Curling et al v. Kemp et al

Filing 1203

ORDER resolving the parties' discovery disputes raised in Docs. 1190 and 1195. See order for details. Signed by Judge Amy Totenberg on 11/5/2021. (amb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

DONNA CURLING, et al.,
Plaintiffs,
v.
BRAD RAFFENSPERGER, et al.,
Defendants.

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CIVIL ACTION NO.
1:17-cv-2989-AT

ORDER
This matter is before the Court on a discovery dispute [Docs. 1190 and 1195]
between the Curling Plaintiffs and the State Defendants. The State Defendants seek
to depose the Curling Plaintiffs about their political advocacy work relating to
elections, election administration, and election technology in Georgia. According
to the State Defendants, they seek to pursue this line of questioning as a means of
exploring the Curling Plaintiffs’ motivations for bringing this lawsuit, their
potential lack of standing, and their credibility as witnesses. In addition to asking
the Curling Plaintiffs about their advocacy work, the State Defendants seek to ask
the Curling Plaintiffs about their specific conversations with other individuals,
including elected officials, and organizations through the course of their advocacy
work. The Curling Plaintiffs object to this line of questioning on the grounds that

it is not relevant and concerns information that is privileged under the First
Amendment.
The Court held a teleconference with the parties on October 20, 2021 to
discuss this discovery dispute. The Curling Plaintiffs each submitted affidavits
after the teleconference, and both parties submitted briefs in support of their
respective positions. In their filing, the Curling Plaintiffs argue that allowing the
State Defendants to inquire about their advocacy-related communications would
produce a chilling effect on their associational rights in violation of the First
Amendment. The Curling Plaintiffs represent that if those communications were
disclosed, they would not feel free to share their opinions. They further contend
that disclosure could affect the willingness of legislators, experts, organizations,
and voters, to associate with them. (Doc. 1190 at 3–4); (see, e.g., Docs. 1190-1 ¶ 6;
1190-2 ¶¶ 5, 9; and 1190-3 ¶ 9). By the same token, this disclosure could impact the
Curling Plaintiffs’ personal ability to access and associate with legislators, voters,
and other individuals and the efficacy of their advocacy.
In their response, the State Defendants argue that they are entitled to ask
the Curling Plaintiffs about their motivations for bringing suit because the answers
to these questions could shed light on whether the Curling Plaintiffs have standing.
For example, the State Defendants suggest that the Curling Plaintiffs would lack
standing if their “true motivation” for bringing suit was to “favor preferred political
candidates or parties,” “overturn the loss of their favored political candidate,” or
“simply advance their personal feelings for election technology.” (Doc. 1195 at 9.)
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Under Fed. R. Civ. P. 26(b), “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” “An individual . . . may invoke the First
Amendment privilege in response to a Rule 26 discovery request when it can show
– with an ‘objectively reasonable probability’ – that ‘compelled disclosure will chill
associational rights.’” Flynn v. Square One Distrib., Inc., No. 6:16-mc-25-ORL37TBS, 2016 WL 2997673, at *2 (M.D. Fla. May 25, 2016) (quoting All. of Auto.
Mfrs., Inc. v. Julie L. Jones, No. 4:08-cv-555, 2013 WL 4838764, at *4 (N.D. Fla.
Sept. 11, 2013)). “A party asserting a privilege or other protection against discovery
normally has the obligation to establish, by affidavit of a competent witness or
other evidence, all facts essential to the establishment of the privilege or
protection.” Id. at *3. To determine whether the discovery should be allowed, a
court must balance the burden the information sought would impose on the
deponent’s associational rights with the party seeking the discovery’s interest in
disclosure. Perry v. Schwarzenegger, 591 F.3d 1147, 1161 (9th Cir. 2010).
As a threshold matter, the affidavits submitted by the Curling Plaintiffs raise
an objectively reasonable probability that the disclosure of their private
communications would chill their exercise of First Amendment rights. Cf. id. at
1163 (“The declaration creates a reasonable inference that disclosure would have
the practical effects of discouraging political association and inhibiting internal
campaign communications that are essential to effective association and
expression.”). Therefore, the burden shifts to the State Defendants to show that
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their interest in disclosure outweighs any First Amendment harm to the Curling
Plaintiffs. To do so, the State Defendants must show that the information they seek
is “highly relevant to the claims or defenses in the litigation.” Id. at 1161. In
addition, the State Defendants’ request must “be carefully tailored to avoid
unnecessary interference with protected activities,” and the information they seek
“must be otherwise unavailable.” Id.
As the State Defendants argue, the Curling Plaintiffs’ motivations for
bringing suit could be a highly relevant consideration for purposes of determining
whether the Curling Plaintiffs have standing. That said, the State Defendants can
still explore the Curling Plaintiffs’ motivations for bringing suit without interfering
with their associational rights by requiring them to disclose the identities of
persons with whom they had private conversations. Accordingly, the Court finds
that the State Defendants’ interest in disclosure does not outweigh the potential
First Amendment harm to the Curling Plaintiffs to the extent they seek to ask the
Curling Plaintiffs about the identities of specific individuals or organizations with
whom they spoke, or the particular offices with which any of those individuals may
have been associated. The Curling Plaintiffs thus will not be required to answer any
questions on these topics. The Curling Plaintiffs also will not be required to
disclose any information that could potentially reveal the identities of individuals,
organizations, or officeholders with whom they spoke, such as the county in which
an individual was elected or the divisions of the state in which an individual was
employed.
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However, bearing in mind that the potential harm to the Curling Plaintiffs’
associational rights must be balanced against the State Defendants’ interest in
disclosure, the Court finds that the State Defendants may ask the Curling Plaintiffs
relevant questions about the substance of conversations they have had through the
course of their advocacy work generally. For example, the State Defendants could
ask the Curling Plaintiffs whether they have told anyone that the purpose of the
present litigation is to ensure certain election outcomes or the enactment of their
personal policy preferences.1 The Court provides the following non-exhaustive list
of permissible topics as guidance to the parties:
• whether they talked to any elected officials or election administrators
in the course of their advocacy work;
• whether they talked to elected officials at the state level as opposed to
elected officials at the federal or local levels;
• whether they talked to individuals other than elected officials or
election administrators in the course of their advocacy work;
• whether they regularly attended political party functions; and
• whether their concerns related to the present litigation are about the
outcomes of elections or the candidates who are being elected.

The State Defendants are not permitted to ask the identity of anyone with whom the Curling
Plaintiffs spoke about these topics. However, the State Defendants are permitted to ask whether
the Curling Plaintiffs spoke with elected officials generally about these topics.
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The Court advises the State Defendants that relevance will be narrowly construed
considering the First Amendment rights at stake. See Perry, 591 F.3d at 1161
(noting that when First Amendment rights are implicated “the party seeking the
discovery must show that the information sought is highly relevant to the claims
or defenses in the litigation—a more demanding standard of relevance than that
under Federal Rule of Civil Procedure 26(b)(1)”) (emphasis added).
IT IS SO ORDERED this 5th day of November, 2021.
____________________________
Honorable Amy Totenberg
United States District Judge

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