Natural Resources Defense Council et al v. Ameren Energy Resources Company LLC et al

Filing 90

ORDER & OPINION entered by Judge Joe Billy McDade on 8/17/2015. The Court GRANTS IN PART AND DENIES IN PART Movants Appeal of the Magistrate Judges Order Compelling Disclosure of Certain Communications. 80 . The order entered by Magistrate Judge To m Schanzle-Haskins on June 17, 2015 79 is MODIFIED AS FOLLOWS: Document Request No. 1 in the Notice is modified to require that McFadden produce unprivileged documents that contain: (1) any statement made by the Named Standing Witness concerning E dwards; and (2) any communication from McFadden to a Named Standing Witness to which the Named Standing Witnessresponded with a statement concerning Edwards. McFadden need not produce thethird category of documents: any response by McFadden to any statement made bythe Named Standing Witnesses concerning Edwards.(RK, ilcd)

E-FILED

Monday, 17 August, 2015 11:39:53 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
NATURAL RESOURCES DEFENSE
COUNCIL, INC, SIERRA CLUB, INC.,
and RESPITORY HEALTH
ASSOCIATION,
Plaintiffs,
v.
ILLINOIS POWER RESOURCES, LLC
and ILLINOIS POWER RESOURCES
GENERATING, LLC,
Defendants.

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Case No. 13-cv-1181

ORDER&OPINION
This matter is before the Court on Plaintiff Sierra Club and its employee
Kady McFadden (together, “Movants”) appeal of Magistrate Judge Tom SchanzleHaskins’s Opinion Allowing in Part and Denying in Part Movants’ Motion for a
Protective Order and to Modify Notice of Deposition. (Doc. 80). For the reasons that
follow, the Court grants in part and denies in part Movants’ request to modify
Judge Schanzle-Haskins’s decision.
BACKGROUND
Movant Sierra Club is among the Plaintiffs in this action. Plaintiffs allege
that Defendants Illinois Power Resources, LLC, and Illinois Power Resources
Generating, LLC, operate (and their predecessors operated) the E.D. Edwards
Energy Center power plant (“Edwards”) in violation of opacity limits and
particulate matter limits established through various interworking state and

federal air quality statutes and regulations. (See Second Am. Compl., Doc. 88, at 1114). Plaintiffs also allege that Defendants and their predecessors violated the Clean
Air Act’s reporting requirements. (Id. at 15).
Each of the Plaintiffs, including the Sierra Club, is an association, and the
associations allege their individual members were harmed by Defendants’
violations. (Id. at 3-4). Plaintiff NRDC offers three standing witnesses: Robert
Jorgenson, Mary Ann Schafer, and Linda Adams. (Id. at 3-4 and Exhs. 5-7). Sierra
Club offers another three: David Pittman, Joyce Blumenshine, and Joyce Harant.
(Id. at 4 and Exhs. 8-10). And Plaintiff Respiratory Health Association offers two:
Alicia High and Tracy Fox. (Id. at 4 and Exhs. 11-12). Plaintiffs rely upon the
alleged injuries to these individuals, which they assert were caused by Defendants’
challenged misconduct, in order to establish standing to sue. (Id. at 4-5); see Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
On May 1, 2015, Defendants served a Notice of Deposition and Rider on
Sierra Club Employee Kady McFadden pursuant to Federal Rule of Civil Procedure
30. (Docs. 82 at 2, 82-1). The Notice requested that McFadden bring to her
deposition documents that were responsive to two requests included in the Rider:
1. Any communications with Tracy Meints Fox, Robert J. Jorgensen,
Linda Andrews, Mary Ann Schafer, David Pittman, Joyce Harant,
Alicia High, or Joyce Blumenshine concerning Edwards [; and]
2. Any communications or other documents from the time period
January 1, 2008 to present concerning opacity or particulate matter
emissions from Edwards.
(Doc. 82-1 at 2, 4).

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On May 15, 2015, Movants filed a Motion to Modify the Notice of Deposition
and for Protective Order. (Doc. 74). They specifically asked that the Court “modify
the Notice of Deposition to limit the Rider’s Document Request Paragraph 1 to
communications concerning the Plant’s opacity and PM air pollution, and similarly
limit the scope of Ms. McFadden’s deposition.” (Doc. 75 at 3). They first argued that
the request was not reasonably calculated to lead to the discovery of admissible
evidence. (Id. at 4-7). They next argued that failing to modify Document Request
Paragraph 1 would impermissibly chill the First Amendment rights of the Sierra
Club and its members, and Defendants could not demonstrate that it is necessary to
compel disclosure of the documents in light of these First Amendment concerns. (Id.
at 7-12).
On June 17, 2015, Judge Schanzle-Haskins issued an order allowing in part
and denying in part Movant’s motion. (Doc. 79). Judge Schanzle-Haskins modified
Document Request Paragraph 1, and required that McFadden produce:
unprivileged documents that contain: (1) any statement made by the
Named Standing Witnesses concerning Edwards; (2) any communication
from McFadden to a Named Standing Witness to which the Named
Standing Witness responded with a statement concerning Edwards; and
(3) any response by McFadden to any statement made by the Named
Standing Witnesses Concerning Edwards.
(Id. at 14-15). His order similarly limited the areas of inquiry that Defendants could
pursue that relate to that document request. (Id. at 15). Throughout this Order and
Opinion, the Court will refer to the second and third categories of documents that
Judge Schanzle-Haskins ordered Movants to disclose as proceeding and following
communications.

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In the pending motion, Movants contest the extent to which Judge SchanzleHaskins modified the first document request. Movants are not appealing the first
part of Judge Schanzle-Haskins’s decision, which requires that McFadden disclose
“any statement made by the Named Standing Witnesses concerning Edwards.” (See
Doc. 82 at 4). However, they appeal his decision requiring that they disclose the
proceeding and following communications. (Id.).
STANDARD OF REVIEW
District judges review magistrate judges’ discovery orders pursuant to
Federal Rule of Civil Procedure 72. For nondispositive matters, a district judge
“must consider timely objections and modify or set aside any part of [an] order that
is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. §
636(b)(1)(A) (providing that a district court judge “may reconsider any pretrial
matter . . . where it has been shown that the magistrate judge’s order is clearly
erroneous or contrary to law.”). Here, where Movants argue that Judge SchanzleHaskins’s order was clearly erroneous, “the district court can overturn the
magistrate judge’s ruling only if [it] is left with the definite and firm conviction that
a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943
(7th Cir. 1997); see also Westefer v. Snyder, 472 F. Supp. 2d 1034, 1036-37 (S.D. Ill.
2006)(collecting cases).
DISCUSSION
In the pending motion, Movants again raise their claim of First Amendment
privilege. Specifically, they argue that Defendants’ Notice and Rider will
impermissibly chill their right of association without justification. In Judge

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Schanzle-Haskins’s opinion, he agreed with Movants that they had established a
prima facie case that their First Amendment rights would be chilled by disclosure,
but concluded the challenged documents – McFadden’s preceding and following
communications with the Standing Witnesses – should be disclosed in spite of the
prima facie case. Movants contend that this is where Judge Schanzle-Haskins
committed clear error.
Although the Seventh Circuit has not articulated a test that courts should
apply in evaluating claims of First Amendment privilege, the parties agree that the
test articulated in Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2009) should be
applied here. In Perry, the Ninth Circuit applied a two-part framework in
evaluating a party or movant’s claim of First Amendment privilege. First, the
person asserting the privilege “must demonstrate . . . a prima facie showing of
arguable first amendment infringement.” Id. at 1160 (quoting Brock v. Local 375,
Plumbers Int’l Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (internal
quotation marks omitted)). Once the movant has made a prima facie case, the
burden shifts to the party seeking disclosure. Id. at 1161. At this stage, that party
must demonstrate “an interest in obtaining the disclosure it seeks . . . which is
sufficient to justify the deterrent effect . . . on the free exercise . . . of [the]
constitutionally protected right of association.” Id. (quoting NAACP v. Alabama, 357
U.S. 449, 463). Doing so requires courts to “balance the burdens imposed on
individuals and associations against the significance of the . . . interest in
disclosure.” Id. (quoting AFL-CIO v. FEC, 333 F.3d 168, 176 (D.C. Cir. 2003)). At
this stage, “the party seeking the discovery must show that the information sought

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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).” Id.
It must also carefully tailor the request “to avoid unnecessary interference with
protected activities, and the information must be otherwise unavailable.” Id.
I. Judge Schanzle-Haskins’s Decision
a. Movants’ Prima Facie Case
In his decision, Judge Schanzle-Haskins concluded that Movants made a
prima facie case that disclosure would chill their associational rights, which are
protected by the First Amendment. (Doc. 79 at 9). Judge Schanzle-Haskins relied
upon declarations submitted by Kady McFadden and Named Standing Witness
Joyce Harant. (Id. at 7-9).1 He explained in his decision that McFadden
“communicates with ‘Sierra Club members, Peoria-area volunteers, and colleagues
within and outside of the Sierra Club’ about Edwards.” (Doc. 79 at 7 (quoting
McFadden Decl., Doc. 75-2, at ¶ 17)). Principally, she communicates over email
listserves, through which she sends messages that “often contain details on the
Sierra Club’s campaign strategies, planning, and next steps for how Sierra Club
members and campaign participants can be leaders on our campaign for clean
energy and reduced pollution in Central Illinois.” (Id. (quoting McFadden Decl.,
Doc. 72-2, at ¶ 10)). These documents would be responsive to Defendants’
unmodified document request, and McFadden states that if she was forced to
disclose them, it would “interfere with her ability to plan strategies for the Sierra

Movants have also submitted declarations from McFadden and Harant as part of
the pending motion. (See Docs. 82-2 and 82-3).

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Club and would interfere with the ability of the Sierra Club to pursue its goals.” (Id.
at 8 (citing McFadden Decl., Doc. 72-2, at ¶¶ 11-13)).
Judge Schanzle-Haskins explained that Named Standing Witness Joyce
Harant receives emails from McFadden and the Sierra Club that “include details of
the Sierra Club’s strategies and tactics to pursue its goals to advocate for its
position on environmental issues, including its opposition generally to the
Defendants’ operation at Edwards.” (Id. (citing Harant Decl., Doc. 72-3, at ¶ 10)).
Harant said that disclosure would “interfere with her ability to volunteer for the
Sierra Club and so participate with other members of the Sierra Club to advocate
for her position on environmental issues.” (Id. at 8-9 (citing Harant Decl., Doc. 72-3,
at ¶ 14)). Therefore, she opined that disclosure “would greatly diminish the group’s
ability to work and be successful in the long term.” (Id. at 9 (quoting Harant Decl.,
Doc. 72-3, at ¶ 14)). For the purpose of the pending motion, the parties agree that
these declarations are sufficient for Movants to establish their prima facie case. (See
Defs.’ Mem. in Opp’n to Appeal, Doc. 85 at 7 (acknowledging, and not challenging,
Judge Schanzle-Haskins’s decision that Movants had made a proper prima facie
case)).
b. Defendants’ Interest in Obtaining Requested Documents
Having concluded that Movants provided sufficient evidence to establish a
prima facie case, Judge Schanzle-Haskins then considered whether they still must
disclose certain requested documents. (Doc. 79 at 10-13). He concluded first that it
is “necessary to this case” for Defendants “to discover information concerning the
credibility of Standing Witnesses.” (Id. at 10). This is because Plaintiffs “present the

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declarations of the Standing Witnesses . . . to establish an essential element of their
case, standing.” (Id. at 10-11). He concluded that, “[t]he credibility of the Standing
Witnesses . . . is directly at issue on an essential element of the Plaintiffs’ case.” (Id.
at 11).
From there, Judge Schanzle-Haskins determined which of the documents
Defendants requested had a bearing on the credibility of the Named Standing
Witnesses. First, he identified “statements made by the Standing Witnesses about
Edwards,” and observed that “the definition of ‘communication’ in the Notice is
broad enough to include” such written or oral statements.” (Id.). The parties agree,
for purposes of the pending motion, that this determination was not clearly
erroneous. (See Movs.’s Mem. in Supp. of Appeal, Doc. 82, at 3; Movs.’s Reply Mem.,
Doc. 86-1, at 3 (acknowledging that Judge Schanzle-Haskins “arguably drew the
required Perry findings for the first category of documents, covering direct
statements by Standing Witnesses . . . .”)).2
Judge Schanzle-Haskins then identified two additional categories of
documents that Movants must disclose: (1) “any document containing the
communication to which the Named Standing Witness responded,” when a Named
Standing Witness made a statement concerning Edwards in response to a

Remember, a district court only overturns a magistrate’s discovery decision under
the clearly erroneous standard when it is “left with the definite and firm conviction
that a mistake has been made.” Weeks, 126 F.3d at 943. Thus, “if there are two
permissible views, the reviewing court should not overturn the decision solely
because it would have chosen the other view.” Westefer, 472 F. Supp. 2d at 1037
(quoting Burns v. Am. United Life Ins. Co., No. 05-cv-0466-DRH, 2006 WL 1004884,
at *1 (S.D. Ill. Apr. 17, 2006)). In conceding that Judge Schanzle-Haskins arguably
made the required Perry findings, Movants are therefore conceding that this aspect
of Judge Schanzle-Haskins’s opinion was not clearly erroneous. See id.
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communication from McFadden, and (2) “any documents that contain [McFadden’s]
responses to the Named Standing Witness’s communications concerning Edwards.”
(Doc. 79 at 12). Judge Schanzle-Haskins concluded that “[s]uch preceding and
responsive communications will provide needed context for the statement made by
the Named Standing Witness.” (Id.). Additionally, he reasoned that these “direct
communications with the Named Standing Witnesses” were also “much more likely
to lead to admissible evidence on the issue of credibility of those witnesses,” than
communications from third-parties to which the standing witnesses responded. (Id.
at 12-13).
II. Movants’ Challenge
Movants challenge the latter two categories in the pending motion. They
argue that Judge Schanzle-Haskins “failed to apply the second prong of the Perry
test and determine whether the requested communicates are ‘highly relevant,’” and
instead based his holding on the fact that the documents were “at most only
tangentially relevant insofar as they provide context for the Standing Witnesses’
credibility.” (Doc. 82 at 13-14). Movants contend that Judge Schanzle-Haskins
needed to apply the Perry analysis independently to each category of documents he
ordered that they disclose. (Doc. 86-1 at 3-4).
Under Perry, Defendants 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).” 591 F.3d at

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1161.3 Movants argue that Judge Schanzle-Haskins’s ruling only made this finding
with respect to the Standing Witnesses’ communications. This is incorrect. Judge
Schanzle-Haskins’s decision found that “information concerning the credibility of
the Standing Witnesses . . . .” is necessary and essential to the case. (Doc. 79 at 10).
The question that remains is whether McFadden’s preceding and following
communications with the Standing Witnesses are necessary to evaluate the
Standing Witnesses’ credibility. As explained below, Movants’ attempt to
disaggregate the categories of requested documents fails to take into account the
essential ways in which some of them are related.
a. Standing is an Essential Element of Plaintiffs’ Claim
This Court cannot disagree with the conclusion that standing is an essential
element of Plaintiffs’ case and that discovery on the Standing Witnesses’ credibility
is necessary for Defendants, let alone find that the decision in this respect is clearly
erroneous. As Judge Schanzle-Haskins concluded twice, Plaintiffs’ standing is at
issue in this case, and Plaintiffs rely upon the declarations of their Named Standing
Witness to establish it. (See Docs. 79 at 10-11; 73 at 16).
To establish standing, individual witnesses must show they have suffered an
injury-in-fact that is: first, concrete and particularized and actual or imminent;
second, fairly traceable to the challenged action or conduct; and third, likely to be
Moreover, if the information sought can be obtained in another way that is less
likely to affect First Amendment rights, it is protected from disclosure. See City of
Greenville v. Syngenta Crop. Prot., Inc., No. 11-mc-10, 11-mc-1031, 11-mc-1032,
2011 WL 5118601, at *8 (C.D. Ill. Oct. 27, 2011) (citing Perry, 591 F.3d at 1161).
Here, the parties do not argue over whether other manners of disclosing this
information are available, they only dispute whether McFadden’s preceding and
following communications are highly relevant.

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redressed by a favorable ruling from the court. Sierra Club v. Franklin Cnty. Power
of Ill., LLC, 546 F.3d 918, 925 (7th Cir. 2008) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)). These three elements are “an indispensable part of the
. . . case.” Id. (citing Lujan, 504 U.S. at 561). Because all of the Named Standing
Witnesses submitted declarations in which they, under oath, declared that they
have been injured in a concrete and particularized and actual or imminent way by
Edwards’ opacity violations and particulate emissions, they have put their
credibility at stake on these essential elements of Plaintiffs’ case. See Sierra Club,
546 F.3d at 925.
b. Judge
Schanzle-Haskins
Determination
that
McFadden’s
Preceding Communications with the Standing Witnesses are
Necessary to Evaluate the Standing Witnesses’ Credibility was not
Clearly Erroneous, but his Determination that the Following
Communications are Necessary Was
Judge Schanzle-Haskins’s Order, with care, attempts to identify and isolate a
subset of documents within Defendants’ broad request that is related to the
Standing Witnesses’ credibility. Movants’ suggestion that the Standing Witnesses’
statements alone are the only documents with any real bearing on their credibility
fails to consider the ways in which people communicate.
As courts have repeatedly recognized, the meanings of words derive from
context. See, e.g., Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 751 (7th Cir.
1993) (explaining that “since context determines meaning, the same word can mean
different things in different sentences – to monopolize a conversation doesn’t mean
the same thing as to monopolize the steel industry . . .”). This is true in the
statutory context, in which words in a statute may take on distinct meanings based

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on the broader statutory scheme. See, e.g., United States v. Webber, 536 F.3d 584,
593 (7th Cir. 2008)(“In analyzing the language of a statute, we give the words their
ordinary meaning unless the context counsels otherwise.”). And it is true in contract
law as well. See, e.g., BB Syndication Servs., Inc. v. First Am. Title Ins. Co., 780
F.3d 825, 830 (7th Cir. 2015).
The same is true with respect to dynamic conversations between two people.
So, for example, in a drug conspiracy, words like “it,” “them,” and “both” could refer
to a shipment of methamphetamine even though “it” has no fixed meaning. See
United States v. York, 572 F.3d 415, 424 (7th Cir. 2009). Indeed, pronouns
themselves are entirely context-dependent. Therefore, determining the meaning of
one communication may well require reference to past communications. For this
reason, courts considering emails produced by parties have acknowledged the
unique contextual challenges that email chains can present. See, e.g., Spice Corp. v.
Foresight Mktg. Partners, Inc., No. Civ. 07-4767 JNE/JJG, 2011 WL 6740333, at *3
(D. Minn. Dec. 22, 2011)(discussing email communications between the parties and
deciding that “the most effective way to convey what was happening is to reproduce
the emails in their entirety, or with only minimal omissions,” rather than
“paraphrase the emails and take statements out of context”); Weirton Ass’n v.
Woodward Detroit CVS, LLC, No. 11-14956, 2012 WL 5392264, at *1 (E.D. Mich.
Nov. 2, 2012)(explaining that an email with an apparent admission was
inconclusive because it “appears plucked from a longer chain, and the lack of
context renders the email’s meaning obscure”).

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Considering this, the Court cannot find that Judge Schanzle-Haskins’s
conclusion that the preceding communications from McFadden to the Named
Standing Witnesses are needed to evaluate the Named Standing Witnesses’
credibility is clearly erroneous. To see why, all one needs to do is look to McFadden’s
declaration. McFadden states that she shares “information about how [listserve
members] can get involved with the Sierra Club, or take action with the Club,” and
that “the emails often contain details on the Sierra Club’s campaign strategies,
planning, and next steps for how Sierra Club members and campaign participants
can be leaders on our campaign . . . .” (Doc. 92-2 at ¶¶ 8-10). It is easy to imagine a
detailed message from McFadden, to which a Named Standing Witnesses responded
in a terse manner that would be devoid of all meaning without reference to the
original communication. For example, McFadden could have sent a message over
the listserve about the Sierra Club’s strategies surrounding Edwards (without
explicitly referencing opacity or particulate emissions), and one of the Named
Standing Witnesses could have responded, “I’m not concerned, but I would like to
help.” Such a theoretical email exchange would be highly relevant to evaluating the
Named Standing Witness’s credibility, and its probative value is more evident when
the communications are considered together than when either communication is
considered alone. Therefore, the line that Movants attempt to draw, where
McFadden’s statements directly pertain to her credibility but only tangentially
relate to the credibility of the Standing Witnesses, is one that makes little sense.
In light of this, Movants’ concession for the purpose of this appeal – that
Judge Schanzle-Haskins’s conclusion that the statements of the Standing Witnesses

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related to Edwards are highly relevant to the Standing Witnesses’ credibility was
not clearly erroneous – is dispositive. If those communications are highly relevant to
the Standing Witnesses’ credibility, then the preceding emails from McFadden are
as well.
The same logic, however, does not apply as strongly to McFadden’s following
communications to the Named Standing Witnesses’ responses. As discussed above,
Judge Schanzle-Haskins’s decision requiring that Movants disclose the following
communications was based on his holding that standing is an essential element of
the case and discovery on the Standing Witnesses’ credibility is necessary.
Although McFadden’s preceding communications are required to place any of the
Standing Witnesses’ responses into the appropriate context, these preceding
communications should do the required heavy lifting in this regard. McFadden’s
following responses do little to place the Standing Witnesses’ communications into
context, and instead are more likely to relate to McFadden’s gloss on the situation
(and therefore, McFadden’s credibility). Because McFadden’s credibility is not at
issue, the Court finds that this discovery is not highly relevant to an essential
element of the case. Therefore, Defendants have not made the showing required
here. See Perry, 591 F.3d at 1160.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN
PART Movants’ Appeal of the Magistrate Judge’s Order Compelling Disclosure of
Certain Communications. (Doc. 80). The order entered by Magistrate Judge Tom
Schanzle-Haskins on June 17, 2015 (Doc. 79) is MODIFIED AS FOLLOWS:

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Document Request No. 1 in the Notice is modified to require that McFadden
produce unprivileged documents that contain: (1) any statement made by the
Named Standing Witness concerning Edwards; and (2) any communication from
McFadden to a Named Standing Witness to which the Named Standing Witness
responded with a statement concerning Edwards. McFadden need not produce the
third category of documents: any response by McFadden to any statement made by
the Named Standing Witnesses concerning Edwards.
IT IS SO ORDERED.
Entered this 17th day of August, 2015.

s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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