclusively determined tha t Proponents were required to produce 21 documents that, according to the c o urt, were not privileged. See United States v. Griffin, 440 F.3d 1138, 1141 (9th C ir. 2006) ("[T]he district court's order `conclusively determine[s] the disputed q ue s tio n' whether the government is entitled to read the communications between G riffin and his wife for which the [marital communications] privilege had been c la ime d ." ). 11 Case: 09-17241 12/11/2009 Page: 12 of 38 ID: 7161560 DktEntry: 37-1 T he second prong is also satisfied. The overall scope of the First A me nd me nt privilege is a question of law that is entirely separate from the merits o f the litigation. In theory, the application of the privilege to plaintiffs' specific d is c o ve ry requests has some overlap with merits-related issues, such as whether p la intiffs ' substantive claims are governed by strict scrutiny or rational basis re vie w and whether plaintiffs may rely on certain types of evidence to prove that P ro p o s itio n 8 was enacted for an improper purpose. We need not, and do not, d e lve into those questions in this appeal, however. We assume without deciding tha t the district court's rulings on those questions are correct. There is, therefore, no "overlap" between the issues we must decide in this appeal and the "factual and le ga l issues of the underlying dispute." Van Cauwenberghe v. Biard, 486 U.S. 5 1 7 , 529 (1988). It is the third prong that poses the most difficult question. Under Mohawk, the third prong turns on whether rulings on First Amendment privilege are, as a c la s s , effectively reviewable on appeal from final judgment i.e., "whether d e la ying review until the entry of final judgment `would imperil a substantial p ub lic interest' or `some particular value of a high order.'" Mohawk, 558 U.S. at -- , slip op. 6 (quoting Will v. Hallock, 546 U.S. 345, 352-53 (2006)). In Mohawk, the Court concluded that this prong was not satisfied with respect to the class of 12 Case: 09-17241 12/11/2009 Page: 13 of 38 ID: 7161560 DktEntry: 37-1 rulings addressing invocation of the attorney-client privilege during discovery. This was so because the typical ruling on the attorney-client privilege will involve o nly "the routine application of settled legal principles." Id. at 8. Denying imme d ia te appellate review would have no "discernible chill" because "deferring re vie w until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel." Id. There being no d is c e rnib le harm to the public interest, the remaining harm from an erroneous ruling (the harm to the individual litigant of having confidential communications d is c lo s e d) could be adequately, if imperfectly, remedied by review after final jud gme nt: "Appellate courts can remedy the improper disclosure of privileged ma te ria l in the same way they remedy a host of other erroneous evidentiary rulings : by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence." Id. S o me of Mohawk's reasoning carries over to the First Amendment privilege. There are, however, several reasons the class of rulings involving the First A me nd me nt privilege differs in ways that matter to a collateral order appeal a na lys is from those involving the attorney-client privilege. First, this case c o nc e rns a privilege of constitutional dimensions. The right at issue here fre e d o m of political association is of a high order. The constitutional nature of 13 Case: 09-17241 12/11/2009 Page: 14 of 38 ID: 7161560 DktEntry: 37-1 the right is not dispositive of the collateral order inquiry, see, e.g., Flanagan v. U n ite d States, 465 U.S. 259, 267-68 (1984), but it factors into our analysis. Second, the public interest associated with this class of cases is of greater ma gnitud e than that in Mohawk. Compelled disclosures concerning protected First A me nd me nt political associations have a profound chilling effect on the exercise o f political rights. See, e.g., Gibson v. Florida Legislative Investigation Comm., 3 7 2 U.S. 539, 557 (1963) (underscoring the substantial "deterrent and `chilling' e ffe c t on the free exercise of constitutionally enshrined rights of free speech, e xp re s s io n, and association" resulting from compelled disclosure of political a s s o c ia tio ns ). Third, unlike the attorney-client privilege, the First Amendment p rivile ge is rarely invoked. Collateral review of the First Amendment privilege, the re fo re , does not implicate significant "institutional costs." Mohawk, 558 U.S. -- , slip op. at 11. Cf. id. ("Permitting parties to undertake successive, piecemeal a p p e a ls of all adverse attorney-client rulings would unduly delay the resolution of d is tric t court litigation and needlessly burden the Courts of Appeals."). Finally, we o b s e rve that Mohawk expressly reserved whether the collateral order doctrine a p p lie s in connection with other privileges. See id. at 12 n.4. In light of these considerations, whether Mohawk should be extended to the Firs t Amendment privilege presents a close question. The distinctions between the 14 Case: 09-17241 12/11/2009 Page: 15 of 38 ID: 7161560 DktEntry: 37-1 Firs t Amendment privilege and the attorney-client privilege a constitutional b a s is , a heightened public interest, rarity of invocation and a long recognized c hilling effect are not insubstantial. We are therefore inclined to conclude that w e have jurisdiction under the collateral order doctrine. Given that this is a close q ue s tio n, however, we recognize that if we do not have collateral order juris d ic tio n, we then could and would rely on our authority to hear this e xc e p tio na lly important appeal under the mandamus authority, for reasons we now e xp la in. B . Mandamus In the event that we do not have jurisdiction under the collateral order d o c trine , we would have authority to grant the remedy of mandamus. See 28 U .S .C . 1651(a); Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004); City of L a s Vegas v. Foley, 747 F.2d 1294, 1296-97 (9th Cir. 1984). " T he writ of mandamus is an `extraordinary' remedy limited to ` e xtra o rd ina ry' causes." Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. C o u r t, 408 F.3d 1142, 1146 (9th Cir. 2005) (quoting Cheney, 542 U.S. at 380). In B a u m a n v. United States District Court, 557 F.2d 650 (9th Cir. 1977), we e s ta b lis he d five guidelines to determine whether mandamus is appropriate in a give n case: (1) whether the petitioner has no other means, such as a direct appeal, 15 Case: 09-17241 12/11/2009 Page: 16 of 38 ID: 7161560 DktEntry: 37-1 to obtain the desired relief; (2) whether the petitioner will be damaged or p re jud ic e d in any way not correctable on appeal; (3) whether the district court's o rd e r is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5 ) whether the district court's order raises new and important problems or issues o f first impression. Id. at 654-55. "The factors serve as guidelines, a point of d e p a rture for our analysis of the propriety of mandamus relief." Admiral Ins. Co. v. U .S . Dist. Court, 881 F.2d 1486, 1491 (9th Cir. 1989). "Not every factor need be p re s e nt at once." Burlington, 408 F.3d at 1146. "However, the absence of the third factor, clear error, is dispositive." Id. Mandamus is appropriate to review discovery orders "when particularly imp o rta nt interests are at stake." 16 C. Wright, A. Miller, & E. Cooper, Federal P ra c tic e and Procedure 3935.3 (2d ed. 2009) (hereinafter Wright & Miller). Although "the courts of appeals cannot afford to become involved with the daily d e ta ils of discovery," we may rely on mandamus to resolve "new questions that o the rw is e might elude appellate review" or "to protect important or clear claims of p rivile ge ." Id.; see Mohawk, 558 U.S. --, slip op. 9 ("[L]itigants confronted with a p a rtic ula rly injurious or novel privilege ruling have several potential avenues of re vie w apart from collateral order appeal. . . . [A] party may petition the court of 16 Case: 09-17241 12/11/2009 Page: 17 of 38 ID: 7161560 DktEntry: 37-1 a p p e a ls for a writ of mandamus."). In Schlagenhauf v. Holder, 379 U.S. 104 (1 9 6 4 ), for example, the Supreme Court relied on mandamus to answer the novel q ue s tio n whether Federal Rule of Civil Procedure 35 authorized the physical and me nta l examination of a defendant. "The opinion affords strong support for the us e of supervisory or advisory mandamus to review a discovery question that ra is e s a novel and important question of power to compel discovery, or that reflects s ub s ta ntia l uncertainty and confusion in the district courts." Wright & Miller 3935.3. C o ns is te nt with Schlagenhauf, we have exercised mandamus jurisdiction to re vie w discovery orders raising particularly important questions of first imp re s s io n, especially when called upon to define the scope of an important p rivile ge . In Admiral Insurance, for example, we granted the mandamus petition to resolve "a significant issue of first impression concerning the proper scope of the attorney-client privilege." 881 F.2d at 1488. Taiwan v. United States District C o u r t, 128 F.3d 712 (9th Cir. 1997), likewise involved review of another issue of firs t impression the scope of testimonial immunity under the Taiwan Relations A c t. Id. at 714. Finally, in Foley, we exercised our mandamus authority to address a n "important issue of first impression" in a context similar to that here whether 17 Case: 09-17241 12/11/2009 Page: 18 of 38 ID: 7161560 DktEntry: 37-1 le gis la to rs can be deposed to determine their subjective motives for enacting a law c ha lle nge d as violative of the First Amendment. 747 F.2d at 1296. H e re , too, we are asked to address an important issue of first impression the scope of the First Amendment privilege against compelled disclosure of inte rna l campaign communications. Considering the Bauman factors, we conclude tha t this is an extraordinary case in which mandamus review is warranted. If no collateral order appeal is available, the first factor would indisputably b e present: "A discovery order . . . is interlocutory and non-appealable" under 28 U .S .C . 1291, 1292(a)(1) and 1292(b). Foley, 747 F.2d at 1297; see also id. (" M a nd a mus review has been held to be appropriate for discovery matters which o the rw is e would be reviewable only on direct appeal after resolution on the me rits ." ). In Admiral Insurance, for example, we held that the first Bauman factor w a s satisfied because "the petitioner lacks an alternative avenue for relief." 881 F.2 d at 1488. T he second factor also supports mandamus. A post-judgment appeal would no t provide an effective remedy, as "no such review could prevent the damage that [P ro p o ne nts ] allege they will suffer or afford effective relief therefrom." In re C e m e n t Antitrust Litig., 688 F.2d 1297, 1302 (9th Cir. 1982); see Star Editorial, In c . v. U.S. Dist. Court, 7 F.3d 856, 859 (9th Cir. 1993) ("[I]f the district court 18 Case: 09-17241 12/11/2009 Page: 19 of 38 ID: 7161560 DktEntry: 37-1 e rre d in compelling disclosure, any damage the [newspaper] suffered would not be c o rre c ta b le on appeal."); Admiral Ins., 881 F.2d at 1491 (holding that the second fa c to r was satisfied in view of "the irreparable harm a party likely will suffer if e rro ne o us ly required to disclose privileged materials or communications"). One injury to Proponents' First Amendment rights is the disclosure itself. Regardless o f whether they prevail at trial, this injury will not be remediable on appeal. See In r e Cement Antitrust Litig., 688 F.2d at 1302 ("[A] post-judgment reversal on a p p e a l could not provide a remedy for those injuries."). If Proponents prevail at tria l, vindication of their rights will be not merely delayed but also entirely p re c lud e d . See id. ("Moreover, whatever collateral injuries petitioners suffer will ha ve been incurred even if they prevail fully at trial and thus have no right to a p p e a l from the final judgment."). U nd e r the second factor, we also consider the substantial costs imposed on the public interest. The district court applied an unduly narrow conception of First A me nd me nt privilege. Under that interpretation, associations that support or o p p o s e initiatives face the risk that they will be compelled to disclose their internal c a mp a ign communications in civil discovery. This risk applies not only to the o ffic ia l proponents of initiatives and referendums, but also to the myriad social, e c o no mic , religious and political organizations that publicly support or oppose 19 Case: 09-17241 12/11/2009 Page: 20 of 38 ID: 7161560 DktEntry: 37-1 b a llo t measures. The potential chilling effect on political participation and debate is therefore substantial, even if the district court's error were eventually corrected o n appeal from final judgment. In this sense, our concerns in this case mirror those w e articulated in Foley, where the district court denied the city's motion for a p ro te c tive order to prevent plaintiffs from deposing city officials about their re a s o ns for passing a zoning ordinance. Absent swift appellate review, we e xp la ine d , "legislators could be deposed in every case where the governmental inte re s t in a regulation is challenged." 747 F.2d at 1296. More concerning still is the possibility that if Proponents ultimately prevail in the district court, there would b e no appeal at all of the court's construction of the First Amendment privilege. Declining to exercise our mandamus jurisdiction in this case, therefore, "`would imp e ril a substantial public interest' or `some particular value of a high order.'" Mohawk, 558 U.S. at --, slip op. at 6 (quoting Will, 546 U.S. at 352-53). T he third factor, clear error, is also met. As discussed below, we are firmly c o nvinc e d that the district court erred by limiting the First Amendment privilege to " the identities of rank-and-file volunteers and similarly situated individuals" and a ffo rd ing no greater protection to Proponents' internal communications than the ge ne ro us relevance standard of Federal Rule of Civil Procedure 26. See In re C e m e n t Antitrust Litig., 688 F.2d at 1306-07 ("[W]hen we are firmly convinced 20 Case: 09-17241 12/11/2009 Page: 21 of 38 ID: 7161560 DktEntry: 37-1 tha t a district court has erred in deciding a question of law, we may hold that the d is tric t court's ruling is `clearly erroneous as a matter of law as that term is used in ma nd a mus analysis.'") (quoting Bauman, 557 F.2d at 660). "[Plaintiffs'] need for info rma tio n is only one facet of the problem." Cheney, 542 U.S. at 385. A p o litic a l campaign's communications and activities "encompass a vastly wider ra nge of sensitive material" protected by the First Amendment than would be true in the normal discovery context. Id. at 381; see Foley, 747 F.2d at 1298-99. Thus, " [a ]n important factor weighing in the opposite direction is the burden imposed by the discovery orders. This is not a routine discovery dispute." Cheney, 542 U.S. at 385. Fina lly, the fifth factor weighs in favor of exercise of our supervisory ma nd a mus authority: we are faced with the need to resolve a significant question o f first impression. See, e.g., Schlagenhauf, 379 U.S. at 110-11 (finding ma nd a mus jurisdiction appropriate where there was an issue of first impression c o nc e rning the district court's application of Federal Rule of Civil Procedure 35 in a new context); Foley, 747 F.2d at 1296. As these cases and the very existence o f the fifth Bauman factor, whether the issue presented is one of first impression illus tra te , the necessary "clear error" factor does not require that the issue be one as to which there is established precedent. Moreover, this novel and important 21 Case: 09-17241 12/11/2009 Page: 22 of 38 ID: 7161560 DktEntry: 37-1 q ue s tio n may repeatedly evade review because of the collateral nature of the d is c o ve ry ruling. See In re Cement Antitrust Litig., 688 F.2d at 1304-05 ("[A]n imp o rta nt question of first impression will evade review unless it is considered und e r our supervisory mandamus authority. Moreover, that question may continue to evade review in other cases as well."); Colonial Times, Inc. v. Gasch, 509 F.2d 5 1 7 , 524-26 (D.C. Cir. 1975) (exercising mandamus jurisdiction to correct an error in a discovery order). In sum, assuming that collateral order review is not available, this is an imp o rta nt case for exercise of our mandamus jurisdiction: adequate, alternative me a ns of review are unavailable; the harm to Proponents and to the public interest is not correctable on appeal; the district court's discovery order is clearly e rro ne o us ; and it presents a significant issue of first impression that may repeatedly e va d e review. As in Foley, a closely analogous case, these factors "remove this c a s e from the category of ordinary discovery orders where interlocutory appellate re vie w is unavailable, through mandamus or otherwise." Cheney, 542 U.S. at 381. Accordingly, we hold that the exercise of our supervisory mandamus authority is a p p ro p ria te . 22 Case: 09-17241 12/11/2009 Page: 23 of 38 ID: 7161560 DktEntry: 37-1 I I I . FIRST AMENDMENT PRIVILEGE3 A. " E ffe c tive advocacy of both public and private points of view, particularly c o ntro ve rs ia l ones, is undeniably enhanced by group association." NAACP v. A la b a m a , 357 U.S. 449, 460 (1958); see also Roberts v. U.S. Jaycees, 468 U.S. 6 0 9 , 622 (1984) ("An individual's freedom to speak, to worship, and to petition the go ve rnme nt for the redress of grievances could not be vigorously protected from inte rfe re nc e by the State unless a correlative freedom to engage in group effort to w a rd those ends were not also guaranteed."). Thus, "[t]he First Amendment p ro te c ts political association as well as political expression," Buckley v. Valeo, 424 U .S . 1, 15 (1976), and the "freedom to associate with others for the common a d va nc e me nt of political beliefs and ideas is . . . protected by the First and Fo urte e nth Amendments." Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). "The right to associate for expressive purposes is not, however, absolute." Roberts, 468 U .S . at 623. "Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that We review de novo a determination of privilege. United States v. Ruehle, 5 8 3 F.3d 600, 606 (9th Cir. 2009) (attorney-client privilege). 23 3 Case: 09-17241 12/11/2009 Page: 24 of 38 ID: 7161560 DktEntry: 37-1 c a nno t be achieved through means significantly less restrictive of associational fre e d o ms ." Id. T he government may abridge the freedom to associate directly, or " a b rid ge me nt of such rights, even though unintended, may inevitably follow from va rie d forms of governmental action." NAACP, 357 U.S. at 461. Thus, the go ve rnme nt must justify its actions not only when it imposes direct limitations on a s s o c ia tio na l rights, but also when governmental action "would have the practical e ffe c t `of discouraging' the exercise of constitutionally protected political rights." Id. (quoting Am. Commc'ns Ass'n v. Douds, 339 U.S. 382, 393 (1950)). Such a c tio ns have a chilling effect on, and therefore infringe, the exercise of fund a me nta l rights. Accordingly, they "must survive exacting scrutiny." Buckley, 4 2 4 U.S. at 64. T he compelled disclosure of political associations can have just such a c hilling effect. See id. ("[W]e have repeatedly found that compelled disclosure, in its e lf, can seriously infringe on privacy of association and belief guaranteed by the Firs t Amendment."); AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) ("The S up re me Court has long recognized that compelled disclosure of political a ffilia tio ns and activities can impose just as substantial a burden on First 24 Case: 09-17241 12/11/2009 Page: 25 of 38 ID: 7161560 DktEntry: 37-1 A me nd me nt rights as can direct regulation.").4 Disclosures of political affiliations a nd activities that have a "deterrent effect on the exercise of First Amendment rights " are therefore subject to this same "exacting scrutiny." Buckley, 424 U.S. at 6 4 -6 5 . A party who objects to a discovery request as an infringement of the p a rty' s First Amendment rights is in essence asserting a First Amendment p r iv ile g e . See, e.g., Black Panther Party v. Smith, 661 F.2d 1243, 1264 (D.C. Cir. 1 9 8 1 ), cert. granted and vacated as moot, 458 U.S. 1118 (1982); see also Fed. R. C iv. P. 26(b)(1) ("Parties may obtain discovery regarding any nonprivileged matter tha t is relevant to any party's claim or defense[.]") (emphasis added).5 In this circuit, a claim of First Amendment privilege is subject to a two-part fra me w o rk . The party asserting the privilege "must demonstrate . . . a `prima facie See, e.g., NAACP, 357 U.S. at 461-64 (prohibiting the compelled disclosure o f the NAACP membership lists); Bates v. City of Little Rock, 361 U.S. 516, 5252 7 (1960) (same); DeGregory v. Attorney Gen., 383 U.S. 825, 828-30 (1966) (p ro hib iting the state from compelling defendant to discuss his association with the C o mmunis t Party); Buckley, 424 U.S. at 63-74 (recognizing the burden but up ho ld ing the compelled disclosure of campaign contributor information under the " e xa c ting scrutiny" standard). This privilege applies to discovery orders "even if all of the litigants are p riva te entities." Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987); s e e also Adolph Coors Co. v. Wallace, 570 F. Supp. 202, 208 (N.D. Cal. 1983) (" [A ] private litigant is entitled to as much solicitude to its constitutional gua ra nte e s of freedom of associational privacy when challenged by another private p a rty, as when challenged by a government body.") (footnote omitted). 25 5 4 Case: 09-17241 12/11/2009 Page: 26 of 38 ID: 7161560 DktEntry: 37-1 s ho w ing of arguable first amendment infringement.'" Brock v. Local 375, Plu m b e r s Int'l Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United S ta te s v. Trader's State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)). "This prima facie showing requires appellants to demonstrate that enforcement of the [discovery requests] will result in (1) harassment, membership withdrawal, or d is c o ura ge me nt of new members, or (2) other consequences which objectively s ugge s t an impact on, or `chilling' of, the members' associational rights." Id. at 3 5 0 . 6 "If appellants can make the necessary prima facie showing, the evidentiary b urd e n will then shift to the government . . . [to] demonstrate that the information s o ught through the [discovery] is rationally related to a compelling governmental inte re s t . . . [and] the `least restrictive means' of obtaining the desired info rma tio n." Id.; see also Dole v. Serv. Employees Union, AFL-CIO, Local 280, 9 5 0 F.2d 1456, 1459-61 (9th Cir. 1991) (same). More specifically, the second step A protective order limiting the dissemination of disclosed associational info rma tio n may mitigate the chilling effect and could weigh against a showing of infringe me nt. The mere assurance that private information will be narrowly rather tha n broadly disseminated, however, is not dispositive. See Dole v. Serv. E m p lo y e e s Union, AFL-CIO, Local 280, 950 F.2d 1456, 1461 (9th Cir. 1991) (" [N ]e ithe r letter suggests that it is the unlimited nature of the disclosure of the U nio n minutes that underlies the member's unwillingness to attend future me e tings . Rather, both letters exhibit a concern for the consequences that would flo w from any disclosure of the contents of the minutes to the government or any go ve rnme nt official."). 26 6 Case: 09-17241 12/11/2009 Page: 27 of 38 ID: 7161560 DktEntry: 37-1 o f the analysis is meant to make discovery that impacts First Amendment a s s o c ia tio na l rights available only after careful consideration of the need for such d is c o ve ry, but not necessarily to preclude it. The question is therefore whether the p a rty seeking the discovery "has demonstrated an interest in obtaining the d is c lo s ure s it seeks . . . which is sufficient to justify the deterrent effect . . . on the fre e exercise . . . of [the] constitutionally protected right of association." NAACP, 3 5 7 U.S. at 463. To implement this standard, we "balance the burdens imposed on individuals a nd associations against the significance of the . . . interest in disclosure," AFLC IO v. FEC, 333 F.3d at 176, to determine whether the "interest in disclosure . . . o utw e ighs the harm," Buckley, 424 U.S. at 72. This balancing may take into a c c o unt, for example, the importance of the litigation, see Dole, 950 F.2d at 1461 (" [T ]he re is little doubt that the . . . purpose of investigating possible criminal vio la tio ns . . . serves a compelling governmental interest[.]"); the centrality of the info rma tio n sought to the issues in the case, see NAACP, 357 U.S. at 464-65; G r a n d b o u c h e v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987); Black Panther Pa r ty , 661 F.2d at 1268; the existence of less intrusive means of obtaining the info rma tio n, see Grandbouche, 825 F.2d at 1466; Black Panther Party, 661 F.2d at 1 2 6 8 ; and the substantiality of the First Amendment interests at stake, see Buckley, 27 Case: 09-17241 12/11/2009 Page: 28 of 38 ID: 7161560 DktEntry: 37-1 4 2 4 U.S. at 71 (weighing the seriousness of "the threat to the exercise of First A me nd me nt rights" against the substantiality of the state's interest); Black Panther Pa r ty , 661 F.2d at 1267 ("The argument in favor of upholding the claim of p rivile ge will ordinarily grow stronger as the danger to rights of expression and a s s o c ia tio n increases.").7 Importantly, the party seeking the discovery must show tha t the information sought is highly relevant to the claims or defenses in the litiga tio n a more demanding standard of relevance than that under Federal Rule o f Civil Procedure 26(b)(1). The request must also be carefully tailored to avoid unne c e s s a ry interference with protected activities, and the information must be o the rw is e unavailable. B e fo re we apply these rules to the discovery at issue on this appeal, we a d d re s s the district court's apparent conclusion that the First Amendment privilege, a s a categorical matter, does not apply to the disclosure of internal campaign c o mmunic a tio ns . B. T he district court concluded that "[i]f the . . . privilege identified by p ro p o ne nts protects anything, it is the identities of rank-and-file volunteers and Courts generally apply some combination of these factors. See, e.g., In re M o to r Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 412-15 (D. Kan. 2 0 0 9 ); Adolph Coors Co., 570 F. Supp. at 208. 28 7 Case: 09-17241 12/11/2009 Page: 29 of 38 ID: 7161560 DktEntry: 37-1 s imila rly situated individuals," and said that "Proponents have not . . . identified a w a y in which the . . . privilege could protect the disclosure of campaign c o mmunic a tio ns ." The First Amendment privilege, however, has never been limite d to the disclosure of identities of rank-and-file members. See, e.g., D e G r e g o r y , 383 U.S. at 828 (applying the privilege to "the views expressed and id e a s advocated" at political party meetings); Dole, 950 F.2d at 1459 (applying p rivile ge to statements "of a highly sensitive and political character" made at union me mb e rs hip meetings). The existence of a prima facie case turns not on the type o f information sought, but on whether disclosure of the information will have a d e te rre nt effect on the exercise of protected activities. See NAACP, 357 U.S. at 4 6 0 -6 1 ; Brock, 860 F.2d at 349-50. We have little difficulty concluding that d is c lo s ure of internal campaign communications can have such an effect on the e xe rc is e of protected activities. First, the disclosure of such information can have a deterrent effect on p a rtic ip a tio n in campaigns. There is no question that participation in campaigns is a protected activity. See San Francisco County Democratic Cent. Comm. v. Eu, 8 2 6 F.2d 814, 827 (9th Cir. 1987) ("`[T]he right of individuals to associate for the a d va nc e me nt of political beliefs' is fundamental.") (quoting Williams v. Rhodes, 3 9 3 U.S. 23, 30 (1968)). Compelled disclosure of internal campaign information 29 Case: 09-17241 12/11/2009 Page: 30 of 38 ID: 7161560 DktEntry: 37-1 c a n deter that participation. See Buckley, 424 U.S. at 68 ("It is undoubtedly true tha t public disclosure of contributions to candidates and political parties will deter s o me individuals who otherwise might contribute."); In re Motor Fuel T e m p e r a tu r e Sales Practices Litig., 258 F.R.D. 407, 414 (D. Kan. 2009) (holding tha t disclosure of "trade associations' internal communications and evaluations a b o ut advocacy of their members' positions on contested political issues" might re a s o na b ly "interfere with the core of the associations' activities by inducing me mb e rs to withdraw . . . or dissuading others from joining").8 S e c o nd , disclosure of internal campaign information can have a deterrent e ffe c t on the free flow of information within campaigns. Implicit in the right to a s s o c ia te with others to advance one's shared political beliefs is the right to e xc ha nge ideas and formulate strategy and messages, and to do so in private.9 In addition to discouraging individuals from joining campaigns, the threat tha t internal campaign communications will be disclosed in civil litigation can d is c o ura ge organizations from joining the public debate over an initiative. See Le tte r brief of Amicus Curiae American Civil Liberties Union of Northern C a lifo rnia , at 2 (explaining that the ACLU's internal campaign information has b e e n subpoenaed in this case). We derive this conclusion from cases that have recognized the right of a s s o c ia tio ns to be free of infringements in their internal affairs. The freedom of me mb e rs of a political association to deliberate internally over strategy and me s s a ging is an incident of associational autonomy. We recognized this right in S a n Francisco County Democratic Central Committee v. Eu, where we said that (c o ntinue d ...) 30 9 8 Case: 09-17241 12/11/2009 Page: 31 of 38 ID: 7161560 DktEntry: 37-1 C o mp e lling disclosure of internal campaign communications can chill the exercise o f these rights. In identifying two ways in which compelled disclosure of internal campaign c o mmunic a tio ns can deter protected activities by chilling participation and by muting the internal exchange of ideas we do not suggest this is an exhaustive list. Disclosures of the sort challenged here could chill protected activities in other (...continued) " the right of association would be hollow without a corollary right of s e lf-go ve rna nc e ." 826 F.2d at 827. "[T]here must be a right not only to form p o litic a l associations but to organize and direct them in the way that will make the m most effective." Id. (quoting Ripon Soc'y Inc. v. Nat'l Republican Party, 525 F.2 d 567, 585 (D.C. Cir. 1975) (en banc)) (internal quotation marks omitted); see a ls o Tashjian v. Republican Party of Conn., 479 U.S. 208, 224 (1986) ("The Party's determination of the boundaries of its own association, and of the structure w hic h best allows it to pursue its political goals, is protected by the Constitution."); E u v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 231 n.21 (1 9 8 9 ) ("By regulating the identity of the parties' leaders, the challenged statutes ma y also color the parties' message and interfere with the parties' decisions as to the best means to promote that message."). The government may not "interfere w ith a [political] party's internal affairs" absent a "compelling state interest." Eu, 4 8 9 U.S. at 231. Associations, no less than individuals, have the right to shape the ir own messages. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342, 3 4 8 (1995) (striking down a state law prohibiting anonymous pamphleteering in p a rt because the First Amendment includes a speaker's right to choose a manner of e xp re s s io n that she believes will be most persuasive); AFL-CIO v. FEC, 333 F.3d a t 177 ("[E]xtensive interference with political groups' internal operations and w ith their effectiveness . . . implicate[s] significant First Amendment interests in a s s o c ia tio na l autonomy."). 31 9 Case: 09-17241 12/11/2009 Page: 32 of 38 ID: 7161560 DktEntry: 37-1 w a ys as well.10 We cite these two examples for purposes of illustration only, and b e c a us e they are relevant to the assertions of privilege made by Proponents here. C. In this case, Proponents have made "a `prima facie showing of arguable first a me nd me nt infringement'" by demonstrating "consequences which objectively s ugge s t an impact on, or `chilling' of, . . . associational rights." Brock, 860 F.2d at 3 4 9 -5 0 (quoting Trader's State Bank, 695 F.2d at 1133). Mark Jansson, a member o f ProtectMarriage.com's ad hoc executive committee, stated: I can unequivocally state that if the personal, non-public c o mmunic a tio ns I have had regarding this ballot initiative communications that expressed my personal political and mo ra l views are ordered to be disclosed through d is c o ve ry in this matter, it will drastically alter how I c o mmunic a te in the future. . . . I will be less willing to engage in such communications k no w in g that my private thoughts on how to petition the go ve rnme nt and my private political and moral views may 10 See AFL-CIO v. FEC, 333 F.3d at 176-77 ("[T]he AFL-CIO and DNC a ffid a vits charge that disclosing detailed descriptions of training programs, me mb e r mobilization campaigns, polling data, and state-by-state strategies will d ire c tly frustrate the organizations' ability to pursue their political goals effectively b y revealing to their opponents `activities, strategies and tactics [that] we have p urs ue d in subsequent elections and will likely follow in the future.'"); In re Motor Fu e l Temperature Sales Practices Litig., 258 F.R.D. at 415 ("Disclosure of the a s s o c ia tio ns ' evaluations of possible lobbying and legislative strategy certainly c o uld be used by plaintiffs to gain an unfair advantage over defendants in the p o litic a l arena."). 32 Case: 09-17241 12/11/2009 Page: 33 of 38 ID: 7161560 DktEntry: 37-1 b e disclosed simply because of my involvement in a ballot initia tive campaign. I also would have to seriously c o ns id e r whether to even become an official proponent a ga in. A ltho ugh the Jansson declaration is lacking in particularity, it is consistent with the s e lf-e vid e nt conclusion that important First Amendment interests are implicated by the plaintiffs' discovery request. The declaration creates a reasonable inference tha t disclosure would have the practical effects of discouraging political a s s o c ia tio n and inhibiting internal campaign communications that are essential to e ffe c tive association and expression. See Dole, 950 F.2d at 1459-61 (holding that the union satisfied its prima facie burden by submitting the declarations of two me mb e rs who said they would no longer participate in union membership meetings if the disclosure of the minutes of the meetings were permitted). A protective o rd e r limiting dissemination of this information will ameliorate but cannot e limina te these threatened harms. Proponents have therefore made a prima facie s ho w ing that disclosure could have a chilling effect on protected activities. The c hilling effect is not as serious as that involved in cases such as NAACP v. A la b a m a , 357 U.S. 449 (1958), but neither is it insubstantial. See AFL-CIO v. FEC, 3 3 3 F.3d at 176 ("Although we agree that the evidence in this case is far less c o mp e lling than the evidence presented in cases involving groups whose members 33 Case: 09-17241 12/11/2009 Page: 34 of 38 ID: 7161560 DktEntry: 37-1 ha d been subjected to violence, economic reprisals, and police or private ha ra s s me nt, that difference speaks to the strength of the First Amendment interests a s s e rte d , not to their existence.") (citations omitted). T he Proponents having made a prima facie showing of infringement, the e vid e ntia ry burden shifts to the plaintiffs to demonstrate a sufficiently compelling ne e d for the discovery to counterbalance that infringement. The district court did no t apply this heightened relevance test. Rather, having determined that the First A me nd me nt privilege does not apply to the disclosure of internal campaign c o mmunic a tio ns except to protect the identities of rank-and-file members and vo lunte e rs , the court applied the Rule 26 standard of reasonably calculated to lead to the discovery of admissible evidence. We agree with the district court that p la intiffs ' request satisfies the Rule 26 standard. Plaintiffs' request is reasonably c a lc ula te d to lead to the discovery of admissible evidence on the issues of voter inte nt and the existence of a legitimate state interest.11 Such discovery might help to identify messages actually conveyed to voters. See Washington v. Seattle Sch. D is t. No. 1, 458 U.S. 457, 471 (1982) (considering statements made by proponents The parties dispute whether plaintiffs' substantive claims are governed by s tric t scrutiny or rational basis review. They also disagree about what types of e vid e nc e may be relied upon to demonstrate voter intent. These issues are beyond the scope of this appeal. We assume without deciding that the district court has d e c id e d these questions correctly. 34 11 Case: 09-17241 12/11/2009 Page: 35 of 38 ID: 7161560 DktEntry: 37-1 d uring an initiative campaign to determine whether voters adopted an initiative for a n improper purpose). It also might lead to the discovery of evidence showing that P ro p o ne nts ' campaign messages were designed to "appeal[] to the . . . biases of the vo te rs ." Id. at 463 (quoting Seattle Sch. Dist. No. 1 v. Washington, 473 F. Supp. 9 9 6 , 1009 (W.D. Wash. 1979)). It might reasonably lead to the discovery of e vid e nc e undermining or impeaching Proponents' claims that Proposition 8 serves le gitima te state interests. See Romer v. Evans, 517 U.S. 620, 635 (1996) ("[A] law mus t bear a rational relationship to a legitimate governmental purpose."). T he Rule 26 standard, however, fails to give sufficient weight to the First A me nd me nt interests at stake. Given Proponents' prima facie showing of infringe me nt, we must apply the First Amendment's more demanding heightened re le va nc e standard. Doing so, we cannot agree that plaintiffs have "demonstrated a n interest in obtaining the disclosures . . . which is sufficient to justify the d e te rre nt effect . . . on the free exercise . . . of [the] constitutionally protected right o f association." NAACP, 357 U.S. at 463. Plaintiffs can obtain much of the info rma tio n they seek from other sources, without intruding on protected activities. Proponents have already agreed to produce all communications actually d is s e mina te d to voters, including "communications targeted to discrete voter 35 Case: 09-17241 12/11/2009 Page: 36 of 38 ID: 7161560 DktEntry: 37-1 gro up s ." 12 Whether campaign messages were designed to appeal to voters' a nimo s ity toward gays and lesbians is a question that appears to be susceptible to e xp e rt testimony, without intruding into private aspects of the campaign. Whether P ro p o s itio n 8 bears a rational relationship to a legitimate state interest is primarily a n objective inquiry. In sum, although the First Amendment interests at stake here are not as w e ighty as in some of the membership list cases, and harms can be mitigated in p a rt by entry of a protective order, Proponents have shown that discovery would lik e ly have a chilling effect on political association and the formulation of political e xp re s s io n. On the other side of the ledger, plaintiffs have shown that the info rma tio n they seek is reasonably calculated to lead to the discovery of a d mis s ib le evidence, but, bearing in mind other sources of information, they have no t shown a sufficiently compelling need for the information. The information 12 Our holding is limited to private, internal campaign communications c o nc e rning the formulation of campaign strategy and messages. Proponents cannot a vo id disclosure of broadly disseminated materials by stamping them "private" and c la iming an "associational bond" with large swaths of the electorate. See In re M o to r Fuel Temperature Sales Practices Litig., 258 F.R.D. at 415 ("The court w is he s to make clear that defendants have met their prima facie burden only with re s p e c t to the associations' internal evaluations of lobbying and legislation, s tra te gic planning related to advocacy of their members' positions, and actual lo b b ying on behalf of members. Any other communications to, from, or within tra d e associations are not deemed protected under the First Amendment a s s o c ia tio na l privilege."). 36 Case: 09-17241 12/11/2009 Page: 37 of 38 ID: 7161560 DktEntry: 37-1 p la intiffs seek is attenuated from the issue of voter intent, while the intrusion on Firs t Amendment interests is substantial.13 A c c o rd ingly, we reverse the October 1 and November 11 orders. Proponents have made a prima facie showing of infringement. Plaintiffs have not s ho w n the requisite need for the information sought. The district court shall enter a p ro te c tive order consistent with this opinion. R E V E R S E D AND REMANDED. Each party shall bear its costs on a p p e a l. We do not foreclose the possibility that some of Proponents' internal c a mp a ign communications may be discoverable. We are not presented here with a c a re fully tailored request for the production of highly relevant information that is una va ila b le from other sources that do not implicate First Amendment a s s o c ia tio na l interests. We express no opinion as to whether any particular request w o uld override the First Amendment interests at stake. 37 13 Case: 09-17241 12/11/2009 Page: 38 of 38 ID: 7161560 DktEntry: 37-1 C ouns e l A nd re w P. Pugno, Law Offices of Andrew P. Pugno, Folsom, California; B ria n W. Raum and James A. Campbell, Alliance Defense Fund, Scottsdale, A riz o na ; Charles J. Cooper (argued), David H. Thompson, Howard C. Nielson, Jr., N ic o le J. Moss, Jesse Panuccio and Peter A. Patterson, Cooper and Kirk, PLLC, W a s hingto n, D.C., for Defendant-Intervenors-Appellants. T he o d o re J. Boutrous, Jr. (argued), Rebecca Justice Lazarus, Enrique A. M o na ga s , Gibson, Dunn & Crutcher LLP, Los Angeles, California; Theodore B. O ls o n, Matthew D. McGill and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, W a s hingto n, D.C., for Plaintiffs-Appellees. Stephen V. Bomse, Orrick, Herrington & Sutcliffe LLP, San Francisco, C a lifo rnia , Allan L. Schlosser and Elizabeth O. Gill, ACLU Foundation of N o rthe rn California, for Amicus Curiae American Civil Liberties Union of N o rthe rn California. R o b e rt H. Tyler and Jennifer Lynn Monk, Advocates for Faith and Freedom, M urrie ta , California, for Amici Curiae Schubert Flint Public Affairs, Inc., Frank S c hub e rt and Jeff Flint. 38