Privacy of Association: A Burgeoning Privilege in Civil Discovery
88 Pages Posted: 31 May 2012
Date Written: October 12, 2011
The United States Supreme Court repeatedly has held that individuals and organizations cannot legislatively be compelled to disclose membership information where such disclosure infringes on the freedom of association of the organizations or their members. Now the fundamental rights to freedom and privacy of association are being challenged in a new manner. With increasing frequency and severe consequences, civil discovery mechanisms are being used to compel the disclosure of information in violation of group and individual constitutional rights to associational privacy. Use of civil discovery to obtain such information is particularly insidious in that litigants' rights to a full and fair resolution of their legal disputes are being threatened. Moreover, the risk of having to comply with highly intrusive discovery inquiries may deter the commencement of meritorious litigation. This phenomenon requires a judicial response. Courts must recognize an associational privacy privilege in the discovery context in order to protect the first amendment rights of litigants.
The increased frequency of effort to use civil discovery to compel the disclosure of membership and related information can be attributed to a combination of factors. First, politically and socially active groups have increasingly resorted to the courts. Concomitantly, the use of discovery has increased tremendously. As litigants have become better acquainted with the Federal Rules of Civil Procedure, they have recognized the Rules' tremendous potential as an information gathering device. Finally, because the degree of respect owed associational rights in the discovery context is not yet clear, inquiring parties have found the demand for confidential information promising both as a means for strengthening their position in the litigation through increased knowledge, and as a potent tactical weapon. Such discovery has been used to limit substantive rights. Defendants threatened with intrusive interrogatories often will prove amenable to settlement negotiations. Plaintiffs faced with such inquiries may feel constrained to dismiss their suits or limit their complaints. In this way, many important substantive rights are being endangered by the use of discovery to intrude on associational privacy.
One particularly troublesome aspect of this phenomenon is that politically controversial and unpopular groups often are the subject of these intrusive inquiries. For example, names of Black Panther Party officers and members, and names and addresses of Minnesota Communist Party members and sympathizers, were sought by the United States government using civil discovery mechanisms. At least one public utility sought to discover the membership and mailing list of a defendant anti-nuclear group, the SHAD Alliance. Sperry Rand Corporation sought to discover the names, sex, race, address, occupation and present employer of every member of a Connecticut chapter of the National Organization for Women, which was pursing Title VII race and sex discrimination claims against the company. Finally, black residents of Chattanooga, Tennessee, sought through civil discovery to ascertain the names and addresses of the members and “officers” of Ku Klux Klan organizations and the identity of persons who attended their meetings.
While courts are now experienced at weighing associational privacy interests against legislative concerns, they have not yet refined an analysis for protecting associational privacy in the discovery arena, where opposing litigants assert an entitlement to private information so they may fully defend or present their cases. This Article argues that a qualified associational privacy privilege must be made available to litigants at the discovery stage in order to protect their first amendment associational rights. It seeks to provide courts with a detailed analytical approach to be used in determining when a privilege should be recognized. The Article also attempts to make the judiciary and the bar aware of the issues raised by assertion of the privilege. Section I derives a theoretical framework for the privilege from Supreme Court precedent involving the right of associational privacy generally. Section II addresses three potentially significant objections to recognizing a privacy of association privilege, and Section III outlines the proposed analytical approach. Section IV then illustrates this approach and explores its implications by comparing and evaluating the approaches taken in a number of actual cases. Finally, Section V discusses the ramifications of successful and unsuccessful assertions of the privilege, including the role of protective orders and the propriety of sanctions against unyielding litigants.
Keywords: discovery, privacy, freedom of association
JEL Classification: K40, K41
Suggested Citation: Suggested Citation