     Case: 18-50484   Document: 00514555006     Page: 1   Date Filed: 07/15/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT       United States Court of Appeals
                                                      Fifth Circuit

                                                                            FILED
                                                                          July 15, 2018
                                 No. 18-50484
                                                                         Lyle W. Cayce
                                                                              Clerk

WHOLE WOMAN’S HEALTH; BROOKSIDE WOMEN’S MEDICAL
CENTER, P.A., doing business as Brookside Women’s Health Center and
Austin Women’s Health Center; LENDOL L. DAVIS, M.D.; ALAMO CITY
SURGERY CENTER, P.L.L.C., doing business as Alamo Women’s
Reproductive Services; WHOLE WOMAN’S HEALTH ALLIANCE;
DR. BHAVIK KHUMAR,

            Plaintiffs - Appellees

v.

CHARLES SMITH, Executive Commissioner of the Texas Health and Human
Services Commission, in his official capacity,

            Defendant - Appellee

v.

TEXAS CATHOLIC CONFERENCE,

            Movant - Appellant



                Appeal from the United States District Court
                     for the Western District of Texas


Before JONES, COSTA, and HO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      This is an emergency appeal from an extraordinary discovery order by
the district court to a religious body. The court compelled document production
of the group’s internal communications despite its status as a non-litigant and
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                                       No. 18-50484
its voluntary furnishing of substantial discovery materials. Because the trial
date looms, and with the benefit of full briefing from both parties, we elect to
consolidate the Appellant’s motion to stay, along with the Appellees’ motion to
dismiss this appeal, with a determination of the merits of the discovery order.
We REVERSE the court’s order denying the Appellant’s motion to quash and
compelling further document discovery.
                                    BACKGROUND
      The Texas Conference of Catholic Bishops (“TCCB”) is an unincorporated
ecclesiastical association that furthers the religious ministry of the Roman
Catholic Bishops and Archbishops in the State of Texas. Catholic Bishops
communicate through TCCB to determine how the Catholic Church should
address various moral, theological, and social issues, including abortion policy.
The Catechism of the Catholic Church teaches that the dignity of all human
life demands respect and that abortion is gravely sinful. See Catechism of the
Catholic Church §§ 2270-75.
      In August 2016, Jennifer Allmon, TCCB’s Executive Director,
voluntarily testified in administrative proceedings in favor of amending state
regulations regarding the disposal of embryonic and fetal tissue. Proposed by
the Texas Department of State Health Services (“DSHS”), the new regulations
would prohibit disposing of fetal remains in a landfill or sewer, as had been
earlier allowed. See 41 Tex. Reg. 9709-41 (2016). Ms. Allmon’s written and
oral testimony communicated the Bishops’ conviction that fetal remains should
be disposed of with respect.
      Because a primary objection to the new regulations was the increased
cost of interment, the Bishops considered facilitating free burials for fetal
remains. 1 On December 12, 2016, TCCB announced that it would work with



      1   Many dioceses in Texas already ran such burial ministries.
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                                    No. 18-50484
Catholic cemeteries and funeral homes throughout Texas to offer free common
burial 2 services to fetal remains produced as a result of abortions.
      In late 2016, the plaintiffs—several Texas health care providers licensed
to perform abortions in the state—challenged the fetal remains regulations
pursuant to 42 U.S.C. § 1983. The plaintiffs alleged, inter alia, that the costs
imposed by the regulations would violate Due Process by burdening the rights
of women seeking an abortion. The plaintiffs sought a temporary restraining
order and preliminary injunction. The district court granted the temporary
restraining order on December 15, 2016 and scheduled a hearing on the
preliminary injunction.
      The plaintiffs argued, in part, that the fetal remains amendments would
“make[] the availability of abortion services contingent on the ability and
willingness of third-party vendors to bury or scatter the ashes of embryonic or
fetal tissue at a non-prohibitive cost. . . . These options are prohibitively
expensive.” In response, the State of Texas cited Ms. Allmon’s testimony as
evidence that a “non-profit group is prepared to provide for the burial of fetal
tissue from all health-care providers across the state without charge.”
      Ms. Allmon testified at the preliminary injunction hearing, reiterating
the Bishops’ moral views and their commitment to absorb the costs associated
with the burial ministry without providing religious rituals associated with the
burial unless a parent so requested. She also testified that the Bishops had
authority to commit Catholic cemeteries to participate in this program. On
January 27, 2017, the district judge granted the preliminary injunction,
finding that some terms in the regulations were unconstitutionally vague and
that the rules impermissibly burdened abortion access. The State appealed.



      2  Common burial is when the remains of multiple fetuses are collected and buried
together in a single grave, which reduces the cost of burial.
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                                    No. 18-50484
      While the appeal was pending, the Texas legislature moved to enact a
law specifying legitimate methods for disposing of fetal remains. Ms. Allmon
again testified on behalf of TCCB in favor of these provisions. As part of a
larger abortion-related bill—SB8—these provisions were then signed into law
in June 2017, set to take effect on February 1, 2018. See Tex. S.B. 8, 85th Leg.,
R.S., § 19(d) (2017).
      The plaintiffs immediately moved to enjoin the new law. On January 29,
2018, the district court preliminarily enjoined the provisions of SB8 dealing
with fetal remains disposal. The district court set a bench trial date for July
16, 2018 and referred discovery matters to a magistrate judge. On March 19,
2018, the parties stipulated that neither party would produce evidence
concerning the cost of compliance with the challenged laws,” with the plaintiffs
affirming that they “waive[d] any argument . . . that the monetary cost of
compliance    with      the   challenged   laws    contributes    to   their   alleged
unconstitutionality.” This stipulation allows the plaintiffs to avoid disclosure
of any of their financial information. Ms. Allmon is currently identified as a
trial witness on behalf of the state and will testify in her capacity as Executive
Director of TCCB. 3
      On March 21, 2018, the eve of Holy Week for Christians, a period of
intense religious devotional activity, the plaintiffs served TCCB with a third-
party subpoena.         The subpoena requested, in part, (1) “All Documents
concerning EFTR [embryonic and fetal tissue remains], miscarriage, or
abortion,” (2) “All Documents concerning communications between [TCCB]
and current or former employees of DSHS, HHSC, the Office of the Governor
of Texas, the Office of the Attorney General of Texas, or any member of the



      3 Ms. Allmon and TCCB participated as a third-party witness voluntarily. However,
on June 25, Texas subpoenaed Ms. Allmon to testify at the trial.
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                                  No. 18-50484
Texas Legislature, since January 1, 2016,” and (3) “All documents concerning
the Act, the Amendments, or this lawsuit.” The subpoena had no retrospective
time limitation; made no exception for confidential internal or religious
communications; and the return date of the subpoena was 9:00 a.m. on the
Tuesday following Easter Sunday.
      The Bishops filed their first motion to quash the subpoena and for a
protective order on that Monday, April 2, 2018. They contended that the
subpoena sought irrelevant evidence, that it violated the free exercise, freedom
of speech, freedom of assembly, and freedom of petition guarantees of the First
Amendment, that it violated the Religious Freedom Restoration Act (“RFRA”),
and that it was unduly burdensome under Fed. Rule Civ. Pro. 45(d). The
Bishops’ motion was initially denied without prejudice for a failure to meet and
confer with the plaintiffs regarding the scope of the subpoena.
      Following the denial of TCCB’s motion, counsel for TCCB and the
plaintiffs met and conferred regarding the subpoena’s scope. The plaintiffs
agreed to limit their request to the following search terms: SB8, SB 8, Fetal,
Fetus, Embryonic, Embryo, Abortion, Aborted, Miscarriage, Unborn, and
burial ministry. They also limited the documents requested to those sent or
received by Ms. Allmon on or after January 1, 2016.
      The Bishops maintained objections to these requests, but nevertheless
conducted a search, which returned over 6,000 pages of records. The Bishops
ultimately turned over to the plaintiffs 4,321 pages of records, 4 including
responsive documents representing communications with third parties such as
state officials, Catholic conferences in other states, and Catholic cemeteries
participating in the burial ministry.



      4 TCCB estimates that, as of June 10, 2018, it had spent over 100 staff hours
responding to the subpoena and accrued over $20,000 in attorney’s fees and costs.
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                                       No. 18-50484
      At a scheduling conference on Friday, June 8, the magistrate judge
informed the Bishops that they must file any further motion to quash by 9 a.m.
on Monday, June 11, and that the motion would be argued on Wednesday,
June 13. Under this tight schedule, the Bishops renewed their objections
under the First Amendment, RFRA, and Rule 45(d). At the June 13 hearing,
the magistrate judge specified that the parties should limit the focus of their
arguments to the free exercise and freedom of association issues.
      The plaintiffs explained their need for the remaining documents—
namely, the documents’ relevance for cross-examination purposes.                    The
plaintiffs offered to withdraw their subpoena if Ms. Allmon withdrew as a
voluntary witness.        The Bishops produced a privilege log, identifying the
documents—emails to or from Ms. Allmon—that it continued to withhold as
privileged. The Bishops contended that the subpoena was an intimidation
tactic to prevent TCCB from participating as a witness in the litigation. And
they argued that the withheld documents were both privileged under the First
Amendment and that the plaintiffs had no need for them. After the hearing,
Ms. Allmon submitted to a three-hour deposition by the plaintiffs, during
which they were able to ask about the facts relevant for trial.
      The magistrate judge denied the Bishops’ motion to quash later that day.
Although the ordinary time to appeal such a denial is 14 days, 5 the district
court sua sponte ordered the Bishops to file any appeal within approximately
24 hours. The court denied the Bishops’ motion for an extension of time to file
the appeal. The Bishops complied with the order and filed their appeal by noon
on Thursday, June 14. The district court denied the appeal on Sunday, June
17, and ordered the Bishops to produce the remaining documents within 24
hours.



      5   See W.D. Tex. Local Rules, Appendix C, Rule 4(a).
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                                 No. 18-50484
      The Bishops appealed, filing a motion for a stay in the district court and
an emergency motion for a stay in this court. The district court “generously”
granted a 72-hour stay of its order, but this court also granted a stay pending
appeal and set an expedited briefing schedule. On June 19, the plaintiffs
moved this court to dismiss TCCB’s appeal and to vacate the stay.           The
plaintiffs argued that this court lacked appellate jurisdiction to review the
district court’s pretrial discovery order. TCCB responded to the motion to
dismiss on July 2.
                      APPELLATE JURISDICTION
      The plaintiffs contend that this court lacks appellate jurisdiction over
this “interlocutory” discovery order. TCCB responds that because it is a third
party to the litigation, it has no alternative avenue of appeal because having
to await the conclusion of litigation by others, whenever and however that may
occur, is out of its control and stymies its rights. Thus, while the court’s
discovery order is not generally “final” within the contemplation of 28 U.S.C.
§ 1291, TCCB asserts its rights under the collateral order doctrine, which
permits appeals of interlocutory decisions (a) that are conclusive, (b) that
resolve important questions separate from the merits, and (c) that are
effectively unreviewable on appeal from the final judgment.            Mohawk
Industries v. Carpenter, 558 U.S. 100, 106, 130 S. Ct. 599, 605 (2009). For
several reasons, we conclude that we do have jurisdiction.
      The standards of the collateral order doctrine are met here. There is no
dispute that the district court’s discovery order was conclusive on TCCB, such
that failure to comply with it may result in sanctions against TCCB or its
witness. Further, the order resolves important and very novel issues separate
from the merits of the litigation over the Texas statute concerning the disposal
of fetal tissue remains. Finally, the plaintiffs do not have an answer to the
argument that the consequence of forced discovery here is “effectively
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                                 No. 18-50484
unreviewable” on appeal from the final judgment.           Instead, they draw
misplaced analogies.
      First, they rely heavily, but inappositely, on Mohawk Industries v.
Carpenter, in which the Supreme Court held that disputes over the
discoverability of attorney-client communications are not subject to the
collateral order doctrine. 558 U.S. at 114, 130 S. Ct. at 609. In Mohawk, the
Court reasoned that as between parties, the appellate court can remedy
erroneously ordered discovery by remanding the case for a new trial.
Id. at 109, 130 S. Ct. at 606-07.    From this standpoint, a discovery order
breaching the attorney-client privilege is not “unreviewable on appeal.” This
case is distinguishable: a new trial order can hardly avail a third-party witness
who cannot benefit directly from such relief. Mohawk does not speak to the
predicament of third parties, whose claims to reasonable protection from the
courts have often been met with respect.
      The Court also noted the general familiarity of courts with standards
governing the attorney-client privilege, a fact that heightens courts’ ability to
review materials for which privilege is claimed; mitigates the potential for
lower court discovery errors; and lessens the novelty of the issues. Id. at 110,
130 S. Ct. at 607. This case, on the other hand, is practically sui generis from
the standpoint of the type of discovery sought and the issues raised by TCCB.
As discussed below, neither we nor the plaintiffs nor TCCB have found a case
on point.   TCCB’s claimed privileges, if applicable, go to the heart of the
constitutional protection of religious belief and practice as well as citizens’
right to advocate sensitive policies in the public square, a square that embraces
both the legislature and the courthouse. Further, the courts have limited
ability to assess the strength of religious groups’ claims about their internal
deliberations for purposes of monitoring discovery. Lacking guideposts from
the legal arena, any such judicial attempt risks tension with the repeated
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                                       No. 18-50484
judicial admonitions that courts stay out of the business of weighing the
sincerity of religious beliefs and practices. See, e.g., Tagore v. United States,
735 F.3d 324, 328 (5th Cir. 2013).                 Mohawk, in short, does not prevent
application of the collateral order doctrine in this case.
       Moreover, on two occasions following Mohawk, this court has reaffirmed
its precedent holding that interlocutory court orders bearing on First
Amendment rights remain subject to appeal pursuant to the collateral order
doctrine. See Marceaux v. Lafayette City-Par. Consol. Gov’t, 731 F.3d 488, 490
(5th Cir. 2013) (citing Mohawk in its treatment of the intersection of collateral
review and the First Amendment); In re Hearst Newspapers, L.L.C.,
641 F.3d 168 (5th Cir. 2011); see also Henry v. Lake Charles American Press,
LLC, 566 F.3d 164, 180-81 (5th Cir. 2009) (collateral order appeal of denial of
anti-SLAPP dismissal permitted, inter alia, because of potential impact on
First Amendment rights); United States v. Brown, 218 F.3d 415, 420-21
(5th Cir. 2000). These authorities support our appellate jurisdiction when
comparable First Amendment claims are at issue.
       Having failed to cite our precedents on appealability, the plaintiffs rely
instead on two cases from other circuits. 6 These cases, of course, must yield to
our circuit precedent. In addition, neither Perry nor In re Motor Fuel Sales
Practices involved discovery against a third party. Perry, in the end, upheld a
qualified First Amendment privilege claim, while In re Motor Fuel Sales



       6 In one, the Ninth Circuit, shortly after Mohawk was issued, confronted a discovery
order covering the internal deliberations of a public interest group that was litigating on
behalf of California’s Prop 8. In an abundance of caution, the court rejected use of the
collateral order doctrine as a jurisdictional basis, but it proceeded to determine the merits of
the case as a mandamus petition. See Perry v. Schwarzenegger, 591 F.3d 1147, 1156
(9th Cir. 2010). The Tenth Circuit more recently decided that “discovery orders adverse to a
claimed First Amendment privilege are not immediately appealable” under the collateral
order doctrine. In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 484
(10th Cir. 2011).
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                                     No. 18-50484
Practices is further distinguishable because the discovery sought information
pertaining to potential fraud.
      The plaintiffs finally reference a Fifth Circuit decision against a
religiously affiliated college in a dispute over the enforceability of a charitable
bequest. See Ambassador College v. Geotzke, 675 F.2d 662 (5th Cir. 1982).
Ambassador College is a strange decision on several grounds, but it is not a
decision about appellate jurisdiction.        This court’s jurisdiction was firmly
predicated on the district court’s final order dismissing the case. We DENY
the plaintiffs’ motion to dismiss.
                          STANDARD OF REVIEW
       Because trial is set to commence July 16, we elect to treat this appeal of
the motion to quash on the merits. See Doe v. Office of Refugee Resettlement,
884 F.3d 269, 271 (5th Cir. 2018). We therefore pretermit the considerations
pertinent to a stay pending appeal.
       We review the district court’s decision on a motion to quash for abuse of
discretion.   Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817
(5th Cir. 2004). “The district court’s legal conclusions should be reviewed de
novo, and its factual findings should not be disturbed unless they are clearly
erroneous.” Marceaux v. Lafayette City-Par. Consol. Gov’t, 731 F.3d 488, 491
(5th Cir. 2013). A district court’s discovery rulings are generally affirmed
unless they are “arbitrary or clearly unreasonable.” United States v. Butler,
429 F.3d 140, 148 (5th Cir. 2005). However, “in cases raising First Amendment
issues[,] . . . an appellate court has an obligation to ‘make an independent
examination of the whole record’ in order to make sure that ‘the judgment does
not constitute a forbidden intrusion on the field of free expression.” Marceaux,
731 F.3d at 491-92 (quoting Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 499, 104 S. Ct. 1940, 1958 (1984) (quoting New York Times Co.
v. Sullivan, 376 U.S. 254, 285, 84 S. Ct. 710, 729 (1964))).
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                                 No. 18-50484
                                DISCUSSION
      I. The district court’s order assumed, essentially, that this discovery
dispute is like a garden variety dispute over the necessity of discovery from a
corporate representative designated as a trial witness. Thus, the court rather
hastily concluded that because the withheld internal communications (to
which Ms. Allmon was privy) fell within the scope of the parties’ agreed search
terms, they were relevant and necessary to preparing the plaintiffs’ cross-
examination. The court thus overruled TCCB’s objections based on relevance,
undue burden, and necessity under Fed. Rule Civ. Pro. 45(d)(3)(A).
      The court held that TCCB waived any privilege claim based on RFRA by
not having timely raised that issue in proceedings before the magistrate judge.
      Addressing TCCB’s claims of First Amendment privilege, the court first
rejected free exercise and establishment clause arguments because any such
privilege claim is necessarily qualified, not categorical.      The court also
concluded, based on the magistrate judge’s review of a selected portion of the
internal communications, that “[t]here has been no showing Plaintiffs’
discovery request infringes on TCCB’s right to control its own affairs or
interferes with matters of church governance, faith, or doctrine.”
      The court found TCCB’s privilege claim based on the First Amendment
right of association a closer, albeit unavailing, call. The court acknowledged
“a limited [constitutional] right to associate with others for the common
advancement of beliefs and ideas concerning political, economic, religious or
cultural matters.” The court’s standard for the limited privilege accepted that
“[i]nfringements on that right may be justified by regulations adopted to serve
compelling state interests, unrelated to the suppression of ideas, that cannot
be achieved through means significantly less restrictive of associational
freedoms.”   Perry, 591 F.3d at 1159 (quoting Roberts v. U.S. Jaycees,
468 U.S. 609, 623, 104 S. Ct 3244, 3252 (1984)). The court assumed that
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                                       No. 18-50484
discovery requests in court meet the compelling interest test. It then held that
although TCCB might have made a prima facie showing that enforcing
production of the internal communications would chill the exercise of the
body’s rights (principally by discouraging the use of emails for internal
conversation within TCCB), such a showing did not outweigh the plaintiffs’
substantial interest in obtaining production.               This weighing balanced the
previous findings that the internal communications bear only on “facts” in
issue at trial, against the relative “weakness” of TCCB’s invasion of privacy
compared with cases involving the deterrence of membership or advocacy.
       II. With due respect to the district court, its analysis was incorrectly
dismissive of the seriousness of the issues raised by TCCB. It is no accident
that we have found no case directly on point on the issue of compelling
discovery of internal communications within a religious body concerning its
activities in the public square to advance and protect its position on serious
moral or political issues. 7 It is no accident that several religiously affiliated
organizations have filed amicus briefs in support of TCCB’s claim. 8
       The difficulties we perceive with the court’s analysis of the First
Amendment claims are as follows. The court erred in determining that TCCB



       7 Williams v. Parker, 843 F.3d 617, 622-23 (5th Cir. 2016) is not applicable, because
there the plaintiffs made only a “bare assertion” that their First Amendment rights had been
violated, nor did they “explain how, precisely, their rights were curtailed.”

       8 See Brief for the Jewish Coalition for Religious Liberty as Amici Curiae Supporting
Appellants; Brief for the Ethics & Religious Liberty Commission of the Southern Baptist
Convention and National Association of Evangelicals as Amici Curiae Supporting Appellants;
Brief for the United States Conference of Catholic Bishops et al. as Amici Curiae Supporting
Appellants.
        No doubt, the tension about the religious claims that spawned the amicus briefs was
heightened by two strange circumstances suggesting at least religious insensitivity: (a) that
the plaintiffs chose to time their original subpoena, and the return date, to coincide with Holy
Week, and (b) that the district court chose to issue its decision rejecting the motion to quash
on a Sunday morning when TCCB’s members and employees were almost surely in church.
No obvious time constraint justified either of these choices.
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                                      No. 18-50484
waived its claim of protection under RFRA. The court’s analysis of the free
exercise and establishment clause claims begs the fundamental, novel issues
presented under these circumstances. The court’s rejection of the free speech,
association, and petition claims too narrowly construes the nature of chilling
effects on those rights while overbroadly interpreting the importance to the
plaintiffs of the discovery sought here.
       Together, the dearth of guiding case law and the importance of context
in any resolution of these issues counsel strongly in favor of the doctrine of
constitutional avoidance.          See Ashwander v. Tennessee Valley Auth.,
297 U.S. 288, 346-47, 56 S. Ct. 466, 482-83 (1936) (Brandeis, J., concurring);
Hersh v. U.S. ex rel. Mukasey, 553 F.3d 743, 753-54 (5th Cir. 2008). Because a
non-constitutional argument, founded on Rule 45(d)’s protection of parties
subject to subpoenas, is here decisive, we need only sketch the problems
inherent in the district court’s insensitive constitutional approach. 9
       To begin, Rule 45(d) states that a district court “must” quash a subpoena
when it accepts a privilege claim, where “no exception or waiver applies.”
TCCB did not “waive” its argument that RFRA should have applied to the
discovery request. The issue was clearly stated in TCCB’s motion to quash.
When the parties appeared before the magistrate judge, however, he advised
them to focus on the First Amendment contentions. It cannot be waiver for




       9 Like the district court, the dissent would pigeonhole this dispute as simply another
discovery tiff that is resolved simply by an in camera look at the documents. This truncation
can only occur, however, based on the assumption, stated by the dissent, that the scope of
any Free Exercise privilege here is limited to judicial intrusions on church leadership or
internal management. The dissent wholly overlooks the RFRA argument made by TCCB.
And the dissent again assumes its Freedom of Association conclusion—that no associational
privilege exists—by arbitrarily cabining the scope of “deliberative discussions” within TCCB.
And by the way, this opinion only sets forth, but does not rule on, any of these substantial,
novel claims. Instead, this opinion holds that the district court misapplied Rule 45(d),
inflicted undue burden on TCCB, and in so doing abused its discretion.
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                                  No. 18-50484
TCCB to have acquiesced in the judge’s directions at oral argument on the
motion to quash.
      Had the district court considered RFRA, it would have confronted
authority that holds the law applicable to court-ordered discovery, i.e., a grand
jury subpoena. The Third Circuit has held, consistent with the coverage of
RFRA itself, that a grand jury subpoena can implicate free exercise claims. See
In re Grand Jury Empaneling, 171 F.3d 826, 835 (3d Cir. 1999) (“Lest there be
any confusion, we reiterate: in deciding whether to enforce a grand jury
subpoena over a RFRA objection, the district court must satisfy itself that the
witness’s testimony is necessary to serve a compelling state interest.”). With
that support, a RFRA claim depends on three conditions: a sincere claim of
religious belief; a “substantial burden” that will be imposed on the exercise of
that belief by particular government action; and whether the government
shows a “compelling need” for the imposition and utilizes “least restrictive
means” to achieve its goal. See Tagore, 735 F.3d at 330.
      No one challenges the sincerity of TCCB’s claim that the Church feels
morally impelled to support humane (and “human”) treatment of fetal remains.
The “substantial burden” here is from compelling TCCB to reveal wholly
internal communications concerning its approach to this issue and
participation in the issues surrounding the statute. This court has previously
discussed handling issues about sincere religious belief and substantial burden
with “a light touch.” Moussazadeh v. Texas Dep’t of Criminal Justice, 703 F.3d
781, 792 (5th Cir. 2012), as corrected (Feb. 20, 2013). Moreover, the burden
here comes from compelling TCCB to produce internal communications as the
price for providing a witness in support of this controversial law, and
subjecting TCCB to a threat of sanctions, ranging from monetary to striking
the witness to contempt, if it fails to comply.


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                                  No. 18-50484
      As for the government’s (i.e., the court’s or litigant’s using the court)
compelling need and least restrictive means, they are not satisfied merely
because the Federal Rules ordinarily authorize broad discovery. The plaintiffs
have not shown how Ms. Allmon’s existing testimony failed adequately to
reveal TCCB’s position or exactly what they sought from the 298 emails that
have not been turned over.      Insofar as those communications may reveal
internal deliberations about the implications of TCCB’s position under canon
law and Catholic doctrine, there is no compelling need whatsoever.
      The plaintiffs and district court allege, however, that only “facts”
relevant to this litigation from the internal communications are being
subjected to discovery.      But this decision begs two questions about the
“compelling” nature of the “need.”     First, on what basis is the judiciary
institutionally competent to discern which communications merely bear on the
“facts” and which communications interfere with a religious body’s free
exercise? The district court assumed such competence exists. But see, e.g.,
Moussazadeh, 703 F.3d at 792 (judiciary should take a “light touch” with
matters of religious belief and practice); Tagore, 735 F.3d at 328 (noting that
“claims of sincere religious belief in a particular practice have been accepted
on little more than the plaintiff’s credible assertions”); Brief for the Jewish
Coalition for Religious Liberty as Amici Curiae Supporting Appellants at 14-
18 (explaining how regulations concerning kosher standards and processes
implicate nuanced and controversial doctrinal views despite superficially
objective determinations).    The second question is whether the judiciary’s
actual performance of any such sorting task itself invades the religious body’s
integrity. Courts have generally foresworn involvement in disputes internal
to religious groups. See Kedroff v. St. Nicholas Cathedral of Russ. Orthodox




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                                     No. 18-50484
Church in N. Am., 344 U.S. 94, 116, 73 S. Ct. 143, 154-55 (1952); Cannata v.
Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012). 10
       Finally, the least restrictive means seem to have been employed already.
Ms. Allmon testified at the administrative hearing, the first preliminary
injunction hearing, and in deposition only a few weeks ago, and she filed
affidavits.    TCCB voluntarily produced thousands of pages of documents
reflecting external communications, at substantial cost in personnel time and
attorney’s fees.
       We do not resolve these difficult questions, but no matter how you look
at this RFRA claim, it was reasonable for TCCB to seek refuge under the
federal law.
       As for the free speech, free association, and petition claims under the
First Amendment, the district court failed to afford sufficient scope to rights
that should protect the inner workings of TCCB when it engages in activity in
the public square. The district court seemed to limit the associational rights
to the “chilling” of membership and tangible harassment. In Perry, however,
the Ninth Circuit squarely considered these rights and exempted from
discovery the internal communications of a citizens’ group that was supporting
California Prop 8 (opposing gay marriage).            591 F.3d at 1145.        The court
understood that communications within such a group must be permitted to be
broad, uninhibited, and fearless, and that protecting such deliberations is a
seminal aspect of the freedom to associate.
       Perry, to be sure, recognized a qualified privilege based on Supreme
Court precedent. See Perry, 591 F.3d at 1155-56; Flanagan v. United States,



       10  As in the above discussion, the dissent’s contention that TCCB forfeited its
constitutional claims by voluntarily submitting documents for in camera inspection begs the
questions about institutional competence and intrusion on internal religious governance. It
is a clever argument that neither the district court nor the plaintiffs suggested.
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                                        No. 18-50484
465 U.S. 259, 267-68 104 S. Ct. 1051, 1055-57 (1984); Gibson v. Fla. Legislative
Investigation Comm., 372 U.S. 539, 557 83 S. Ct. 889, 899 (1963).                  That
balancing approach reconciles Perry with cases like Ambassador College v.
Geotzke, 11 which was a fraud case against a religious college, and United States
v. Holmes, 12 which held religious groups may be subject to government
inquiries to maintain tax exempt status.
      Contrary to the district court, however, the explanation of how TCCB’s
activities—and the activities of any other religious institution forced to endure
similar discovery—are “chilled” by enforcement of this subpoena seems self-
evident. As TCCB describes, in addition to the significant cost of complying
with the original subpoena (100 work hours and over $20,000 in attorney’s
fees), TCCB has delayed and missed ministry opportunities; suffered in
relationships with other Catholic ministries whose communications it was
forced to disclose; was required to cancel internal ministry reports and training
materials; TCCB bishops and staff were discouraged from engaging in other
public policy activities; and Texas Catholic cemeteries were deterred from
participating in the fetal remains registry. TCCB’s ability to conduct frank
internal dialogue and deliberations was undermined, and not only because
enforcement of the subpoena inhibits the further use of email communications.
Why the district court found “chilling” but not “severe” its discovery order’s
impact on TCCB’s internal email communications, in this era of instant group
communication, is hard to fathom. Even more disturbing, this discovery order
forces TCCB to turn over to a public policy opponent its internal
communications, setting a precedent that may be replicated in litigation
anywhere.


      11   675 F.2d 662, 664 (5th Cir. 1982).

      12   614 F.2d 985, 989-90 (5th Cir. 1980).
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                                 No. 18-50484
      These burdens flow naturally into TCCB’s arguments for a privilege
based on the structural protection afforded religious organizations and practice
under the Constitution. “[I]t is easy to forget that the autonomy of religious
groups . . . has often served as a shield against oppressive civil laws. To
safeguard this crucial autonomy, we have long recognized that the Religion
Clauses protect a private sphere within which religious bodies are free to
govern themselves in accordance with their own beliefs.”        Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 199-200,
132 S. Ct. 694, 712 (Alito, J., concurring) (citing Kedroff, 344 U.S. at 116,
73 S. Ct. at 154-55). Both free exercise and establishment clause problems
seem inherent in the court’s discovery order. That internal communications
are to be revealed not only interferes with TCCB’s decision-making processes
on a matter of intense doctrinal concern but also exposes those processes to an
opponent and will induce similar ongoing intrusions against religious bodies’
self-government. Moreover, courts’ involvement in attempting to parse the
internal communications and discern which are “facts” and which are
“religious” seems tantamount to judicially creating an ecclesiastical test in
violation of the Establishment Clause. The Supreme Court has noted that “it
is a significant burden on a religious organization to require it, on pain of
substantial liability, to predict which of its activities a secular court will
consider religious. . . . [A]nd an organization might understandably be
concerned that a judge would not understand its religious tenets and sense of
mission.” Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-
day Saints v. Amos, 483 U.S. 327, 336, 107 S. Ct. 2862, 2868 (1987). The amici
here uniformly decry the potential for misuse of the district court’s narrowly
focused balancing test that denigrated the impacts of judicial discovery
procedures on their internal communications, while potentially empowering
certain interest groups to harass, impose disastrous costs on, and uniquely
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                                 No. 18-50484
burden religious organizations. Yet the claim of religious organizations to
maintain their internal organizational autonomy intact from ordinary
discovery should be at least as secure as the protection constitutionally
afforded other associations. Supreme Court decisions have protected religious
organizations’ internal deliberations and decision-making in numerous ways.
See, e.g., Hosanna-Tabor, 565 U.S. at 199-200, 132 S. Ct. at 712. Although
none have spoken directly to discovery orders in litigation, the importance of
securing religious groups’ institutional autonomy, while allowing them to enter
the public square, cannot be understated and reflects consistent prior case law.
      Another way to look at the scope of a qualified First Amendment
privilege is through the lens of hypothetical involvement by an abortion rights
organization in this litigation. Suppose the plaintiffs offered testimony of a
representative of Abortion Rights Unlimited (“ARU”) (a fictitious group) to
testify about the national status of fetal remains statutes and their general
impact on abortion providers. Suppose the State of Texas issued a subpoena
for any/all documents representing communications among the Board of ARU
and the witness concerning those matters of discussion. Or the State agreed
to withdraw its subpoena if ARU withheld offering its witness testimony. As
a third-party witness, under the Perry balancing test, would the court subject
ARU to such discovery? It seems the advocacy group would have a strong
argument against forced disclosure of its internal communications as the price
for its testimony on a matter of intense concern to the public and its members.
      Assuming the seriousness of the chilling effects on their First
Amendment rights, it is hard to see how the plaintiffs have borne their burden
under Perry to show a substantial need for the documents that outweighs the
intrusion into TCCB’s constitutional rights. As noted in the next section,
TCCB has already cooperated extensively in discovery in a way that minimizes
any adverse impact on the plaintiffs’ ability to cross-examine Ms. Allmon.
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                                  No. 18-50484
      We need not and do not finally resolve whether the order enforcing
discovery of the internal emails violated TCCB’s constitutional rights, but the
issues raised above should have given pause to the district court before it
waved away TCCB’s privilege claims.
      III. The rule of constitutional avoidance prevents courts from issuing
unnecessary and potentially overbroad or misleading rulings on constitutional
issues. That rule forcefully counsels restraint in this case, where the issues
are both novel and far-reaching and time is woefully short for thorough
consideration.
      We turn instead to applications of Rule 45(d), which states that a court
“must” quash a subpoena to avoid “subject[ing] a person to undue burden.”
Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). The district court applied the balancing test
described by this court in Wiwa. See 392 F.3d at 818-19 (listing balancing
factors). Wiwa explains that “if the person to whom the document request is
made is a non-party, the court may also consider the expense and
inconvenience to the non-party.” 392 F.3d at 818. The court here concluded
that no “undue burden” existed after eliminating the privilege claims and
simply considering whether internal TCCB communications could provide
“relevant facts” that the plaintiffs “need” to cross-examine Ms. Allmon about
the “actual status” of TCCB’s commitment to provide cost-free interment
services. TCCB contends, however, that the subpoena inflicts an undue burden
in compelling the organization to disclose its internal communications when it
has already been subjected to substantial discovery demands and raises
substantial claims to constitutional and RFRA protection. Bearing in mind
that TCCB is a third-party witness, we consider the strength of the court’s
relevancy and need determinations, and we conclude that the court’s decision
was an abuse of discretion.


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                                 No. 18-50484
      First, the plaintiffs’ “need” to obtain these additional emails is
questionable at best.    TCCB has already produced over 4,000 pages of
responsive discovery documents, and Ms. Allmon has testified thrice and
furnished affidavits, all of which can be used in her cross-examination. The
plaintiffs’ brief to this court discusses Ms. Allmon’s prior testimony in support
of their discovery request, quoting it at length for three pages, and calling it
“vague,” “contradictory” of her prior testimony, or downright inaccurate. Her
recent deposition is 125 pages long. Further document discovery of any kind
would, without further explanation, be cumulative.         The plaintiffs have
furnished no such further explanation, and the opinions of the magistrate and
district judges do not hint that important additional facts, not yet divulged by
TCCB, are revealed in the internal emails. In sum, the groundwork for cross-
examination appears to be laid, especially for purposes of a bench trial.
      Perhaps most telling, as this appeal is being decided, the plaintiffs have
moved the district court to strike Ms. Allmon’s testimony. (If granted, the
motion would effectively prevent TCCB from airing its position in support of
the statute.) In doing so, the plaintiffs characterize Ms. Allmon’s testimony as
“cumulative and a waste of trial time.” The more “cumulative,” obviously, the
less is the “need” for and “relevance” of cumulative document discovery.
      Concerning relevance, the plaintiffs’ burden at trial is to show that the
statute poses an “undue burden” on women’s access to abortion services. To do
so, they will probably try to demonstrate that many women clients do not care
what happens to fetal remains or would have objections to burial in Catholic
cemeteries; that TCCB’s offer of free burials is vague, not concrete in detail,
and has been watered down as the litigation progressed; that complying with
the women’s desires and finding the appropriate burial grounds would pose
significant logistical problems and hardship for the plaintiffs’ provision of
abortion services; and that other suitable burial locations are unavailable. To
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                                  No. 18-50484
the extent the plaintiffs seek to diminish the probative value of TCCB’s offer,
they have already gotten access to such ammunition. Catholic cemeteries,
moreover, are but a small proportion of those statewide.             Thus, TCCB’s
participation in facilitating the law cannot be the sole test of “burden” avoided
or “burden” imposed for either party.
      The small or non-existent incremental “need” for and “relevance” of this
discovery alone impose a burden on TCCB, if it must produce documents
unnecessary to the litigation. There is an additional burden on TCCB as a
third party in this morally and politically consequential case: TCCB has been
challenged by the plaintiffs to either produce internal communication
documents or withdraw its witness. This looks like an act of intimidation. The
demand places on TCCB the “Hobson’s choice” of retreating from the public
square or defending its position while creating a precedent (for the first time)
that may open its internal deliberations to public scrutiny, or at least, ill-
informed judicial scrutiny. This burden on TCCB’s constitutional right to
advocate in the public square cannot be ignored, nor can the burdens TCCB
has shown were created by this intrusive discovery request: relations with
other parties in the faith impaired, internal modes of discussion upended, and
participation by some Catholic cemeteries deterred.
      Finally, rather than reject all of TCCB’s privilege claims, the district
court should have acknowledged their novelty and far-reaching implications
and interpreted the appropriate scope of document production under Rule
45(d) in light of the principle of constitutional avoidance.
      In sum, the district court discounted the burdens of production on TCCB
and failed to require more than a minimal, if any, rationale for discovery of
TCCB’s internal communications. The court was too quick to reject TCCB’s
privilege claims. By acting in unnecessary haste, the court deprived TCCB of


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                                 No. 18-50484
a fair opportunity to make its case for quashing the discovery. For these
reasons, the district court erred and abused its discretion under Rule 45(d).
                               CONCLUSION
      The court’s order denying the motion to quash and compelling discovery
of internal communications within TCCB is REVERSED.              The plaintiffs’
motion to dismiss the appeal and vacate the stay is DENIED.




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                                  No. 18-50484
JAMES C. HO, Circuit Judge, concurring:

      It is hard to imagine a better example of how far we have strayed from
the text and original understanding of the Constitution than this case.
      The First Amendment expressly guarantees the free exercise of
religion—including the right of the Bishops to express their profound objection
to the moral tragedy of abortion, by offering free burial services for fetal
remains. By contrast, nothing in the text or original understanding of the
Constitution prevents a state from requiring the proper burial of fetal remains.
      But from the proceedings below, you would think the opposite were true.
      Those proceedings are chronicled in Judge Jones’s comprehensive
opinion for the Court. And they are troubling. They leave this Court to wonder
why the district court saw the need to impose a 24-hour mandate on the
Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade
appellate review—or tax the Bishops and their counsel for seeking review.
They leave this Court to wonder if this discovery is sought, inter alia, to
retaliate against people of faith for not only believing in the sanctity of life—
but also for wanting to do something about it. See, e.g., Masterpiece Cakeshop,
Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018).
      I join Judge Jones’s excellent opinion, with regret that the relief we grant
today is even necessary. See Stormans, Inc. v. Wiesman, 136 S. Ct. 2433 (2016)
(Alito, J., joined by Roberts, C.J., and Thomas, J., dissenting from denial of
certiorari) (“This case is an ominous sign. . . . If this is a sign of how religious
liberty claims will be treated in the years ahead, those who value religious
freedom have cause for great concern.”).




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                                  No. 18-50484
GREGG COSTA, Circuit Judge, dissenting:
      The first step an appellate court is supposed to take in a case is reviewing
the same materials the trial court considered. Only after that can it decide if
that judge erred. In a stark departure from that norm, the majority opinion
finds that the district court didn’t just err but abused its discretion in balancing
discovery factors without looking at the most critical part of the trial court
record: the in camera production of documents that would show whether the
First Amendment concerns that today’s decision can only speculate about
actually exist. Two judges—the magistrate and district judge—reviewed those
documents. The magistrate concluded, and the district court agreed, that “the
emails between Ms. Allmon and staff members of the TCCB have no religious
focus, do not discuss church doctrine or governance, and are more or less
routine discussions of the burial services at issue here.” In reversing the order
to produce based on a categorical privilege that doesn’t even allow for in camera
review, the majority opinion offends the principle of constitutional avoidance
it purports to invoke. True avoidance of difficult First Amendment questions
would be to not opine on them when they are not properly before the court. See
Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 408 (1995) (O’Connor, J.,
dissenting) (explaining that principles of appellate waiver “rest[] firmly upon
a limited view of our judicial power” (citing Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983) (Scalia, J.)). That is true for the claim of categorical
privilege that has been forfeited if not waived in light of the Texas Catholic
Conference of Bishop’s submission to the trial court of documents for in camera
production that it now argues even a court may not review. The result is an
opinion filled with abstract propositions of First Amendment law—some of
which I agree with—but that is divorced from the reality of this case. Before
declaring that the judges who reviewed the records abused their discretion in
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                                 No. 18-50484
concluding they did not pose the claimed harms, the appellate court should
look at them.
                                      I.
      The rule requiring appellate preservation of error is not the only limit on
our authority that the majority opinion overrides.         It also engages in an
unprecedented act by resolving a discovery dispute at the interlocutory stage.
The court recognizes the ordinary rule that discovery disputes are not
collateral orders subject to interlocutory appeal, but concludes that gives way
when a First Amendment claim is at stake. If actually limited to that type of
constitutional claim, our jurisdiction would be a close question. Although we
have held that other types of rulings bearing on First Amendment rights are
appealable collateral orders, see, e.g., Henry v. Lake Charles American Press,
LLC, 566 F.3d 164, 180-81 (5th Cir. 2009) (order denying anti-SLAPP
dismissal under Louisiana statute); In re Hearst Newspapers, L.L.C., 641 F.3d
168, 172 (5th Cir. 2011) (order denying journalists access to a sentencing
hearing), we have never confronted the tension between that principle and the
general rule that discovery orders are not collateral orders, Mohawk Indus. v.
Carpenter, 558 U.S. 100, 108 (2009). The longstanding rule against such
interlocutory review of discovery orders serves important interests: “Routine
appeal from disputed discovery orders would disrupt the orderly progress of
the litigation, swamp the courts of appeals, and substantially reduce the
district court's ability to control the discovery process.” 5B CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3914.23 (2d ed. 1992);
see also Mohawk, 558 U.S. at 112 (“Permitting parties to undertake successive,
piecemeal appeals of all adverse attorney-client rulings would unduly delay
the resolution of district court litigation and needlessly burden the Courts of
Appeals.”)


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                                  No. 18-50484
      One circuit confronting the clash between the different rules governing
interlocutory review of First Amendment claims and discovery orders
concluded that the collateral order doctrine does not allow the immediate
appeal of “discovery orders adverse to a claimed First Amendment privilege.”
In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 484 (10th
Cir. 2011). Another recognized the difficulty of the question so avoided it and
decided the First Amendment claim in the mandamus context.                Perry v.
Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). That is another reason this is
such a tough question. The majority opinion assumes that the collateral order
doctrine is the only route to stopping a production before it happens. But a
mandamus petition, which is just as available to a third party as to a litigant,
is the typical way to protect a privilege when its piercing will cause irreparable
harm. See In re Itron, 883 F.3d 553, 567–68 (5th Cir. 2018); In re Avantel, 343
F.3d 311, 317 (5th Cir. 2003) (“Mandamus is an appropriate means of relief if
a district court errs in ordering the discovery of privileged documents, as such
an order would not be reviewable on appeal.”); see also Mohawk, 558 U.S. at
110 (noting that there are “several potential avenues of review apart from the
collateral order appeal, including mandamus, for a “novel privilege ruling”).
Tellingly, that is the avenue for appellate relief the Conference originally
planned to pursue. At the hearing on the privilege claim, its counsel asked the
court “if you rule against us, that you give us time to mandamus the opinion.”
But prevailing in the mandamus context requires showing a “clear and
indisputable” right to relief, Itron, 883 F.3d at 567 (quoting Cheney v. U.S. Dist.
Court for D.C., 542 U.S. 367, 380–81 (2004)), which is difficult for any claim
and especially a novel one.
      Even if the reasoning in Henry supports recognizing the collateral order
doctrine and not just mandamus as a path for interlocutory review of a First
Amendment privilege claim, the problem is that the majority opinion soon
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                                        No. 18-50484
becomes disconnected from this narrow jurisdictional hook. It proceeds to
discuss whether the discovery request violates a federal statute (the Religious
Freedom Restoration Act) and its ultimate ruling is that the district court
abused its discretion in balancing the factors under Federal Rule of Civil
Procedure 45, the type of judgment call weighing the benefits and burdens of
discovery that trial judges make on a daily basis. The majority opinion resorts
to the discovery rule under the laudable goal of avoiding constitutional
problems. But that doctrine requires a “substantial” constitutional concern.
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 250 (2012); see also United States v. X-Citement Video, Inc., 513
U.S. 64, 78 (1994) (avoiding the constitutional issue because the competing
interpretation would “raise serious constitutional doubts”). Much like we
should not depart from the most obvious construction of a statute unless that
interpretation would likely result in the law being unconstituional, we should
not allow piecemeal review of a discovery order unless that ruling raises a
substantial constitutional concern. 1
                                               II.
                                               A.
       The Conference’s privilege claim does not present a substantial First
Amendment concern for the reason mentioned at the outset: it did not argue in
the trial court that the First Amendment barred in camera inspection of its
records, so it cannot do so now. And our failure to review the documents means




       1 These are two separate “constitutional avoidance” principles. The one that favors
reading a statute in a manner (so long as its reasonable) that avoids constitutional difficulties
is a canon of construction. The one applied in this case supports first addressing
nonconstitutional grounds for a judicial decision. See SCALIA & GARNER, supra, at 251. But
both rules should apply only when the constitutional claim is a difficult one otherwise they
would override other important principles like giving statutes their ordinary meaning or, in
this case, not allowing interlocutory review of applications of the federal discovery rules.
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                                     No. 18-50484
we have no basis for disagreeing with the district court’s assessment that they
are constitutionally benign.
      The Conference provided the documents at the discovery hearing. They
are a representative sample it selected of the documents classified as privilege.
Counsel for the Conference told the court, “Your Honor, I would like to submit
to you the in-camera documents, examples.”               Neither that statement nor
anything else said at the hearing hints at any discomfort with the in camera
procedure and certainly no official objection. Counsel even helped facilitate
the court’s review by breaking down the privileged documents “into three types
of internal communication.” 2 The failure to object to the in camera inspection
certainly forfeits an appellate challenge to it, and the affirmative act of
producing the documents likely amounts to full-scale waiver. See Freytag v.
C.I.R., 501 U.S. 868, 895 n.2 (1991) (Scalia, J., concurring) (discussing
differences between forfeiture and waiver, the primary one being that the
latter requires “intentional relinquishment or abandonment of a known right
or privilege”).
      Even beyond those obstacles to our review, this may be a case of judicial
estoppel. Arguing now that the inspection was improper after the Conference
willfully provided the documents to the trial court in the hope it would find
them privileged has the flavor of the heads-I-win-tails-you-lose positioning
that estoppel prohibits. See generally New Hampshire v. Maine, 532 U.S. 742,
749–51 (2001). If the in camera review had resulted in the district court’s
finding the documents privileged, the Conference would have prevailed. It did
not do, so the Conference now argues “‘[t]he very process of inquiry’ into the



      2  Even if there were some suggestion that the Conference was uncomfortable with the
in camera review and agreed to it only under compulsion, this appeal shows it knows exactly
how to respond when ordered to do something it does not want to do: seek an emergency stay
and file an interlocutory appeal.
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                                       No. 18-50484
Bishops’ deliberations ‘impinge[s] on rights guaranteed by the Religion
Clauses.’”
       But at a minimum the production resulted in forfeiture, a bedrock limit
on appellate review that applies no matter how weighty the interest asserted.
Forfeiture, for example, routinely bars the assertion of protections found in the
Bill of Rights in the criminal and civil rights cases that dominate our docket.
And forfeiture in the context of an objection to in camera privilege review is
justified by even more than the interests in restraint, full development of the
record, and respect for the trial court that ordinary application of the rule of
appellate preservation promots. It means that the harm of judicial review that
categorical privilege aims to protect cannot be undone. With two judges having
already reviewed the documents, that cat is out of the bag. 3
       We thus must evaluate the strength of the Conference’s privilege claim
not based on hypotheticals we can create but in light of the real world
documents at issue. And, given that it had no objection to the in camera
procedure, the Conference had every incentive to provide the court with
examples that presented the best case for privilege. Indeed, plaintiff noted at



       3 The forfeiture means we cannot consider the institutional ability of judges to review
matters of First Amendment privilege. It is worth noting, however, that judges review
privilege in all sorts of sensitive areas that unlike attorney-client privilege are not ones in
which lawyers have particular expertise. United States v. Nixon, 418 U.S. 683 (1974) (finding
that “very important interest in confidentiality of Presidential communications” is not
“significantly diminished” by allowing in camera inspection of documents); Elnashar v.
Speedway SuperAmerica, LLC, 484 F.3d 1046, 1051 (8th Cir. 2007) (discussing the
magistrate's in camera review of underacted FBI files potentially subject to confidential
informant privilege); Stein v. Dep’t of Justice & Fed. Bureau of Investigation, 662 F.2d 1245,
1254 (7th Cir. 1981) (basing a conclusion that the FBI may continue to withhold classified
national security documents based on in camera review of material). This includes First
Amendment claims involving reporter’s privilege. United States v. Cuthbertson, 630 F.2d 139,
149 (3d Cir. 1980) (affirming contempt citation for party that failed to produce documents for
in camera inspection after asserting journalists’ First Amendment privilege). And judges
conducting an in camera review do not have to guess in a vacuum at why the documents
might be privileged; the party asserting that claim has the opportunity to explain it.
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                                     No. 18-50484
the hearing that they would not agree that the documents produced were a
representative sample because it did not want a court finding of protection for
what were likely the best documents for a privilege claim to automatically
protect other documents.
                                              B.
       The trial court’s undisturbed finding that the documents selected by the
Conference did not “have [a] religious focus” or “discuss church doctrine or
governance” means there is no close constitutional question. I’ll start with the
Religion Clauses. Free exercise presents an uphill climb given the prevailing,
if controversial, view that enforcing neutral laws of general applicability does
not offend the Free Exercise Clause. Employment Div., Dep’t of Human Res. of
Oregon v. Smith, 494 U.S. 872, 879, 885 (1990). So even neutral laws that
criminalize or otherwise punish a religious practice do not offend free exercise.
Id. The district court’s application of Federal Rule of Civil Procedure 45, which
is the state action here, does not prohibit any religious practice. It seeks
documents that the Conference contends discuss religious practices and
beliefs. But it cannot be reasonably argued that subjecting the Conference to
the same rules of civil procedure that everyone else faces in federal court is
aimed at inhibiting free exercise of religion.
      Nor does the order of production amount to court involvement in church
leadership decisions, Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
E.E.O.C., 565 U.S. 171, 194–95 (2012), or the internal management of a
religious organization, Lemon v. Kurtzman, 403 U.S. 602, 607 (1971). Whether
this line of cases is treated as a burden on the free exercise of religion or as
state entanglement with the church under the Establishment Clause, 4


       4The Conference treats these cases primarily as ones arising under the Establishment
Clause. The caselaw is admittedly confusing on which First Amendment clause is the main
source of these decision. A leading scholar argues that the appropriate way to view them is
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                                    No. 18-50484
documents that “do not discuss church doctrine or governance” do not come
close to the concerns this line of cases has addressed. What is more, a discovery
order is not like the court orders typically involved in this line of cases—such
as those requiring a religious organization to engage or not engage in any
religious practice, make an employment decision, or alter its educational
curriculum.
       That leaves the right of association which can fit this context of an order
requiring the production of documents. The district court thus correctly viewed
this as the Conference’s strongest claim.             Not, of course, the type of
associational right at issue in the leading case recognizing this aspect of the
First Amendment, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958),
which involved the disclosure of members of a group to the state with all its
power to retaliate against those expressing unpopular views. But courts have
also recognized a right to be protected from “other consequences which
objectively suggest an impact on, or ‘chilling’ of, the members’ associational
rights.” Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010). This is
where the majority opinion’s hypothetical concerns are most plausible. But the
district court had the benefit of looking to see if the potential threat to
associational activity was realized. It found that it wasn’t, and we have no
basis for disturbing that finding.
      Because the discovery order does not raise a close constitutional
question, our jurisdiction does not extend to objections based on federal
statutes or rules of procedure. The majority opinion is correct that I “wholly
overlook[]” the RFRA argument. Faithful application of limits on our ability




as free exercise cases addressing burdens on church autonomy. See Douglas Laycock,
Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and
Right to Chuch Autonomy, 81 COLUM. L. REV. 1373 (1981).
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                                     No. 18-50484
to hear piecemeal appeals of discovery rules requires that. 5 The majority
opinion overlooks that important limitation on our appellate jurisdiction. Its
eagerness to address all the issues raised by the Conference and supporting
amici also resulted in its neglect of the rule that we do not consider claims that
have been forfeited or waived. Adherence to these ordinary limits on our
authority was particularly warranted for an expedited appeal that did not
allow for oral argument. These rules limiting our authority do not mean that
a court will never decide the issue that is not properly preserved. More often
they ensure that when a court finally does confront the question, it does so with
a full development of the record and law that promotes sound decisionimaking.
See Lebron, 513 U.S. at 408 (O’Connor, J., dissenting) (recognizing that
“patience in the judicial resolution of conflicts” leads to better decisions
(quoting John Paul Stevens, Some Thoughts on Judicial Restraint, 66
JUDCIATURE 177, 183 (1982)).
      For these reasons, I would affirm the district court.
                                           III.
      Two additional observations are in order. The majority opinion ascribes
“at least religious insensitivity” if not worse, as well as “intimidation” tactics,
to plaintiff’s counsel. From this vantage point, it may seem like the stipulation
that the plaintiff will not challenge the cost of the burial services as an undue
burden means there is no role for the Conference at trial (though the reason
trial judges are given considerable discretion in discovery matters is that they
know the ins-and-outs of a case having lived with it, sometimes for years). But
the plaintiff is not the reason the Conference is involved in this case. Indeed,



      5 That does not mean there no outlet for the Conference to raise important statutory
concerns. As mentioned, a petition for mandamus relief was a possibility assuming the RFRA
issue was preserved.

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                                  No. 18-50484
the stipulation shows plaintiff’s willingness to avoid any issues involving the
Conference. But the Conference, as is its right, voluntarily appeared at earlier
stages of this litigation, and Texas has subpoenaed its witness for trial. What
the majority opinion views as an improper threat—that the discovery request
will go away if the Conference witness doesn’t appear—is just an obvious point
that if there is no witness, then there is no need to request documents that
might impeach her testimony. More fundamentally, even if this case presents
yet another example of the discovery overkill that plagues civil litigation, there
is no basis to view the discovery request (the scope of which the plaintiff and
Conference worked to greatly narrow) and its timing as anything more than
lawyers trying to fulfill their duty of zealous advocacy. The unusual behavior
would be if a party did not seek documents from a witness it plans to cross
examine at trial.
      Even more troubling are the potshots directed at the district court, and
the concurring opinion then piles on. That the pecking order of the system
allows appellate judge’s view of the law to ultimately prevail should be
satisfaction enough for us. While vigorous disagreement about the law is part
of the judicial function, there is no need to go beyond the identification of legal
error by questioning the motives of our district court brethren.          That is
especially true when the legal issue is one that the majority opinion concedes
is novel, and when the ill motives are pure conjecture. What is one of the sins
of the trial court according to the majority opinion? Working and issuing
orders on a weekend.
      Our district court colleagues deserve most of the credit for making the
federal judiciary the shining light that it is. They work under greater docket
pressures, with greater time constraints, yet with fewer resources. And unlike
appellate judges on a divided panel who can trade barbs back and forth, a
district judge has no opportunity to respond to personal attacks in an appellate
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                                 No. 18-50484
opinion. They deserve our respect and collegiality even when, or especially
when, they err as we all do at times. Among the exemplary group of trial judges
who serve our circuit, the one handling this case stands out: with over three
decades of service, he is now essentially working for free as a senior judge, and
volunteering to travel thousands of miles outside the district of his
appointment to help with the heavy docket in the Western District of Texas.
Speculating that malice is behind his decisions seeking to expedite a high
profile case with a rapidly approaching trial date is not the award he is due.




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