310 F.R.D. 575
D. Alaska2015Background
- Pebble Ltd. Partnership (plaintiff) sued EPA under the APA and FACA claiming EPA improperly "utilized" advisory committees in connection with potential Section 404(c) action affecting the Pebble Mine near Bristol Bay.
- The court previously dismissed some claims for lack of final agency action but later allowed limited proceedings; discovery was authorized by the court's scheduling order given perceived absence of a discrete administrative record.
- Plaintiff served broad Rule 45 subpoenas on non-parties Alaska Conservation Foundation (ACF), Dr. Samuel Snyder, Bristol Bay Regional Seafood Development Association, and Robert Waldrop seeking extensive communications with EPA and with 31 other entities about the Pebble project.
- Through meet-and-confer plaintiff narrowed requests to two categories: (1) communications with EPA about specified topics/teams and (2) communications/meetings involving ACF/Bristol Bay and a 31-entity list regarding those topics.
- ACF and Bristol Bay moved to quash the subpoenas arguing undue burden, irrelevance, duplication of EPA records, and First Amendment associational chill; plaintiff moved to compel. Court found much of the requested material duplicative of EPA records and likely irrelevant to proving FACA violation.
Issues
| Issue | Plaintiff's Argument | Non-parties' Argument | Held |
|---|---|---|---|
| Whether subpoenas for communications between ACF/Bristol Bay and EPA are discoverable | These communications may show EPA "utilized" or managed an advisory committee and thus bear on the FACA claim | Communications with EPA are obtainable from EPA, so subpoenas impose undue burden and are duplicative | Quashed: communications with EPA denied; motion to compel denied |
| Whether subpoenas for communications between ACF/Bristol Bay and 31 other entities are discoverable | These communications could reveal coordination demonstrating an EPA-managed advisory committee | Such communications are largely irrelevant to FACA; they implicate associational rights and are unduly broad | Quashed: communications with third parties denied; motion to compel denied |
| Whether non-party subpoenas impose undue burden and require limitation under Rule 26/45 factors | Plaintiff argues relevance and need justify breadth | Non-parties stress relevance, breadth, time period, and burden weigh against production | Court limits discovery under Rule 26(b)(2) and 45(d)(3) and finds requests unduly burdensome and overbroad |
| Whether First Amendment protects non-party internal communications and warrants heightened scrutiny | Plaintiff contends its need outweighs any chilling concern | Non-parties claim disclosure would chill associational and speech rights; need to show tailored, essential evidence to overcome | Court finds prima facie First Amendment interests and plaintiff failed to show narrowly tailored need; protection upheld |
Key Cases Cited
- Town of Marshfield v. F.A.A., 552 F.3d 1 (1st Cir.) (explains FACA applies only to advisory committees "established or utilized by" agencies)
- Byrd v. U.S. E.P.A., 174 F.3d 239 (D.C. Cir.) (advisory panel is "established" only if actually formed by the agency)
- Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929 (D.C. Cir.) (FACA applies only when committee is formed for obtaining advice or recommendations for the federal government)
- Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir.) (committee must render advice as a group, not as a collection of individuals)
- Moon v. SCP Pool Corp., 232 F.R.D. 633 (C.D. Cal.) (factors for evaluating undue burden in discovery requests)
- Wyoming v. U.S. Dep't of Agriculture, 208 F.R.D. 449 (D.D.C.) (non-party status and balancing burden, relevance, breadth in subpoena disputes)
- Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.) (recognizes that broad discovery into associational and internal communications can chill First Amendment rights)