The Tenth Circuit upheld a broad discovery order that requires a member of a trade association to disclose information about internal policy and strategy deliberations involving the measurement of gasoline volume. On appeal is whether an association can obtain appellate review of such an order, and the appeals court decisions on this issue conflict. In addition, the court imposed a difficult evidentiary burden by saying that unsworn testimony that is the equivalent of affidavits expressly held to be sufficient in other similar cases was inadequate as a matter of law to establish that the discovery order here implicated associational rights. It appeared to require a member company to file an affidavit saying that it would be deterred from communication freely within the association if it knew that such communications might one day be publicly disclosed.
The NAM filed an amicus brief 10/20 urging the Supreme Court to review this case. We argued that an association’s members need assurance that internal communication between members and the association will not be subject to public disclosure. Individuals have a right to privacy of belief and association that lies at the very heart of the First Amendment freedoms of association and petition, rights that are undeniably enhanced by participation in associations. We sought avenues for a non-party association to appeal such a broad discovery order. We argued that the First Amendment’s protections have never been limited to simply protecting the identity of the rank-and-file members, but rather extends to internal deliberations over strategy and messaging. As many cases have already shown, there is a presumption that associations and their members are protected by a First Amendment privilege where the potential for chilling associational activities and speech is self-evident, as it is here.
On January 9, 2012, the Court declined to review the lower court's ruling.