On July 15, The U.S. Court of Appeals for the 5th Circuit—in an opinion written by Judge Edith Jones, and joined by Judge James Ho— reversed a district court's order for The Texas Conference of Catholic Bishops ("TCCB"), despite already having "been subjected to substantial discovery demands", to turn over,as a third party, unnecessary internal communications of the organization to groups who are challenging a new Texas Law. The law prevents the disposal of "fetal remains in a landfill or sewer" instead of burials. Judge Jones argued that the district court failed to properly consider the burden that the order placed on TCCP, and did not "afford sufficient scope to rights that should protect the inner workings of TCCB when it engages in activity in the public square." She reasoned that the subpoena imposed a substantial cost onto the organization(100 work hours and over $20,000 in attorney's fees); forced TCCB to delay and miss "ministry opportunities"; suffer "in relationships with other Catholic ministries"; discouraged TCCB's staff from "engaging in other public activities"; and "turn over to a public policy opponent its internal communications"— to name a few of its implications. The groups demanding the information, on the other hand, were unable to demonstrate their "'need' for and 'relevance of'" the documents. Judge Jones remarked that this resembled "an act of intimidation", since TCCB was challenged, by "a public policy opponent", to "either produce internal communication documents or withdraw its witness." You are encouraged to read the opinion for Whole Woman's Health v. Smith (2018). Excerpts from the Opinion: 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.  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. 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.