Motion to Compel Production of Documents — Democratic National Committee v. Bostelmann, Case 3:20-cv-00249, Doc. 465 (Filed 07/27/20)

Summary

In the United States District Court for the Western District of Wisconsin, Case No. 3:20-cv-249-wmc and consolidated cases, Document 465 filed 07/27/20 is Intervenors' Opposition to Swenson Plaintiffs' Emergency Motion to Compel Production of Documents and a Deposition under Rule 30. The Republican National Committee, Republican Party of Wisconsin and Wisconsin State Legislature, as Intervenor-Defendants, argue they will not present witnesses or evidence of their own at the upcoming preliminary-injunction hearing and will rely on the existing record. They say the Swenson plaintiffs should not use discovery to pierce attorney-client or First Amendment privilege or inflict a discovery tax, and ask that the motion to compel be denied. These are the intervenors' arguments.

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“Motion to Compel Production of Documents — Democratic National Committee v. Bostelmann, Case 3:20-cv-00249, Doc. 465 (Filed 07/27/20).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-wiwd-45522-465-0-81dbdc717b/, SHA-256 a8ef21173e083d668fff8f322f9c4cc8c14ee8c7362bb9dc7b800d7925624895.

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Case: 3:20-cv-00249-wmc Document #: 465 Filed: 07/27/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DEMOCRATIC NATIONAL COMMITTEE
and DEMOCRATIC PARTY OF
WISCONSIN,
Plaintiffs,
Case No: 3:20-cv-249-wmc (consolidated
v. with 3:20-cv-278-wmc, 3:20-cv-
284-wmc, 3:20-cv-340-wmc,
MARGE BOSTELMANN, JULIE M. and 3:20-cv-459-wmc)
GLANCEY, ANN S. JACOBS, DEAN
KNUDSON, ROBERT F. SPINDELL, JR., and
MARK L. THOMSEN, in their official
capacities as Wisconsin Elections
Commissioners,
Defendants,

REPUBLICAN NATIONAL COMMITTEE,
REPUBLICAN PARTY OF WISCONSIN, and
WISCONSIN STATE LEGISLATURE
Intervenor-Defendants.

INTERVENORS’ OPPOSITION TO SWENSON PLAINTIFFS’
EMERGENCY MOTION TO COMPEL PRODUCTION OF
DOCUMENTS AND A RULE 30(b)(6) DEPOSITION
The Republican National Committee routinely intervenes as a defendant in cases like this one,

where plaintiffs allege that existing election laws are unconstitutional. To the RNC’s knowledge, it has

never sat for a deposition in one of these cases. This is not because the courts, the Democratic Party,

and other plaintiffs all thought the “regular discovery rules do not apply” to the Republican Party.

Mot. 4. It is because in cases like this one, where the Republican intervenors are defending the law

and are not relying on witnesses or documents of their own, they have no relevant information to

provide.

So too here. At the upcoming preliminary-injunction hearing, the Republican intervenors will

not present witnesses or evidence of their own. They will rely on the existing record produced by the

other parties. The Republican intervenors have already expressed their view on how the record defeats

the Swenson plaintiffs’ claims in their opposition to the preliminary-injunction motion. If the Swenson

Case: 3:20-cv-00249-wmc Document #: 465 Filed: 07/27/20 Page 2 of 7

plaintiffs believe those arguments are “unspecified and unsupported,” Mot. 4, they should make that

point in their reply brief in support of a preliminary injunction—where legal arguments belong. But

the Swenson plaintiffs should not be allowed to use discovery as a tool to pierce attorney-client privilege,

to pierce the First Amendment privilege, or to inflict a “discovery tax” on intervenors. Especially in

light of this Court’s instruction that “[t]he parties should be restrained in their requests” for discovery,

Doc. 217, No. 3:20-cv-249, the motion to compel should be denied.

BACKGROUND
On July 10, the Swenson plaintiffs served the Republican intervenors with requests for

documents, interrogatories, and two deposition notices. The requests can be broken down into three

main categories: communications between the Republican intervenors and election officials,

information about the Republican intervenors’ standing (presumably to relitigate intervention), and

information about plaintiffs’ various requests for relief. See Mot. Exhs. A-D.

Plaintiffs and intervenors met and conferred several times to narrow these requests. It soon

became clear that the Swenson plaintiffs were focused on the last category of information—their various

requests for relief. Specifically, the Swenson plaintiffs said they wanted to know why the Republican

intervenors believe each form of relief would increase burdens or costs, undermine the integrity of

the election, or increase the risk of fraud. Mot. Exh. G. To assuage any concerns, the Republican

intervenors confirmed that they would not produce any witnesses or evidence of their own on these

questions, but would simply rely on the record developed by the other parties. Mot. Exh. H. The

Republican intervenors’ views about whether the existing record undermines the plaintiffs’ relief were

legal arguments, the intervenors explained, and those arguments were already outlined in their

opposition to the preliminary-injunction motion. Id.

The plaintiffs and intervenors reached a tentative compromise, where the Republican

intervenors would respond to interrogatories about each form of relief that the Swenson plaintiffs

Case: 3:20-cv-00249-wmc Document #: 465 Filed: 07/27/20 Page 3 of 7

requested. That deal fell apart, however, because the plaintiffs demanded that the Republican

intervenors also agree that, when challenging the plaintiffs’ requested relief, they would not “rely on

factual evidence at all—whether it is in the ‘existing record’ or otherwise.” Mot. Exh. I. The

Republican intervenors were unable to agree to that strange request.

ARGUMENT
All discovery must be “nonprivileged,” “relevant to any party’s claim or defense,” and

“proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “‘[S]peculation’” that a party has

“‘unspecified additional information’” does not satisfy this standard. Hardtke v. JLG Indus., Inc., No.

15-cv-719-SLC, 2016 WL 3248605, at *2 (W.D. Wis. June 10, 2016). Plaintiffs cannot engage in

“wholly exploratory [discovery] in the vague hope that something helpful will turn up.” Mack v. Great

Atl. & Pac. Tea Co., 871 F.2d 179, 187 (1st Cir. 1989).

Narrowing their requests for purposes of “this motion,” the Swenson plaintiffs now seek two

categories of documents and eight topics for deposition—all concerning whether their requested relief

“would affect the integrity of the upcoming election or is otherwise feasible.” Mot. 5-7, 3. But the

plaintiffs do not want evidence that their relief would negatively affect integrity or is not feasible. Instead,

they want “only … materials … that may actually support … the relief they seek.” Mot. 5 (emphasis

added). Notably, the plaintiffs did not make this request of the Democratic Party, which has the same

“up close” election “experience” as the Republican Party. Mot. 8. They are trying to use discovery to

make a “gotcha” point: Either the Republican intervenors will have no responsive documents, and

the plaintiffs can argue that “the Republican Party has zero evidence that our relief is problematic.”

Or, if the plaintiffs are really lucky, the Republican Party will have some document from some person

that actually supports their requested relief.

This strategy is not an appropriate use of discovery—let alone “proportional to the needs of

the case” such that “the burden or expense of the proposed discovery outweighs its likely benefit.”

Case: 3:20-cv-00249-wmc Document #: 465 Filed: 07/27/20 Page 4 of 7

Fed. R. Civ. P. 26(b)(1). The Republican intervenors are not relying on their own witnesses or evidence

to undermine the Swenson plaintiffs’ requested relief. So if the Swenson plaintiffs want to argue that

intervenors’ concerns are “[u]nspecified and unsupported,” Mot. 4, they are free to do so. See Estate of

Rosado-Rosario v. Falken Tire Corp., 2016 WL 6407473, at *4 (D.P.R. Oct. 28, 2016) (quashing a

deposition because “the substantial burden of producing this individual for deposition is not offset by

the minimal increase in information”).

Further, the vague hope that the Republican intervenors will have some document that

supports the requested relief is the sort of “speculation” that cannot justify these “broad discovery

requests.” Hardtke v. JLG Indus., Inc., 2016 WL 3248605, at *2; see Ameristar Jet Charter, Inc. v. Signal

Composites, Inc., 244 F.3d 189, 193 (1st Cir. 2001) (party cannot embark on a “‘fishing expedition’”

based on nothing more than “the mere ‘hope’” that “it will receive contradictory testimony”). These

requests are incredibly broad. They ask for anything that “relate[s] to” the feasibility of the Swenson

plaintiffs’ relief, which seems to ask the Republican intervenors to draw on the experiences of

hundreds of employees, over all 50 States, over any number of different elections, with no set

timeframe. The burdens are worsened by the fact that many of the requests ask the intervenors to

prove they lack certain evidence—that nothing in their possession suggests the plaintiffs’ relief would

“impede the asserted state interests,” cause “fraud,” harm “voter confidence,” or create certain

“risk[s].” It is unclear how the intervenors would even go about proving a negative under these vague

criteria.

The primary flaw with the plaintiffs’ request, moreover, is that is misunderstands the governing

law. Citing nothing, the plaintiffs insist that the appropriateness of their requested relief—i.e., the state

interest behind not imposing each form of relief—“depends on facts” elicited in discovery. Mot. 8.

Under the Anderson-Burdick framework that governs this case, however, the State’s interest is a

“legislative fact,” accepted as true so long as it’s reasonable. Frank v. Walker, 768 F.3d 744, 750 (7th

Case: 3:20-cv-00249-wmc Document #: 465 Filed: 07/27/20 Page 5 of 7

Cir. 2014) (Frank I). States are not required to submit “any record evidence in support of [their] stated

interests.” Common Cause/Ga., 554 F.3d at 1353; accord ACLU of N.M. v. Santillanes, 546 F.3d 1313,

1323 (10th Cir. 2008); Miller v. Thurston, 2020 WL 4218245, at *8 (8th Cir. July 23, 2020). In fact, when

responding to an Anderson-Burdick challenge, States can rely on “post hoc rationalizations,” can “come

up with its justifications at any time,” and have no “limit[s]” on the type of “record [they] can build in

order to justify a burden placed on the right to vote.” Mays v. LaRose, 951 F.3d 775, 789 (6th Cir. 2020).

States can rely on examples from other jurisdictions, court decisions, general history, or sheer logic.

Common Cause/Ga., 554 F.3d at 1353; Frank I, 768 F.3d at 750. In other words, even if the Republican

intervenors had no concrete evidence undermining the Swenson plaintiffs’ relief, that fact would prove

nothing. See U.S. ex rel. Coppock v. Northrop Grumman Corp., 2003 WL 22171707, at *4 (N.D. Tex. Mar.

6, 2003) (holding that “additional discovery” was not needed because the party “advances legal

challenges … that do not require factual determinations”).

Any Wisconsin-specific evidence about the feasibility of the Swenson plaintiffs’ relief,

moreover, would lie with the WEC—the entity actually charged with enforcing Wisconsin law. The

plaintiffs have taken extensive discovery from WEC, and both sides will draw on that evidence when

making their legal arguments. But the fact that this evidence is already in the record makes taking the

Republican intervenors’ depositions will be virtually impossible. The Swenson plaintiffs cannot ask the

deponents about why they think the requested relief is appropriate or inappropriate under the existing

record. Those are legal arguments, not discoverable facts. See EEOC v. TruGreen Ltd. P’ship, 185 F.R.D.

552, 556 (W.D. Wis. 1998). But it will be incredibly difficult, if not impossible, to keep a deposition

limited to questions and answers that do not implicate evidence already in the record. At the very least,

the plaintiffs should be forced to try interrogatories first, as they initially agreed to do. Patterson v. Avery

Dennison Corp., 281 F.3d 676, 682 (7th Cir. 2002). In fact, their “failure to take advantage of …

interrogatories[] casts serious doubt over [their] claim that [intervenors] possess[] information that [i]s

Case: 3:20-cv-00249-wmc Document #: 465 Filed: 07/27/20 Page 6 of 7

more than marginally relevant.” Id.

Finally, much of what the Swenson plaintiffs seek is privileged under the First Amendment. See

Flynn v. Church of Scientology Int’l, 116 F.R.D. 1, 4-6 (D. Mass. 1986) (quashing the depositions of three

witnesses because almost all of their testimony would be privileged or irrelevant). The First

Amendment protects the “freedom to engage in association for the advancement of beliefs and ideas.”

NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958). And there is a “vital relationship between

freedom to associate and privacy in one’s associations.” Id. at 462. Courts have thus recognized a First

Amendment privilege that protects, among other things, organizations’ internal communications and

documents concerning strategy. See, e.g., Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2009);

Sexual Minorities of Uganda v. Lively, 2015 WL 4750931, at *2, *4 (D. Mass. Aug. 10, 2015); Sierra Club v.

Union Elec. Co., 2015 WL 9583394, at *5 (E.D. Mo. Dec. 31, 2015). Yet that is most, if not all, of what

the Swenson plaintiffs seek. Because exposing these internal documents to discovery would stifle speech

and association within the Republican Party, the Swenson plaintiffs must “show both a compelling need

for the material sought and that there is no significantly less restrictive alternative for obtaining the

information.” United States v. Comley, 890 F.2d 539, 544 (1st Cir. 1989). For the reasons given above,

they cannot meet this heightened standard.

CONCLUSION
For all these reasons, the Court should deny the motion.

Case: 3:20-cv-00249-wmc Document #: 465 Filed: 07/27/20 Page 7 of 7

Dated: July 27, 2020 Respectfully submitted,

/s/ Patrick Strawbridge ___T
Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
(617) 227-0548
patrick@consovoymccarthy.com

Jeffrey M. Harris
Cameron T. Norris
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209

CERTIFICATE OF SERVICE
I filed this document with the Court via ECF, which will electronically notify everyone

requiring notice.

Dated: July 27, 2020 /s/ Patrick Strawbridge

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