In Re Subpoena to Witzel

United States Court of Appeals
For the First Circuit

No. 07-2286

IN RE: SUBPOENA TO MICHAEL WITZEL

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,

and DiClerico, Jr., Senior District Judge.*

Venkat Balasubramani, with whom Balasubramani Law was on brief
for appellant.
Jonathan M. Albano, with whom Bingham McCutchen LLP, Bradley
E. Abruzzi, and Harvard University, Office of the General Counsel,
were on brief for appellee.

July 7, 2008

____________________

*
Of the District of New Hampshire, sitting by designation.
 DiClerico, District Judge. This appeal arises out of a

discovery dispute in litigation pending in the Eastern District of

California (“the California district court”).1 The plaintiff in

the California action, California Parents for the Equalization of

Educational Materials (“CAPEEM”), subpoenaed documents from a

nonparty, Professor Michael Witzel, and then moved to compel Witzel

to comply with its subpoena. CAPEEM’s subpoena sought production

of documents in Massachusetts and, therefore, issued from the

United States District Court for the District of Massachusetts

(“the Massachusetts district court”). CAPEEM’s motion to compel

was docketed as a separate action in the District of Massachusetts.

The Massachusetts district court ruled that the information CAPEEM

sought from Professor Witzel was not relevant and denied the motion

to compel. CAPEEM appeals that decision.

I.

CAPEEM is a non-profit organization of Hindu and Indian

parents living in California who are concerned about the portrayal

of the Hindu religion in textbooks used in California’s elementary

schools. Every six years, the California State Board of Education

(“CBE”) and the California State Department of Education

(“Department”) review textbooks and other instructional materials

used in the public schools. As part of the review process, the CBE

1
CAPEEM v. Noonan, NO. CIV. S-06-532 FCD KJM (E.D. Cal. Mar.
14, 2006).

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and Department receive comments and proposed revisions from

interested groups about the content of the textbooks. CAPEEM

participated in the textbook review process that began in 2005.

Because of the volume of comments about Hinduism, the

Department formed an ad hoc committee to address the review of

Hinduism as presented in California’s textbooks. The Department

retained Dr. Shiva Bajpai, Professor Emeritus in History at

California State University, Northridge, to serve as a “Content

Review Panel Expert” on Hinduism. The Department required that

Bajpai not have any affiliation with groups that submitted comments

for the review process and not have published with any of the

textbook publishing companies for three years prior to the review

process. In October of 2005, the ad hoc committee and Bajpai

submitted recommendations to the Curriculum Commission for

revisions of those parts of the textbooks that pertained to

Hinduism. The Curriculum Commission accepted the recommendations

and submitted them to the CBE for final approval.

Dr. Michael Witzel, Wales Professor of Sanskrit at

Harvard University, received two emails in early November of 2005

about the textbook review process in California. An Indian

graduate student who used the pseudonym “Arun Vajpayee” wrote that

he had been approached to sign a petition in favor of revising

California’s textbooks to reflect “Hindutva” ideas about India’s

history, which he described as portraying ancient Indian

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civilization as indigenous and without discussion of an Indo-Aryan

migration.2 Vajpayee objected to Hindutva influence and asked

Witzel to contact the CBE to oppose the proposed changes. The

second email was forwarded to Witzel by a former professor, Steven

Farmer, and purported to be from an editor employed by a textbook

publishing company whose books were recommended by the CBE. The

editor wrote as a private individual and expressed concerns about

the proposed revisions pertaining to Indian history.

Witzel was familiar with the Hindutva academic and

political debate in India and knew that a conflict also existed in

India about revising textbooks. He opposed Hindutva revisions, and

his opposition to Hindutva was known to Hindu groups, including

CAPEEM members. Until he received the two emails in early November

of 2005, Witzel was unaware of the California textbook review

process.

In response to the emails, Witzel wrote to Ruth Green,

President of the CBE, to express his opposition to the proposed

textbook revisions, which he stated were due to “current Indian

politics and the cultural perceptions of a vocal minority.” The

next day, November 8, 2005, Witzel sent another letter to Green and

members of the CBE, with a list of more than forty concurring

2
Witzel submits a United States Department of State report on
India, “International Religious Freedom Report 2006,” that
discusses the religious controversy in India and defines “Hindutva”
as “the ideology that espouses politicized inculcation of Hindu
religious and cultural norms above other religious norms.”

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academics, scholars, and historians, again opposing the proposed

textbook revisions. He concluded his letter by stating: “the

proposed textbook changes are unscholarly, are politically and

religiously motivated, have already been rejected by India’s

national educational authorities, and will lead without fail to an

international educational scandal if they are accepted by

California’s State Board of Education.”

On November 9, 2005, Green read Witzel’s November 8

letter aloud at a CBE meeting. A week later, the CBE asked Witzel,

along with Stanley Wolpert, a professor at the University of

California at Los Angeles, and James Heitzman, a professor at the

University of California at Davis, to assist in the textbook review

process. Witzel offered to assist the CBE as an academic advisor

without compensation.3 Witzel was not required to satisfy the

conditions that were imposed on Bajpai when the CBE retained Bajpai

to serve as a “Content Review Panel Expert.”

Witzel, Wolpert, and Heitzman reviewed the disputed

portions of the textbooks and provided their opinions to the

Department on November 22, 2005. On the same day, the Department

made new recommendations to the CBE that endorsed some of the

revisions suggested by Bajpai and suggested changes to others. In

December, the Curriculum Commission recommended the revisions that

3
Witzel did accept reimbursement of his travel costs to attend
a CBE meeting in California in January of 2006.

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were originally submitted by Bajpai. Witzel and Bajpai debated

textbook revision issues at a CBE meeting on January 6, 2006.

From December of 2005 through March of 2006, Witzel

received threatening and harassing email related to the California

textbook revision issue. In addition, the president and provost of

Harvard received letters denigrating Witzel and his participation

in the textbook process.

On January 12, 2006, the CBE created a new subcommittee

to address the Hindu revisions. The CBE held a public hearing on

the proposed revisions from March 8 through March 10, 2006. The

CBE then issued its final decision on the revisions and approved

the textbooks. CAPEEM was dissatisfied with the textbooks’ final

form.

CAPEEM filed suit in the California district court on

March 14, 2006, seeking an injunction to prohibit the CBE,

Department, and named members of the CBE and Department from

actions alleged to be in violation of the Equal Protection Clause

of the Fourteenth Amendment and the Establishment, Free

Association, and Free Speech Clauses of the First Amendment. The

California district court dismissed the claims against the CBE and

the Department as barred by the Eleventh Amendment but denied the

motion to dismiss as to individual members. In response, CAPEEM

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filed a second amended complaint naming as defendants members of

the CBE and the Department in their official capacities.4

On November 28, 2006, CAPEEM issued a subpoena to Witzel

in Massachusetts commanding him to produce documents pertaining to

his communications with “any Publisher”; the Department or the CBE;

signatories of the November 8, 2005, letter; Wolpert, Heitzman,

Bajpai, and Farmer about the textbook review process; any third

party about the textbook review process; Roger Pearson or anyone

else associated with the Journal of Indo-European Studies; Arun

Vajpayee or about him; and Harvard University about the textbook

review process. The subpoena also sought copies “of the Postings

to the Indo-Eurasian Research List,” any communication transmitting

to Witzel the edits or revisions submitted by the “Hindu Groups”

during the textbook review process, communications about the

purpose of the Indo-Eurasian Research List, and content of a cited

web page. Witzel provided much of the discovery CAPEEM sought,

which included his communications with the CBE, the Department, and

their officials; his communications with publishers who were being

considered for the California textbooks; his non-confidential

4
Specifically, the parties named by CAPEEM in its second
amended complaint in the California suit are (1) the following
members of the CBE: Kenneth Noonan, Ruth Bloom, Alan Bersin,
Yvonne Chan, Donald G. Fisher, Ruth E. Green, Joe Nuñez, and
Johnathan Williams; and (2) two members of the Department: Tom
Adams, Director of the Curriculum Frameworks and Instructional
Resources Division, and David Lopez, Executive Director of the
Curriculum Commission.

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communications with his colleagues who signed the letter he sent to

the CBE; and his communications with the media. He refused to

provide certain communications with third parties not involved in

the California case, including communications with Wolpert,

Heitzman, and other colleagues and academics, and information

identifying the two people who emailed him about their concerns

with the textbook revision process.

CAPEEM filed a motion in Massachusetts district court to

compel Witzel to comply with the subpoena. Witzel moved for a

protective order. A hearing was held on both motions on July 3,

2007. The only documents in dispute for purposes of the motion to

compel were Witzel’s communications with nonparties that were

unknown to the defendants in the California litigation. Although

CAPEEM suggested that the defendants might have had some knowledge

of some of the disputed communications, the Massachusetts district

court pointed out that CAPEEM had made no showing of such

knowledge. The court focused on what relevance Witzel’s

communications with nonparties that were unknown to the defendants

in the California case would have in that case.

After a thorough discussion of the relevance of the

disputed communications, the court stated: “Well, I’ve tried to

tease out, as best I can, theories that might arguably justify

further discovery here beyond that which has been provided by

respondent and I can find none that I’m prepared to enforce by a

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Motion to Compel.” The court concluded that the focus of the

underlying case was “on the defendants, what they knew and what

they did--knowing what they knew--not on the further radiations and

association that Professor Witzel may have had undisclosed to the

defendants.” The court granted Witzel’s motion for a protective

order and denied CAPEEM’s motion to compel because it sought

documents and communications that were not relevant and, therefore,

not discoverable. CAPEEM appeals that ruling.

II.

CAPEEM contends that the Massachusetts district court

erred in denying its motion to compel Witzel to produce the

disputed communications sought in the document subpoena. Witzel

argues that the Massachusetts district court’s decision is correct

and also argues that the First Amendment protects his

communications with his colleagues and others about their views on

the issues raised in the textbook review process. For the reasons

that follow, we affirm the court’s decision denying CAPEEM’s motion

to compel.

“Discovery orders ordinarily are reviewed for abuse of

discretion.” Cusumano v. Microsoft Corp., 162 F.3d 708, 713 (1st

Cir. 1998). Under that standard, “we may reverse a district court

‘only upon a clear showing of manifest injustice, that is, where

the lower court’s discovery order was plainly wrong and resulted in

substantial prejudice to the aggrieved party.’” Saldana-Sanchez v.

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Lopez-Gerena, 256 F.3d 1, 8 (1st Cir. 2001) (quoting Ameristar Jet

Charter, Inc. v. Signal Composites, Inc., 244 F.3d 189, 192 (1st

Cir. 2001)). A decision may be plainly wrong if it is based on an

incorrect legal standard or a misapplication of the law. Id. The

abuse of discretion standard for reviewing discovery orders sets a

high hurdle for appellants to overcome. In re Pub. Offering PLE

Antitrust Litig., 427 F.3d 49, 52 (1st Cir. 2005).

A. Disputed Discovery

The Massachusetts district court ruled that the disputed

discovery, communications between Witzel and other non-parties that

the defendants did not know of or learn about, was not discoverable

because it is not relevant to CAPEEM’s claims. CAPEEM contends

that the Massachusetts district court applied an erroneously narrow

relevance standard, conflated relevance with admissibility, and

improperly foreclosed discovery of circumstantial evidence.

1. Relevance

Relying on Klonoski v. Mahlab, 156 F.3d 255, 267 (1st

Cir. 1998), CAPEEM argues that the Massachusetts district court

applied an overly narrow relevance standard. In doing so, however,

CAPEEM ignores the intervening change in Federal Rule of Civil

Procedure 26(b)(1). In 2000, Rule 26(b)(1) was amended to

distinguish between discovery regarding matters that are relevant

to a party’s claim or defense and discovery of a broader scope

encompassing “any matter relevant to the subject matter involved in

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the action.” Fed. R. Civ. P. 26, Advisory Committee Notes, 2000

Amendment. The purpose of the change was “to involve the court

more actively in regulating the breadth of sweeping or contentious

discovery.” Id. Therefore, when an objection arises as to the

relevance of discovery, “the court would become involved to

determine whether the discovery is relevant to the claims or

defenses and, if not, whether good cause exists for authorizing it,

so long as it is relevant to the subject matter of the action.”

Id.; see also In re Sealed Case (Med. Records), 381 F.3d 1205, 1215

n.11 (D.C. Cir. 2004).

As amended, Rule 26(b)(1) allows discovery of “any

nonprivileged matter that is relevant to any party’s claim or

defense.”5 A party seeking broader discovery “of any matter

relevant to the subject matter involved in the action,” is required

to show good cause to support the request. Fed. R. Civ. P.

26(b)(1). CAPEEM did not address the good cause requirement to

support its discovery request, and good cause is not apparent on

the record. Therefore, consideration of the discovery dispute in

this case is limited to those matters that are relevant to a

party’s claim or defense.

5
The amendments to the federal rules effective December 1,
2007, made only stylistic changes to the language of Rule 26
without substantive changes. Fed. R. Civ. P. 26, advisory
committee's note, 2007 amendment.

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 CAPEEM asserts that the disputed communications are

relevant to its equal protection claim against the defendants in

the underlying case in which the defendants moved to dismiss

CAPEEM’s equal protection claim, asserting that CAPEEM did not

allege facts to support a claim of unequal treatment. The

California district court denied the defendants’ motion, stating:

“CAPEEM specifically alleges defendants applied a less restrictive

standard to Muslim, Christian and Jewish groups involved in the

review process. For example, [CAPEEM] alleges that only Hindu

groups were subjected to, inter alia, repeated scrutiny of proposed

edits; secretive processes in making final decisions; and, hostile

academic advisors.” Because the California district court did not

address the issue of the defendants’ knowledge or intent as an

element of the equal protection claim, CAPEEM asserts that the

Massachusetts district court erred in linking relevance to the

defendants’ intent.

The Equal Protection Clause of the Fourteenth Amendment

guarantees that those who are similarly situated will be treated

alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.

432, 439 (1985). To succeed on a claim of discriminatory

treatment, a plaintiff must show that the defendant acted with

discriminatory intent or purpose. Washington v. Davis, 426 U.S.

229, 239-40 (1976). That is, the plaintiff must establish that the

defendant intentionally treated the plaintiff differently from

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others who were similarly situated. Village of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000). A discriminatory intent or

purpose means that the defendants “selected or reaffirmed a

particular course of action at least in part because of, not merely

in spite of, its adverse effects upon an identifiable group.”

Wayte v. United States, 470 U.S. 598, 610 (1985) (internal

quotation marks omitted). Therefore, the Massachusetts district

court applied the correct legal standard.

CAPEEM also contends that Witzel’s communications with

non-parties, who were participating in the textbook revision

process, could provide evidence that Witzel influenced the edits

suggested by others and that Witzel had an effect on the final

editing decisions. As to Witzel’s communications with non-parties

who were not participating in the review process, CAPEEM argues

that the evidence could show that Witzel had unprecedented access

to the revision process, that Witzel and others coordinated their

efforts for a particular outcome, that Witzel argued against groups

he opposed, and that the defendants did not enforce their rules

against Witzel. Neither Witzel nor the people with whom he was

communicating are parties in the underlying action. Assuming that

the disputed communications would provide evidence of Witzel’s bias

and that he influenced the review process in ways that other

advisers could not, the communications would not show what the

defendants intended in taking the actions that they did. The

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defendants could not discriminate against CAPEEM based on

activities or communications that were unknown to them.6

It appears that the parties do not dispute that the

restrictions imposed on Bajpai, who was retained as a “Content

Review Panel Expert,” were not imposed on Witzel. The

Massachusetts district court correctly stated that evidence about

the defendants’ restrictions or lack of restrictions on Witzel and

any other alleged procedural irregularity by the defendants in the

underlying case was “principally discoverable from the defendants

themselves.” To the extent Witzel’s communications with others

would show that he was not constrained by the restrictions imposed

on Bajpai, such evidence would be merely cumulative of an

undisputed fact.

CAPEEM also argues that Witzel’s communications with

other participants in the review process might shed light on the

effect of his unrestricted activities on the outcome of the

textbook review process. The Massachusetts district court ruled,

however, that CAPEEM lacked foundation to support discovery under

that theory, which it could develop through discovery from the

defendants.7 The speculative and attenuated connection CAPEEM

6
CAPEEM does not allege a conspiracy to violate its rights.
Cf. In re Pub. Offering, 427 F.3d at 52.
7
On the other hand, if CAPEEM should develop a foundation for
discovering the disputed communications, it could again seek that
discovery from Witzel.

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suggests between the defendants’ alleged discrimination in imposing

or not imposing restrictions on advisers and the final textbook

revisions does not provide a basis to compel the discovery CAPEEM

seeks here.

CAPEEM has not shown that the Massachusetts district

court was plainly wrong in denying its motion to compel based on

the lack of relevance of the disputed communications.

2. Relevance versus Admissibility

CAPEEM asserts that the Massachusetts district court

applied the standard for admissibility at trial instead of the

relevance standard applicable to discovery. In support of that

argument, CAPEEM objects to the court’s ruling that to be

discoverable, the communications CAPEEM sought would have had to

have been received by the defendants, participated in by the

defendants, or at least known to the defendants. CAPEEM’s theory

is far from clear.

Any communications about the review process that Witzel

made public or disclosed to the defendants were provided to CAPEEM.

The Massachusetts district court ruled that in the absence of some

knowledge by the defendants of Witzel’s disputed communications,

they were not relevant to CAPEEM’s claims and were not

discoverable. Relevance is the proper discovery standard. In

contrast, the Massachusetts district court did not conclude that

the disputed communications were relevant and then go on to deny

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discovery because the communications were, for example,

inadmissible hearsay. The court properly focused on relevance of

the disputed communications to CAPEEM’s claims against the

defendants in the underlying case.

3. Circumstantial Evidence

In similarly terse terms, CAPEEM faults the Massachusetts

district court for preventing discovery of circumstantial evidence

of the defendants’ discrimination. CAPEEM is correct that

circumstantial evidence of discrimination may be probative of an

equal protection violation. See, e.g., Bennett v. Saint-Gobain

Corp., 507 F.3d 23, 30 (1st Cir. 2007); Padilla-Garcia v.

Rodriguez, 212 F.3d 69, 75 (1st Cir. 2000). CAPEEM offers no

developed analysis, however, to show that the discovery it sought

was likely to lead to circumstantial evidence of the defendants’

discrimination.

4. Summary

CAPEEM’s grounds for challenging the Massachusetts

district court’s decision do not provide a clear showing that the

court was plainly wrong. To the extent there could be room for a

difference of opinion, the Massachusetts district court properly

exercised its discretion to limit the scope of the subpoena to the

matters that had been disclosed to the defendants. In addition, as

the court concluded, the burden on Witzel, a nonparty to the

underlying action, to disclose his private communications with

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other nonparties outweighs any slight relevance the disputed

communications might have. See Heidelberg Ams., Inc. v. Tokyo

Kikai Seisakusho, Ltd., 333 F.3d 38, 41-42 (1st Cir. 2003).

Because we conclude that the Massachusetts district

court’s decision was not plainly wrong, we do not address Witzel’s

arguments that the disputed communications are protected by

privilege.

B. Prejudice

Even if CAPEEM had shown that the Massachusetts district

court’s decision denying the motion to compel was plainly wrong,

which it did not do, CAPEEM would still have to make a clear

showing that it suffered substantial prejudice as a result of the

decision. See United States v. Swiss Am. Bank, Ltd., 274 F.3d 610,

626 (1st Cir. 2001). CAPEEM, however, did not address the

prejudice element of the review standard.

III.

CAPEEM has not shown that the Massachusetts district

court abused its discretion in denying the motion to compel.

We affirm.

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