American Freedom Defense Initiative et al v. Suburban Mobility Authority For Regional Transportation (SMART) et al
Filing
53
REPLY to Response re 50 MOTION to Compel Discovery filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1--Declaration of Robert J. Muise) (Muise, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM DEFENSE
INITIATIVE; et al.,
Plaintiffs,
v.
SUBURBAN MOBILITY AUTHORITY
for REGIONAL TRANSPORTATION
(“SMART”), et al.,
Defendants.
AMERICAN FREEDOM LAW CENTER
Robert J. Muise, Esq. (P62849)
P.O. Box 131098
Ann Arbor, MI 48113
rmuise@americanfreedomlawcenter.org
(734) 635-3756
David Yerushalmi, Esq.
1901 Pennsylvania Avenue NW
Suite 201
Washington, D.C. 20006
david.yerushalmi@verizon.net
(646) 262-0500
THOMAS MORE LAW CENTER
Erin Mersino, Esq. (P70866)
24 Frank Lloyd Wright Dr.
P.O. Box 393
Ann Arbor, MI 48106
emersino@thomasmore.org
(734) 827-2001
No. 2:10-cv-12134-DPH-MJH
PLAINTIFFS’ REPLY
IN SUPPORT OF
MOTION TO COMPEL
DISCOVERY
Hon. Denise Page Hood
Magistrate Judge Hluchaniuk
SMART
Avery E. Gordon, Esq. (P41194)
Anthony Chubb, Esq. (P72608)
535 Griswold Street, Suite 600
Detroit, MI 48226
agordon@smartbus.org
achubb@smartbus.org
(313) 223-2100
Fax: (248) 244-9138
VANDEVEER GARZIA, P.C.
John J. Lynch (P16887)
Christian E. Hildebrandt (P46989)
1450 W. Long Lake Road,
Suite 100
Troy, MI 48098
jlynch@vgpclaw.com
childebrandt@vgpclaw.com
(248) 312-2800
Fax: (801) 760-3901
Counsel for Defendants
Counsel for Plaintiffs
______________________________________________________________________________
Plaintiffs American Freedom Defense Initiative, Pamela Geller, and Robert
Spencer (collectively referred to as “Plaintiffs”), by and through their undersigned
counsel, hereby file this reply in support of their motion for an order compelling
the production of documents requested under Rule 34 of the Federal Rules of Civil
Procedure and answers to questions asked under Rule 30 of the Federal Rules of
Civil Procedure.1 (Pls.’ Mot. to Compel [Doc. No. 50]). As noted in the motion,
the requested discovery is directly related to Plaintiffs’ claim that Defendants’
advertising guidelines are unconstitutional both facially and as applied to
Plaintiffs’ Leaving Islam advertisement.
Moreover, as an initial matter,
Defendants’ reliance on the Sixth Circuit’s ruling on the preliminary injunction
motion in this case is overblown and incorrect as a matter of law. (See Defs.’
Opp’n at 4 [claiming that this case and the issues it presents have “already been
decided by” the Sixth Circuit] [Doc. No. 52]).2 As Plaintiffs will demonstrate
1
Defendants do not address this aspect of the motion and have thus waived any
such opposition.
2
Contrary to Defendants’ assertions, a preliminary decision on a request for an
injunction is not binding at a trial on the merits or when deciding a motion for
summary judgment, and thus does not constitute the “law of the case.” Univ. of Tx.
v. Camenisch, 451 U.S. 390, 395 (1981) (“[T]he findings of fact and conclusions
of law made by a court granting a preliminary injunction are not binding at trial on
the merits.”); Wilcox v. United States, 888 F.2d 1111, 1114 (6th Cir. 1989)
(holding that the trial court’s denial of a preliminary injunction did not establish
the law of the case with respect to the court’s subsequent summary judgment
determination); Tech. Publ’g Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139
(7th Cir. 1984) (“A factual finding made in connection with a preliminary
injunction is not binding” on a motion for summary judgment); City of Angoon v.
1
further in their motion for summary judgment, the Sixth Circuit’s ruling was based
on a woefully incomplete factual record and does not constitute “law of the case.”3
(See n.2, infra). Indeed, as Plaintiffs’ counsel explained during the preliminary
discussions on the issues presented by this motion:
[The Sixth Circuit’s ruling on the preliminary injunction] on its face
lacked the benefit of the actual factual record—that is, while your
clients contend they have a constitutionally valid “political speech”
restriction, it is Plaintiffs’ claim that the facts demonstrate beyond
cavil that there is no such policy—it is in effect and as applied a
subjective, arbitrary, and capricious ad hoc decision—and to the
extent it exists it is not based on what the Sixth Circuit understood it
to be. Rather, it is a policy based on whether the subject matter is
contentious. But, as noted above, even that policy is not applied
coherently. In other words, the record clearly suggests that it is not
politics, it is contentiousness. And, it is not just contentiousness; it is
any viewpoint based contentiousness that SMART does not like.
(Muise Decl. at ¶ 6, Ex. E, at Ex. 1 [Doc. No. 50-2]).
In their opposition, Defendants do not address (nor attempt to refute) the
undisputed fact that SMART’s general counsel is a decision maker with regard to
the advertising guidelines at issue. And as Defendants acknowledge, the withheld
documents address the application of these advertising guidelines—(i.e., how a
relevant decision maker applies the guidelines to accept or reject a proposed
Hodel, 803 F.2d 1016, 1024 n.4 (9th Cir. 1986) (determinations corresponding to a
preliminary injunction do not constitute law of the case).
3
As this court is aware, Plaintiffs did not have the benefit of discovery prior to
filing their motion for preliminary injunction.
2
advertisement).4 Defendants make a feeble (and factually incorrect) argument that
the emails produced “reflect conclusions” made by counsel regarding the
application of the guidelines—emails which Defendants claim are not privileged
and thus discoverable because they show “how SMART applied its content policy
to particular advertisements.” (Defs.’ Opp’n at 7 [Doc. No. 52]). Yet, Defendants
claim that the withheld documents are privileged because they contain information
revealing “mental impressions, analyses, and interim discussions” as to whether an
advertisement should be accepted or rejected by SMART under the guidelines at
issue. (Defs.’ Opp’n at 8 [Doc. No. 52]). In other words, the withheld emails
show precisely the same thing: how SMART applies the guidelines to accept or
reject an advertisement—information that is highly relevant because it goes to the
4
Defendants grossly mischaracterize Plaintiffs’ waiver argument as follows:
“Plaintiffs argue that because emails authored by attorneys have been provided, the
privilege has been waived. Plaintiffs then argue that all emails written by attorneys
and all communications between those attorneys and their clients are consequently
discoverable.” (Defs.’ Opp’n at 7 [Doc. No. 52]). As Plaintiffs argued in their
motion—and as the case law makes clear—it is well established that the voluntary
disclosure of the content of a privileged communication constitutes a waiver of the
privilege as to all other such communications on the same subject matter. See
United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). Thus, Plaintiffs are
not seeking disclosure of “all emails”—only those emails to which Defendants
have waived the privilege (assuming that the privilege attaches in the first instance,
which Plaintiffs believe it does not). And that subject matter is the application of
the advertising guidelines at issue here. These emails—similar to the ones already
produced—demonstrate how the guidelines are applied and the facts SMART
deems relevant when applying the guidelines.
3
very heart of this litigation.5
Indeed, how SMART applies its advertising
guidelines to conclude, for example, that Plaintiffs’ advertisement is “political” but
that the below advertisement, which promotes sex between males and which
SMART accepted for display, is not “political” is exceedingly relevant as to
whether SMART’s guidelines provide clear, objective standards for its
decisionmakers or whether these guidelines are applied subjectively and arbitrarily
in violation of the Constitution.
5
Even a cursory review of a sample of the emails Defendants produced
demonstrates that these emails contain “mental impressions, analyses, and interim
discussions.” (See Muise Decl. at ¶ 4, Ex. C, at Ex. 1 [attorney email
communication stating, “Typically, get out the vote drives are not political” but
“targeted get out the vote drives paid for by politicians could very well cross the
line” in response to a question from Defendant Gibbons asking, “What are your
thoughts on this one?”; attorney email communication stating, “This decision
[whether to accept or reject a particular advertisement] turns on whether the
proposed advertisement is ‘obscene’ per section. 5.07. I believe an argument can
be made that the proposed ad is repulsive by reason of crass disregard of moral or
ethical principles, and should therefore be rejected. Avery makes the final
decision. I’d ask for alternative graphics”] [Doc. No. 50-5’ Pg ID 518, 550]). In
short, Defendants are attempting to draw distinctions where none exist.
4
In fact, we learned during SMART’s deposition that “political” for purposes
of its advertising guidelines means “any advocacy of a position of any politicized
issue.” (Muise Decl. at ¶ 2, Ex. A [SMART Dep. at 41] at Ex. 1). In an effort to
explain this tautology, SMART defined “politicized” as follows: “if society is
fractured on an issue and factions of society have taken up positions on it that are
not in agreement, it’s politicized.” (Muise Decl. at ¶ 2, Ex. A [SMART Dep. at 41]
at Ex. 1).
Thus, if an advertisement addresses a contentious issue—at least one that
SMART believes is contentious based upon SMART’s sliding spectrum of
contentiousness—then it is rejected. There is little doubt that the withheld emails
will further demonstrate the arbitrary (indeed, discriminatory) way in which
SMART applies its content-based guidelines.
Defendants cannot hide this
information by asserting attorney-client privilege, particularly when (1) the
information in the first instance is not privileged because the general counsel is in
the decision-making chain and the information sought directly relates to the
application of the advertising guidelines, including the information SMART (and
each of its decision makers) deems relevant to conclude that an advertisement
should be accepted or rejected and (2) the privilege has, nonetheless, been waived.
Indeed, with regard to waiver, SMART cannot pick and choose which
communications it deems beneficial to its case and disclose those, but then
5
withhold other similar communications it believes are harmful.
fairness demands disclosure of all such communications.
Fundamental
In re Grand Jury
Proceedings Oct. 12, 1995, 78 F.3d 251, 256 (6th Cir. 1996) (holding that the
reviewing court “must be guided by fairness concerns” when determining the
scope of the waiver).
Finally, Defendants’ objection to this court conducting an in camera review
of the withheld documents is simply without merit. (See Defs.’ Opp’n at 8-9
[citing no legal authority whatsoever] [Doc. No. 52]). As an initial matter, the
Supreme Court has given its imprimatur for a trial court to conduct an in camera
review to test the claim of attorney-client privilege, expressly holding that such
review “does not have the legal effect of terminating the privilege.” United States
v. Zolin, 491 U.S. 554, 568-69 (1989).
Indeed, submitting documents for in
camera review is “a practice both long-standing and routine” in cases involving
claims of attorney-client privilege. In re Grand Jury Subpoenas, 318 F.3d 379,
386 (2d Cir. 2003) (collecting cases). Moreover, judges presiding over bench trials
are often called upon to make rulings on whether certain evidence is admissible,
including whether the proffered evidence is prejudicial. See Fed. R. Evid. 403 &
404(b). And as noted by the Sixth Circuit, “[I]n a trial to the court it is presumed
that evidence which is improper will be disregarded by the court.” Westwood
Chem., Inc. v. Owens-Corning Fiberglas Corp., 445 F.2d 911, 918 (6th Cir. 1971).
6
In sum, a court’s in camera review does not violate the attorney-client
privilege, which is meant to prevent the disclosure of potentially privileged
information to opposing counsel and the public. Moreover, judges presiding over
bench trials must routinely review evidence that might be highly prejudicial (or
privileged) to determine whether it is admissible. And if the evidence is improper,
it will be disregarded by the court. Thus, Defendants’ claim that it would be
improper for this court “to evaluate and see non-discoverable documents” because
the court “would be called upon to make a decision in light of and with knowledge
of information it could not appropriately see in deciding this case” (Defs.’ Opp’n at
9 [Doc. No. 52]) is incorrect as a matter of law.
Because discovery closes on July 15th and dispositive motions are due on or
before August 16th (Scheduling Order [Doc. No. 45]), Plaintiffs request that the
court order Defendants’ counsel to bring copies of the withheld documents to the
hearing set for July 26, 2013, to expedite this matter and to minimize further delay
in resolving the ultimate and important First Amendment issues at stake.
CONCLUSION
Plaintiffs respectfully request that this court grant their motion to compel
discovery.
7
Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq.
/s/ David Yerushalmi
David Yerushalmi, Esq.
THOMAS MORE LAW CENTER
/s/ Erin Mersino
Erin Mersino, Esq.
Counsel for Plaintiffs
8
CERTIFICATE OF SERVICE
I hereby certify that on July 12, 2013, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to all parties for whom counsel has
entered an appearance by operation of the court’s electronic filing system. Parties
may access this filing through the court’s system.
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq. (P62849)
9
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