Pulte Home Corporation and Shiloh Farm Investments LLC v. Montgomery County, Maryland et al

Filing 142

MEMORANDUM OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 3/24/2017. (bc, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PULTE HOME CORPORATION and
SHILOH FARM INVESTMENTS, LLC,
Plaintiffs,

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v.

Case No. GJH-14-3955
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MONTGOMERY COUNTY MARYLAND,
et al.,
Defendants.
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MEMORANDUM OPINION
This case is a civil rights action brought by Pulte Home Corporation and Shiloh Farm
Investments, LLC (collectively, “Pulte”) against Montgomery County, Maryland and the
Maryland-National Capital Park and Planning Commission (collectively, “Defendants”). The
action centers on the Defendants’ enactment of land use legislation that adversely affected
Pulte’s interests in approximately 541 acres of land that it owns in Clarksburg, Maryland. Pulte
alleges that the Defendants violated its constitutional rights to due process and equal protection,
and that the Defendants’ actions amounted to a taking of private property requiring just
compensation.1 Judge Hazel entered a scheduling order on January 28, 2016 (ECF No. 59) and
discovery has been ongoing since that time. The current discovery deadline is September 27,

1

In its 71 page complaint, Pulte raises five claims against the Defendants. (ECF No. 2.)
Count I alleges that the Defendants deprived Pulte of its substantive due process rights. (Id. at
54.) Count II alleges that the Defendants violated Pulte’s equal protection rights. (Id. at 57.)
Count III alleges that the Defendants’ actions amount to a taking of private property for public
use without just compensation. (Id. at 60.) Count IV, the counterpart to Count I, alleges that the
Defendants violated Pulte’s procedural due process rights. (Id. at 62.) Count V alleges a
“violation of Article 19 of the Maryland Constitution guaranteeing a right to a remedy for injury
to one’s property.” (Id. at 64.) Judge Hazel’s July 17, 2015 memorandum opinion provides a
more robust factual summary than is included in this decision. (ECF No. 33 at 1-5.)

2017. (ECF No. 133.) Several motions related to discovery disputes are pending before the
Court. This memorandum addresses the motions filed at ECF Nos. 85, 86, and 94, which concern
Pulte’s efforts to obtain discovery from several non-party citizens and citizen groups.2
I.

Procedural Background
On August 15, 2016, Pulte filed two motions to compel discovery from non-parties. The

first motion (ECF No. 85) seeks discovery from the following non-party organizations and nonparty individuals: (1) Audubon Naturalist Society, Inc., (2) Diane Cameron, (3) Save Ten Mile
Creek Coalition, (4) Friends of Ten Mile Creek and Little Seneca Reservoir, Inc., (5) Liveable
Clarksburg Coalition, Inc., (6) Seneca Creek Watershed Partners, Inc., (7) Sierra Club, and (8)
John Cook. The second motion (ECF No. 86) seeks discovery from five other non-party
organizations: (1) Conservation Montgomery, Inc., (2) Clean Water Action, (3) Muddy Branch
Alliance, Inc., (4) Montgomery Countryside Alliance, Inc., and (5) Sugarloaf Citizens
Association, Inc. The Court will refer collectively to the non-party organizations and non-party
individuals as the “citizen groups” or the “groups.”3 The citizen groups, through counsel, filed a
response in opposition to Pulte’s motions to compel (ECF No. 95) and a cross-motion to quash
the subpoenas that Pulte had issued to the citizen groups (ECF No. 94). Once the motions to
compel and the cross-motion to quash were fully briefed (see ECF Nos. 103 & 104), the parties
filed certificates pursuant to Local Rule 104.7. (ECF Nos. 106 & 107.)

2

On August 16, 2016, Judge Hazel referred this case to me for the resolution of
discovery disputes and related scheduling matters. (ECF No. 87.)
3
Notably, Pulte does not allege in its complaint that the citizen groups violated its rights
or that they are in any way liable to Pulte. Pulte seeks discovery from the citizen groups because
they have information that is relevant to its claims against the Defendants.
2

On January 12, 2017, a motions hearing was held.4 (ECF No. 130.) At the conclusion of
the hearing, the Court ordered Pulte and the citizen groups to make further efforts to resolve their
disagreements without judicial intervention. In a letter order filed on January 13, 2017, the Court
ordered:
By February 2, 2017, Pulte shall email five document requests to counsel for the
non-party citizen groups. By February 9, 2017, counsel for the parties shall meet
in person to confer in an attempt to reach an agreement on these issues. By
February 16, 2017, counsel for the parties shall file a joint certificate stating
whether complete agreement has been reached. If disputes remain between the
parties, they may simultaneously file letters, not to exceed three single-spaced
pages, explaining their respective positions. No responses to any letters will be
permitted.
(ECF No. 129.)
Pulte and the citizen groups held a meeting to attempt to resolve their disagreements, but
the meeting was not successful. Both submitted letters to my chambers outlining their respective
positions, which will be docketed along with this memorandum. (Letter from Donald B.
Mitchell, Jr. dated February 21, 2017; Letter from Deborah J. Israel dated February 21, 2017.) In
Pulte’s letter, it indicates that it complied with the Court’s order directing it to serve five
documents requests on counsel for the citizen groups. In spite of this, the citizen groups still
refuse to produce responses to the requests and are uncompromising in their position. In the letter
submitted on behalf of the citizen groups, counsel notes that the citizen groups made an effort at
compromise, but the proposed compromise was not sufficient for Pulte.
II.

Analysis
Because Pulte and the citizen groups were unable to resolve their dispute, the Court must

decide whether Pulte may obtain discovery from the citizen groups. In reaching a decision, the

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During the hearing, the Court also heard argument related to other discovery motions
that are pending. These motions will be addressed in separate opinions.
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Court will decide three questions. First, is there a First Amendment privilege available to the
citizen groups under the circumstances of this case? Second, if the citizen groups can invoke
such a privilege, does it apply to all of Pulte’s discovery requests? Third, if the First Amendment
privilege does not apply to some discovery requests, would allowing the discovery nonetheless
impose an undue burden on the citizen groups? The Court will address these questions in turn.
A.

Constitutional Avoidance

There are several preliminary matters to address at the outset. First, there is some
disagreement between the parties to this case regarding the type of evidence that Pulte may use
to prove its claims, at least with respect to Counts I, II, IV and V. In memoranda submitted in
support of unrelated motions filed by the Defendants, the Defendants contend that Pulte will be
limited to the evidence in the legislative record in proving its claims. Pulte disagrees that it is so
limited and states that it intends to introduce evidence from outside the legislative record. If the
Defendants are correct and Pulte is limited to the evidence in the public record in proving its
claims, this would be dispositive to the motions related to the citizen groups. That is, there will
be no need for Pulte to obtain discovery from the citizen groups if it will not be able to introduce
it as evidence in support of its claims. But I have this case on a limited discovery referral and it
would be imprudent for me to make this decision for a variety of reasons. If, for example, Pulte
was denied access to discovery from the citizen groups because it is outside the record, but Judge
Hazel determined that materials from outside the record may be used to prove Pulte’s claims,
Pulte would be unfairly prejudiced and the resolution of the case would be delayed. I decline to
decide whether Pulte is limited to using only evidence in the legislative record to prove its
claims.

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Second, the citizen groups argue that the Court should not decide whether they have a
valid First Amendment privilege vis-à-vis the subpoenas until it determines whether Pulte had a
constitutional “property interest” under the test of Gardner v. City of Baltimore, 969 F.2d 63, 68
(4th Cir. 1992). (ECF No. 104 at 4-7.) The citizen groups reason that if Pulte is unable to
establish that it “possessed a property interest in the [1994 Master Plan] that is cognizable under
the Fourteenth Amendment’s Due Process Clause,” there will be “no need to reach the question
of whether a purported deprivation was arbitrary or capricious.” Gardner, 969 F.2d at 68. But
this issue is not for me to decide; it is a dispositive issue that will be determined by Judge Hazel.
It would be disruptive to the progress of this case if discovery were somehow bifurcated to allow
the presiding judge to decide this issue before discovery related to the merits of Pulte’s claims is
allowed to proceed. The doctrine of constitutional avoidance “requires the federal courts to avoid
rendering constitutional rulings unless absolutely necessary,” In re Under Seal, 749 F.3d 276,
293 (4th Cir. 2010), but such a ruling is necessary here. In addition, ruling on the scope of the
citizen groups’ First Amendment privilege will further the “just, speedy, and inexpensive
determination of every action and proceeding” by allowing this case to proceed in accordance
with the controlling scheduling order. Fed. R. Civ. P. 1.
Third, the citizen groups argue that the Court should decide whether the information
Pulte seeks is available from an alternative source (namely, the Defendants) before considering
the First Amendment issues at stake. (ECF No. 104 at 6.) The Court will resolve whether the
claims of privilege raised by the Defendants are valid in a forthcoming decision, but the Court’s
ruling on that issue will not be dispositive.5 Even if Pulte prevails and the Court determines that

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The Defendants have asserted the legislative and executive privileges in connection
with Pulte’s discovery requests. The County’s renewed motion for a protective order and Pulte’s
motion to compel are pending before the Court and ripe for decision. (ECF Nos. 113 & 116.) The
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the Defendants cannot assert the legislative and executive privileges in connection with Pulte’s
requests, I am not satisfied that all of the material Pulte now seeks would be available from the
Defendants in the first place. It is not clear to me whether the documents or communications that
the citizen groups sent to the Defendants were always made part of the legislative record
(although that might be the case). Under the circumstances, I believe it is reasonable to proceed
with consideration of the citizen groups’ assertions of the First Amendment privilege before
deciding whether all of the documents Pulte seeks could be obtained directly from the
Defendants.
B.

First Amendment Privilege

The United States Constitution guarantees a right to association to engage in activities
protected by the First Amendment, such as speech, assembly, and petition for the redress of
grievances.6 See Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984); NAACP v. Alabama., 357
U.S. 449, 462-63 (1958). These First Amendment protections apply in the context of discovery
orders. See Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987). Specifically, there is
a qualified privilege against the discovery of information where compelled disclosure would
likely chill associational rights. See NAACP, 357 U.S. at 462-63. This privilege applies to
organizations as well as their members, see Marfork Coal Co. v. Smith, 274 F.R.D. 193, 205
motions related to the Commission’s assertion of these privileges (ECF Nos. 114 & 118) are not
yet ripe for consideration because the Commission intends to submit a privilege log to Pulte.
Depending on the scope of the Commission’s discovery production and the nature of the
materials listed on its privilege log, the Commission motions may become moot.
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The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.
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(S.D.W. Va. 2011), but it is not absolute. Courts have developed a two-part framework for
evaluating First Amendment privilege claims in the context of discovery. See Perry v.
Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); Grandbouche, 825 F.2d at 1466; Marfork Coal
Co., 274 F.R.D. at 204-205; In re Motor Fuel Temperature Sales Practices Litig., 707 F. Supp.
2d 1145 (D. Kan. 2010). In applying this framework, courts must carefully scrutinize the need
for First Amendment protection. NAACP at 460-61; Black Panther Party v. Smith, 661 F.2d
1243, 1267-68 (D.C. Cir. 1981).
The first part of the framework requires the party asserting the privilege to make a prima
facie showing that the privilege applies. Id. To make this showing, the party must “demonstrate
an objectively reasonable probability that compelled disclosure will chill associational rights,
i.e., that disclosure will deter membership due to fears of threats, harassment, or reprisal . . .
which may affect members’ physical well-being, political activities or economic interests.” In re
Motor Fuel, 707 F. Supp. at 1153. To demonstrate an objectively reasonable probability of a
chilling effect, the party asserting the privilege does not need to prove to a certainty that
disclosure will result in chilling. Instead, the party “need only show that there is some probability
that disclosure will lead” to a chilling effect. Black Panther Party, 661 F.2d at 1268. If the party
asserting the privilege is unable to make a prima facie showing, there is no First Amendment
privilege protecting against disclosure.
Once a party has made a prima facie showing, the second part of the framework requires
the Court to engage in a balancing test. Here, the burden is largely on the party seeking
disclosure to prove that the information sought is of crucial relevance to its case; that the
information is actually needed to prove its claims; that the information is not available from an
alternative source; and that the request is the least restrictive way to obtain the information. See

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Grandbouche, 825 F.2d at 1466-67. The Court must then consider the substantiality of the First
Amendment interests of the party asserting the privilege, see Perry, 591 F.3d at 1161, and
determine “whether the privilege must be overborne by the need for the requested information.”
Grandbouche at 1466.7
There are cases that provide useful illustrations of how the test is to be applied. In
Grandbouche, a tax protester sued various defendants, including Internal Revenue Service
agents. 825 F.2d at 1464. The defendants sought in discovery information about, among other
things, the membership list for the plaintiff’s organization. The plaintiff refused to produce a list
of his organization’s members because “producing the requested information would infringe
upon his First Amendment right of association.” Id. at 1466. The district court disagreed and
found that the First Amendment does not apply to discovery orders in private litigation. On
appeal, the Tenth Circuit held that the district court erred by not considering the merits of the
plaintiff’s claim of First Amendment privilege. Id. at 1467. Grandbouche held that when a
litigant claims a First Amendment privilege not to disclose information in discovery, a court
must conduct a balancing test before ordering disclosure. Id. Among the factors to be considered
are “(1) the relevance of the evidence; (2) the necessity of receiving the information sought; (3)

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Some courts have addressed the First Amendment interests only at the first part of the
inquiry, and not as part of the balancing test. See In re Motor Fuel, 707 F. Supp. 2d at 1153 n.11
(“Here, the Court considers the validity of the privilege [only] in determining whether defendants
have made a prima facie showing that the privilege applies.”) That may be a useful approach in
some cases—where only one discovery request is at issue, for instance—but its usefulness is
limited under the circumstances of this case. I will consider the substantiality of the citizen
groups’ First Amendment interests balanced against Pulte’s need for the information as to each
specific request. Otherwise, the balancing conducted by the Court will be non-specific and will
not account for an interest in protecting some types of information more than others.
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whether the information is available from other sources; and (4) the nature of the information.”8
Id.
In Perry, a case on which the citizen groups rely, two same-sex couples sued California
state officials, alleging that Proposition 8 violated the Due Process and Equal Protection Clauses
of the Fourteenth Amendment.9 591 F.3d at 1152. A group of activists who were proponents of
the anti-gay marriage legislation intervened to defend the suit. During discovery, plaintiffs
sought information about the proponents’ internal campaign communications relating to
campaign strategy and advertising. Id. The proponents claimed a First Amendment privilege
against disclosure, but the district court rejected the claim and ordered the proponents to produce
the discovery. The Ninth Circuit granted the proponents’ petition for writ of mandamus and held
that discovery of the proponents’ internal political organizing and strategizing documents could
not be compelled without violating the First Amendment. Id. at 1165.
Perry also applied the two-part framework to consider the First Amendment privilege.
First, the court found that disclosure might have a chilling effect on the exercise of protected
activities by deterring participation in controversial political campaigns and deterring the free
flow of information within campaigns. Id. at 1162-63. In reaching this conclusion, the court
relied on declarations submitted by several proponents. Although “lacking in particularity,” the
declarations were “consistent with the self-evident conclusion that important First Amendment
interests are implicated by the plaintiffs’ discovery request.” Id. at 1163. Second, the court
conducted a balancing test and determined that disclosure would not be required. The court

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Grandbouche also held that a “court must also determine the validity of the claimed
First Amendment privilege,” id., but it did not specify that the validity of the privilege should be
established before conducting the balancing test.
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“Proposition 8 amended the California Constitution to provide that only marriage
between a man and a woman is valid or recognized in California.” Id.
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applied a “heightened relevance standard” to determine whether the plaintiffs truly needed to
obtain the information from the proponents. The court found that the plaintiffs’ need for the
information was somewhat attenuated from the evidence that would be most relevant to proving
their claims. On the other side of the analysis, the court found that the proponents’ First
Amendment interests were substantial, which tipped the balance against disclosure. Id. at 1165.
In yet another case, the Black Panther Party and associated individuals sued the United
States and certain government officials, alleging that they had conspired to destroy the group.
Black Panther Party, 661 F.2d at 1246. During discovery, the defendants sought the group’s
membership list and the plaintiffs claimed a First Amendment privilege. The district court
overruled the privilege claim and ordered disclosure. On appeal, the D.C. Circuit held that the
lower court had erred by failing to conduct a balancing test, weighing the defendants’ need for
disclosure against the plaintiffs’ need for First Amendment protection. Although the D.C. Circuit
remanded the case to the district court to conduct the balancing test, it outlined several factors
that would be relevant.10 As to the relevance of the information sought, the court noted that the
“interest in disclosure will be relatively weak unless the information goes to the heart of the
matter, that is, unless it is crucial to the party’s case.” Id. at 1268 (internal quotation marks
omitted). With respect to the availability of the information from alternative sources, the court
stated that a party seeking disclosure must show “that he has exhausted every reasonable
alternative source of information.” Id. The court emphasized that “[i]nfringement of First
Amendment interests must be kept to a minimum.” Id.

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Black Panther Party was later vacated as moot, Smith v. Black Panther Party, 458 U.S.
1118 (1982), but “there is no suggestion in later case law . . . that its reasoning or analysis has
been rejected or abandoned” by the D.C. Circuit. Int’l Action Ctr. v. United States, 207 F.R.D. 1,
3 (D.D.C. 2002)
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In Marfork, a coal mine operator sued environmental activists for trespassing and
conspiring to close a mine operation through acts of civil disobedience. 274 F.R.D. at 194. The
plaintiffs sought information about other members of the activists’ groups and the defendants
claimed a First Amendment privilege. The court first determined that the defendants made a
prima facie case that the privilege applied because disclosure presented a probable chilling effect
upon the membership and associational activities. Id. at 205. In conducting a balancing test, the
court considered the plaintiff’s argument that it requires the names of other possible conspirators
in order to identify them as defendants. The court found that this was not a need compelling
enough to outweigh the defendants’ First Amendment interests. Citing Grandbouche, the court
found that the First Amendment privilege prevailed against disclosure. Id. at 206.
The citizen groups heavily rely on Wyoming v. U.S. Dep’t of Agric., 208 F.R.D. 449, 455
(D.D.C. 2002).11 In that case, the State of Wyoming challenged several regulations and actions
of the Department of Agriculture on procedural grounds. Id. at 451. In discovery, Wyoming
sought documents from non-party witnesses. The non-party witnesses claimed a First
Amendment privilege. In evaluating the privilege, Wyoming noted that “[m]embership lists are
not the only information afforded First Amendment protection.” Id. at 454. In conducting the
balancing test, the court found that the plaintiff had not shown that the information sought goes

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The citizen groups argue that this Court must address whether Wyoming is persuasive
authority. (ECF No. 104 at 15.) It is persuasive authority to the extent that it shows how a court
applies a balancing test to a claim of First Amendment privilege. But the case’s value largely
ends there. The First Amendment privilege balancing test is necessarily intertwined with the
facts of a particular case. What may be relevant in one case may not be relevant in another. And,
as I suspect was the case in Wyoming, the showing that a party challenging the privilege makes
regarding relevance and necessity may be less in some cases. Obviously, the claims in Wyoming
were different than the claims that Pulte asserts here. In addition, Pulte’s stated reasons for
requiring the information are different here than the reasons given by the plaintiff in Wyoming.
To answer the citizen groups’ question: the Court will treat Wyoming as persuasive authority, but
it has limited persuasive value.
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to the “heart of the lawsuit” or that it made reasonable attempts to obtain the information through
alternative sources. Id. at 455.
Pulte cites N.C. Electric Membership Corp. v. Carolina Power & Light Co., 666 F.2d 50,
53 (4th Cir. 1981) in support of its position. N.C. Electric is also of limited value here. That case
considered whether the Noerr-Pennington doctrine applies as both a defense to an anti-trust
action and a bar against discovery of relevant materials. The court held that Noerr-Pennington is
not a bar to discovery of relevant evidence. Citing Herbert v. Lando, 441 U.S. 153 (1979), the
court noted that if “discovery into the internal affairs of a news organization does not have a
chilling effect, then neither would discovery in this case.” Of course, Herbert v. Lando
concerned a defamation lawsuit against a newspaper and a plaintiff’s request for discovery
regarding the editorial process that led to the purportedly defamatory publication. Noting the
special circumstances of the newspaper industry—that newspapers will likely continue to publish
newspapers even if they must occasionally produce discovery in defamation lawsuits—the court
in Herbert v. Lando ordered disclosure. N.C. Electric’s discussion of these issues is limited. The
decision itself is less than four pages long and only the last page touches upon discovery. For
these reasons, N.C. Electric adds very little to Pulte’s argument.
Pulte also relies on two other opinions, both of which are in the case of United States v.
Duke Energy Corp., 218 F.R.D. 469 (E.D.N.C. 2003), upheld on review, 2012 WL 1565228
(E.D.N.C. 2012). These opinions dealt with a discovery request from the Environment Protection
Agency to Duke Energy seeking information about what Duke Energy knew about the meaning
of a regulation in question (namely, communications received from a utility trade group,
UARG). 218 F.R.D. at 472-73. UARG moved for a protective order on First Amendment
grounds. The court rejected the First Amendment claim because the information sought was

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narrowly tailored to an issue relevant in the litigation. Id. Even though the information sought
related to UARG’s associational activities, its relevance in the lawsuit outweighed UARG’s First
Amendment interests in non-disclosure. The Duke Energy cases illustrate that when a court is
asked to consider whether disclosure of information that implicates First Amendment
associational rights should be required, the required analysis is fact-intensive. In Duke Energy,
the balance weighed in favor of the party seeking the information because it was directly relevant
to issues at stake in the case and because the party asserting the claim of privilege relied only on
conclusory arguments. The Duke Energy cases do not stand for the proposition that courts should
be quick to overrule First Amendment privilege claims.
C.

Two-Part Framework

Having considered the analysis employed by other courts regarding the First Amendment
privilege in discovery, the Court will now consider whether the citizen groups have established
that disclosure will result in a probable chilling effect and whether disclosure is nonetheless
warranted given the balance of interests.
1.

Part One: Chilling Effect

I find that the citizen groups have made a prima facie showing that the First Amendment
privilege applies. The citizen groups argue that enforcement of Pulte’s subpoenas will result in a
chilling effect on their associational rights in three ways: “(1) membership withdrawal, or
discouragement of new members, (2) reduced and constrained involvement in debates over land
use, and (3) other consequences which might objectively suggest an impact on, or ‘chilling’ of,
the members’ associational rights.” (ECF No. 95 at 38.) By their declarations (ECF Nos. 95-4 to
95-15), the citizen groups have demonstrated an objectively reasonably probability that
compelled disclosure of the information sought will result in these chilling effects.

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For example, Lisa Alexander of the Audubon Naturalist Society states in her declaration
(ECF No. 95-6) that if the subpoenas are enforced, her organization’s efforts to collaborate on
environmental advocacy strategies will be deterred for fear that their collaborative efforts will be
subject to future public disclosure. She also states that diversion of her organization’s efforts
from environmental activism to collecting discovery responses would likely reduce member
participation in her organization. Similarly, Ann Smith of the Seneca Creek Watershed Partners
states that her organization will be less inclined to voice its opinion at public hearings or work
with Montgomery County in the future if the subpoenas are enforced. (ECF No. 95-8.) In her
declaration, Diane Cameron states that she has already observed citizens and representatives of
environmental groups express concerns about the consequences of opposing a proposed
development project in terms of opening themselves and their organization up to discovery in
litigation, even if the groups are not alleged to have committed any wrongdoing. (ECF No. 95-5;
see also ECF No. 95-12 (“One volunteer said that they wouldn’t be comfortable volunteering
with Sierra Club if it meant potentially sacrificing their personal privacy.”).)
Pulte argues that the declarations submitted by the citizen groups are speculative and
unsubstantiated. When similar evidence has been presented in other cases, however, courts have
found the evidence sufficient to establish a First Amendment chilling effect. See AFL-CIO v.
Federal Election Comm’n, 333 F.3d 168, 176 (D.C. Cir. 2003) (finding that likelihood of making
it more difficult for organizations to recruit future personnel is a chilling effect); Perry, 591 F.3d
at 1163 (accepting that disclosure of personal, non-public communications expressing moral
views would make individuals less willing to engage in such communications and that this
constitutes a chilling effect). A chilling effect need not be established with mathematical
certainty, and it need not be as compelling of an effect as in NAACP, 357 U.S. 449, where rank-

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and-file members of the NAACP had on past occasions been subject to “economic reprisal, loss
of employment, threat of physical coercion, and other manifestations of public hostility.” See
AFL-CIO, 333 F.3d at 176 (“Although we agree that the evidence in this case is far less
compelling than the evidence presented in cases involving groups whose members had been
subjected to violence, economic reprisals, and police or private harassment, . . . that difference
speaks to the strength of the First Amendment interests asserted, not to their existence.”)
Applying common sense yields the same result. (See ECF No. 95 at 49 n.15.) If a person
knows that her communications will be disclosed to an unintended audience in the future, she
may be more cautious in her statements or refrain from speaking entirely. In the same way, a
person who belongs to a group that is required to disclose its internal communications in civil
litigation may decide that the invasiveness of the disclosure outweighs the benefit of belonging
to or participating in the group. The citizen groups have provided a sufficient basis for the Court
to determine that if disclosure is compelled, there is an objective probability of a chilling effect
on the citizen groups’ exercise of First Amendment associational rights.
2.

Balancing Test

By letter dated February 1, 2017, and as directed by the Court’s order (ECF No. 129),
Pulte served five document requests on the citizen groups. The Court will only discuss these five
requests and not the requests contained in the original subpoenas.12 Although the five requests
are related to the original requests contained in the subpoenas (see Mitchell Ltr, Attachment at 12), they are considerably more narrow in scope. They are also easier to understand.13 Most

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Copies of the subpoenas are available at ECF Nos. 85-5 to 85-12 and 86-5 to 86-9.
The document requests contained in the subpoenas are exceptionally broad and overinclusive. In addition, some of the requests are repetitive and others are hard to decipher.
13

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importantly, the revised requests are tailored to the information that in Pulte’s view is the most
crucial to being able to prove its claims.
In considering these five requests, I will address four factors.14 Three factors take into
account Pulte’s need to obtain the information from the citizen groups and one factor accounts
for the citizen groups’ interests in being free to exercise their First Amendment rights. The first
factor is the relevance of the information sought and whether it is of central or crucial importance
to the case. See Perry, 591 F.3d at 1161; Grandbouche, 825 F.2d at 1466. The second factor is
the necessity of the information sought. Id. In considering this factor, I will also consider
whether Pulte is seeking the information out of an actual need or because of improper ulterior
motives. See Adolph Coors Co. v. Wallace, 570 F. Supp. 202, 210 (N.D. Cal. 1983). The third
factor is the availability of the information from alternative sources. Perry, 591 F.3d at 1161;
Grandbouche, 825 F.2d at 1466. The fourth factor is the substantiality of the First Amendment
interests at stake. Perry, 591 F.3d at 1161; Black Panther Party, 661 F.2d at 1267 (“The
argument in favor of upholding the claim of privilege will ordinarily grow stronger as the danger
to rights of expression and association increases.”). Ultimately, I will balance Pulte’s interest in
disclosure against the burden imposed on the citizen groups to determine whether Pulte’s interest
in disclosure outweighs the burden on the citizen groups. Perry, 591 F.3d at 1161.
a.

Request No. 1

Pulte’s first request seeks the following:

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Some courts have considered whether potentially chilling discovery requests are the
“least restrictive means” of obtaining the information. Grandbouche, 825 F.2d at 1466. This
factor does not seem relevant to the present dispute. To the extent that this factor is meant to
consider the availability of the information from other sources, it is repetitive. If it is meant to
consider the possibility of obtaining discovery through other means, such as a deposition or
interrogatories, no party has addressed this point. It appears that document requests are the least
restrictive discovery method for obtaining the information Pulte seeks.
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All science and data (including without limitation, all analyses, calculations, data,
modeling, methodology, reports, sampling, and related information) regarding all
watersheds or subwatersheds that discharge into Little Seneca Lake (the
“Watersheds”), including Ten Mile Creek.
The citizen groups do not object to producing “every piece of scientific sampling data
that they have themselves developed over the last twenty years or so regarding Ten Mile Creek
and nearby watersheds, whether they provided it to the County or not.” (Mitchell Ltr. at 2-3)
Because they do not object to producing this information, the citizen groups will be ordered to do
so. Regarding data that they have obtained from outside sources, however, the citizen groups
have two objections. First, Pulte could obtain the data from the outside sources (“like libraries,
government agencies or the internet”) on its own. Second, the citizen groups’ development of
legal and scientific strategies to petition the government may be reflected in these outside
sources. Pulte notes that it has attempted to obtain data regarding the Watersheds from third
parties, but it “does not know and cannot identify everyone who was providing data, input, and
advice to Defendants and their consultants behind the scenes.” (Israel Ltr. at 3.) If the citizen
groups have this information readily available, Pulte argues that they should be ordered to
produce it.
In its initial motions to compel, Pulte notes that “[a] central theory in this litigation is that
the Defendants made a series of arbitrary, capricious, and unreasonable Decisions.” (ECF Nos.
85-1 at 26 & 86-1 at 21.) Pulte argues that what the citizen groups “considered, offered, and
withheld” from the Defendants—especially related to scientific data and modeling—is relevant
to the question of whether the Defendants’ decisions are rational (i.e., supported by sufficient
scientific evidence). (ECF No. 86-1 at 21.) Pulte states that it will prove at trial that the citizen
groups “tainted the testimony and science upon which Defendants relied.” (Id. at 22.) By way of
example, Pulte notes that Diane Cameron has “anti-development allegiances,” is “scientifically
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ill-informed,” and “pushed for arbitrary, capricious, and unreasonable government action.” (Id.)
To the extent that the Defendants’ decisions were influenced by Cameron and the scientific
models she promoted, this would be relevant to Pulte’s claims. The same goes for the other
citizen groups as well.
Turning to the first factor, science and data that the citizen groups sent to the Defendants
is relevant to Pulte’s claims. If, for example, the citizen groups sent a scientific report to the
Defendants that contained outdated or discredited science, Pulte might use this to attempt to
prove that the Defendants’ decisions were arbitrary for relying on outdated or discredited
science. What the Defendants considered is central to Pulte’s claims.15 Any science that was not
sent to the Defendants, however, is not central to Pulte’s claims because if the Defendants did
not consider it, it could not have influenced their actions.
The second factor is whether Pulte has a need for the information sought. I conclude that
it does. Although Pulte’s complaint is lengthy, it argues that it is still in the dark about some
aspects of what information the Defendants considered and how they made their decisions. Pulte
may obtain all of the science that the Defendants relied on from the legislative record and in the
discovery it receives from the Defendants. But it is not clear to me from the submissions whether
everything transmitted to the Defendants was incorporated into the legislative record. Although I
do not completely disregard the citizen groups’ argument that Pulte has ulterior motives aimed at
retribution and intimidation, this concern is not substantial in connection with this request.
Applying the third factor, some of the information sought by Pulte will be available from
alternative sources. For example, scientific data that the citizen groups have collected over the
15

As previously noted, there is a dispute over whether Pulte may rely on evidence from
outside the legislative record to prove its due process and equal protection claims. As I stated,
that issue is not before me. Nothing that I say in this memorandum should be interpreted as
expressing any opinion on this issue.
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years from third parties should be available from those third parties. And the scientific data that
was transmitted to the Defendants may very well be available from the Defendants in the
legislative record.
Finally, I consider the substantiality of the citizen groups’ First Amendment interests in
connection with this request. Many of the citizen groups exist to engage in political activism,
often backed by scientific data, to protect the environment from perceived threats from
development projects like the one at issue in this case. The effectiveness of these groups depends
not on keeping the science on which they depend hidden, but in using it in political advocacy. In
that regard, disclosure of the science that is used to convince local government decisionmakers to
side with the citizen groups’ environmental interests over the interests of developers would not
result in any chilling effect on the citizen groups’ First Amendment rights. Science that the
groups did not disclose to the local government decisionmakers, however, is a more complicated
issue. Political activists, like all advocates, must choose the arguments and facts that best support
their position. Unless required to do so by an ethical obligation or statute of which I am unaware,
the citizen groups are not required to disclose everything they know. If information that the
groups withheld is disclosed, political opponents might use the information to divine the groups’
current and future strategies. Opponents might also use the withheld data to determine the
weaknesses in the arguments made and data used by the citizen groups. Such disclosure presents
a moderate risk of chilling because the citizen groups could become reluctant to engage with
outside groups and solicit additional scientific data (some of which may not support their
positions) if they know that they may be required to turn it over to their political opponents in
future litigation.

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In balancing Pulte’s interest in disclosure of the science against the burdens imposed on
the groups’ exercise of First Amendment rights, I find that the balance does not completely favor
either side. Pulte’s interest in obtaining the science that the citizen groups transmitted to the
Defendants outweighs the citizen groups’ limited interest in the non-disclosure of this
information. There is almost no danger of a chilling effect on the groups’ associational rights by
disclosure of such information. But the citizen groups’ interest in the non-disclosure of any
science in its possession that it did not send to the Defendants outweighs Pulte’s interest in that
information. And importantly, this science is probably not relevant to Pulte’s claims at all, let
alone of central importance. For these reasons, the First Amendment privilege protects against
disclosure of the science and data that the citizen groups did not send to the Defendants.
b.

Request No. 2

Pulte’s second request seeks the following:
All communications with government entities, their consultants, or other third
parties (such as academics or scientists) regarding the Watersheds or development
within the Watersheds. This Request does not include communications between
and among any of the Non-Party Citizen Groups.
The citizen groups’ communications with the Defendants are relevant to Pulte’s claims.
Information that was available to the Defendants, including information received from the citizen
groups, will be relevant in determining whether the challenged decisions violate Pulte’s
constitutional rights to due process and equal protection.16 But to the extent that this request
seeks communications with entities besides the Defendants, this information is not relevant to
Pulte’s claims. What matters in this case is whether Pulte’s rights were deprived without due
process or in violation of the equal protection clause. The answers to these questions will turn on

16

The citizen groups argue that no information in their possession is relevant to Pulte’s
takings claim. Pulte does not appear to dispute this point. (See ECF No. 104 at 4.)
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the merits of the Defendants’ decisions, and not the decisions of any other government entities or
third parties.
As to the second and third factors, Pulte has a need for communications between the
citizen groups and the Defendants. These communications may or may not be part of the
legislative record; the Court cannot be sure. And while Pulte may indeed have ulterior motives,
communications with the Defendants are evidence of the information that was available to
Defendants. Pulte will need this material to prove that the Defendants made arbitrary decisions.
The communications may also contain evidence of improper ex parte contacts. (ECF No. 103 at
13.) Although it is not clear to me that any such contacts would have been at all improper, that
decision is one for the presiding judge to make. As long as Pulte’s procedural due process claim
is viable, it needs this information to prove the claim.
Next I must consider the citizen groups’ First Amendment interests in connection with
this request. The citizen groups’ communications with the Defendants are possibly already part
of the legislative record. I am not persuaded—and the citizen groups did not focus their argument
on this point—that disclosure of any such communications would have a substantial chilling
effect on the citizen groups. But to the extent that Pulte seeks documents containing the citizen
groups’ communications with others besides the Defendants, the burden becomes more
substantial. The citizen groups have an interest in the non-disclosure of the communications it
had with third parties. These communications—even if communications between the citizen
groups themselves are excluded—could illuminate the groups’ strategies to their political
opponents. This raises substantial First Amendment concerns.
Pulte’s interest in obtaining the citizen groups’ communications with the Defendants
outweighs the constitutional burden on the citizen groups in disclosing the materials. These

21

communications will be evidence of what information the Defendants had available for
consideration in making their decisions, which is relevant to Pulte’s claims. But communications
that the citizen groups had with individuals or entities other than the Defendants are not so
centrally relevant to Pulte’s claims. The citizen groups’ First Amendment interest outweighs
Pulte’s interest in the disclosure of these materials.
c.

Request Nos. 3, 4, and 5

Pulte’s third request seeks the following:
All communications with government entities, their consultants, any professionals
(scientific or academic), or other third parties regarding Pulte’s Property. This
request does not include communications between and among any of the NonParty Citizen Groups.
Its fourth request seeks:
All communications with government entities, their consultants, any professionals
(scientific or academic), or other third parties regarding the application or use of
(i) environmental site design or (2) the impervious cover model within the State
of Maryland. This Request does not include communications between and among
any of the Non-Party Citizen Groups.
Its fifth request seeks:
All communications with government entities, their consultants, any professionals
(scientific or academic), or other third parties regarding the 2014 Master Plan
Amendment. This Request does not include communications between and among
any of the Non-Party Citizen Groups.
The analysis for these requests mirrors the analysis for Request No. 2. Communications
that the citizen groups had with the Defendants regarding (1) Pulte’s property, (2) the use of
environmental site design or the impervious cover model, or (3) the 2014 Master Plan
Amendment constitute evidence of the information that the Defendants considered in making the
challenged decisions. Because it is not certain that such communications were incorporated into
the legislative record, Pulte may not be able to obtain them from the Defendants. To the extent

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that the communications contain evidence of what Pulte may contend the Defendants improperly
relied on (or improperly failed to consider), this may be useful as Pulte attempts to prove its
claims. The same goes for any communications that concern the purportedly improper ex parte
communications that Pulte believes violated its right to procedural due process.
The citizen groups’ First Amendment interests in preventing disclosure are not
substantial in relation to communications with the Defendants. But the citizen groups’ interests
in preventing disclosure of communications with entities and individuals besides the Defendants
are stronger. These communications might illuminate the strategies that the citizen groups
employed in the past or will employ in the future regarding their exercise of First Amendment
rights.
The balancing test for these three requests yields the same result as for Request No. 2.
Pulte’s interest in obtaining the citizen groups’ communications with the Defendants outweighs
the constitutional burden imposed by disclosure. These communications will be evidence of the
information that the Defendants had available for consideration in making their decisions and are
relevant to Pulte’s claims. But communications that the citizen groups had with individuals or
entities other than the Defendants are not evidence of crucial relevance to Pulte’s claims. The
citizen groups’ First Amendment interests outweigh Pulte’s interest in the disclosure of these
materials.
D.

Burden

Having substantially narrowed the requests to which the citizen groups will be required to
respond in light of their First Amendment privilege, I now turn to determining whether a
response would impose an undue burden on the citizen groups. Rule 45(d)(3)(A)(iv) provides
that a court is required to quash or modify a subpoena if compliance with the subpoena would

23

subject a person to an undue burden. In determining whether to limit discovery because of an
undue burden, courts “must be careful not to deprive a party of discovery that is reasonably
necessary to afford a fair opportunity to develop and prepare the case.” Innovative Therapies,
Inc. v. Meents, 302 F.R.D. 364, 377 (D. Md. 2014).
The citizen groups argue that compliance with the subpoenas would impose “an extreme
burden” on the citizen groups “whose only connection to the underlying litigation is their
exercise of their constitutionally protected First Amendment rights.” (ECF No. 95 at 55.) In
addition to being a burden in practical terms of responding to the subpoena’s document requests,
the citizen groups argue that the subpoenas “penaliz[e] them for exercising their First
Amendment Rights.” (Id. at 56.) By their declarations, the citizen groups approximate the effect
that compliance with the subpoenas would have on their organizations. (Id. at 58.) Some of the
organizations are small non-profits with no paid staff. (Id.) Others are larger, but stress that
compliance would divert their employees from furthering the groups’ core missions. (Id. at 5859.) The citizen groups note that “[s]ome of these organizations would crumble under the
pressure of responding to these subpoenas.” (Id. at 59.) And importantly, the citizen groups note,
they are non-parties to this case and the Court should be sensitive to the burdens of discovery on
non-parties. (Id. at 55-56.)
Pulte argues that the citizen groups’ declarations are “generalized, non-specific, and
conclusory” and do not offer “any facts to justify any of the estimates” regarding the asserted
burden. (ECF No. 103 at 21.) Specifically, the declarations contain “no information regarding the
volume of documents” in the possession of the citizen groups, and no information about the
manner in which they are stored. (Id.) Pulte also notes that the citizen groups exaggerate the
likely impact of responding to the subpoenas. (Id. at 22-23.) For instance, Ann Smith of the

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Seneca Creek Watershed Partners states in her declaration that if required to respond, she would
need to “spend several hours going through emails, files and personal notes.” (ECF No. 95-8.)
Pulte suggests that spending a few hours looking for responsive documents is not an undue
burden. (ECF No. 103 at 23 n.10.) Pulte also notes that the citizen groups are not innocent
bystanders in this litigation and have an interest in its outcome. (Id. at 23-24.)
In considering the burden that will be imposed on the citizen groups in responding to the
subpoenas, I will take into account several factors. First, the citizen groups are not parties to this
case and will not be named as parties in the future. Second, by and large, the citizen groups are
either individuals or small non-profit organizations with limited paid staff, and presumably
limited experience in responding to discovery requests. Third, Pulte is entitled to obtain
discovery that is relevant to its claims, even if obtaining the discovery is a moderate burden on
other parties and non-parties.
Considering the declarations submitted by the citizen groups along with the legal
arguments raised by Pulte, I find that compliance with the modified subpoena requests will not
impose an undue burden. Although the citizen groups are not parties to this case, they do possess
relevant information. While I am sensitive to the impact that responding to discovery has on nonparties, this is not a significant factor. I have narrowed the requests contained in the subpoenas
dramatically and it will not be an undue burden for the citizen groups to respond to the modified
requests. In addition, while some of the citizen groups are small, it is likely that the smaller
groups possess significantly fewer responsive documents than the larger groups. While every
discovery production imposes some burden on parties and non-parties alike, I find that the
modified subpoena requests do not impose an undue burden on the citizen groups. Finally, I must
consider Pulte’s interests in obtaining discovery from the citizen groups. My cursory review of

25

pertinent case law suggests that it may be very difficult for Pulte to ultimately prove its due
process and equal protection claims. See, e.g., Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d
810 (4th Cir. 1995). I believe it is fair and reasonable to permit Pulte the opportunity to obtain as
much discovery as is relevant to its case.
While the arguments of the citizen groups focused on the labor-intensiveness of
responding to the subpoenas, they never addressed cost concerns. If the citizen groups believe
that they will incur a substantial and unduly burdensome expense in responding to the modified
requests, I will consider shifting these costs to Pulte. If the discovery it seeks from the citizen
groups is as crucial as it argues, the ends of justice may require Pulte to pay for it. However,
before incurring any such expense, the citizen groups must first confer with Pulte in an attempt
to reach an agreement. If no agreement is reached, Pulte and the citizen groups must request a
telephone conference with me to discuss the issue informally before resorting to filing any more
motions or incurring any expense for which the citizen groups will seek to be reimbursed.
III.

Conclusion
In summary, I find that the citizen groups possess a qualified First Amendment privilege

in connection with the subpoenas issued by Pulte. As initially drafted, the requests contained in
the subpoenas impose a burden on the citizen groups’ First Amendment associational rights that
is not outweighed by Pulte’s interest in obtaining the information. Pulte’s modified subpoena
requests, however, do not pose the same problem. The citizen groups’ First Amendment interests
are not substantial enough in relation to parts of these requests to warrant quashing the
subpoenas in their entirety. The citizen groups will be ordered to produce documents responsive
to the modified requests as outlined below. Such responses shall be produced to Pulte by April
28, 2017.

26

For Request No. 1, the citizen groups shall produce responsive documents that the groups
sent to the Defendants during the relevant time period. The citizen groups shall not be required to
produce responsive documents that they did not send to the Defendants during the relevant time
period, except for the “scientific sampling data that they themselves have developed over the last
twenty years or so regarding Ten Mile Creek and nearby watersheds,” which they must produce
(See Mitchell Ltr. at 2)
For Request Nos. 2, 3, 4, and 5, the citizen groups shall produce responsive documents
reflecting their communications with the Defendants during the relevant time period. The citizen
groups shall not be required to produce documents that reflect their communications with
individuals or entities other than the Defendants.
The parties’ rights to file objections to this memorandum and order are outlined in Rule
72(a) and Local Rule 301.5(a). These rules provide that any party wishing to object may do so in
writing within 14 days of the date of this decision. Unless otherwise ordered, the filing of
objections will not operate as a stay of any obligation or deadline imposed by this decision.
An accompanying Order follows.

March 24, 2017
Date

/s/
Timothy J. Sullivan
United States Magistrate Judge

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