Braddock, L.C. v. Bd. of Supervisors of Loudoun Cnty.

Thomas D. Horne, Chief Judge

Charles K. Moss, Esquire
214 South King Street
Leesburg, Virginia 20175 John R. Roberts, Esquire
County of Loudoun, Virginia
1 Harrison Street, S.E., Fifth Floor
Leesburg, Virginia 20177 Randal T. Greehan, Esquire
1925 Isaac Newton Square, Suite 250
Reston, Virginia 20190 Francis A. McDermott, Esquire
Stephen M. Sayers, Esquire
Arthur E. Schmalz, Esquire
Jill Marie Dennis, Esquire
Hunton & Williams
1751 Pinnacle Drive, Suite 1700
McLean, Virginia 22102 Dear Counsel:

This case is before the Court on the Motions to Quash of Peggy Maio (Maio) and Gem Bingol (Bingol). Two subpoenas duces tecum were served on Maio and Bingol by the Plaintiff, Braddock, L.C. (Braddock) pursuant to a Bill of Complaint filed by Braddock against the Board of Supervisors of Loudoun County, Virginia and Loudoun County, Virginia (Defendants). Braddock alleges, among other things, irregularities in the process used by the Defendants in adoption the County's zoning ordinance. Bingol and Maio contend that the subpoenas are unreasonable and oppressive and ask that this Court quash or modify the subpoena.

Bingol and Maio contend that the subpoenas infringe upon their right to petition the government for the redress of grievances as provided for in the First Amendment to the Constitution of the United States and in Article I, Section 12, of the Constitution of Virginia. The Court is of the opinion that the following test should be employed in evaluating whether the subpoenas in this case should be quashed or modified:

1) Is the material sought by the Plaintiff relevant pursuant to Rule 4:1?
2) Is the discovery request unreasonable, oppressive, cumulative, or duplicative?
3) Can the material sought by the Plaintiff be acquired by more convenient, less burdensome, or less expensive methods?
4) Has the Plaintiff had an ample opportunity by discovery to seek the information sought?
5) Is the discovery unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation?
6) Are there First Amendment rights implicated in the discovery requests?

a) The party asserting that its First Amendment rights will be chilled should provide the Court will a privilege log, listing the items requested and all privileges being asserted against discovery, including constitutional privileges.
b) In determining whether First Amendment rights are implicated, the Court will consider the following "balancing" factors:

1) There is no absolute privilege from discovery when First Amendment rights are implicated.
2) The party asserting the privilege must establish to a reasonable probability that the discovery request will have a chilling effect on First Amendment rights. This requires the party asserting the privilege to show by clearly articulable facts a causal link between the chilling of First Amendment rights and compliance with the subpoena.
3) If the party asserting the privilege has successfully shown by clear and articulable facts that compliance with the subpoena will chill First Amendment rights, the party seeking the information must show that its interest in obtaining the information is compelling enough to infringe upon the First Amendment rights of the party asserting the privilege. In deciding this issue the Court will consider the following factors:

1) whether the evidence is relevant in a Constitutional sense, i.e., does it go to the heart of the matter, is it crucial to the party's case;
2) whether the information is available from other sources. The party seeking the information must exhaust all reasonable alternative sources of information by which he could obtain the information in a less chilling manner;
3) the nature of the controversy; and
4) the strength of the claims.

In the instant case, the subpoena request is overly broad and will be quashed. The subpoena request should be redrawn to narrow the scope of the discovery. Under the current discovery request, Bingol and Maio are required to produce the hard drive of their computer, with all the information contained thereon, since it may reflect a communication they had with the Board of Supervisors or Loudoun County zoning employees. The problem is in the use of the terms "referring to, reflecting, or constituting" within the context of the definition of "documents" since January 1999. If Braddock narrows its discovery request, Bingol and Maio should furnish a privilege log of those items that they believe are privileged from discovery. This will enable to Court to analyze the privilege claims under the above balancing test.

Very Truly Yours,

Thomas D. Horne, Chief Judge