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).
Maybe some joker will send fake subpoenas to all the mosques in the area.
“leaving many readers with the impression that the city is using police or administrative powers to demand the information”
The Houston Chronicle reports the subpoena came “from city attorneys.” Isn’t that the city using police or administrative powers to demand the information considering the case that Volokh makes about the subpoena being overly broad?
Jason: The context here is that the churches are the ones suing the city. Since the pastors are known to have given sermons and communications to their congregations about the very matter under dispute, it’s not exactly crazy that the city would ask for these documents. “Give me everything you’ve ever written” is a common enough, albeit overly broad, response when you sue someone. While the subpoena can and should be narrowed to cover only sermons that relate to the case, the context of the lawsuit makes a huge difference here.
[…] Olson, in a blog published by the Cato Institute, called the subpoenas a "fishing expedition," saying that he hoped […]
I agree that the context that it is churches that are suing the city is missing.
At the same time, the other context that is missing is that churches / pastors that were subpoenaed are not the plaintiffs in the lawsuit.
Jason: so far as news coverage seems to indicate, the attorneys acting for the city stand in the same position as if they represented a private party in litigation. This does not immunize them from appropriate criticism, but it does distinguish the situation from one where government representatives show up claiming a police or regulation-based right to inspect papers (the way health inspectors might show up at a restaurant).
Attorney J.B. writes to say:
I would understand if the pastors or churches were suing the city, but I have seen multiple news sources that stated that the pastors under subpoena are not parties to the lawsuit against the city.
The Houston Chronicle reported that the pastors “are closely tied to the activists” who filed the suit.
I think this is why critics are condemning the subpoena. The city is intimidating churches who are not party to the lawsuit.
The lawyers have changed the subpoena to demand from the five pastors who are not a party to the suit to turn over:
All speeches or presentations related to HERO or the Petition prepared by, delivered by, revised by, or approved by you or in your possession.
[…] Walter Olson blogs: Scorched-pew litigation: Houston subpoenas pastors’ sermons: Massively overbroad discovery demands are among the most common abuses in civil litigation, and […]
I’ve been in churches that have a congregation of fewer than 100 and churches that seat thousands, they all recorded their sermons and placed them on the web. If a church did make broadcasts on the web and has a website where past sermons are archived, would a subpoena be required?
Also, when even a group with ties to R.J. Rushdoony’s Christian Reconstructionism says it’s more complicated than Todd Starnes and WorldNetDaily are making it out to be, yes, it’s probably more complicated.
[…] framing efforts, which via Starnes set off a predictable panic about dangers to religious liberty (see also, last week, on the Houston pastors subpoena). In this instance, those efforts amount to something […]
[…] One instance of abusively broad litigation discovery down, 437,816 to go. [WSJ Law Blog, Houston Chronicle, City of Houston, earlier] […]