Nonprofit Gets a Break on Discovery Dispute Costs

     (CN) - A women's rights group deserves court costs for having to produce documents related to its role in the dispute over access to the contraceptive Plan B, the 9th Circuit ruled Tuesday.
     Seattle-based Legal Voice failed, however, to show that the subpoena was meant to intimidate and harass, the federal appeals court found.
     The dispute involves a the religious objections Stormans Inc., owners of Ralph's Thriftway, made after the Washington State Board of Pharmacy started requiring pharmacies to stock and dispense the contraceptive in 2007.
     Legal Voice, which was formerly known as the Northwest Women's Law Center, helped bring the issue to the state government and participated on a task force, but was not a party to Stormans' action.
     Represented by the Christian nonprofit Alliance Defending Freedom, Stormans nevertheless served Legal Voice with a subpoena for, among other things, "any communications concerning the challenged regulations between the Law Center and the Board, the Washington State Human Rights Commission, the Governor's Office, and other advocacy groups."
     The subpoena also sought "internal ... communications pertaining to the regulations, as well as general information concerning the Law Center's membership and employees," according to the ruling.
     After Legal Voice fought the subpoena as overly broad and burdensome, U.S. District Judge Ronald Leighton limited its scope in a clarification. Leighton later denied the group's request for reimbursement of the $20,000 in costs Legal Voice incurred related to the discovery.
     Last year, Tacoma, Wash.-based Leighton found the disputed rules unconstitutional, ruling that they were "designed ... to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted."
     An appeal is pending in the 9th Circuit.
     Meantime, Legal Voice appealed Leighton's refusal to either order costs or sanction Stormans for the subpoena, which the group called an "attempt to target specific organizations ... who took an adverse position in the public debate in an effort to harass, intimidate, and discourage them from exercising their First Amendment rights to engage in free speech, to assemble, and to petition the government.
     "The undisputed evidence demonstrates that plaintiffs deliberately served an overly broad subpoena on the Law Center," Legal Voice argued in a brief. "And the undisputed evidence demonstrates that the Law Center incurred significant costs responding to the subpoena even after the district court narrowed its scope."
     Legal Voice added that most of the documents that Stormans requested had already been supplied by the state, "totaling 23,000 pages of documents and 21 audiotapes."
     Noting that federal rules of civil procedure require the court to protect nonparties from "significant expense resulting from compliance" with subpoenas to which they have objected, the appellate panel reversed in part on Tuesday and granted Legal Voice costs.
     The three-judge panel was unconvinced, however, that the subpoena had been issued in bad faith.
     "Although the district court denied the motion to compel as to eight of the fourteen categories requested, we cannot say that the subpoena was so facially overbroad that the district court's denial of sanctions was an abuse of discretion," Judge A. Wallace Tashima wrote for the panel. "We are also not persuaded that plaintiffs so clearly acted in bad faith or with an improper motive that we may reverse the denial of sanctions on this ground."