BAILEY v. STATE OF MAINE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES
ORDER granting 25 Motion to Compel. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STATE OF MAINE COMMISSION ON
GOVERNMENTAL ETHICS AND
ELECTION PRACTICES, et als.
ORDER ON MOTION TO COMPEL
(Doc. No. 25)
In this civil action, Plaintiff Dennis Bailey maintains that the Maine Campaign Reporting
Act is unconstitutional and that the decision of the Maine Commission on Governmental Ethics
and Election Practices to impose a fine on him for engaging in anonymous “citizen journalism”
violated his constitutional rights to free speech and equal protection. In the course of pretrial
discovery, Third-Party Thomas Rhoads was served with a deposition subpoena requesting
production of certain documents. Rhoads produced several documents subject to a Consent
Confidentiality Order, but withheld one document in his possession that was prepared for his
wife’s campaign to win the democratic primary election associated with Maine’s 2010
gubernatorial race. Now pending before the Court is Intervenor Eliot Cutler’s motion to compel
production of this document.1 Rhoads has submitted a paper copy of the document for in camera
Bailey commenced this action in the Maine Superior Court. The Superior Court granted Eliot Cutler
intervenor status in the action and it was Cutler who petitioned for removal of the action to federal court, based on
inspection. I now GRANT the motion.
The exhibit in question is a three-page document dated November 30, 2009, related to
Rosa Scarcelli’s anticipated visit in Washington, D.C. with the Democratic Governors
Association.2 The document consists of a two-page memorandum and an Appendix A—a
quarter-page list of websites—which together amount to an internal briefing document from the
“Rosa For Maine” campaign, apparently intended for the candidate’s eyes only. It has been
characterized by Intervenor Cutler as the DGA memo, suggesting that it was furnished to that
organization, but it is apparent to me that the memo itself was not intended to be furnished to the
DGA. The memo was only furnished to me for the purpose of my in camera review. I am
satisfied that the memo is nothing more than what it is captioned, an “Internal Briefing Memo.”
Some of the information in the memo may have been shared with certain operatives at the DGA,
but the parties are well aware of that information because it has already been produced during
discovery in the form of an email chain that is identified as DB 953-954, 961 or has otherwise
been revealed through discovery.
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, the scope of discovery is
limited to any nonprivileged matter that is relevant to any party’s claim or defense. The parties
had the opportunity to depose nonparty Scarcelli herself and discuss her contact with the DGA
and Bailey’s role in developing her position within the Democratic Party. (Scarcelli Dep. at 55.)
the existence of federal question jurisdiction. (See Doc. Nos. 1, 3.)
In his reply memorandum Cutler also requests that this Court order Rhoads to produce a “version” of the
Rhoads “Top Ten List.” This “version” is mentioned in the Rhoads Declaration at paragraph 4 (Doc. No. 53-1) as a
version of information already provided to Cutler at DB403-DB411. I, quite frankly, have no idea what this dispute
is about; it sounds like much ado about nothing. I am assuming the parties will resolve whatever discrepancy is
involved here because it does not appear that Rhoads is claiming any first amendment association rights privilege in
connection with this document.
However, in terms of the claims and defenses in this lawsuit, the issue is not whether Scarcelli
actually shared this information with the DGA. To the best of my knowledge, based upon my
cursory examination of the record evidence, Scarcelli herself was never even asked whether she
actually shared the information in the Bates stamped emails with any one at the DGA during her
trip to Washington, D.C. in late 2009, nor is it relevant to the issues in this case whether she did
so. Having reviewed the “Internal Briefing Memo,” it is clear to me that this document is not in
a format that would suggest the memo itself be shared with the DGA.
The internal briefing memo itself has relevance to the issues and claims in this lawsuit
because it arguably establishes that the candidate’s campaign was given the benefit of research
that later found its way into the Cutler Files and that her campaign advisors instructed her
regarding how she should use this information when meeting with the DGA. According to
Intervenor Cutler, this fact is potentially probative of whether or not the Cutler Files research, or
a portion of it, was, in fact, produced and used in furtherance of a strategy of the “Rosa For
Maine” campaign for governor. (Mot. to Compel at 2, Doc. No. 25.) At this discovery phase I
am certainly not ruling on the ultimate admissibility of this evidence or on whether drawing the
inference suggested by Cutler about this earlier use of the research is the “smoking gun” that
negates Bailey’s contention that his research and writing on the Cutler Files occurred outside of
the campaign arena. However, the internal briefing memo is clearly relevant and discoverable as
relating to the issues of this case within the meaning of Rule 26.
The issue then becomes whether the internal briefing memo is a privileged document
under the First Amendment as articulated by the Ninth Circuit in the case of Perry v.
Schwarzenegger, 591 F.3d 1126 (9th Cir. 2009).3 The Perry opinion articulated a two-part
framework for analysis of first amendment privilege claims in this context:
The party asserting the privilege must demonstrate a prima facie showing of
arguable first amendment infringement. This prima facie showing requires [that
party] to demonstrate that enforcement of the discovery requests will result in (1)
harassment, membership withdrawal, or discouragement of new members, or (2)
other consequences which objectively suggest an impact on, or chilling of, the
members’ associational rights. If [that party] can make the necessary prima facie
showing the evidentiary burden will then shirt to the government to demonstrate
that the information sought through the discovery is rationally related to a
compelling governmental interest and the least restrictive means of obtaining the
Id. at 1140 (citations, internal punctuation, and footnote omitted); See also United States v.
Comley, 890 F.2d 539, 544 (1st Cir. 1989) (discussing first amendment association rights in the
context of administrative subpoena). Rhoads has not shown that the narrow discovery request
targeting this one document meets even the prima facie showing, assuming that the First Circuit
would treat the production of internal campaign documents such as this one with the same level
of scrutiny as compelling a private organization to reveal the identities of its members, the
apparent genesis of this first amendment associational right. NAACP v. Alabama, 357 U.S. 449
Supporters of the “Rose For Maine” campaign have not been broadly targeted by this
discovery and there is no harassment of any party. Nor does the production of this internal
briefing memo suggest that the candidate herself did anything improper or unlawful, so as to
discourage new support or withdrawal of support for her. The prior candidate is not currently
involved in any political campaign and there is nothing in this briefing memo that would
objectively suggest a negative impact on her. If the subject of the political campaign and her
supporters in general are not negatively impacted by this discovery production, the issue comes
down to whether or not Rhoads himself is harassed or whether his associational rights are chilled
by discovery targeted at what was intended as an internal campaign document. The production
This is the only privilege asserted by Rhoads at this juncture.
of this internal memo, admittedly authored by Rhoads for the benefit of his wife’s political
campaign, might be potentially impeaching evidence against Rhoads or Bailey should either ever
testify at trial that the Cutler Files research never had any political purpose associated with
Rhoads’s wife’s campaign. However, that sort of personal embarrassment would arise from their
past statements about the campaign’s lack of involvement in the Cutler Files, not simply from
association with the “Rose For Maine” campaign. There is no reason to believe that their
associational rights will be chilled in any way by the suggestion that Rhoads prepared research
and furnished it to his wife to assist her when she made a presentation to the Democratic
Governors Association. At the time he prepared the memo there was apparently absolutely
nothing improper about its use for the purpose of furthering the agenda of the “Rosa For Maine”
campaign. There is nothing in the memo that tends to embarrass or ridicule or harass anyone for
associating themselves with the “Rosa For Maine” campaign.
The focus of the pending litigation is whether or not the State improperly fined Bailey as
a “citizen journalist.” The document is relevant to the extent it impeaches Bailey’s and Rhoads’s
contention that the Cutler Files research and writing was not undertaken for any campaign
purpose associated with “Rosa For Maine.” Whether this earlier use of the research has any
direct bearing upon the later, anonymous publication of the Cutler Files website is a legal issue
that will be considered in the content of the merits determination. The memo is discoverable
under Rule 26 and it is not privileged under the Perry rationale.
For the reasons set forth above, Intervenor Cutler’s Motion to Compel Production (Doc.
No. 25) is GRANTED. Fourteen days following the entry of this Order, absent further order of
this Court, Rhoads shall produce the document in question. It will not be treated as confidential
for purposes of the Consent Confidentiality Order, as it is not produced pursuant to that Order.
Any objections to this Order shall be filed in accordance with Rule 72 of the Federal
Rules of Civil Procedure.
December 19, 2011
/s/ Margaret J. Kravchuk
U.S. Magistrate Judge
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