Whole Woman's Health v. Charles Smith ( 2018 )


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  •      Case: 18-50484   Document: 00514558274     Page: 1   Date Filed: 07/17/2018
    REVISED July 17, 2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT       United States Court of Appeals
    Fifth Circuit
    FILED
    July 15, 2018
    No. 18-50484
    Lyle W. Cayce
    Clerk
    WHOLE WOMAN’S HEALTH; BROOKSIDE WOMEN’S MEDICAL
    CENTER, P.A., doing business as Brookside Women’s Health Center and
    Austin Women’s Health Center; LENDOL L. DAVIS, M.D.; ALAMO CITY
    SURGERY CENTER, P.L.L.C., doing business as Alamo Women’s
    Reproductive Services; WHOLE WOMAN’S HEALTH ALLIANCE;
    DR. BHAVIK KHUMAR,
    Plaintiffs - Appellees
    v.
    CHARLES SMITH, Executive Commissioner of the Texas Health and Human
    Services Commission, in his official capacity,
    Defendant - Appellee
    v.
    TEXAS CATHOLIC CONFERENCE,
    Movant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    Before JONES, COSTA, and HO, Circuit Judges.
    EDITH H. JONES, Circuit Judge:
    Case: 18-50484    Document: 00514558274     Page: 2   Date Filed: 07/17/2018
    No. 18-50484
    This is an emergency appeal from an extraordinary discovery order by the
    district court to a religious body. The court compelled document production of
    the group’s internal communications despite its status as a non-litigant and its
    voluntary furnishing of substantial discovery materials. Because the trial date
    looms, and with the benefit of full briefing from both parties, we elect to
    consolidate the Appellant’s motion to stay, along with the Appellees’ motion to
    dismiss this appeal, with a determination of the merits of the discovery order.
    We REVERSE the court’s order denying the Appellant’s motion to quash and
    compelling further document discovery.
    BACKGROUND
    The Texas Conference of Catholic Bishops (“TCCB”) is an unincorporated
    ecclesiastical association that furthers the religious ministry of the Roman
    Catholic Bishops and Archbishops in the State of Texas. Catholic Bishops
    communicate through TCCB to determine how the Catholic Church should
    address various moral, theological, and social issues, including abortion policy.
    The Catechism of the Catholic Church teaches that the dignity of all human
    life demands respect and that abortion is gravely sinful. See Catechism of the
    Catholic Church §§ 2270-75.
    In August 2016, Jennifer Allmon, TCCB’s Executive Director,
    voluntarily testified in administrative proceedings in favor of amending state
    regulations regarding the disposal of embryonic and fetal tissue. Proposed by
    the Texas Department of State Health Services (“DSHS”), the new regulations
    would prohibit disposing of fetal remains in a landfill or sewer, as had been
    earlier allowed. See 
    41 Tex. Reg. 9709
    -41 (2016). Ms. Allmon’s written and
    oral testimony communicated the Bishops’ conviction that fetal remains should
    be disposed of with respect.
    Because a primary objection to the new regulations was the increased
    cost of interment, the Bishops considered facilitating free burials for fetal
    2
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    remains. 1 On December 12, 2016, TCCB announced that it would work with
    Catholic cemeteries and funeral homes throughout Texas to offer free common
    burial 2 services to fetal remains produced as a result of abortions.
    In late 2016, the plaintiffs—several Texas health care providers licensed
    to perform abortions in the state—challenged the fetal remains regulations
    pursuant to 
    42 U.S.C. § 1983
    . The plaintiffs alleged, inter alia, that the costs
    imposed by the regulations would violate Due Process by burdening the rights
    of women seeking an abortion. The plaintiffs sought a temporary restraining
    order and preliminary injunction. The district court granted the temporary
    restraining order on December 15, 2016 and scheduled a hearing on the
    preliminary injunction.
    The plaintiffs argued, in part, that the fetal remains amendments would
    “make[] the availability of abortion services contingent on the ability and
    willingness of third-party vendors to bury or scatter the ashes of embryonic or
    fetal tissue at a non-prohibitive cost. . . . These options are prohibitively
    expensive.” In response, the State of Texas cited Ms. Allmon’s testimony as
    evidence that a “non-profit group is prepared to provide for the burial of fetal
    tissue from all health-care providers across the state without charge.”
    Ms. Allmon testified at the preliminary injunction hearing, reiterating
    the Bishops’ moral views and their commitment to absorb the costs associated
    with the burial ministry without providing religious rituals associated with the
    burial unless a parent so requested. She also testified that the Bishops had
    authority to commit Catholic cemeteries to participate in this program. On
    January 27, 2017, the district judge granted the preliminary injunction,
    1   Many dioceses in Texas already ran such burial ministries.
    2  Common burial is when the remains of multiple fetuses are collected and buried
    together in a single grave, which reduces the cost of burial.
    3
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    finding that some terms in the regulations were unconstitutionally vague and
    that the rules impermissibly burdened abortion access. The State appealed.
    While the appeal was pending, the Texas legislature moved to enact a
    law specifying legitimate methods for disposing of fetal remains. Ms. Allmon
    again testified on behalf of TCCB in favor of these provisions. As part of a
    larger abortion-related bill—SB8—these provisions were then signed into law
    in June 2017, set to take effect on February 1, 2018. See Tex. S.B. 8, 85th Leg.,
    R.S., § 19(d) (2017).
    The plaintiffs immediately moved to enjoin the new law. On January 29,
    2018, the district court preliminarily enjoined the provisions of SB8 dealing
    with fetal remains disposal. The district court set a bench trial date for July
    16, 2018 and referred discovery matters to a magistrate judge. On March 19,
    2018, the parties stipulated that neither party would produce evidence
    concerning the cost of compliance with the challenged laws,” with the plaintiffs
    affirming that they “waive[d] any argument . . . that the monetary cost of
    compliance    with      the   challenged   laws    contributes    to   their   alleged
    unconstitutionality.” This stipulation allows the plaintiffs to avoid disclosure
    of any of their financial information. Ms. Allmon is currently identified as a
    trial witness on behalf of the state and will testify in her capacity as Executive
    Director of TCCB. 3
    On March 21, 2018, the eve of Holy Week for Christians, a period of
    intense religious devotional activity, the plaintiffs served TCCB with a third-
    party subpoena.         The subpoena requested, in part, (1) “All Documents
    concerning EFTR [embryonic and fetal tissue remains], miscarriage, or
    abortion,” (2) “All Documents concerning communications between [TCCB]
    3 Ms. Allmon and TCCB participated as a third-party witness voluntarily. However,
    on June 25, Texas subpoenaed Ms. Allmon to testify at the trial.
    4
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    and current or former employees of DSHS, HHSC, the Office of the Governor
    of Texas, the Office of the Attorney General of Texas, or any member of the
    Texas Legislature, since January 1, 2016,” and (3) “All documents concerning
    the Act, the Amendments, or this lawsuit.” The subpoena had no retrospective
    time limitation; made no exception for confidential internal or religious
    communications; and the return date of the subpoena was 9:00 a.m. on the
    Tuesday following Easter Sunday.
    The Bishops filed their first motion to quash the subpoena and for a
    protective order on that Monday, April 2, 2018. They contended that the
    subpoena sought irrelevant evidence, that it violated the free exercise, freedom
    of speech, freedom of assembly, and freedom of petition guarantees of the First
    Amendment, that it violated the Religious Freedom Restoration Act (“RFRA”),
    and that it was unduly burdensome under Fed. Rule Civ. Pro. 45(d). The
    Bishops’ motion was initially denied without prejudice for a failure to meet and
    confer with the plaintiffs regarding the scope of the subpoena.
    Following the denial of TCCB’s motion, counsel for TCCB and the
    plaintiffs met and conferred regarding the subpoena’s scope. The plaintiffs
    agreed to limit their request to the following search terms: SB8, SB 8, Fetal,
    Fetus, Embryonic, Embryo, Abortion, Aborted, Miscarriage, Unborn, and
    burial ministry. They also limited the documents requested to those sent or
    received by Ms. Allmon on or after January 1, 2016.
    The Bishops maintained objections to these requests, but nevertheless
    conducted a search, which returned over 6,000 pages of records. The Bishops
    ultimately turned over to the plaintiffs 4,321 pages of records, 4 including
    responsive documents representing communications with third parties such as
    4 TCCB estimates that, as of June 10, 2018, it had spent over 100 staff hours
    responding to the subpoena and accrued over $20,000 in attorney’s fees and costs.
    5
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    state officials, Catholic conferences in other states, and Catholic cemeteries
    participating in the burial ministry.
    At a scheduling conference on Friday, June 8, the magistrate judge
    informed the Bishops that they must file any further motion to quash by 9 a.m.
    on Monday, June 11, and that the motion would be argued on Wednesday,
    June 13. Under this tight schedule, the Bishops renewed their objections
    under the First Amendment, RFRA, and Rule 45(d). At the June 13 hearing,
    the magistrate judge specified that the parties should limit the focus of their
    arguments to the free exercise and freedom of association issues.
    The plaintiffs explained their need for the remaining documents—
    namely, the documents’ relevance for cross-examination purposes.                    The
    plaintiffs offered to withdraw their subpoena if Ms. Allmon withdrew as a
    voluntary witness.        The Bishops produced a privilege log, identifying the
    documents—emails to or from Ms. Allmon—that it continued to withhold as
    privileged. The Bishops contended that the subpoena was an intimidation
    tactic to prevent TCCB from participating as a witness in the litigation. And
    they argued that the withheld documents were both privileged under the First
    Amendment and that the plaintiffs had no need for them. After the hearing,
    Ms. Allmon submitted to a three-hour deposition by the plaintiffs, during
    which they were able to ask about the facts relevant for trial.
    The magistrate judge denied the Bishops’ motion to quash later that day.
    Although the ordinary time to appeal such a denial is 14 days, 5 the district
    court sua sponte ordered the Bishops to file any appeal within approximately
    24 hours. The court denied the Bishops’ motion for an extension of time to file
    the appeal. The Bishops complied with the order and filed their appeal by noon
    on Thursday, June 14. The district court denied the appeal on Sunday, June
    5   See W.D. Tex. Local Rules, Appendix C, Rule 4(a).
    6
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    17, and ordered the Bishops to produce the remaining documents within 24
    hours.
    The Bishops appealed, filing a motion for a stay in the district court and
    an emergency motion for a stay in this court. The district court “generously”
    granted a 72-hour stay of its order, but this court also granted a stay pending
    appeal and set an expedited briefing schedule. On June 19, the plaintiffs
    moved this court to dismiss TCCB’s appeal and to vacate the stay.           The
    plaintiffs argued that this court lacked appellate jurisdiction to review the
    district court’s pretrial discovery order. TCCB responded to the motion to
    dismiss on July 2.
    APPELLATE JURISDICTION
    The plaintiffs contend that this court lacks appellate jurisdiction over
    this “interlocutory” discovery order. TCCB responds that because it is a third
    party to the litigation, it has no alternative avenue of appeal because having
    to await the conclusion of litigation by others, whenever and however that may
    occur, is out of its control and stymies its rights. Thus, while the court’s
    discovery order is not generally “final” within the contemplation of 
    28 U.S.C. § 1291
    , TCCB asserts its rights under the collateral order doctrine, which
    permits appeals of interlocutory decisions (a) that are conclusive, (b) that
    resolve important questions separate from the merits, and (c) that are
    effectively unreviewable on appeal from the final judgment.            Mohawk
    Industries v. Carpenter, 
    558 U.S. 100
    , 106, 
    130 S. Ct. 599
    , 605 (2009). For
    several reasons, we conclude that we do have jurisdiction.
    The standards of the collateral order doctrine are met here. There is no
    dispute that the district court’s discovery order was conclusive on TCCB, such
    that failure to comply with it may result in sanctions against TCCB or its
    witness. Further, the order resolves important and very novel issues separate
    from the merits of the litigation over the Texas statute concerning the disposal
    7
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    of fetal tissue remains. Finally, the plaintiffs do not have an answer to the
    argument that the consequence of forced discovery here is “effectively
    unreviewable” on appeal from the final judgment.           Instead, they draw
    misplaced analogies.
    First, they rely heavily, but inappositely, on Mohawk Industries v.
    Carpenter, in which the Supreme Court held that disputes over the
    discoverability of attorney-client communications are not subject to the
    collateral order doctrine. 
    558 U.S. at 114
    , 
    130 S. Ct. at 609
    . In Mohawk, the
    Court reasoned that as between parties, the appellate court can remedy
    erroneously ordered discovery by remanding the case for a new trial.
    
    Id. at 109
    , 
    130 S. Ct. at 606-07
    .    From this standpoint, a discovery order
    breaching the attorney-client privilege is not “unreviewable on appeal.” This
    case is distinguishable: a new trial order can hardly avail a third-party witness
    who cannot benefit directly from such relief. Mohawk does not speak to the
    predicament of third parties, whose claims to reasonable protection from the
    courts have often been met with respect.
    The Court also noted the general familiarity of courts with standards
    governing the attorney-client privilege, a fact that heightens courts’ ability to
    review materials for which privilege is claimed; mitigates the potential for
    lower court discovery errors; and lessens the novelty of the issues. 
    Id. at 110
    ,
    
    130 S. Ct. at 607
    . This case, on the other hand, is practically sui generis from
    the standpoint of the type of discovery sought and the issues raised by TCCB.
    As discussed below, neither we nor the plaintiffs nor TCCB have found a case
    on point.   TCCB’s claimed privileges, if applicable, go to the heart of the
    constitutional protection of religious belief and practice as well as citizens’
    right to advocate sensitive policies in the public square, a square that embraces
    both the legislature and the courthouse. Further, the courts have limited
    ability to assess the strength of religious groups’ claims about their internal
    8
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    deliberations for purposes of monitoring discovery. Lacking guideposts from
    the legal arena, any such judicial attempt risks tension with the repeated
    judicial admonitions that courts stay out of the business of weighing the
    sincerity of religious beliefs and practices. See, e.g., Tagore v. United States,
    
    735 F.3d 324
    , 328 (5th Cir. 2013).                 Mohawk, in short, does not prevent
    application of the collateral order doctrine in this case.
    Moreover, on two occasions following Mohawk, this court has reaffirmed
    its precedent holding that interlocutory court orders bearing on First
    Amendment rights remain subject to appeal pursuant to the collateral order
    doctrine. See Marceaux v. Lafayette City-Par. Consol. Gov’t, 
    731 F.3d 488
    , 490
    (5th Cir. 2013) (citing Mohawk in its treatment of the intersection of collateral
    review and the First Amendment); In re Hearst Newspapers, L.L.C.,
    
    641 F.3d 168
     (5th Cir. 2011); see also Henry v. Lake Charles American Press,
    LLC, 
    566 F.3d 164
    , 180-81 (5th Cir. 2009) (collateral order appeal of denial of
    anti-SLAPP dismissal permitted, inter alia, because of potential impact on
    First Amendment rights); United States v. Brown, 
    218 F.3d 415
    , 420-21
    (5th Cir. 2000). These authorities support our appellate jurisdiction when
    comparable First Amendment claims are at issue.
    Having failed to cite our precedents on appealability, the plaintiffs rely
    instead on two cases from other circuits. 6 These cases, of course, must yield to
    our circuit precedent. In addition, neither Perry nor In re Motor Fuel Sales
    6 In one, the Ninth Circuit, shortly after Mohawk was issued, confronted a discovery
    order covering the internal deliberations of a public interest group that was litigating on
    behalf of California’s Prop 8. In an abundance of caution, the court rejected use of the
    collateral order doctrine as a jurisdictional basis, but it proceeded to determine the merits of
    the case as a mandamus petition. See Perry v. Schwarzenegger, 
    591 F.3d 1147
    , 1156
    (9th Cir. 2010). The Tenth Circuit more recently decided that “discovery orders adverse to a
    claimed First Amendment privilege are not immediately appealable” under the collateral
    order doctrine. In re Motor Fuel Temperature Sales Practices Litig., 
    641 F.3d 470
    , 484
    (10th Cir. 2011).
    9
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    Practices involved discovery against a third party. Perry, in the end, upheld a
    qualified First Amendment privilege claim, while In re Motor Fuel Sales
    Practices is further distinguishable because the discovery sought information
    pertaining to potential fraud.
    The plaintiffs finally reference a Fifth Circuit decision against a
    religiously affiliated college in a dispute over the enforceability of a charitable
    bequest. See Ambassador College v. Geotzke, 
    675 F.2d 662
     (5th Cir. 1982).
    Ambassador College is a strange decision on several grounds, but it is not a
    decision about appellate jurisdiction.        This court’s jurisdiction was firmly
    predicated on the district court’s final order dismissing the case. We DENY
    the plaintiffs’ motion to dismiss.
    STANDARD OF REVIEW
    Because trial is set to commence July 16, we elect to treat this appeal of
    the motion to quash on the merits. See Doe v. Office of Refugee Resettlement,
    
    884 F.3d 269
    , 271 (5th Cir. 2018). We therefore pretermit the considerations
    pertinent to a stay pending appeal.
    We review the district court’s decision on a motion to quash for abuse of
    discretion.   Wiwa v. Royal Dutch Petroleum Co., 
    392 F.3d 812
    , 817
    (5th Cir. 2004). “The district court’s legal conclusions should be reviewed de
    novo, and its factual findings should not be disturbed unless they are clearly
    erroneous.” Marceaux v. Lafayette City-Par. Consol. Gov’t, 
    731 F.3d 488
    , 491
    (5th Cir. 2013). A district court’s discovery rulings are generally affirmed
    unless they are “arbitrary or clearly unreasonable.” United States v. Butler,
    
    429 F.3d 140
    , 148 (5th Cir. 2005). However, “in cases raising First Amendment
    issues[,] . . . an appellate court has an obligation to ‘make an independent
    examination of the whole record’ in order to make sure that ‘the judgment does
    not constitute a forbidden intrusion on the field of free expression.” Marceaux,
    731 F.3d at 491-92 (quoting Bose Corp. v. Consumers Union of U.S., Inc.,
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    466 U.S. 485
    , 499, 
    104 S. Ct. 1940
    , 1958 (1984) (quoting New York Times Co.
    v. Sullivan, 
    376 U.S. 254
    , 285, 
    84 S. Ct. 710
    , 729 (1964))).
    DISCUSSION
    I. The district court’s order assumed, essentially, that this discovery
    dispute is like a garden variety dispute over the necessity of discovery from a
    corporate representative designated as a trial witness. Thus, the court rather
    hastily concluded that because the withheld internal communications (to
    which Ms. Allmon was privy) fell within the scope of the parties’ agreed search
    terms, they were relevant and necessary to preparing the plaintiffs’ cross-
    examination. The court thus overruled TCCB’s objections based on relevance,
    undue burden, and necessity under Fed. Rule Civ. Pro. 45(d)(3)(A).
    The court held that TCCB waived any privilege claim based on RFRA by
    not having timely raised that issue in proceedings before the magistrate judge.
    Addressing TCCB’s claims of First Amendment privilege, the court first
    rejected free exercise and establishment clause arguments because any such
    privilege claim is necessarily qualified, not categorical.      The court also
    concluded, based on the magistrate judge’s review of a selected portion of the
    internal communications, that “[t]here has been no showing Plaintiffs’
    discovery request infringes on TCCB’s right to control its own affairs or
    interferes with matters of church governance, faith, or doctrine.”
    The court found TCCB’s privilege claim based on the First Amendment
    right of association a closer, albeit unavailing, call. The court acknowledged
    “a limited [constitutional] right to associate with others for the common
    advancement of beliefs and ideas concerning political, economic, religious or
    cultural matters.” The court’s standard for the limited privilege accepted that
    “[i]nfringements on that right may be justified by regulations adopted to serve
    compelling state interests, unrelated to the suppression of ideas, that cannot
    be achieved through means significantly less restrictive of associational
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    freedoms.”      Perry, 
    591 F.3d at 1159
     (quoting Roberts v. U.S. Jaycees,
    
    468 U.S. 609
    , 623, 104 S. Ct 3244, 3252 (1984)). The court assumed that
    discovery requests in court meet the compelling interest test. It then held that
    although TCCB might have made a prima facie showing that enforcing
    production of the internal communications would chill the exercise of the
    body’s rights (principally by discouraging the use of emails for internal
    conversation within TCCB), such a showing did not outweigh the plaintiffs’
    substantial interest in obtaining production.               This weighing balanced the
    previous findings that the internal communications bear only on “facts” in
    issue at trial, against the relative “weakness” of TCCB’s invasion of privacy
    compared with cases involving the deterrence of membership or advocacy.
    II. With due respect to the district court, its analysis was incorrectly
    dismissive of the seriousness of the issues raised by TCCB. It is no accident
    that we have found no case directly on point on the issue of compelling
    discovery of internal communications within a religious body concerning its
    activities in the public square to advance and protect its position on serious
    moral or political issues. 7 It is no accident that several religiously affiliated
    organizations have filed amicus briefs in support of TCCB’s claim. 8
    7 Williams v. Parker, 
    843 F.3d 617
    , 622-23 (5th Cir. 2016) is not applicable, because
    there the plaintiffs made only a “bare assertion” that their First Amendment rights had been
    violated, nor did they “explain how, precisely, their rights were curtailed.”
    8 See Brief for the Jewish Coalition for Religious Liberty as Amici Curiae Supporting
    Appellants; Brief for the Ethics & Religious Liberty Commission of the Southern Baptist
    Convention and National Association of Evangelicals as Amici Curiae Supporting Appellants;
    Brief for the United States Conference of Catholic Bishops et al. as Amici Curiae Supporting
    Appellants.
    No doubt, the tension about the religious claims that spawned the amicus briefs was
    heightened by two strange circumstances suggesting at least religious insensitivity: (a) that
    the plaintiffs chose to time their original subpoena, and the return date, to coincide with Holy
    Week, and (b) that the district court chose to issue its decision rejecting the motion to quash
    on a Sunday morning when TCCB’s members and employees were almost surely in church.
    No obvious time constraint justified either of these choices.
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    The difficulties we perceive with the court’s analysis of the First
    Amendment claims are as follows. The court erred in determining that TCCB
    waived its claim of protection under RFRA. The court’s analysis of the free
    exercise and establishment clause claims begs the fundamental, novel issues
    presented under these circumstances. The court’s rejection of the free speech,
    association, and petition claims too narrowly construes the nature of chilling
    effects on those rights while overbroadly interpreting the importance to the
    plaintiffs of the discovery sought here.
    Together, the dearth of guiding case law and the importance of context
    in any resolution of these issues counsel strongly in favor of the doctrine of
    constitutional avoidance.          See Ashwander v. Tennessee Valley Auth.,
    
    297 U.S. 288
    , 346-47, 
    56 S. Ct. 466
    , 482-83 (1936) (Brandeis, J., concurring);
    Hersh v. U.S. ex rel. Mukasey, 
    553 F.3d 743
    , 753-54 (5th Cir. 2008). Because a
    non-constitutional argument, founded on Rule 45(d)’s protection of parties
    subject to subpoenas, is here decisive, we need only sketch the problems
    inherent in the district court’s insensitive constitutional approach. 9
    To begin, Rule 45(d) states that a district court “must” quash a subpoena
    when it accepts a privilege claim, where “no exception or waiver applies.”
    TCCB did not “waive” its argument that RFRA should have applied to the
    discovery request. The issue was clearly stated in TCCB’s motion to quash.
    When the parties appeared before the magistrate judge, however, he advised
    9 Like the district court, the dissent would pigeonhole this dispute as simply another
    discovery tiff that is resolved simply by an in camera look at the documents. This truncation
    can only occur, however, based on the assumption, stated by the dissent, that the scope of
    any Free Exercise privilege here is limited to judicial intrusions on church leadership or
    internal management. The dissent wholly overlooks the RFRA argument made by TCCB.
    And the dissent again assumes its Freedom of Association conclusion—that no associational
    privilege exists—by arbitrarily cabining the scope of “deliberative discussions” within TCCB.
    And by the way, this opinion only sets forth, but does not rule on, any of these substantial,
    novel claims. Instead, this opinion holds that the district court misapplied Rule 45(d),
    inflicted undue burden on TCCB, and in so doing abused its discretion.
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    them to focus on the First Amendment contentions. It cannot be waiver for
    TCCB to have acquiesced in the judge’s directions at oral argument on the
    motion to quash.
    Had the district court considered RFRA, it would have confronted
    authority that holds the law applicable to court-ordered discovery, i.e., a grand
    jury subpoena. The Third Circuit has held, consistent with the coverage of
    RFRA itself, that a grand jury subpoena can implicate free exercise claims. See
    In re Grand Jury Empaneling, 
    171 F.3d 826
    , 835 (3d Cir. 1999) (“Lest there be
    any confusion, we reiterate: in deciding whether to enforce a grand jury
    subpoena over a RFRA objection, the district court must satisfy itself that the
    witness’s testimony is necessary to serve a compelling state interest.”). With
    that support, a RFRA claim depends on three conditions: a sincere claim of
    religious belief; a “substantial burden” that will be imposed on the exercise of
    that belief by particular government action; and whether the government
    shows a “compelling need” for the imposition and utilizes “least restrictive
    means” to achieve its goal. See Tagore, 735 F.3d at 330.
    No one challenges the sincerity of TCCB’s claim that the Church feels
    morally impelled to support humane (and “human”) treatment of fetal remains.
    The “substantial burden” here is from compelling TCCB to reveal wholly
    internal communications concerning its approach to this issue and
    participation in the issues surrounding the statute. This court has previously
    discussed handling issues about sincere religious belief and substantial burden
    with “a light touch.” Moussazadeh v. Texas Dep’t of Criminal Justice, 
    703 F.3d 781
    , 792 (5th Cir. 2012), as corrected (Feb. 20, 2013). Moreover, the burden
    here comes from compelling TCCB to produce internal communications as the
    price for providing a witness in support of this controversial law, and
    subjecting TCCB to a threat of sanctions, ranging from monetary to striking
    the witness to contempt, if it fails to comply.
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    As for the government’s (i.e., the court’s or litigant’s using the court)
    compelling need and least restrictive means, they are not satisfied merely
    because the Federal Rules ordinarily authorize broad discovery. The plaintiffs
    have not shown how Ms. Allmon’s existing testimony failed adequately to
    reveal TCCB’s position or exactly what they sought from the 298 emails that
    have not been turned over.      Insofar as those communications may reveal
    internal deliberations about the implications of TCCB’s position under canon
    law and Catholic doctrine, there is no compelling need whatsoever.
    The plaintiffs and district court allege, however, that only “facts”
    relevant to this litigation from the internal communications are being
    subjected to discovery.      But this decision begs two questions about the
    “compelling” nature of the “need.”     First, on what basis is the judiciary
    institutionally competent to discern which communications merely bear on the
    “facts” and which communications interfere with a religious body’s free
    exercise? The district court assumed such competence exists. But see, e.g.,
    Moussazadeh, 703 F.3d at 792 (judiciary should take a “light touch” with
    matters of religious belief and practice); Tagore, 735 F.3d at 328 (noting that
    “claims of sincere religious belief in a particular practice have been accepted
    on little more than the plaintiff’s credible assertions”); Brief for the Jewish
    Coalition for Religious Liberty as Amici Curiae Supporting Appellants at 14-
    18 (explaining how regulations concerning kosher standards and processes
    implicate nuanced and controversial doctrinal views despite superficially
    objective determinations).    The second question is whether the judiciary’s
    actual performance of any such sorting task itself invades the religious body’s
    integrity. Courts have generally foresworn involvement in disputes internal
    to religious groups. See Kedroff v. St. Nicholas Cathedral of Russ. Orthodox
    15
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    No. 18-50484
    Church in N. Am., 
    344 U.S. 94
    , 116, 
    73 S. Ct. 143
    , 154-55 (1952); Cannata v.
    Catholic Diocese of Austin, 
    700 F.3d 169
    , 172 (5th Cir. 2012). 10
    Finally, the least restrictive means seem to have been employed already.
    Ms. Allmon testified at the administrative hearing, the first preliminary
    injunction hearing, and in deposition only a few weeks ago, and she filed
    affidavits.    TCCB voluntarily produced thousands of pages of documents
    reflecting external communications, at substantial cost in personnel time and
    attorney’s fees.
    We do not resolve these difficult questions, but no matter how you look
    at this RFRA claim, it was reasonable for TCCB to seek refuge under the
    federal law.
    As for the free speech, free association, and petition claims under the
    First Amendment, the district court failed to afford sufficient scope to rights
    that should protect the inner workings of TCCB when it engages in activity in
    the public square. The district court seemed to limit the associational rights
    to the “chilling” of membership and tangible harassment. In Perry, however,
    the Ninth Circuit squarely considered these rights and exempted from
    discovery the internal communications of a citizens’ group that was supporting
    California Prop 8 (opposing gay marriage).            
    591 F.3d at 1145
    .        The court
    understood that communications within such a group must be permitted to be
    broad, uninhibited, and fearless, and that protecting such deliberations is a
    seminal aspect of the freedom to associate.
    Perry, to be sure, recognized a qualified privilege based on Supreme
    Court precedent. See Perry, 
    591 F.3d at 1155-56
    ; Flanagan v. United States,
    10   As in the above discussion, the dissent’s contention that TCCB forfeited its
    constitutional claims by voluntarily submitting documents for in camera inspection begs the
    questions about institutional competence and intrusion on internal religious governance. It
    is a clever argument that neither the district court nor the plaintiffs suggested.
    16
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    No. 18-50484
    
    465 U.S. 259
    , 267-68 
    104 S. Ct. 1051
    , 1055-57 (1984); Gibson v. Fla. Legislative
    Investigation Comm., 
    372 U.S. 539
    , 557 
    83 S. Ct. 889
    , 899 (1963).                  That
    balancing approach reconciles Perry with cases like Ambassador College v.
    Geotzke, 11 which was a fraud case against a religious college, and United States
    v. Holmes, 12 which held religious groups may be subject to government
    inquiries to maintain tax exempt status.
    Contrary to the district court, however, the explanation of how TCCB’s
    activities—and the activities of any other religious institution forced to endure
    similar discovery—are “chilled” by enforcement of this subpoena seems self-
    evident. As TCCB describes, in addition to the significant cost of complying
    with the original subpoena (100 work hours and over $20,000 in attorney’s
    fees), TCCB has delayed and missed ministry opportunities; suffered in
    relationships with other Catholic ministries whose communications it was
    forced to disclose; was required to cancel internal ministry reports and training
    materials; TCCB bishops and staff were discouraged from engaging in other
    public policy activities; and Texas Catholic cemeteries were deterred from
    participating in the fetal remains registry. TCCB’s ability to conduct frank
    internal dialogue and deliberations was undermined, and not only because
    enforcement of the subpoena inhibits the further use of email communications.
    Why the district court found “chilling” but not “severe” its discovery order’s
    impact on TCCB’s internal email communications, in this era of instant group
    communication, is hard to fathom. Even more disturbing, this discovery order
    forces TCCB to turn over to a public policy opponent its internal
    communications, setting a precedent that may be replicated in litigation
    anywhere.
    11   
    675 F.2d 662
    , 664 (5th Cir. 1982).
    12   
    614 F.2d 985
    , 989-90 (5th Cir. 1980).
    17
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    These burdens flow naturally into TCCB’s arguments for a privilege
    based on the structural protection afforded religious organizations and practice
    under the Constitution. “[I]t is easy to forget that the autonomy of religious
    groups . . . has often served as a shield against oppressive civil laws. To
    safeguard this crucial autonomy, we have long recognized that the Religion
    Clauses protect a private sphere within which religious bodies are free to
    govern themselves in accordance with their own beliefs.”        Hosanna-Tabor
    Evangelical Lutheran Church & Sch. v. E.E.O.C., 
    565 U.S. 171
    , 199-200,
    
    132 S. Ct. 694
    , 712 (Alito, J., concurring) (citing Kedroff, 
    344 U.S. at 116
    ,
    
    73 S. Ct. at 154-55
    ). Both free exercise and establishment clause problems
    seem inherent in the court’s discovery order. That internal communications
    are to be revealed not only interferes with TCCB’s decision-making processes
    on a matter of intense doctrinal concern but also exposes those processes to an
    opponent and will induce similar ongoing intrusions against religious bodies’
    self-government. Moreover, courts’ involvement in attempting to parse the
    internal communications and discern which are “facts” and which are
    “religious” seems tantamount to judicially creating an ecclesiastical test in
    violation of the Establishment Clause. The Supreme Court has noted that “it
    is a significant burden on a religious organization to require it, on pain of
    substantial liability, to predict which of its activities a secular court will
    consider religious. . . . [A]nd an organization might understandably be
    concerned that a judge would not understand its religious tenets and sense of
    mission.” Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-
    day Saints v. Amos, 
    483 U.S. 327
    , 336, 
    107 S. Ct. 2862
    , 2868 (1987). The amici
    here uniformly decry the potential for misuse of the district court’s narrowly
    focused balancing test that denigrated the impacts of judicial discovery
    procedures on their internal communications, while potentially empowering
    certain interest groups to harass, impose disastrous costs on, and uniquely
    18
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    No. 18-50484
    burden religious organizations. Yet the claim of religious organizations to
    maintain their internal organizational autonomy intact from ordinary
    discovery should be at least as secure as the protection constitutionally
    afforded other associations. Supreme Court decisions have protected religious
    organizations’ internal deliberations and decision-making in numerous ways.
    See, e.g., Hosanna-Tabor, 
    565 U.S. at 199-200
    , 
    132 S. Ct. at 712
    . Although
    none have spoken directly to discovery orders in litigation, the importance of
    securing religious groups’ institutional autonomy, while allowing them to enter
    the public square, cannot be understated and reflects consistent prior case law.
    Another way to look at the scope of a qualified First Amendment
    privilege is through the lens of hypothetical involvement by an abortion rights
    organization in this litigation. Suppose the plaintiffs offered testimony of a
    representative of Abortion Rights Unlimited (“ARU”) (a fictitious group) to
    testify about the national status of fetal remains statutes and their general
    impact on abortion providers. Suppose the State of Texas issued a subpoena
    for any/all documents representing communications among the Board of ARU
    and the witness concerning those matters of discussion. Or the State agreed
    to withdraw its subpoena if ARU withheld offering its witness testimony. As
    a third-party witness, under the Perry balancing test, would the court subject
    ARU to such discovery? It seems the advocacy group would have a strong
    argument against forced disclosure of its internal communications as the price
    for its testimony on a matter of intense concern to the public and its members.
    Assuming the seriousness of the chilling effects on their First
    Amendment rights, it is hard to see how the plaintiffs have borne their burden
    under Perry to show a substantial need for the documents that outweighs the
    intrusion into TCCB’s constitutional rights. As noted in the next section,
    TCCB has already cooperated extensively in discovery in a way that minimizes
    any adverse impact on the plaintiffs’ ability to cross-examine Ms. Allmon.
    19
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    We need not and do not finally resolve whether the order enforcing
    discovery of the internal emails violated TCCB’s constitutional rights, but the
    issues raised above should have given pause to the district court before it
    waved away TCCB’s privilege claims.
    III. The rule of constitutional avoidance prevents courts from issuing
    unnecessary and potentially overbroad or misleading rulings on constitutional
    issues. That rule forcefully counsels restraint in this case, where the issues
    are both novel and far-reaching and time is woefully short for thorough
    consideration.
    We turn instead to applications of Rule 45(d), which states that a court
    “must” quash a subpoena to avoid “subject[ing] a person to undue burden.”
    Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). The district court applied the balancing test
    described by this court in Wiwa. See 
    392 F.3d at 818-19
     (listing balancing
    factors). Wiwa explains that “if the person to whom the document request is
    made is a non-party, the court may also consider the expense and
    inconvenience to the non-party.” 
    392 F.3d at 818
    . The court here concluded
    that no “undue burden” existed after eliminating the privilege claims and
    simply considering whether internal TCCB communications could provide
    “relevant facts” that the plaintiffs “need” to cross-examine Ms. Allmon about
    the “actual status” of TCCB’s commitment to provide cost-free interment
    services. TCCB contends, however, that the subpoena inflicts an undue burden
    in compelling the organization to disclose its internal communications when it
    has already been subjected to substantial discovery demands and raises
    substantial claims to constitutional and RFRA protection. Bearing in mind
    that TCCB is a third-party witness, we consider the strength of the court’s
    relevancy and need determinations, and we conclude that the court’s decision
    was an abuse of discretion.
    20
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    First, the plaintiffs’ “need” to obtain these additional emails is
    questionable at best.    TCCB has already produced over 4,000 pages of
    responsive discovery documents, and Ms. Allmon has testified thrice and
    furnished affidavits, all of which can be used in her cross-examination. The
    plaintiffs’ brief to this court discusses Ms. Allmon’s prior testimony in support
    of their discovery request, quoting it at length for three pages, and calling it
    “vague,” “contradictory” of her prior testimony, or downright inaccurate. Her
    recent deposition is 125 pages long. Further document discovery of any kind
    would, without further explanation, be cumulative.         The plaintiffs have
    furnished no such further explanation, and the opinions of the magistrate and
    district judges do not hint that important additional facts, not yet divulged by
    TCCB, are revealed in the internal emails. In sum, the groundwork for cross-
    examination appears to be laid, especially for purposes of a bench trial.
    Perhaps most telling, as this appeal is being decided, the plaintiffs have
    moved the district court to strike Ms. Allmon’s testimony. (If granted, the
    motion would effectively prevent TCCB from airing its position in support of
    the statute.) In doing so, the plaintiffs characterize Ms. Allmon’s testimony as
    “cumulative and a waste of trial time.” The more “cumulative,” obviously, the
    less is the “need” for and “relevance” of cumulative document discovery.
    Concerning relevance, the plaintiffs’ burden at trial is to show that the
    statute poses an “undue burden” on women’s access to abortion services. To do
    so, they will probably try to demonstrate that many women clients do not care
    what happens to fetal remains or would have objections to burial in Catholic
    cemeteries; that TCCB’s offer of free burials is vague, not concrete in detail,
    and has been watered down as the litigation progressed; that complying with
    the women’s desires and finding the appropriate burial grounds would pose
    significant logistical problems and hardship for the plaintiffs’ provision of
    abortion services; and that other suitable burial locations are unavailable. To
    21
    Case: 18-50484     Document: 00514558274      Page: 22      Date Filed: 07/17/2018
    No. 18-50484
    the extent the plaintiffs seek to diminish the probative value of TCCB’s offer,
    they have already gotten access to such ammunition. Catholic cemeteries,
    moreover, are but a small proportion of those statewide.             Thus, TCCB’s
    participation in facilitating the law cannot be the sole test of “burden” avoided
    or “burden” imposed for either party.
    The small or non-existent incremental “need” for and “relevance” of this
    discovery alone impose a burden on TCCB, if it must produce documents
    unnecessary to the litigation. There is an additional burden on TCCB as a
    third party in this morally and politically consequential case: TCCB has been
    challenged by the plaintiffs to either produce internal communication
    documents or withdraw its witness. This looks like an act of intimidation. The
    demand places on TCCB the “Hobson’s choice” of retreating from the public
    square or defending its position while creating a precedent (for the first time)
    that may open its internal deliberations to public scrutiny, or at least, ill-
    informed judicial scrutiny. This burden on TCCB’s constitutional right to
    advocate in the public square cannot be ignored, nor can the burdens TCCB
    has shown were created by this intrusive discovery request: relations with
    other parties in the faith impaired, internal modes of discussion upended, and
    participation by some Catholic cemeteries deterred.
    Finally, rather than reject all of TCCB’s privilege claims, the district
    court should have acknowledged their novelty and far-reaching implications
    and interpreted the appropriate scope of document production under Rule
    45(d) in light of the principle of constitutional avoidance.
    In sum, the district court discounted the burdens of production on TCCB
    and failed to require more than a minimal, if any, rationale for discovery of
    TCCB’s internal communications. The court was too quick to reject TCCB’s
    privilege claims. By acting in unnecessary haste, the court deprived TCCB of
    22
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    a fair opportunity to make its case for quashing the discovery. For these
    reasons, the district court erred and abused its discretion under Rule 45(d).
    CONCLUSION
    The court’s order denying the motion to quash and compelling discovery
    of internal communications within TCCB is REVERSED.              The plaintiffs’
    motion to dismiss the appeal and vacate the stay is DENIED.
    23
    Case: 18-50484    Document: 00514558274       Page: 24   Date Filed: 07/17/2018
    No. 18-50484
    JAMES C. HO, Circuit Judge, concurring:
    It is hard to imagine a better example of how far we have strayed from
    the text and original understanding of the Constitution than this case.
    The First Amendment expressly guarantees the free exercise of
    religion—including the right of the Bishops to express their profound objection
    to the moral tragedy of abortion, by offering free burial services for fetal
    remains. By contrast, nothing in the text or original understanding of the
    Constitution prevents a state from requiring the proper burial of fetal remains.
    But from the proceedings below, you would think the opposite were true.
    Those proceedings are chronicled in Judge Jones’s comprehensive
    opinion for the Court. And they are troubling. They leave this Court to wonder
    why the district court saw the need to impose a 24-hour mandate on the
    Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade
    appellate review—or tax the Bishops and their counsel for seeking review.
    They leave this Court to wonder if this discovery is sought, inter alia, to
    retaliate against people of faith for not only believing in the sanctity of life—
    but also for wanting to do something about it. See, e.g., Masterpiece Cakeshop,
    Ltd. v. Colo. Civil Rights Comm’n, 
    138 S. Ct. 1719
     (2018).
    I join Judge Jones’s excellent opinion, with regret that the relief we grant
    today is even necessary. See Stormans, Inc. v. Wiesman, 
    136 S. Ct. 2433
     (2016)
    (Alito, J., joined by Roberts, C.J., and Thomas, J., dissenting from denial of
    certiorari) (“This case is an ominous sign. . . . If this is a sign of how religious
    liberty claims will be treated in the years ahead, those who value religious
    freedom have cause for great concern.”).
    24
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    No. 18-50484
    GREGG COSTA, Circuit Judge, dissenting:
    The first step an appellate court is supposed to take in a case is reviewing
    the same materials the trial court considered. Only after that can it decide if
    that judge erred. In a stark departure from that norm, the majority opinion
    finds that the district court didn’t just err but abused its discretion in balancing
    discovery factors without looking at the most critical part of the trial court
    record: the in camera production of documents that would show whether the
    First Amendment concerns that today’s decision can only speculate about
    actually exist. Two judges—the magistrate and district judge—reviewed those
    documents. The magistrate concluded, and the district court agreed, that “the
    emails between Ms. Allmon and staff members of the TCCB have no religious
    focus, do not discuss church doctrine or governance, and are more or less
    routine discussions of the burial services at issue here.” In reversing the order
    to produce based on a categorical privilege that doesn’t even allow for in camera
    review, the majority opinion offends the principle of constitutional avoidance
    it purports to invoke. True avoidance of difficult First Amendment questions
    would be to not opine on them when they are not properly before the court. See
    Lebron v. Nat’l R.R. Passenger Corp., 
    513 U.S. 374
    , 408 (1995) (O’Connor, J.,
    dissenting) (explaining that principles of appellate waiver “rest[] firmly upon
    a limited view of our judicial power” (citing Carducci v. Regan, 
    714 F.2d 171
    ,
    177 (D.C. Cir. 1983) (Scalia, J.)). That is true for the claim of categorical
    privilege that has been forfeited if not waived in light of the Texas Catholic
    Conference of Bishops’ submission to the trial court of documents for in camera
    production that it now argues even a court may not review. The result is an
    opinion filled with abstract propositions of First Amendment law—some of
    which I agree with—but that is divorced from the reality of this case. Before
    declaring that the judges who reviewed the records abused their discretion in
    25
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    concluding they did not pose the claimed harms, the appellate court should
    look at them.
    I.
    The rule requiring appellate preservation of error is not the only limit on
    our authority that the majority opinion overrides.         It also engages in an
    unprecedented act by resolving a discovery dispute at the interlocutory stage.
    The court recognizes the ordinary rule that discovery disputes are not
    collateral orders subject to interlocutory appeal, but concludes that gives way
    when a First Amendment claim is at stake. If actually limited to that type of
    constitutional claim, our jurisdiction would be a close question. Although we
    have held that other types of rulings bearing on First Amendment rights are
    appealable collateral orders, see, e.g., Henry v. Lake Charles Am. Press, LLC,
    
    566 F.3d 164
    , 180–81 (5th Cir. 2009) (order denying anti-SLAPP dismissal
    under Louisiana statute); In re Hearst Newspapers, L.L.C., 
    641 F.3d 168
    , 172
    (5th Cir. 2011) (order denying journalists access to a sentencing hearing), we
    have never confronted the tension between that principle and the general rule
    that discovery orders are not collateral ones, Mohawk Indus. v. Carpenter, 
    558 U.S. 100
    , 108 (2009). The longstanding rule against such interlocutory review
    of discovery orders serves important interests: “Routine appeal from disputed
    discovery orders would disrupt the orderly progress of the litigation, swamp
    the courts of appeals, and substantially reduce the district court’s ability to
    control the discovery process.” 5B CHARLES ALAN WRIGHT ET AL., FEDERAL
    PRACTICE AND PROCEDURE § 3914.23 (2d ed. 1992); see also Mohawk, 
    558 U.S. at 112
     (“Permitting parties to undertake successive, piecemeal appeals of all
    adverse attorney-client rulings would unduly delay the resolution of district
    court litigation and needlessly burden the Courts of Appeals.”)
    One circuit confronting the clash between the different rules governing
    interlocutory review of First Amendment claims and discovery orders
    26
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    concluded that the collateral order doctrine does not allow the immediate
    appeal of “discovery orders adverse to a claimed First Amendment privilege.”
    In re Motor Fuel Temperature Sales Practices Litig., 
    641 F.3d 470
    , 484 (10th
    Cir. 2011). Another recognized the difficulty of the question, so avoided it and
    decided the First Amendment claim in the mandamus context.               Perry v.
    Schwarzenegger, 
    591 F.3d 1147
    , 1154–57 (9th Cir. 2010). That is another
    reason this is such a tough question. The majority opinion assumes that the
    collateral order doctrine is the only route to stopping a production before it
    happens. But a mandamus petition, which is just as available to a third party
    as to a litigant, is the typical way to protect a privilege when its piercing will
    cause irreparable harm. See In re Itron, 
    883 F.3d 553
    , 567–68 (5th Cir. 2018);
    In re Avantel, 
    343 F.3d 311
    , 317 (5th Cir. 2003) (“Mandamus is an appropriate
    means of relief if a district court errs in ordering the discovery of privileged
    documents, as such an order would not be reviewable on appeal.”); see also
    Mohawk, 
    558 U.S. at 110
     (noting that there are “several potential avenues of
    review apart from the collateral order appeal, including mandamus,’ for a
    “novel privilege ruling”). Tellingly, that is the avenue for appellate relief the
    Conference originally planned to pursue. At the hearing on the privilege claim,
    its counsel asked the court “if you rule against us, that you give us time to
    mandamus the opinion.” But prevailing in the mandamus context requires
    showing a “clear and indisputable” right to relief, Itron, 883 F.3d at 567
    (quoting Cheney v. U.S. Dist. Court for D.C., 
    542 U.S. 367
    , 380–81 (2004)),
    which is difficult for any claim and especially a novel one.
    Even if the reasoning in Henry supports recognizing the collateral order
    doctrine and not just mandamus as a path for interlocutory review of a First
    Amendment privilege claim, the problem is that the majority opinion soon
    becomes disconnected from this narrow jurisdictional hook. It proceeds to
    discuss whether the discovery request violates a federal statute (the Religious
    27
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    Freedom Restoration Act), and its ultimate ruling is that the district court
    abused its discretion in balancing the factors under Federal Rule of Civil
    Procedure 45, the type of judgment call weighing the benefits and burdens of
    discovery that trial judges make on a daily basis. The majority opinion resorts
    to the discovery rule under the laudable goal of avoiding constitutional
    problems. But that doctrine requires a “substantial” constitutional concern.
    ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
    LEGAL TEXTS 250 (2012); see also United States v. X-Citement Video, Inc., 
    513 U.S. 64
    , 78 (1994) (avoiding the constitutional issue because the competing
    interpretation would “raise serious constitutional doubts”). Much like we
    should not depart from the most obvious construction of a statute unless that
    interpretation would likely result in the law being unconstitutional, we should
    not allow piecemeal review of a discovery order unless that ruling raises a
    substantial constitutional concern.        1
    II.
    A.
    The Conference’s privilege claim does not present a substantial First
    Amendment concern for the reason mentioned at the outset: it did not argue in
    the trial court that the First Amendment barred in camera inspection of its
    records, so it cannot do so now. And our failure to review the documents means
    we have no basis for disagreeing with the district court’s assessment that they
    are constitutionally benign.
    1  These are two separate “constitutional avoidance” principles. The one that favors
    reading a statute in a manner (so long as it’s reasonable) that avoids constitutional
    difficulties is a canon of construction. The one applied in this case supports first addressing
    nonconstitutional grounds for a judicial decision. See SCALIA & GARNER, supra, at 251. But
    both rules should apply only when the constitutional claim is a difficult one, lest they override
    other important principles like giving statutes their ordinary meaning or, in this case, not
    allowing interlocutory review of applications of the federal discovery rules.
    28
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    The Conference provided the documents at the discovery hearing. They
    are a representative sample it selected of the documents classified as
    privileged. Counsel for the Conference told the court, “Your Honor, I would
    like to submit to you the in-camera documents, examples.”                  Neither that
    statement nor anything else said at the hearing hints at any discomfort with
    the in camera procedure and certainly no official objection. Counsel even
    helped facilitate the court’s review by breaking down the privileged documents
    “into three types of internal communication.” 2 The failure to object to the in
    camera inspection certainly forfeits an appellate challenge to it, and the
    affirmative act of producing the documents likely amounts to full-scale waiver.
    See Freytag v. C.I.R., 
    501 U.S. 868
    , 895 n.2 (1991) (Scalia, J., concurring)
    (discussing differences between forfeiture and waiver, the primary one being
    that the latter requires “intentional relinquishment or abandonment of a
    known right or privilege”).
    Even beyond those obstacles to our review, this may be a case of judicial
    estoppel. Arguing now that the inspection was improper after the Conference
    willfully provided the documents to the trial court in the hope it would find
    them privileged has the flavor of the heads-I-win-tails-you-lose positioning
    that estoppel prohibits. See generally New Hampshire v. Maine, 
    532 U.S. 742
    ,
    749–51 (2001). If the in camera review had resulted in the district court’s
    finding the documents privileged, the Conference would have prevailed. It did
    not, so the Conference now argues “‘[t]he very process of inquiry’ into the
    Bishops’ deliberations ‘impinge[s] on rights guaranteed by the Religion
    Clauses.’”
    2  Even if there were some suggestion that the Conference was uncomfortable with the
    in camera review and agreed to it only under compulsion, this appeal shows it knows exactly
    how to respond when ordered to do something it does not want to do: seek an emergency stay
    and file an interlocutory appeal.
    29
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    But at a minimum the production resulted in forfeiture, a bedrock limit
    on appellate review that applies no matter how weighty the interest asserted.
    Forfeiture, for example, routinely bars the assertion of protections found in the
    Bill of Rights in the criminal and civil rights cases that dominate our docket.
    And forfeiture in the context of an objection to in camera privilege review is
    justified by even more than the interests in restraint, full development of the
    record, and respect for the trial court that ordinary application of the rule of
    appellate preservation promotes. It means that any harm resulting from a
    judge’s inspection cannot be undone. With two judges having already reviewed
    the documents, that cat is out of the bag. 3
    We thus must evaluate the strength of the Conference’s privilege claim
    not based on hypotheticals we can create but in light of the real world
    documents at issue. And, given that it had no objection to the in camera
    procedure, the Conference had every incentive to provide the court with
    examples that presented the best case for privilege. Indeed, plaintiff noted at
    the hearing that it would not agree that the documents produced were a
    representative sample because it did not want a court finding of protection for
    3 The forfeiture means we cannot consider the institutional ability of judges to review
    matters of First Amendment privilege. It is worth noting, however, that judges review
    privilege in all sorts of sensitive areas that unlike attorney-client privilege are not ones in
    which lawyers have particular expertise. United States v. Nixon, 
    418 U.S. 683
     (1974) (finding
    that “very important interest in confidentiality of Presidential communications” is not
    “significantly diminished” by allowing in camera inspection of documents); Elnashar v.
    Speedway SuperAmerica, LLC, 
    484 F.3d 1046
    , 1051 (8th Cir. 2007) (discussing the
    magistrate’s in camera review of unredacted FBI files potentially subject to confidential
    informant privilege); Stein v. Dep’t of Justice & Fed. Bureau of Investigation, 
    662 F.2d 1245
    ,
    1254 (7th Cir. 1981) (basing a conclusion that the FBI may continue to withhold classified
    national security documents on in camera review of material). This includes First
    Amendment claims involving reporters’ privilege. United States v. Cuthbertson, 
    630 F.2d 139
    ,
    149 (3d Cir. 1980) (affirming contempt citation for party that failed to produce documents for
    in camera inspection after asserting journalists’ First Amendment privilege). And judges
    conducting an in camera review do not have to guess in a vacuum at why the documents
    might be privileged; the party asserting that claim has the opportunity to explain it.
    30
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    No. 18-50484
    what were likely the best documents for a privilege claim to automatically
    protect other documents.
    B.
    The trial court’s undisturbed finding that the documents selected by the
    Conference did not “have [a] religious focus” or “discuss church doctrine or
    governance” means there is no close constitutional question. I’ll start with the
    Religion Clauses. Free exercise presents an uphill climb given the prevailing,
    if controversial, view that enforcing neutral laws of general applicability does
    not offend the Free Exercise Clause. Employment Div., Dep’t of Human Res. of
    Oregon v. Smith, 
    494 U.S. 872
    , 879, 885 (1990). So even neutral laws that
    criminalize or otherwise punish a religious practice do not offend free exercise.
    
    Id.
     The district court’s application of Federal Rule of Civil Procedure 45, which
    is the state action here, does not prohibit any religious practice. It seeks
    documents that the Conference contends discuss religious practices and
    beliefs. But it cannot be reasonably argued that subjecting the Conference to
    the same rules of civil procedure that everyone else faces in federal court is
    aimed at inhibiting the free exercise of religion.
    Nor does the order of production amount to court involvement in church
    leadership decisions, Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
    E.E.O.C., 
    565 U.S. 171
    , 194–95 (2012), or the internal management of a
    religious organization, Lemon v. Kurtzman, 
    403 U.S. 602
    , 607 (1971). Whether
    this line of cases is treated as a burden on the free exercise of religion or as
    state entanglement with the church under the Establishment Clause, 4
    4The Conference treats these cases primarily as ones arising under the Establishment
    Clause. The caselaw is admittedly confusing on which First Amendment clause is the main
    source of these decisions. A leading scholar argues that the appropriate way to view them is
    as free exercise cases addressing burdens on church autonomy. See Douglas Laycock,
    Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and
    Right to Chuch Autonomy, 81 COLUM. L. REV. 1373 (1981).
    31
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    No. 18-50484
    documents that “do not discuss church doctrine or governance” do not come
    close to the concerns these cases have addressed. What is more, a discovery
    order is not like the court orders typically involved in this line of cases—such
    as those requiring a religious organization to engage or not engage in any
    religious practice, make an employment decision, or alter its educational
    curriculum.
    That leaves the right of association which can fit this context of an order
    requiring the production of documents. The district court thus correctly viewed
    this as the Conference’s strongest claim.     It is not, of course, the type of
    associational right at issue in the leading case recognizing this aspect of the
    First Amendment, NAACP v. Alabama ex rel. Patterson, 
    357 U.S. 449
     (1958),
    which involved the disclosure of members of a group to the state with all its
    power to retaliate against those expressing unpopular views. But courts have
    also recognized a right to be protected from “other consequences which
    objectively suggest an impact on, or ‘chilling’ of, the members’ associational
    rights.” Perry v. Schwarzenegger, 
    591 F.3d 1147
    , 1160 (9th Cir. 2010). This is
    where the majority opinion’s hypothetical concerns are most plausible. But the
    district court had the benefit of looking to see if the potential threat to
    associational activity was realized. It found that it wasn’t, and we have no
    basis for disturbing that finding.
    Because the discovery order does not raise a close constitutional
    question, our jurisdiction does not extend to objections based on federal
    statutes or rules of procedure. The majority opinion is correct that I “wholly
    overlook[]” the RFRA argument. Faithful application of limits on our ability
    32
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    No. 18-50484
    to hear piecemeal appeals of discovery rules requires that. 5 The majority
    opinion overlooks that important limitation on our appellate jurisdiction. Its
    eagerness to address all the issues raised by the Conference and supporting
    amici also resulted in its neglect of the rule that we do not consider claims that
    have been forfeited or waived. Adherence to these ordinary limits on our
    authority was particularly warranted for an expedited appeal that did not
    allow for oral argument. These rules limiting our authority do not mean that
    a court will never decide the issue that is not properly preserved. More often
    they ensure that when a court finally does confront the question, it does so with
    a full development of the record and law that promotes sound decisionmaking.
    See Lebron, 
    513 U.S. at 408
     (O’Connor, J., dissenting) (recognizing that
    “patience in the judicial resolution of conflicts” leads to better decisions
    (quoting John Paul Stevens, Some Thoughts on Judicial Restraint, 66
    JUDICATURE 177, 183 (1982)).
    For these reasons, I would affirm the district court.
    III.
    Two additional observations are in order. The majority opinion ascribes
    “at least religious insensitivity” if not worse, as well as “intimidation” tactics,
    to plaintiff’s counsel. From this vantage point, it may seem like the stipulation
    that the plaintiff will not challenge the cost of the burial services as an undue
    burden means there is no role for the Conference at trial (though the reason
    trial judges are given considerable discretion in discovery matters is that they
    know the ins-and-outs of a case having lived with it, sometimes for years). But
    the plaintiff is not the reason the Conference is involved in this case. Indeed,
    the stipulation shows plaintiff’s willingness to avoid any issues involving the
    5That does not mean there is no outlet for the Conference to raise important statutory
    concerns. As mentioned, a petition for mandamus relief was a possibility assuming the RFRA
    issue was preserved.
    33
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    No. 18-50484
    Conference. But the Conference, as is its right, voluntarily appeared at earlier
    stages of this litigation, and Texas has subpoenaed its witness for trial. What
    the majority opinion views as an improper threat—that the discovery request
    will go away if the Conference witness doesn’t appear—is just an obvious point
    that if there is no witness, then there is no need to request documents that
    might impeach her testimony. More fundamentally, even if this case presents
    yet another example of the discovery overkill that plagues civil litigation, there
    is no basis to view the discovery request (the scope of which the plaintiff and
    Conference worked to greatly narrow) and its timing as anything more than
    lawyers trying to fulfill their duty of zealous advocacy. The unusual behavior
    would be if a party did not seek documents from a witness it plans to cross
    examine at trial.
    Even more troubling are the potshots directed at the district court, and
    the concurring opinion then piles on. That the pecking order of the system
    allows appellate judges’ view of the law to ultimately prevail should be
    satisfaction enough for us. While vigorous disagreement about the law is part
    of the judicial function, there is no need to go beyond the identification of legal
    error by questioning the motives of our district court brethren.          That is
    especially true when the legal issue is one that the majority opinion concedes
    is novel, and when the ill motives are pure conjecture. What is one of the sins
    of the trial court according to the majority opinion? Working and issuing
    orders on a weekend.
    Our district court colleagues deserve most of the credit for the federal
    judiciary being the shining light that it is. They work under greater docket
    pressures, with greater time constraints, yet with fewer resources. And unlike
    appellate judges on a divided panel who can trade barbs back and forth, a
    district judge has no opportunity to respond to personal attacks in an appellate
    opinion. They deserve our respect and collegiality even when, or especially
    34
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    No. 18-50484
    when, they err as we all do at times. Among the exemplary group of trial judges
    who serve our circuit, the one handling this case stands out: with over three
    decades of service, he is now essentially working for free as a senior judge, and
    volunteering to travel thousands of miles outside the district of his
    appointment to help with the heavy docket in the Western District of Texas.
    Speculating that malice is behind his decisions seeking to expedite a high
    profile case with a rapidly approaching trial date is not the award he is due.
    35
    

Document Info

Docket Number: 18-50484

Filed Date: 7/17/2018

Precedential Status: Precedential

Modified Date: 7/18/2018

Authorities (29)

Ashwander v. Tennessee Valley Authority , 56 S. Ct. 466 ( 1936 )

melvyn-e-stein-plaintiff-appellantcross-appellee-v-department-of , 662 F.2d 1245 ( 1981 )

Freytag v. Commissioner , 111 S. Ct. 2631 ( 1991 )

Lebron v. National Railroad Passenger Corporation , 115 S. Ct. 961 ( 1995 )

Employment Div., Dept. of Human Resources of Ore. v. Smith , 110 S. Ct. 1595 ( 1990 )

New York Times Co. v. Sullivan , 84 S. Ct. 710 ( 1964 )

United States v. Nixon , 94 S. Ct. 3090 ( 1974 )

In Re the Grand Jury Empaneling of the Special Grand Jury , 171 F.3d 826 ( 1999 )

Louis A. Carducci v. Donald T. Regan, Secretary, U.S. ... , 714 F.2d 171 ( 1983 )

Ambassador College v. Sally J. Geotzke, Etc. , 675 F.2d 662 ( 1982 )

Gibson v. Florida Legislative Investigation Committee , 83 S. Ct. 889 ( 1963 )

In Re: Avantel, S.A. , 343 F.3d 311 ( 2003 )

Perry v. Schwarzenegger , 591 F.3d 1147 ( 2010 )

Henry v. Lake Charles American Press, L.L.C. , 566 F.3d 164 ( 2009 )

Mohawk Industries, Inc. v. Carpenter , 130 S. Ct. 599 ( 2009 )

United States v. Thomas Campbell Butler, Md , 429 F.3d 140 ( 2005 )

United States of America and John Dezelar v. David L. ... , 614 F.2d 985 ( 1980 )

Hersh v. United States Ex Rel. Mukasey , 553 F.3d 743 ( 2008 )

United States v. X-Citement Video, Inc. , 115 S. Ct. 464 ( 1994 )

United States v. James Harvey Brown, Also Known as Jim Brown , 218 F.3d 415 ( 2000 )

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