STEPIEN v. MURPHY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CYNTHIA STEPIEN on behalf of

herself and her minor child;

STAMATIA DIMATOS SCHRECK, on

behalf of herself and her three minor

children; RYAN CODY, on behalf of

himself and his minor child J.C.;

ELLY FORD on behalf of herself and

her minor child A.F.; GABE

MCMAHON; M.F.; M.K.N.; K.B.; B.W.;

L.R.; J.V.P.; V.P.; D.M.; B.M.; A.M.; Civ. No. 21-CV-13271 (KM) (JSA)

and ALL OTHERS SIMILARLY

SITUATED,

OPINION & ORDER

Plaintiffs,

(Motion to compel discovery)

v.

PHILIP D. MURPHY, Governor;

ANGELICA ALLEN-McMILLAN,

Commissioner of Education; JUDITH

M. PERSICHILLI, Commissioner of

Health,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

This matter comes before this court on plaintiffs’ motion to compel

discovery (DE 30).1 Plaintiffs seek documents relating to the formulation of New

Jersey Governor Phil Murphy’s executive orders (“EOs”) requiring masks in the

state’s schools, in order to bolster their case for a preliminary injunction

against enforcement of the EOs. For the following reasons, the motion is

1 Certain citations to the record are abbreviated as follows:

DE = docket entry in this case

Mot. = Plaintiffs’ motion to compel (DE 30)

Opp. = Defendants’ brief in opposition to motion to compel (DE 33)

Reply = Plaintiffs’ reply in support of motion to compel (DE 34)

DENIED as to Requests (1), (6), and (7), with which defendants have adequately

complied, and DENIED on grounds of the deliberative process privilege as to

Requests (2), (3), (4), and (5).

BACKGROUND

On July 2, 2021, plaintiffs filed a complaint in this court, requesting that

I enjoin executive orders of New Jersey Governor Phil Murphy that require

students, employees, and visitors at the state’s primary and secondary schools

to wear masks to slow the spread of COVID-19 infection. (DE 1.) A first

amended complaint was filed a week later. (DE 2.) On August 6, 2021,

Governor Murphy issued EO 251, renewing the mask mandate in the state’s

schools. (DE 11 ¶ 26.) On August 26, 2021, Murphy issued a supplementary

EO, partially related to masks in schools, EO 253. (DE 12-2 at 36.) Plaintiffs

filed a second amended complaint on August 30, 2021. (DE 11.) That same

day, plaintiffs also sought an Order to Show Cause as to Vacating or Staying

the EOs. (DE 12.) I ordered the parties to brief the issues and appear for oral

argument via videoconference on September 9, 2021. (DE 16.) Based on the

parties’ briefs and oral argument, I denied the plaintiffs’ request insofar as it

sought a temporary restraining order immediately suspending the operation of

the Eos. (DE 12, 24, 25.) At a post-hearing status conference on September 15,

2021, plaintiffs’ counsel stated that he intended to seek discovery from

defendants in aid of plaintiffs’ application for a preliminary injunction. (DE 28.)

Informed that defendants would likely resist discovery requests, I authorized

plaintiffs to file what amounts to a preemptive motion to compel, which is

currently before the Court. (DE 30.)

Plaintiffs now move to compel the defendants to produce seven categories

of materials:

(1) The Governor’s file on EO 251 (and that part of EO 253 relating

to masking schoolchildren);

(2) Any memoranda, minutes and other documents exchanged

within the executive branch that were a part of the consideration

or decision-making process that led to the promulgation of the

Executive Orders;

(3) Any transcripts of meetings between the Governor and other

staff or officials as to the consideration or promulgation of the EOs;

(4) Any communications between the administration and the NJEA

or other third parties as to masking of schoolchildren or the basis

for entry of EOs 251 and 253;

(5) All medical and scientific studies relied upon or consulted by

defendants in the creation or promulgation or continuation of EOs

251 and 253;

(6) Data from the Department of Health as to the number of

children in New Jersey with Covid and the number of

hospitalizations of children (also including deaths of children) prior

to the August 6, 2021 date of entry of EO 251 and thereafter; and

(7) Any studies conducted, performed, commissioned or

undertaken by or on behalf of the state or any officer or agency in

connection with the development of EO 251 or EO 253 as to (a) the

need for masking schoolchildren, (b) the comparison of Covid

disease burden between children and adults, (c) the burden of

Covid disease in children in school versus other locations; (d) the

reasons for excluding unvaccinated adults in other settings from

the masking order; and (e) the emotional burden or harm, if any,

imposed on schoolchildren by mandatory masking and other

COVID-preventative measures.

(DE 30-4.) Defendants responded to some of the discovery requests, but

refused to turn over much of the requested material, claiming in their

opposition brief that the material was protected by the deliberative process

privilege. (Opp. at 17–23.) Plaintiffs submitted a reply brief (DE 34), and the

issue is now fully briefed and ripe for decision.

LEGAL STANDARD

Federal Rule of Civil Procedure 26 provides the courts with broad

discretion in the management of the discovery process. See Fed. R. Civ. P. 26.

Under the Rules, a party generally may not seek discovery “before the parties

have conferred as required by Rule 26(f).” Fed. R. Civ. P. 26(d)(1). In this case,

however, I instructed plaintiffs to file a motion to compel to seek limited,

expedited discovery targeted to the issues likely to be relevant to a preliminary

injunction. In general, expedited discovery “can help to ensure a clear and

focused factual record” for a preliminary injunction hearing. Epsilon Energy

USA, Inc. v. Chesapeake Appalachia, LLC, 2021 WL 1740582, at *2 (M.D. Pa.

May 3, 2021) (quoting Kone Corp. v. ThyssenKrupp USA, Inc., 2011 WL

4478477, at *7 (D. Del. Sept. 26, 2011)). Fuller discovery may be allowed at a

later stage of the case, but discovery requests at this point should be “narrowly

tailored to fit the needs of a preliminary injunction hearing.” Better Packages,

Inc. v. Zheng, 2006 WL 1373055, at *3 (D.N.J. May 17, 2006) (citing Ent. Tech.

Corp. v. Walt Disney Imagineering, 2003 WL 22519440, at *3 (E.D. Pa. Oct. 2,

2003)). If, instead, the requests are “overly broad and extend beyond the needs

of the preliminary injunction” they should be denied or narrowed. Id.

Rule 26(d) allows parties to obtain “discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense and proportional to the

needs of the case.” Fed. R. Civ. P. 26(d)(1). Here, defendants claim that many of

the requested materials are protected by deliberative process privilege, a type of

executive privilege. See United States Fish & Wildlife Serv. v. Sierra Club, Inc.,

141 S. Ct. 777, 785 (2021). New Jersey law on the matter is guided by federal

deliberative process privilege jurisprudence. Educ. L. Ctr. v. New Jersey Dep’t of

Educ., 198 N.J. 274, 285 (2009). Generally, the deliberative process privilege

“permits the government to withhold documents that reflect advisory opinions,

recommendations, and deliberations comprising part of a process by which

governmental decisions and policies are formulated.” Id. (quoting In re

Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000)).2 The privilege protects

2 There is no additional requirement that the documents at issue be

“confidential” in order to be protected by deliberative process privilege. U.S. Dep’t of

Justice v. Landano, 508 U.S. 165 (1993), cited by plaintiffs, is unrelated to deliberative

process privilege and is inapposite. Plaintiffs also cite Rabbitt v. Dep’t of Air Force, 401

F. Supp. 1206, 1209 (S.D.N.Y. 1974), which is at least on-topic, but in no way

establishes that there is a separate “confidentiality” prerequisite to the invocation of

the deliberative process privilege. (Mot. at 7.)

the public interest by ensuring “free and uninhibited communication within

governmental agencies so that the best possible decisions can be reached.”3 Id.

(citing Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939, 945

(Ct. Cl. 1958)). Without the privilege, agencies would be “forced to operate in a

fishbowl, [and] the frank exchange of ideas and opinions would cease and the

quality of administrative decisions would consequently suffer.” Redland Soccer

Club, Inc. v. Dep’t of Army of U.S., 55 F.3d 827, 854 (3d Cir. 1995) (quoting First

Eastern Corp. v. Mainwaring, 21 F.3d 465, 468 (D.C. Cir. 1994)). The privilege

is not absolute, however, and the party seeking discovery “bears the burden of

showing that its need for the documents outweighs the government’s interest.”

Id. “[I]n all but exceptional cases it is considered against the public interest to

compel the government to produce inter-agency advisory opinions.” Educ. L.

Ctr., 198 N.J. at 287 (quoting Integrity, 165 N.J. at 85).4

To be covered by the privilege, a requested document “must be

predecisional, meaning it was generated before the adoption of an agency’s

policy or decision, and it must be deliberative in nature, containing opinions,

recommendations, or advice about agency policies.” Fisher v. Div. of L., 400

N.J. Super. 61, 74 (App. Div. 2008) (quoting Gannett N.J. Partners, LP v. County

of Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005)).

3 Plaintiffs claim that the idea that the disclosure of the documents at issue could

be contrary to the public interest “is an oxymoron since the Executive Orders are

purportedly for the health of the public, making disclosure of the reasons a rationale

for the orders essential to the public interest.” (Reply at 13.) It is well established in

the case law, however, that there is a public interest in effective governance that

underlies the privilege itself.

4 Plaintiffs miscite Wilson v. Brown, 404 N.J. Super. 557 (App. Div. 2009) in their

Reply: “A governor bears the burden of demonstrating a ‘substantial’ or ‘compelling’

need for non-disclosure.” (Reply at 4 (citing Wilson, 404 N.J. Super. at 577–79).)

Plaintiffs have it backwards. The court in Wilson stated that “the party seeking such

documents bears the burden of showing a substantial or compelling need for them.”

Wilson, 404 N.J. Super. at 578 (emphasis added). In their initial brief, however,

plaintiffs quote Wilson correctly. (Mot. at 9.)

The Supreme Court has recently clarified what types of material qualify

as “predecisional.” Broadly, a predecisional document is anything generated

before the final decision on the matter. United States Fish & Wildlife Serv., 141

S. Ct. at 786; see also Ciesla v. New Jersey Dep't of Health & Senior Servs., 429

N.J. Super. 127, 140 (App. Div. 2012). If a proposal “dies on the vine,” i.e., if

there is no final “decision,” the last draft proposal is nevertheless deemed

predecisional. Id. What matters “is not whether a document is last in line, but

whether it communicates a policy on which the agency has settled.” United

States Fish & Wildlife Serv, 141 S. Ct at 786. A final document, then, is one

that has a “real operative effect” and is the “consummation of the agency’s

decisionmaking process.” Id. (citing Bennett v. Spear, 520 U.S. 154, 177–178

(1997)) (internal quotation marks omitted).5 A draft executive order, then, is

predecisional, and is protected by the privilege; a final executive order is not

predecisional, and is not protected.

Although some documents, such as draft opinions, are clearly

“deliberative in nature,” the boundaries of the “deliberative process” can be

fuzzy. The New Jersey Supreme Court, however, has clearly stated that the

privilege encompasses factual material that was part of the process by which

government policies are formulated. “[T]he deliberative nature of the material

sought must be functionally determined based on the document’s nexus to the

5 Plaintiffs misread United States Fish & Wildlife Serv. The Court stated that “The

deliberative process privilege shields documents that reflect an agency’s preliminary

thinking about a problem, as opposed to its final decision about it.” 141 S. Ct. at 785.

Plaintiffs argue that this quote means “those opinions, memorandum and other

documents referencing information or views on which the Governor relied in making

his decision to impose the masking orders must be produced as they ‘reflect an

agency’s. . . final decision.’” (Reply at 5.) The case, however, makes it clear that what

falls outside the privilege is the final decision itself, not all “documents that reflect” the

final decision. This is logical because all predecisional materials are part of the process

by which the final decision is made, and in some sense “reflect” that decision. The law

draws no line between predecisional documents relating to “preliminary thinking” and

predecisional documents relating to the “final decision.” All are part of the deliberative

process and thus potentially protected by the deliberative process privilege.

decision-making process and its capacity to expose the agency’s deliberations

during that process,” rather than on a “purely semantic exercise” of labeling it

“fact” or “opinion.” Educ. L. Ctr., 198 N.J. at 297 (following Mapother v. Dep’t of

Just., 3 F.3d 1533 (D.C. Cir. 1993).6 The purpose of the privilege, then, is to

protect the deliberative process as a whole—not just to protect specific draft

documents.

Once a court determines that requested materials are protected by the

deliberative process privilege, the party requesting the materials has the

burden to show that its need for the documents outweighs the government’s

interest in confidentiality. To determine whether a litigant has demonstrated an

overriding need, I consider the following factors: “(1) the relevance of the

evidence; (2) the availability of other evidence; (3) the government's role in the

litigation; and (4) the extent to which disclosure would hinder frank and

independent discussion regarding contemplated policies and decisions.” Educ.

L. Ctr. 198 N.J. at 287 (quoting Integrity, 165 N.J. at 85–86).

DISCUSSION

I first briefly discuss requests (1), (6), and (7). As to these three, the

defendants have responded adequately, and no issue of privilege is presented.

(Section III.a) I then discuss Requests (2), (3), (4), and (5), as to which the

defendants claim the deliberative process privilege. (Section III.b)

a. Requests (1), (6), and (7)

Request 1: I find that defendants have adequately responded to Request

(1). In response to Request (1) (and, in part, Request (5)), Defendants attached

a list of the “documents and materials comprising the agency record in the

state court appeals” challenging these same EOs.7 (Opp. at 20; DE 33-2.) These

6 In Educ. L. Ctr., the New Jersey Supreme Court held that a “Simulation Memo”

regarding hypothetical school funding formulas was protected by the deliberative

process privilege, even though it contained a great deal of factual data, because its

simulations were used in the Department of Education’s deliberative process. Educ. L.

Ctr., 198 N.J. at 301–02.

7 There is parallel litigation in the state courts challenging the issuance of the

EOs on the basis of state administrative law. Gwyneth Murray-Nolan et al. v. Philip D.

documents are publicly available, and defendants have offered to furnish

plaintiffs with copies. (Opp. at 21.) Plaintiffs claim that this response is

nevertheless inadequate. The attachment to the defendants’ brief, they say,

“lists all of the prior executive orders by number but provides no actual

discovery of the State’s files (aside from a list of selected press releases and

‘guidelines’).” (Reply at 3 n.1). The list, however, also includes six documents of

scientific analysis regarding the spread of COVID-19, which presumably

formed part of the basis for the governor’s EOs. (DE 33-2 at 4.) Defendants’

response to Request (1), I find, was sufficient, particularly in the expedited

context of preliminary injunctive relief. Further, any additional materials that

constitute the “file” but were not disclosed by the defendants are covered by

Requests (2) and (3), discussed below.

Request 6: This request sought “Data from the Department of Health as

to the number of children in New Jersey with Covid and the number of

hospitalizations of children (also including deaths of children) prior to the

August 6, 2021 … and thereafter.” (DE 30-4.) In response, defendants direct

plaintiffs to the state’s COVID-19 dashboard, accessible at

https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml, a public

website that contains all the information that plaintiffs would reasonably

require here. (Opp. at 21.) Defendants object that additional, non-public raw

data could reveal the identities of individuals who were infected with COVID-

19, and that disclosure would violate their privacy. (Id. at 22.) Plaintiffs posit

that the data on the public dashboard is “edit[ed]” and “self-selected” (Reply at

15–16), but provide no support for the contention that the publicly available

numbers are inaccurate or manipulated. At least at the preliminary-injunction

stage, the publicly available data are sufficiently responsive.8

Murphy, A-3632-20, (N.J. Super. App. Div). The administrative record supporting

issuance of the EOs was turned over in connection with that state litigation.

8 There is no claim asserted that the state has manipulated the publicly available

COVID-19 data; this appears to be an ad hoc argument for purposes of this discovery

motion. At present, for purposes of these claims and this preliminary injunction

Request 7: Plaintiffs agree that defendants have responded sufficiently to

Request (7). (Reply at 15.)

b. Requests (2) through (5)

I move on to analyze Requests (2), (3), (4), and (5). In subsection (i), I find

that the deliberative process privilege applies to each. In subsection (ii), I find

that the plaintiffs’ need for the materials does not outweigh the public interest

in keeping the materials confidential.

i. Application of deliberative process privilege

Requests (2) and (3) ask that the defendants produce the following:

(2) Any memoranda, minutes and other documents exchanged

within the executive branch that were a part of the consideration or

decision-making process that led to the promulgation of the

Executive Orders;

(3) Any transcripts of meetings between the Governor and other

staff or officials as to the consideration or promulgation of the EOs;

(DE 33-4) (emphasis added). The phrasing is self-defeating. These Requests

virtually define the materials sought as predecisional, deliberative documents.

The requested materials are protected by the deliberative process

privilege because they were “generated before the adoption of [the governor’s]

policy or decision” and are “deliberative in nature, containing opinions,

recommendations, or advice about [the governor’s] policies.” Fisher, 400 N.J.

Super. at 74; see also United States Fish & Wildlife Serv., 141 S. Ct. at 786

(2021) (“Documents are ‘predecisional’ if they were generated before the

agency’s final decision on the matter, and they are ‘deliberative’ if they were

prepared to help the agency formulate its position.”); Libertarians for

Transparent Gov’t v. Gov’t Recs. Council, 453 N.J. Super. 83 (App. Div. 2018)

(finding that drafts of meeting minutes were protected by deliberative process

privilege).

application, the disclosure of the State Department of Health figures, representing the

government’s officially published data, should be sufficient.

Plaintiffs offer little in response. Sidestepping the legal standard, they

instead pose a rhetorical question: “What possible need for ‘open, frank

discussion’ arises when the Governor is simply seeking out what should be

broadly accepted medical advice?” (Reply at 4–5 (citations omitted).) This

question does little to advance the legal argument. The process here surely

involves more than the mere obtaining of “medical advice,” which in any event

would be privileged if sought as part of the deliberative process. Elsewhere,

plaintiffs seem to acknowledge that these materials are covered by the privilege,

but argue instead that their need for the materials outweighs the government’s

interest in confidentiality. (Mot. at 8.) That argument is addressed below.

Request (4) asks for production of “Any communications between the

administration and the NJEA or other third parties as to masking of

schoolchildren or the basis for entry of [the] EOs.” (DE 33-4.) Again, the

plaintiffs’ requests very nearly define the documents sought as predecisional

documents related to the deliberative process that led to the promulgation of

the EOs.

Plaintiffs claim very broadly that documents “provided to the Governor,

his staff or other departments from ‘outsiders’ … are not protected under any

privilege.” 9 (Mot. at 15–16.) This is not the case. The deliberative process

privilege “extends to a variety of communications between the chief executive

and third parties” and “the information exchanged need not be in the nature of

formal advice to garner the protection afforded by the privilege.” Wilson v.

Brown, 404 N.J. Super. 557, 576 (App. Div. 2009). In Wilson v. Brown, which

plaintiffs cite extensively, the Appellate Division of the Superior Court of New

9 For this proposition, plaintiffs cite Dep’t of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1 (2001). That case does not establish that third party

communications are not covered by the deliberative process privilege. Rather, the

Court held that a FOIA exemption related to the deliberative process did not exempt

certain documents submitted to the Department of the Interior by Indian tribes. The

Court held that this FOIA exemption applies narrowly to “inter-agency or intra-agency”

communications. Because this case does not involve FOIA, Klamath Water Users

Protective Ass’n does not control.

Jersey found that communications between the governor and a union president

were protected by executive privilege. Id.10 Communications with third parties

may be privileged for the same reasons that internal communications are

privileged: to enable “free and uninhibited communication” between the

governor, here Governor Murphy, and those who advise him in his

decisionmaking. Educ. L. Ctr., 198 N.J. at 285. Thus, the deliberative process

privilege applies to any communications with third parties that relate to the

consideration or formulation of the EOs.

Request (5) asks for the production of “[a]ll medical and scientific

studies relied upon or consulted by defendants in the creation or promulgation

or continuation of [the] EOs.” (DE 30-4.) As noted above, in their response to

Request (1), the defendants provided studies that they stated were part of the

“file” related to the EOs. (DE 33-2.) In addition, defendants provided hundreds

of pages of exhibits, including dozens of scientific studies, as part of their brief

in opposition to the TRO. (DE 24-3.) It is true that the defendants have not

provided any further guidance, for example, as to which study most influenced

the creation of the EOs. Such information about the manner in which

particular studies were “relied upon or consulted” during the deliberative

process, however, falls in the heartland of the privilege. The New Jersey

Supreme Court has held that “a record, which contains or involves factual

components, is subject to the deliberative process privilege when it was used in

the decision-making process and its disclosure would reveal the nature of the

deliberations that occurred during that process.” Educ. L. Ctr., 198 N.J. at 299

(2009). The role that any particular study played in the deliberative process is

protected by the deliberative process privilege.

10 And the privilege was given broad scope. Wilson overruled a lower court

decision that had ordered the disclosure of some documents, but excepted

“communications [that] relate to topics which do not directly touch upon Ms. Katz's

position as president of the union or state employees, but upon issues of general

statewide policy.” Wilson v. Brown, 2008 WL 2400872 (N.J. Super. L. May 29, 2008).

ii. Balancing of Interests

That the materials in Requests (2)–(5) are covered by the deliberative

process privilege does not necessarily establish that they must be withheld

from the plaintiffs. A party may obtain discovery of such materials upon a

demonstration “that its need for the documents outweighs the government’s

interest.” Redland Soccer Club, 55 F.3d at 854. In that weighing process, a

court considers four factors: “(1) the relevance of the evidence; (2) the

availability of other evidence; (3) the government's role in the litigation; and (4)

the extent to which disclosure would hinder frank and independent discussion

regarding contemplated policies and decisions.” Educ. L. Ctr. 198 N.J. at 287

(quoting Integrity, 165 N.J. at 85–86). Here, I perform that weighing analysis,

not in relation to an ultimate decision on the merits, but rather in the context

of preliminary injunctive relief, sought on an expedited basis. Better Packages,

2006 WL 1373055, at *3.

Parties who seek a preliminary injunction must establish that “(A) they

are likely to succeed on the merits of their claims, (B) they are likely to suffer

irreparable harm without relief, (C) the balance of harms favors them, and (D)

relief is in the public interest.” Issa v. Sch. Dist. of Lancaster, 847 F.3d 121,

131 (3d Cir. 2017). At this stage, discovery requests should be narrowly

tailored to meet this burden. Better Packages, 2006 WL 1373055, at *3. The

issue most likely to be affected by the requested discovery is plaintiffs’

likelihood of success on the merits. Therefore, I examine the plaintiffs’ need for

the material they request in the context of whether it could help them prove

that they are likely to succeed on the merits of their Constitutional claims. I

balance that need against the government’s interest in confidentiality.

Plaintiffs urge that the materials are important in some general sense,

but do not explain convincingly how the materials will improve their showing of

likelihood of success on the merits. Plaintiffs argue that “[a]n emergency health

order supposedly intended to protect the entire population from an epidemic

condition is not one to be carried out under a mantle of privacy and security.”

(Mot. at 8–9 (internal quotation marks omitted).) Similarly, they argue that the

materials at issue are “inherently a matter of public discussion.” (Mot. at 10.)

Such general claims about the importance of disclosure are not sufficient. “A

general assertion of a need for full disclosure of the basis for governmental

decision making… does not establish a specific or focused need sufficient to

overcome the executive privilege.” Wilson v. Brown, 404 N.J. Super. at 579

(citing Nero v. Hyland, 76 N.J. 213, 216–17 (1978)). And it must be

remembered, of course, that this is not a federal-law challenge to the wisdom of

the EOs, or an administrative-law challenge to the manner of their

promulgation. What plaintiffs are attempting to prove is that the State could

not constitutionally impose a mask policy, a different matter.

In addition, plaintiffs state that “any claim of ‘deliberative’ or other

privilege must fail since no other source exists for the materials that plaintiffs

seek.” (Reply at 12.) This argument, if accepted, would allow the exception to

swallow the rule. It is probably very often true that governmental defendants

are the only source of facts about the deliberative process. To overcome the

privilege, however, plaintiffs must demonstrate a “focused need” for the

material. They have not done so here.

Material concerning the deliberative process surrounding the

development of the mask rule is not centrally relevant to the likelihood of

success of plaintiffs’ constitutional claims. (Mot. at 8.) The primary claims here,

in the Court’s estimation, are the claims that the EOs violate First Amendment

protections or Equal Protection. But if I were to enjoin the enforcement of the

EOs, it would be because their effects—not their underlying motivations, or

their provenance—upset the Constitutional balance.

Plaintiffs argue that the Governor’s motivations matter, and therefore

must be explored. They support that contention with a citation to Stone v.

Trump, 356 F.Supp.3d 505 (D. Md. 2019).11 That court granted a motion to

11 Plaintiffs actually cite the court’s decision on defendant’s motion for

reconsideration, Stone v. Trump, 402 F. Supp. 3d 153 (D. Md. 2019), but the

compel deliberative documents related to former President Trump’s ban of

transgender service members from the United States military. The court found

that the President’s motivation mattered because the ban was claimed to be

“facially discriminatory.” Id. at 515–16. Animus against a protected class, of

course, is never a valid government interest.

Here, in contrast, the claim is not plausibly one of intentional

discrimination against some disfavored group, which might require delving into

motives. The school mask mandate is facially neutral, and does not involve any

suspect class. See West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358,

1365 (10th Cir.), cert. denied, 531 U.S. 825 (2000) (students not a suspect

class under Equal Protection Clause); Simmermon v. Gabbianelli, 932 F. Supp.

2d 626, 631 (D.N.J. 2013) (same). It is based on what is concededly a

compelling government interest in “[s]temming the spread of COVID-19.”

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per

curiam). Calling the governor’s motives “political” does not alter the essential

legal landscape. The question is whether the mask mandate infringes

constitutional interests, and, if so, whether the government could nevertheless

enact it based on its compelling interest in slowing the spread of COVID-19

among school children. (Reply at 11.) The material sought by plaintiffs would

perhaps be relevant to a challenge to the rulemaking process, based on state

administrative law (indeed, some of it was produced in that context), but it is

far from central to the plaintiffs’ claim of unconstitutionality.

As for “compelling need,” the plaintiffs have a wealth of information

available that may be relevant to their constitutional claims. In addition to the

information already disclosed by defendants in discovery and in their briefs,

there are hundreds of scientific studies on COVID-19, including many about

the spread of COVID-19 in schools. Indeed, the state itself has disseminated

that information publicly. In addition, plaintiffs have submitted affidavits from

discussion of deliberative process privilege is much more extensive in the Judge

Russell’s initial opinion, 356 F. Supp. 3d 505.

students, parents, and teachers. (DE 12-3, 12-4, 12-5, 12-6, 12-7, 12-8, 12-9,

12-10, 12-11, 12-12.) The availability of this evidence weighs against

compelling disclosure despite the privilege.

Finally, although it is true that the public interest in this issue weighs in

favor of disclosure, it is also true that public agencies need to be free to engage

in frank and independent discussion regarding COVID-19 policies. COVID-19

mitigation policies, rightly or wrongly, are controversial and politically charged,

and they have provoked strong emotions on all sides. Governments around the

country and around the world have struggled to balance the need to prevent

death and disease with competing goods, including in-person schooling, civil

liberties, and economic growth. The deliberative process privilege is intended to

shield such politically charged policy discussions, at least until they have

culminated in a final declaration of policy that can be evaluated on its merits.

Confidentiality allows government officials and advisors to propose, discuss,

reject, and accept ideas, without undue outside pressure. This factor weighs

against compelling disclosure despite the deliberative process privilege.

To sum up: I find that requests (1), (6), and (7) have been sufficiently

responded to by defendants. I find that materials responsive to requests (2), (3),

(4), and (5) are covered by the deliberative process privilege and that plaintiffs

have not demonstrated a “focused need” to obtain those materials in aid of

their preliminary injunction application.

ORDER

For the reasons set forth above,

IT IS this 21st day of October, 2021

ORDERED that plaintiffs’ motion to compel discovery (DE 30) is DENIED

as to Requests (1), (6), and (7), with which defendants have adequately

complied, and DENIED on grounds of the deliberative process privilege as to

Requests (2), (3), (4), and (5).

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge