Massively overbroad discovery demands are among the most common abuses in civil litigation, and it’s hard to get judges or policymakers to take seriously the harm they do. But the City of Houston, represented by litigators at Susman Godfrey, may have tested the limits when it responded to a lawsuit against the city by a church-allied group by subpoenaing the pastors’ sermons along with all their other communications. [KTRK, Houston Chronicle; text of subpoena request; motion to quash] The city has already backed off in part, saying it will narrow the demands to focus on the issue of whether the plaintiffs were aware of petition procedures. [Jacob Gershman, WSJ]
Eugene Volokh has a useful analysis (more) of how churches, like reporters, do have some additional First Amendment protections against being asked to disclose just anything. But a way to protect litigants and third parties more systemically would be to narrow the scope of discovery generally (e.g. to information relevant to the actual claims and defenses in the suit) and shift more burdens of cost and proof to the demanders’ side.
I hope the city is shamed into calling off the fishing expedition entirely. That having been said, I find it fascinating that so much of the coverage in the conservative press downplays or omits the fact of the ongoing litigation (Todd Starnes buries it in paragraph 8, and Ted Cruz’s statement never even mentions it) thus leaving many readers with the impression that the city is using police or administrative powers to demand the information, which would pose an entirely different set of challenges for public liberty.
[Title updated 9 a.m.]
P.S.: This contentious courtroom dispute may previously have featured troublingly broad discovery demands from the other side, if one accepts as valid the comments of “Mike in Houston” at Stephen Miller’s post: “there’s no mention of the subpoenas coming from the anti-HERO side that have targeted a whole range of city employees, private citizens, nonprofits and pastors who spoke out in favor of the ordinance (and assisted with the pro-HERO organization efforts.)” Yet more: Sarah Posner, Religion Dispatches (various liberals, moderates, church-state separationists, and pro-LGBT figures critical of requests’ overbreadth).