PLATKIN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VETERANS GUARDIAN VA CLAIM Civ. No. 23-20660 (MAS)(JBD)

CONSULTING, LLC, et al.,

MEMORANDUM ORDER

Plaintiffs,

v.

JENNIFER DAVENPORT, in her

official capacity as Attorney General of

New Jersey,

Defendant.

Before the Court is a joint letter raising a dispute over a series of documents

that plaintiffs Veterans Guardian VA Claim Consulting, LLC (“Veterans Guardian”),

John F. Rudman, and Andre Jesus Soto, invoking a privilege under the First

Amendment, have withheld in discovery. [Dkt. 79.] Defendant challenges the

privilege assertion and requests that the Court order plaintiffs to produce the

documents. Id. The Court has carefully reviewed the parties’ arguments and

discussed the dispute during a telephone status conference held on June 29, 2026.

The Court also has reviewed in camera the materials in dispute. For the reasons

that follow, the Court will order plaintiffs to produce the documents in issue.

*

The Court writes for the parties and assumes their familiarity with the case.

At issue here are 21 documents over which plaintiffs invoke the First Amendment

privilege. [Dkt. 79.]1 Plaintiffs do so on the basis that the documents each contain

“internal legislative analysis,” “draft advocacy-related communications,” and/or

“internal policy analysis and strategic deliberations concerning pending legislation,”

[Dkt. 79] at 7; accord [Dkt. 79-2], that reveal “Veterans Guardian’s internal

processes for formulating policy positions, coordinating advocacy efforts, and

engaging with the legislative process . . . in furtherance of the Company’s rights to

petition the government and to associate with others.” [Dkt. 79] at 7. Plaintiffs

further assert that compelled disclosure of these documents “would chill future

association and petition activity, harms that a confidentiality order cannot prevent.”

Id.

Defendant objects to plaintiffs’ invocation of a privilege under the First

Amendment, arguing that “[t]here is no First Amendment privilege for ‘internal

legislative analysis’ or ‘draft advocacy documents’”; that “[t]here is no First

Amendment right to refuse to provide evidence in a case a plaintiff has chosen to

bring”; and that the First Amendment privilege is not applicable in discovery, “much

less in discovery governed by confidentiality order.” [Dkt. 79] at 4. Defendant

1 Plaintiffs invoke the First Amendment privilege for 28 of the 32 documents

listed in their privilege log. [Dkt. 79-2.] Of those 28 documents, the First

Amendment privilege is the only privilege asserted for all but seven documents. Id.

Defendant does not challenge the seven documents over which plaintiffs also have

asserted the attorney-client privilege and/or the work product doctrine. [Dkt. 79]

at 5. Accordingly, 21 documents are in dispute.

further submits that even if the First Amendment privilege could apply in these

circumstances, plaintiffs have failed to “provide[] any factual basis that could

support a prima facie showing that these documents are properly subject to any

privilege.” Id. Accordingly, defendant submits that plaintiffs must produce the

documents at issue, “or, at the very least, provide sufficient information about them

to allow [d]efendant to properly assess the asserted privilege.” Id. at 5.

In an effort to reach a resolution on their dispute, “[t]he parties exchanged

correspondence and met several times via video conference,” but ultimately reached

impasse, leading to the dispute letter before the Court. Id. at 1. As noted, the Court

held a telephone status conference on June 29, 2026 to discuss, among other things,

the parties’ privilege dispute. See [Dkt. 66]. Following that conference, and at the

Court’s direction, plaintiffs submitted the documents at issue for in camera review.

[Dkt. 82] at 1. The dispute is now ripe for resolution.

*

Federal Rule of Civil Procedure 26 governs the scope and timing of discovery

in federal civil litigation. Pursuant to that Rule, parties “may 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(b)(1). Where, as here,

otherwise-discoverable materials are withheld or redacted based on a privilege

assertion, the “party who asserts a privilege has the burden of proving its existence

and applicability.” In re Grand Jury Investigation, 918 F.2d 374, 385 n.15 (3d Cir.

1990); see also Fraternal Ord. of Police Pennsylvania Lodge v. Twp. of Springfield,

668 F. Supp. 3d 375, 386 (E.D. Pa. 2023) (“The party asserting an associational

privilege to discovery ‘has the burden of proving [the privilege’s] existence and

applicability.’” (quoting Knaupf v. Unite Here Loc. 100, Civ. No. 14-6915 (DEA), 2015

WL 7451190, at *5 (D.N.J. Nov. 23, 2015)) (further citations omitted)).

The First Amendment includes a right to associate. Fraternal Ord. of Police,

668 F. Supp. 3d at 385. Relevant here, that right protects individuals’ and

organizations’ expressive association, or association for the purpose of engaging in

activities protected by the First Amendment. Id. When state action directly affects

a group’s expressive associational activities, the state must “show a compelling

interest that justifies the level of the burden imposed on the groups’ expression.” Id.

(quoting Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 438 (3d

Cir. 2000)). Discovery requests by a government litigant represent “state action”

that, in some circumstances, can impermissibly infringe an organization’s

associational activities. Id. When a party in litigation invokes the First Amendment

privilege to withhold otherwise-discoverable materials on that basis, “the party

opposing discovery must show ‘that enforcement of the discovery request will result

in consequences which objectively suggest a ‘chilling’ impact on associational

rights.’” Id. at 386 (quoting Knaupf, 2015 WL 7451190, at *5 (further citation

omitted)). “‘This prima facie showing requires appellants to demonstrate that

enforcement of the discovery requests will result in (1) harassment, membership

withdrawal, or discouragement of new members, or (2) other consequences which

objectively suggest an impact on, or chilling of, the members’ associational rights.’”

Id. (quoting Perry v. Schwarzenegger, 591 F.3d 1126, 1140 (9th Cir. 2009) and then

citing In re Motor Fuel Temperature Sales Pracs. Litig., 641 F.3d 470, 489 (10th Cir.

2011).

If the party invoking the First Amendment privilege makes a prima facie

showing that enforcement of the discovery request will result in consequences which

objectively suggest a “chilling” impact on associational rights, “the burden shifts to

the government to show it ‘has a sufficiently compelling need for the information

that outweighs the other party’s interest in keeping it private.’” Fraternal Ord. of

Police, 668 F. Supp. 3d at 386 (quoting In re Motor Fuel Temp. Sales Practices Litig.,

641 F.3d at 492 n.15) (further citations omitted). “At this second step, the question

is whether the government has ‘demonstrated an interest in obtaining the

disclosures it seeks which is sufficient to justify the deterrent effect on the freedom

of the constitutionally protected right of association.’” Id. (quoting Perry, 591 F.3d at

1140 (explaining that the government must “demonstrate that the information

sought through the discovery is related to a compelling governmental interest and

the least restrictive means of the desired information” (cleaned up)). “[T]he party

seeking the discovery must show that the information sought is highly relevant to

the claims or defenses in the litigation—a more demanding standard of relevance

than that under Federal Rule of Civil Procedure 26(b)(1).” Perry, 591 F.3d at 1141

(emphasis added). Additionally, “[t]he request must also be carefully tailored to

avoid unnecessary interference with protected activities, and the information must

be otherwise unavailable.” Id.

*

As an initial matter, the Court rejects defendant’s broad assertions that the

First Amendment privilege categorically cannot apply to “internal legislative

analysis,” “draft advocacy-related communications,” and/or “internal policy analysis

and strategic deliberations concerning pending legislation”; that the privilege does

not apply in the discovery context; and that a plaintiff effectively waives the right to

invoke the First Amendment privilege by filing suit. [Dkt. 79] at 4. While the

concept of the First Amendment privilege is commonly applied in the context of

demands for private donor or member information, see, e.g., First Choice Women’s

Res. Centers, Inc. v. Davenport, 146 S. Ct. 1114 (2026); NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449 (1958), “courts from other Circuits and district courts in this

Circuit have found that the associational privilege extends beyond membership lists,

and at least one [court of appeals] has held that the privilege can extend to an

organization’s internal deliberations and communications.” Fraternal Ord. of Police,

668 F. Supp. 3d at 388 (collecting cases). Moreover, several courts, including those

in the Third Circuit, recognize that the First Amendment privilege applies in the

discovery context. See id. at 385 (“Discovery requests represent ‘state action’ that

may impermissibly affect an organization’s associational activities.”); Knaupf, 2015

WL 7451190, at *5; see also, e.g., Perry, 591 F.3d at 1140-41. Finally, while a party’s

assertion of the First Amendment privilege is qualified and can be overcome if

“the information sought is highly relevant,” Perry, 591 F.3d at 1141, the Court is not

aware of any authority supporting defendant’s argument that a plaintiff’s right to

assert the First Amendment privilege is waived outright simply because it chose to

bring an action that implicates associational rights. Accordingly, the Court rejects

defendant’s categorical argument that the First Amendment privilege cannot apply

in these circumstances.

Nevertheless, although the privilege could apply in this context, that does not

mean that it does. As described above, “the party claiming a First Amendment

privilege in an objection to a discovery request bears the burden to make a prima

facie showing of the privilege’s applicability.” Knaupf, 2015 WL 7451190, at *5

(citations omitted). Here, the Court concludes that plaintiffs have failed to meet

their burden of demonstrating that the First Amendment privilege applies to the

materials at issue.

Specifically, plaintiffs have failed to make a prima facie showing that

production of the requested materials will have a “chilling” impact on associational

rights. Plaintiffs have “offered no facts to suggest that disclosure of the materials

would chill association rights.” Id. (denying request for a protective order regarding

discovery requests seeking “membership information,” “[u]nion communications,”

and meeting minutes on First Amendment privilege grounds because the moving

party did not show that “production of the requested material” would have “chilling

effects” on future association or association members’ abilities to foster their beliefs).

To the contrary, plaintiffs state only in conclusory fashion that “[c]ompelled

disclosure would chill future association and petition activity,” [Dkt. 79] at 7,

but they provide no evidence, articulation, reasoning, or additional argument in

support of that statement.

Simply saying it does not make it so. On this record, plaintiffs have not met

their burden of demonstrating, with facts or evidence, that the First Amendment

privilege applies to the documents at issue in the first instance. See Knaupf,

2015 WL 7451190, at *5; In re Motor Fuel Temperature Sales Pracs. Litig., 641 F.3d

at 491-92 (“[W]e cannot say that the district court clearly and egregiously erred in

concluding that [a witness]’s single, [unsworn] statement was insufficient.

The appellants presented significantly less evidence of a chilling effect than what

has been deemed sufficient in prior cases.”); cf. Perry, 591 F.3d at 1143 (finding that

party made “a prima facie showing of arguable first amendment infringement by

demonstrating consequences which objectively suggest an impact on, or ‘chilling’ of

associational rights” where “[t]hey presented declarations from several individuals

attesting to the impact compelled disclosure would have on participation and

formulation of strategy” (cleaned up)); Fraternal Ord. of Police, 668 F. Supp. 3d at

387-89 (holding that plaintiff satisfied its prima facie burden to demonstrate the

associational privilege where it submitted declarations of four members that “g[ave]

rise to a ‘reasonable inference’ that disclosure of members’ internal communications

w[ould] discourage them from freely exchanging ideas with other members in the

future, and thus, infringe up on those members’ associational rights”); First Choice,

146 S. Ct. at 1125-26 (considering “two unrebutted declarations,” among other

things, in determining that petitioner could have suffered an “objectively reasonable

chill” to its First Amendment associational rights and thus established an “injury in

fact” for purposes of Article III standing); Better Path Coal. Plan. Grp. v. City of

Harrisburg, Civ. No. 22-00623, 2025 WL 2349806, at *14 (M.D. Pa. Aug. 13, 2025)

(explaining that “plaintiffs’ proffered arguments regarding chill [could] .. . reach the

level of an objectively reasonable probability that compelling a response to [the]

interrogatory [in issue] w[ould] chill associational rights” where plaintiffs made two

specific arguments on how “[a]llowing government entities access to membership

and financial information in response to civil rights lawsuits would chill First

Amendment rights”). Moreover, on its independent review of the materials

in camera, the Court is not persuaded that compelling their disclosure in these

circumstances will in fact chill Veterans Guardian’s associational rights.

Plaintiffs have not demonstrated that the First Amendment privilege applies

to the documents described in rows 1, 2, 4-7, 9-10, 19-25, 27-32 of their privilege

log. Those documents shall be produced forthwith.?

*

IT IS SO ORDERED this 18th day of August, 2026.

SBDs_

J. BRENDAN DAY

UNITED STATES MAGISTRATE JUDGE

2 To the extent appropriate, plaintiffs may make appropriate designations

consistent with the operative Discovery Confidentiality Order. [Dkt. 60.]