MEMORANDUM AND ORDER

KATHRYN VRATIL, District Judge

Plaintiffs bring putative class action claims for damages and injunctive relief against motor fuel retailers in Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, the District of Columbia and Guam. Plaintiffs claim that because defendants sell motor fuel for a specified price per gallon without disclosing or adjusting for temperature expansion, they are liable under state law theories which include breach of contract, breach of warranty, fraud and consumer protection. Following a transfer order of the Judicial Panel on Multidistrict Litigation ("JPML"), the Court has jurisdiction over consolidated pretrial proceedings in these actions. See 28 U.S.C. § 1407; Doc. # 1 filed June 22, 2007. This matter comes before the Court on Plaintiffs' Motion To Review And Set Aside The Magistrate Judge's Order Dated May 28, 2009 ("Plaintiffs' Motion For Review") (Doc. # 1195) filed June 11, 2009 and Defendants' Motion For Review Of Magistrate O'Hara's Orders (Docs. 1080, 1196) ("Defendants' Motion For Review") (Doc. # 1214) filed June 25, 2009. For reasons stated below, the Court sustains plaintiffs' motion and overrules defendants' motion.

I. Legal Standards

Upon objection to a magistrate judge order on a non-dispositive matter, the district court may modify or set aside any portion of the order which it finds to be clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A). With regard to fact findings, the Court applies a deferential standard which requires the moving party to show that the magistrate judge order is clearly erroneous. See Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 494 (D.Kan. 1997). Under this standard, the Court is required to affirm the magistrate judge order unless the entire evidence leaves it "with the definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)); see also Smith v. MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D.Kan. 1991) (district court generally defers to magistrate judge and overrules only for clear abuse of discretion). With regard to legal matters, the Court conducts an independent review and determines whether the magistrate judge ruling is contrary to law. See Sprint Commc'ns Co. v. Vonage Holdings Corp., 500 F.Supp.2d 1290 (D.Kan. 2007); see also 11 Charles Alan Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice And Procedure § 3069 (2d ed., 2009 update). Under this standard, the Court conducts a plenary review and may set aside the magistrate judge decision if it applied an incorrect legal standard or failed to consider an element of the applicable standard. See, e.g., Owner-Operator Indep. Drivers Ass'n, Inc. v. C.R. England, Inc., No. 2:02-CV950 TS, 2009 WL 5066679, at *2 (D.Utah Dec. 16, 2009); Jensen v. Solvay Chem., Inc., 520 F.Supp.2d 1349, 1350 (D.Wyo. 2007); Dias v. City County of Denver, Colo., No. CIVA07CV00722-WDMMJW, 2007 WL 4373229, at *2 (D.Colo. Dec.7, 2007); McCormick v. City of Lawrence, Kan., No. 02-2135-JWL, 2005 WL 1606595, at *2 (D.Kan. July 8, 2005). Cf Weekoty v. United States, 30 F.Supp.2d 1343, 1344 (D.N.M. 1998) (applying de novo review to magistrate judge legal determination on non-dispositive matter).

II. Procedural History

On May 28, 2009, Magistrate Judge James P. O'Hara issued a memorandum and order on the following discovery motions: Plaintiffs' Motion To Compel Discovery And Memorandum In Support (Doc. # 668) filed December 8, 2008; Plaintiffs' Motion To Compel Discovery From Petroleum Marketers and Convenience Store Association of Kansas And Memorandum In Support (Doc. # 738) filed February 2, 2009; and defendants' Motion To Quash And For Protective Order (Doc. # 999) filed April 9, 2009. See Doc. # 1080.

In the first motion, plaintiffs sought information and documents from certain defendants relating to their communications with trade associations, weights and measures organizations and government agencies. See Doc. # 668. Defendants objected that producing the information would infringe their First Amendment right to freely associate to pursue political, social and economic ends. See Doc. # 697 filed January 9, 2009 at 1, 10-23. Defendants also asserted that under the doctrine set forth in E.R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (the "Noerr-Pennington doctrine"), the documents which plaintiffs sought were inadmissible and therefore irrelevant and that plaintiffs' requests were unduly burdensome. See Doc. # 697 at 3, 23-29.

In the second motion, plaintiffs sought documents from the Petroleum Marketers and Convenience Store Association of Kansas ("PMCA-KS"), a non-party trade association of petroleum distributors, retailers and convenience stores in Kansas, regarding — among other things — its membership, financial contributors and lobbying and strategy efforts concerning ATC for retail motor fuel. See Doc. # 738 and Exhibit A thereto. Various defendants who are members of that organization objected that producing the documents would infringe their First Amendment rights to free speech and freedom to associate to pursue political, social and economic ends. See Doc. # 783 at 1, 7-32. Defendants also asserted that under Noerr-Pennington, the documents were inadmissible and therefore irrelevant and that plaintiffs' requests were unduly burdensome. Id. at 2, 21-30.

In the third motion, defendants sought to quash subpoenas which plaintiffs had issued to the California Independent Oil Marketers Association ("CIOMA"), the Petroleum Marketers Association of America ("PMAA"), the Association for Convenience and Petroleum Retailing ("NACS"), NATSO, Inc. and the Society of Independent Gasoline Marketers of America ("SIGMA"), all of which are non-party trade associations of petroleum distributors, retailers, truck stop operators and/or convenience store owners. See Doc. # 999 filed April 9, 2009; Doc. # 1000 filed April 9, 2009 at 3. The subpoenas sought documents regarding — among other things — trade association membership, financial contributors and lobbying and strategy efforts concerning ATC for retail motor fuel. See Doc. # 601 filed October 16, 2008; Doc. # 662 filed December 5, 2008; Docs. # 964, # 965, # 966, all filed March 27, 2009. Various defendants who are members of those organizations asserted that the subpoenas violated their First Amendment right to associate and that under Noer-Pennington, the documents were inadmissible and therefore irrelevant. See Doc. # 1000 at 1-2, 7-18. Defendants also argued that the joint-defense/common-interest privilege protected against disclosure, see id. at 2, 19-20, and that the subpoenas imposed unreasonable and undue burdens on defendants and the trade associations. See Doc. # 1000 at 21-23.

Judge O'Hara found that the parties' dispute involved three categories of information: (1) membership lists of trade associations, (2) financial contributors of trade associations and (3) information relating to past political activities of defendants, including lobbying and legislative affairs of their trade associations. See id. at 7-8. Regarding membership lists and financial contributors, Judge O'Hara found that the First Amendment right to associate protected against compelled disclosure of confidential information. See id. at 8, 16, 19. He ruled that to the extent such information had been publicly disclosed, however, the First Amendment privilege did not apply. See id. at 8. As to defendants' past political activities, Judge O'Hara found that the First Amendment protected against compelled disclosure of internal trade association communication concerning legislative and lobbying efforts regarding ATC for retail motor fuel. See id. at 9-12, 18-19. He ruled, however, that the First Amendment did not protect all communications between defendants and trade associations — or within trade associations — regarding ATC for retail motor fuel. See id. at 13. With regard to information relating to lobbying and legislative affairs of trade associations, Judge O'Hara found that the First Amendment privilege only applied to "internal evaluations of lobbying and legislation, strategic planning related to advocacy of their members' positions, and actual lobbying on behalf of members." Id. at 13. Judge O'Hara found that the First Amendment did not protect against compelled disclosure of other communication to, from or within trade associations. Id.

As to plaintiffs' motions to compel (Docs. #668 and #738), Judge O'Hara sustained the motions in part. See Doc. # 1080 at 19-20, 25. With respect to both motions, he found that the First Amendment right to associate protected against disclosure of confidential membership and financial contributor information and internal trade association communications regarding legislative affairs and lobbying efforts concerning ATC for retail motor fuel. See id. at 8-19. He sustained plaintiffs' motions to compel membership and financial contributor information which had been publically disclosed, see id. at 8-9, and communications to, from or within trade associations which did not constitute internal communications regarding legislative affairs and lobbying efforts concerning ATC for retail motor fuel. See id. at 12-13. Judge O'Hara further ordered that (1) by July 26, 2009, defendants produce non-privileged documents and prepare a new privilege log, using his order as a guide, and (2) by July 10, 2009, plaintiffs file any motions for in camera review regarding application of First Amendment privilege to specific documents. See Doc. # 1080 at 24-25.

Judge O'Hara sustained defendants' motion to quash. See Doc. # 1080 at 23, 25. He found that the First Amendment right to associate protected against disclosure of confidential membership and financial contributor information and internal trade association communications regarding legislative affairs and lobbying efforts concerning ATC for retail motor fuel. See id. at 8-20. As to remaining documents, he found that the burden on trade associations to review and produce the documents outweighed plaintiffs' need for them. See id. at 22-23. Judge O'Hara ordered that by July 10, 2009, plaintiffs could serve on the trade associations "much narrower and targeted subpoenas for specific categories of documents (that the court has not deemed privileged)." Id. at 23 (emphasis in original).

On June 11, 2009, defendants filed a motion which asked Judge O'Hara to reconsider his ruling on plaintiffs' motions to compel and their motion to quash. See Doc. # 1192. Defendants asserted that the First Amendment categorically protects against disclosure of strategic communication between trade associations and similar groups regarding lobbying and legislative affairs concerning ATC for retail motor fuel. See Doc. # 1193 at 1-2, 7-8. On June 15, 2009, Judge O'Hara overruled defendants' motion, finding that defendants had merely re-asserted arguments which had been fully considered and rejected. See Doc. # 1196 at 3.

III. Analysis

Plaintiffs do not dispute Judge O'Hara's ruling that the First Amendment protects against disclosure of trade association confidential membership and financial contributor information. They object, however, to that part of Judge O'Hara's order of May 28, 2009 (Doc. # 1080) which held that the First Amendment protects against disclosure of internal trade association communications regarding legislative and lobbying activities regarding ATC for retail motor fuel. See Plaintiffs' Motion For Review (Doc. # 1195) at 7.

Defendants object to the orders of May 28 and June 15, 2009 (Doc. # 1196). Defendants assert that the First Amendment protects against disclosure of communication between trade associations and other similar groups regarding collective lobbying and legislative activity concerning ATC for motor fuel. See Defendants' Response To Plaintiffs' Motion To Review And Set Aside The Magistrate Judge's Order Dated May 28, 2009 And Defendants' Memorandum In Support Of Motion To Review Magistrate Judge Orders (Docs. 1080, 1196) ("Defendants' Memorandum") (Doc. # 1215) filed June 25, 2009 at 28-29. Defendants also assert that the First Amendment protects against disclosure even those documents which are publicly available. See id. at 33-37.

The United States Constitution guarantees a right to associate to engage in activities which the First Amendment protects, including speech, assembly, petition for the redress of grievances and the exercise of religion. See Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); NAACP v. State of Ala., 357 U.S. 449, 462-63, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). These First Amendment protections apply in the context of discovery orders. See Grand-bouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987). Specifically, the Supreme Court has recognized that in the context of discovery, the First Amendment creates a qualified privilege from disclosure of certain associational information. See NAACP, 357 U.S. at 462, 78 S.Ct. 1163. The privilege is not absolute. See Buckley v. Valeo, 424 U.S. 1, 65-66, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2010). In evaluating claims of associational privilege in the discovery context, the Court applies a burden-shifting analysis. See Perry, 591 F.3d at 1160-61; McCormick, 2005 WL 1606595, at *7; Wyoming v. USDA, 239 F.Supp.2d 1219, 1236 (D.Wyo. 2002), appeal dismissed as moot, 414 F.3d 1207 (2005); In re GlaxoSmithKline PLC, 732 N.W.2d 257, 270-71 (Minn. 2007). First, the parties asserting the privilege must make a prima facie showing that the privilege applies. See Perry, 591 F.3d at 1160; GlaxoSmithKline, 732 N.W.2d at 269-70; McCormick, 2005 WL 1606595, at *7. To make this showing, defendants must demonstrate an objectively reasonable probability that compelled disclosure will chill associational rights, i.e. that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163; Perry, 591 F.3d at 1160; Wyoming, 239 F.Supp.2d at 1236-37; GlaxoSmithKline, 732 N.W.2d at 270. If defendants make a prima facie showing, the burden shifts to plaintiffs to demonstrate a compelling need for the requested information. Id. In the Tenth Circuit, to determine whether plaintiffs have a compelling need, the Court considers the following factors: (1) the relevance of the information sought; (2) plaintiffs' need for the information; (3) whether the information is available from other sources; (4) the nature of the information sought; and (5) whether defendants have placed the information in issue. See Grandbouche v. Clancy, 825 F.2d 1463, 1466-67 (10th Cir. 1987) (citing Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977)); McCormick, 2005 WL 1606595 at *7; see also Point Rushton, LLC v. Pac. Nw. Reg'l Council of United Bhd. of Carpenters Joiners of Am., No. C09-5232BHS, 2009 WL 5125395, at *4 (W.D.Wash. Dec. 18, 2009) (balancing Grandbouche factors against First Amendment associational rights); Christ Covenant Church v. Town of Sw. Ranches, No. 07-60516-CIV, 2008 WL 2686860, at *7-8 (S.D.Fla. June 29, 2008) (same). After examining these factors, the Court determines "whether the privilege must be overborne by the need for the requested information." Grandbouche, 825 F.2d at 1466.

A. Whether Judge O'Hara Incorrectly Ruled That The First Amendment Protects Against Disclosure Of Internal Trade Association Communications Regarding Legislative Affairs And Lobbying Efforts Concerning ATC For Retail Motor Fuel (Plaintiffs' Objection)

Plaintiffs contend that Judge O'Hara incorrectly ruled that the First Amendment protects against disclosure of internal trade association communications concerning legislative affairs and lobbying efforts regarding ATC for retail motor fuel. Specifically, plaintiffs assert that he incorrectly found that (1) a presumptive privilege applies to internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel; (2) defendants made a prima facie showing that the First Amendment right to associate protects such communications; and (3) defendants' First Amendment interest in not disclosing such information outweighs plaintiffs' need to obtain it.

1. Whether Judge O'Hara Incorrectly Found That Such Communications Are Presumptively Privileged

Plaintiffs assert that internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel are not presumptively privileged under the First Amendment. Judge O'Hara found that where information goes to core associational activity, it is presumptively prima facie privileged. See Memorandum And Order (Doc. # 1080) at 7-9. With regard to confidential membership and financial contributor information, he found that such information involves core associational activity and is presumed privileged and that the balance of factors weigh against disclosure. See id. at 8, 16. Plaintiffs do not object to that ruling. With regard to internal trade association communications regarding legislative and lobbying on ATC for retail motor fuel, however, it is unclear whether Judge O'Hara applied a presumptive privilege.

Judge O'Hara found that based on Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007 WL 852521 (D.Kan. March 16, 2007), internal trade association communications regarding lobbying and legislative issues are prima facie privileged. See Doc. # 1080 at 9-10. He also found, however, that (1) a reasonable probability exists that disclosure of internal trade association communication regarding lobbying and legislative issues would deter membership due to fear that exposure of their beliefs would subject members to economic reprisal or other public hostility; and (2) plaintiffs could use information regarding trade association lobbying and legislative strategy to gain an unfair advantage in current congressional debates over ATC for retail motor fuel. See Doc. # 1080 at 11-12. Judge O'Hara therefore concluded that defendants had met their burden to show that disclosure would have a chilling effect on the exercise of associational rights. See id. at 12.

To the extent that Judge O'Hara may have presumed First Amendment privilege for internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel, his conclusion is contrary to law. Both plaintiffs and defendants contend that Heartland presumed First Amendment privilege with regard to trade association lobbying and legislative efforts. See Plaintiffs' Motion For Review (Doc. # 1195) at 9-10 ( Heartland incorrectly found generalized privilege for trade association lobbying and legislative strategy); Defendant's Memorandum (Doc. # 1215) at 7-8 (under Heartland, disclosure of trade association lobbying and legislative activity presumptively chills First Amendment rights). If Heartland presumed such a privilege, it appears to be the only case which has done so. While it appears that some courts may have found presumptive privilege for group membership, financial contributors and past political activities of group members, see, e.g., Wyoming, 239 F.Supp.2d at 1237; Beinin v. Ctr. for Study of Popular Culture, No. C 06-02298 JW, 2007 WL 1795693, at *3 (N.D.Cal. June 20, 2007) (apparently assuming chilling effect of disclosing names or groups which supported lawsuit); Int'l Action Ctr. v. United States, 207 F.R.D. 1, 3-4 (D.D.C. 2002) (apparently assuming chilling effect of disclosing membership and volunteer lists, contributor lists and past political activities and names of individuals who planned to attend political protests), those cases apparently concerned the identity and political activities of group members and contributors — issues which the parties here do not contest. The cases did not address internal group lobbying and legislative communications.

In a matter of first impression, the Ninth Circuit recently addressed the scope of First Amendment privilege against compelled disclosure of similar information — internal campaign communications. See Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). In that case, plaintiffs challenged Proposition 8, which amended the California Constitution to provide that California only recognizes marriage between a man and a woman. See id. at 1152. Proponents of Proposition 8 intervened to defend the lawsuit, and plaintiffs sought to discover information relating to their internal campaign communications regarding campaign strategy and advertising. See id. The proponents sought a protective order based on First Amendment associational privilege. The district court declined to issue a protective order, finding that the proponents had not identified any way in which First Amendment privilege could apply, except perhaps as to the identity of rank-and-file volunteers. See Perry v. Schwarzenegger, 264 F.R.D. 576, 580-81 (N.D.Cal. 2009). The proponents then sought a writ of mandamus, which the Ninth Circuit granted. See Perry, 591 F.3d at 1152.

In Perry, the Ninth Circuit found that the district court had erred in finding as a categorical matter that First Amendment associational privilege does not apply to disclosure of internal campaign communications. See id. at 1161-63. The Ninth Circuit found that the existence of a prima facie case turns not on the type of information sought, but on whether disclosure of the information will have a deterrent effect on the exercise of protected activities. In this regard, the Ninth Circuit found that participating in campaigns is unquestionably a protected activity and that disclosure of internal campaign communications can have a chilling effect on protected activity. See id. at 1162-63. Turning to the facts in its case, the Ninth Circuit found that the proponents had demonstrated a prima facie showing of chill on their associational rights. See id. at 1163-64. Specifically, the Ninth Circuit found that the proponents had presented declarations from several individuals which attested to the impact that compelled disclosure would have on participation and formulation of strategy. See id. at 1163. One declaration stated as follows:

I can unequivocally state that if the personal, nonpublic communications I have had regarding this ballot initiative-communications that expressed my personal political and moral views-are ordered to be disclosed through discovery in this matter, it will drastically alter how I communicate in the future. . . .

I will be less willing to engage in such communications knowing that my private thoughts on how to petition the government and my private political and moral views may be disclosed simply because of my involvement in a ballot initiative campaign. I also would have to seriously consider whether to even become an official proponent again.

In Perry, the Ninth Circuit cited with approval Judge O'Hara's finding that disclosure of trade association internal lobbying and legislative communications might reasonably interfere with association rights and his finding that First Amendment privilege protected only private, internal communications on the matter. See id. at 1165, n. 12. The Ninth Circuit, however, did not presume that such communications are prima facie privileged. Instead, it required the proponents to demonstrate that disclosure would create an objectively reasonable probability of chill on First Amendment rights. The proponents did so by presenting declarations which demonstrated that compelled disclosure of internal campaign communications could deter membership in their organization.

In another case, In re GlaxoSmithKline PLC, 732 N.W.2d 257 (Minn. 2007), the Minnesota Supreme Court addressed First Amendment privilege with regard to communications between pharmaceutical manufacturers, lobbyists and trade associations concerning the importation of drugs from Canada. The case involved state investigation of a pharmaceutical company's alleged antitrust violations. Under a confidentiality agreement and protective order, the pharmaceutical company produced documents regarding its communications with other pharmaceutical manufacturers, lobbyists and trade associations regarding importation of drugs from Canada. See id. at 262. With regard to certain documents, the state disagreed with the company's confidentiality designation and sought to publically release them under Minnesota law. See id. The pharmaceutical company and trade associations sought to protect them against public disclosure based on First Amendment associational rights. See id. at 267. The trial court issued a protective order based in part on the First Amendment right to petition. See id. at 263. The Minnesota court of appeals reversed, finding that federal courts have rejected a discovery privilege based on the right to petition. See In re GlaxoSmithKline PLC, 713 N.W.2d 48, 56 (Minn.App. 2006). The Minnesota court of appeals then addressed whether First Amendment associational rights precluded public disclosure. See id. It rejected the argument, finding no evidence in the record to support a finding that the proposed disclosure would interfere with associational rights. See id. at 57.

The pharmaceutical company petitioned for review by the Minnesota Supreme Court. In granting review, the Minnesota Supreme Court addressed as a matter of first impression whether infringement on First Amendment associational rights may form the proper basis for a protective order. See GlaxoSmithKline, 732 N.W.2d at 268. It found that a district court had discretion to enter such an order and outlined a two-step analysis. See id. at 269. It directed that under the first step, the party seeking a protective order must establish a prima facie showing of potential chilling effect on its associational rights. Second, if the party meets this burden, the district court should balance the competing interests. See id. With regard to the prima facie showing, the Minnesota Supreme Court stated that through "objective and articulable" facts, the party seeking protection must make an evidentiary showing of a reasonable probability of chill on an association right. See id. at 271. The Minnesota Supreme Court remanded the case to the district court to determine whether to issue a protective order based on First Amendment associational rights. See id. at 273.

Perry and GlaxoSmithKline are consistent with the weight of authority which requires that a party seeking First Amendment association privilege demonstrate an objectively reasonable probability that disclosure will chill associational rights, i.e. that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See, e.g., NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163; United States v. Comley, 890 F.2d 539, 544 (1st Cir. 1989); Wyoming, 239 F.Supp.2d at 1236-37. Although some cases may support a presumptive privilege regarding group membership and financial contributor information, e.g., Wyoming, 239 F.Supp.2d at 1237; Beinin, 2007 WL 1795693, at *3; Int'l Action, 207 F.R.D. at 3-4, only one case — Judge Bostwick's opinion in Heartland — has even arguably presumed prima facie privilege with regard to trade association internal lobbying and legislative activities. The Supreme Court has cautioned that an evidentiary privilege should be strictly construed and accepted only to the very limited extent that excluding relevant evidence "has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)). In light of this policy and established weight of authority, Judge O'Hara's decision would be contrary to law if it presumed that internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel are prima facie privileged under the First Amendment.

2. Whether Judge O'Hara Incorrectly Found That Defendants Made A Prima Facie Showing That Disclosing Such Communications Would Chill Their Associational Rights

As noted, to meet their burden of showing a prima facie case of First Amendment associational privilege, defendants must through "objective and articulable" facts make an evidentiary showing of a reasonable probability of chill on an association right. GlaxoSmithKline, 732 N.W.2d at 271; see also NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163; Wyoming, 239 F.Supp.2d at 1236-37. Plaintiffs assert that Judge O'Hara did not require defendants to make this showing. In concluding that defendants had met their burden to show that disclosure would have a chilling effect, see Doc. # 1080 at 12, Judge O'Hara found (1) a reasonable probability that disclosure of internal trade association communication regarding lobbying and legislative issues would deter membership due to fear that exposure of their beliefs would subject members to economic reprisal or other public hostility; and (2) plaintiffs could use information regarding trade association lobbying and legislative strategy to gain an unfair advantage in current congressional debates over ATC for retail motor fuel. See Doc. # 1080 at 11-12.

Plaintiffs contend that defendants produced no evidence to support these findings. See Plaintiffs' Motion For Review (Doc. # 1195) at 8-9, n. 3. Defendants disagree, asserting that they demonstrated a reasonable probability that disclosure would chill association rights. See Defendants' Memorandum (Doc. # 1215) at 8 n. 33. In their briefs on the underlying motions, defendants argued that disclosure would have a chilling effect on membership. They produced no evidence, however, to support their assertion. See Doc. # 783 at 15; Doc. # 697 at 15-16. Defendants also argued that plaintiffs could use the information to gain undue advantage in the ongoing public policy debate on ATC for retail motor fuel. See Doc. # 783 at 14; Doc. # 1000 at 8. Again, defendants presented no evidence on this point. Nor did they explain the "unfair" advantage to which they referred. Defendants did present declarations from trade associations which stated that producing the requested information would cause undue burden on association resources and negatively effect their ability to advocate on behalf of members before legislative and regulatory bodies. See Doc. # 1055 at 14-15. In part, this evidence goes to whether the discovery requests are unduly burdensome. More fundamentally, it implies that under the First Amendment, trade associations cannot be compelled to dedicate to discovery requests resources which they could otherwise use to petition the government. Defendants cite no authority for this extreme proposition and they have not demonstrated an objectively reasonable probability that compelled disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163; Perry, 591 F.3d at 1160; GlaxoSmithKline, 732 N.W.2d at 270; Wyoming, 239 F.Supp.2d at 1236-37. In sum, on this record, defendants have not shown an objectively reasonable probability that compelled disclosure of internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel would chill associational rights. The Court therefore reverses Judge O'Hara's decision on this ground.

3. Whether Judge O'Hara Incorrectly Found That The Balance Of Factors Weighs In Favor Of Non-Disclosure

Even if defendants had demonstrated a prima facie showing of First Amendment privilege with regard to internal trade association communications concerning legislative and lobbying on ATC for retail motor fuel, plaintiffs have shown that the balance of factors weighs in favor of disclosure. Judge O'Hara applied the Grandbouche factors and found that plaintiffs had not shown a particular need for the information which outweighed defendants' First Amendment associational interest. See Memorandum And Order (Doc. # 1080) at 14-19. As noted, to determine whether plaintiffs' need for the information outweighs defendants' First Amendment interest in not disclosing it, the Court considers the following factors: (1) the relevance of the information sought; (2) plaintiffs' need for the information; (3) whether the information is available from other sources; (4) the nature of the information sought; and (5) whether defendants have placed the information into issue. See Grandbouche, 825 F.2d at 1466-67.

As to the first factor — the relevance of the information sought — plaintiffs assert that information regarding internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel is highly relevant to their claim that defendants conspired to oppose implementation of ATC for retail motor fuel in the United States and defendants' contentions regarding the availability, feasibility and legality of ATC. See Doc. # 1195 at 13. Judge O'Hara found that although the information might be minimally relevant to plaintiffs' claims, it did not have "certain relevance" or go to the heart of plaintiffs' claims. Doc. # 1080 at 18. He did not, however, explain his findings in this regard. Defendants contend that under Noerr-Pennington, their petitioning efforts cannot form the basis for liability and therefore the information is irrelevant to plaintiffs' claims. See Defendants' Memorandum (Doc. # 1215) at 19-20, 24-25. This argument ignores the fact that exceptions to immunity may apply, see, e.g., Assoc. Container Transp. (Australia) Ltd. v. United States, 705 F.2d 53, 59 (2d Cir. 1983) ( Noerr-Pennington does not protect abuses of governmental process), and that the Noerr-Pennington doctrine itself does not bar discovery. See N.C. Elec. Membership Corp. v. Carol. Power Light Co., 666 F.2d 50, 52-53 (4th Cir. 1981). Judge O'Hara found that the parties do not dispute that defendants joined together in trade associations to oppose ATC. This fact alone demonstrates the relevance of the requested information. On this record, internal trade association communications relating to legislative and lobbying on ATC for retail motor are directly relevant to plaintiffs' claim that defendants conspired to oppose implementation of ATC and defendants' contentions regarding the availability, feasibility and legality of ATC. The first factor therefore weighs in favor of disclosure.

As to the second factor — plaintiffs' need for the information — plaintiffs assert that they need the information to determine what occurred within the trade associations with regard to the alleged conspiracy and defendants' contentions regarding the availability, feasibility and legality of ATC. Judge O'Hara found that plaintiffs had not demonstrated a particular need for the information. This court disagrees. The second factor weighs in favor of disclosure.

As to the third factor — whether the information is available from other sources — plaintiffs assert that they cannot obtain the information from other sources. Judge O'Hara found that plaintiffs could discover information about defendants' contentions regarding the availability, feasibility and legality of ATC through interrogatories and by examining public positions taken by the trade associations. These methods of discovery, however, would not necessarily reveal the same information. Also, they would not reveal information regarding the alleged conspiracy. The third factor weighs in favor of disclosure.

As to the fourth factor — the nature of the information sought — Judge O'Hara found that the "nature of the information sought — showing the strategic processing done by associations as they prepare to advocate on behalf of their collective members — is highly privileged because it involves a core associational activity protected by the First Amendment." Doc. # 1080 at 19. Plaintiffs do not address the fourth factor. Based on this record, the fourth factor appears to weigh against disclosure.

As to the fifth factor — whether defendants placed the information into issue — plaintiffs assert that by claiming that ATC was unavailable, impossible, impractical or illegal, defendants have put in issue their state of mind and their conduct regarding efforts to create particular standards regarding ATC. Judge O'Hara did not address this factor. Information regarding internal trade association communications with regard to legislative and lobbying on ATC issues appears to be directly relevant to defendants' assertions that ATC was unavailable, impossible, impractical or illegal. Indeed, if defendants did not assert a defense that ATC is impossible, impractical or illegal, the Court might decline to order the requested discovery. Accordingly, the fifth factor weighs strongly in favor of disclosure.

In light of the above analysis, the balance of factors weighs heavily in favor of disclosure. Thus, even if defendants had demonstrated a prima facie showing of First Amendment privilege with regard to internal trade association communications concerning legislative and lobbying on ATC for retail motor fuel, the Court would reverse Judge O'Hara's ruling. On this record, plaintiffs have demonstrated a compelling need for the information which outweighs any First Amendment interest in not disclosing it. The Court therefore finds that the First Amendment associational privilege does not protect against disclosure of internal trade association legislative and lobbying activities regarding ATC for retail motor fuel.

B. Whether Judge O'Hara Incorrectly Found That The First Amendment Does Not Protect Against Disclosure Of Communication Between Trade Associations Regarding Collective Lobbying And Petitioning Activity (Defendants' Objection)

Defendants assert that Judge O'Hara incorrectly ruled that the First Amendment does not protect against disclosure of collective lobbying and legislative communication between trade associations and similar groups regarding ATC for motor fuel. To support their assertion, defendants cite case law which suggests that under certain circumstances, the First Amendment may protect against disclosure of communication between organizations. See Doc. # 1215 at 29-31 (citing Fed. Election Comm'n v. Machinists Non-Partisan Political League, 655 F.2d 380, 386-90, 395-96 (D.C. Cir. 1981) (assuming FEC could show compelling interest to subpoena communication among political groups, FEC lacked subject matter jurisdiction to investigate matter); Beinin, 2007 WL 1795693, at *4 ( First Amendment privilege applied to names of e-mail correspondents who offered plaintiff verbal support in litigation); Wyoming v. USDA, 208 F.R.D. 449, 455 (D.D.C. 2002) ( First Amendment protects against disclosure of communication among non-party environmental advocacy groups where information sought did not go to heart of lawsuit and plaintiff could obtain needed information from defendants and did not try to do so before making extraordinarily broad discovery request); Int'l Action Ctr., 207 F.R.D. at 3-4 ( First Amendment precluded discovery of information regarding plaintiffs' political activities and affiliates where defendant did not show relevance or that it had pursued alternative sources); GlaxoSmithKline, 732 N.W.2d at 267-73 (district court has discretion to issue protective order based on First Amendment right to associate; remanding case for district court to decide whether First Amendment protects public disclosure of pharmaceutical company communication with lobbyists and trade associations); Britt v. Superior Court of San Diego County, 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766, 770-77 (1978) (vacating on First Amendment association privilege grounds trial court discovery order which required individual plaintiffs to disclose private association affiliations and activities); Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 105 Wash.App. 813, 21 P.3d 1157, 1162-64 (2001) ( First Amendment protects from disclosure correspondence between nonprofit organizations where plaintiff did not show relevance and materiality or that it had tried to obtain information by other means)). These cases, however, do not compel a conclusion that the First Amendment precludes disclosure of communications between trade associations in this case.

To invoke First Amendment associational privilege, defendants must demonstrate or make a prima facie showing that the privilege applies. See McCormick, 2005 WL 1606595, at *7. Here, Judge O'Hara found that defendants had not made a prima facie showing that First Amendment privilege applies to lobbying and legislative communications between trade associations regarding ATC for retail motor fuel. See Doc. # 1080 at 12-13. Although defendants do not articulate it in so many words, they apparently contend that Judge O'Hara should have applied a presumptive privilege to legislative and lobbying communication between trade associations and similar groups regarding ATC for retail motor fuel. For reasons discussed above, the Court disagrees that a presumptive privilege applies. On the facts of this case, defendants have not shown an objectively reasonable probability that disclosure of lobbying and legislative communications between trade associations regarding ATC for retail motor fuel would chill their First Amendment rights. Judge O'Hara's conclusion that defendants have not shown a prima facie privilege is not clearly erroneous or contrary to law. The Court will not set aside Judge O'Hara's ruling on this ground.

C. Whether Judge O'Hara Incorrectly Found That The First Amendment Does Not Protect Against Disclosure Of Publicly Available Documents (Defendants' Objection)

Defendants assert that Judge O'Hara erred in finding that the First Amendment associational privilege does not protect against disclosure of information which is publically available. Judge O'Hara found that the privilege protected against disclosure of confidential information regarding trade association membership, financial contributors and internal lobbying and legislative activity. See Doc. # 1080 at 8. With regard to information which has been publicly disclosed, however, he found that defendants had not shown a reasonable probability that disclosure of such information would chill First Amendment rights. See id.

Defendants assert that in deciding whether they had met their prima facie burden, Judge O'Hara should not have considered whether information is publically available. Defendants assert that whether information is publically available is not part of the prima facie analysis, but a factor to consider under the second-step balancing test. See Doc. # 1215. Defendants miss the point. The Court reaches the second-step balancing test only if defendants satisfy their prima facie burden to show a First Amendment privilege. See McCormick, 2005 WL 1606595, at *7. If defendants do not make that prima facie showing, the Court need not conduct the balancing test. As noted, to demonstrate a prima facie case, defendants must show an objectively reasonable probability that compelled disclosure will chill First Amendment associational rights, i.e. that it will deter membership in the trade associations because of fear that exposure of members' beliefs will result in threats, harassment or reprisal which may affect physical well-being, political activities or economic interests. See NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163; Wyoming, 239 F.Supp.2d at 1236-37; GlaxoSmithKline, 732 N.W.2d at 270. When information is already publically available, compelled disclosure will presumably have much less of a chilling effect — if any — on First Amendment rights. Certainly, in this case, defendants did not demonstrate that disclosure of publically available information would chill their associational rights. Judge O'Hara did not err in concluding that defendants had not met their burden to show a reasonable probability that disclosure of such information would chill First Amendment rights. See, e.g., Anderson v. Hale, No. 00 C 2021, 2001 WL 503045, at *5-6 (N.D.Ill. May 10, 2001) (defendants could not make prima facie showing that associational privilege applied to publically identified group members). The Court will not reverse Judge O'Hara's ruling on this ground.

IT IS THEREFORE ORDERED that Plaintiffs' Motion To Review And Set Aside The Magistrate Judge's Order Dated May 28, 2009 (Doc. # 1195) filed June 11, 2009 be and hereby is SUSTAINED. The Court reverses that portion of Judge O'Hara's order of May 28, 2009 (Doc. # 1080) which found that the First Amendment protects against disclosure of internal trade association legislative and lobbying activities regarding ATC for retail motor fuel.

IT IS FURTHER ORDERED that Defendants' Motion For Review Of Magistrate O'Hara's Orders (Docs. 1080, 1196) (Doc. # 1214) filed June 25, 2009 be and hereby is OVERRULED.

MEMORANDUM AND ORDER

I. Legal Standards

A court has discretion whether to grant a motion to reconsider. Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995). A motion which asks the Court to reconsider a nondispositive order "must be based on (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice." D. Kan. Rule 7.3(b). In general, a motion to reconsider should be denied unless it clearly demonstrates manifest error of law or fact or presents newly discovered evidence. Sump v. Fingerhut, Inc., 208 F.R.D. 324, 327 (D.Kan. 2002) citing Nat'l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d. 1250, 1256 (D.Colo. 2000). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan. 1994), aff'd, 43 F.3d 1484 (10th Cir. 1994). Such motions are not appropriate if movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Reconsideration may be appropriate, however, if the Court has misapprehended the facts, a party's position or the controlling law. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); accord O'Connor v. Pan Am Corp., 5 Fed.Appx. 48, 50 (2d Cir. 2001).

II. Analysis

On March 4, 2010, the Court entered a memorandum and order which sustained plaintiffs' motion to review Judge O'Hara's order of May 28, 2009 (Doc. # 1080) and overruled defendants' request to review Judge O'Hara's orders of May 28 and June 15, 2009 (Doc. # 1196). See Doc. # 1583. Specifically, the Court found that (1) to the extent that Judge O'Hara may have presumed a First Amendment privilege for internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel, his conclusion would be contrary to law, see id. at 15-21; (2) defendants did not show an objectively reasonable probability that compelled disclosure of such communications would chill associational rights, see id. at 21-24; (3) the balance of factors weighed heavily in favor of disclosure, see id. at 24-28; (4) defendants did not show an objectively reasonable probability that disclosure of lobbying and legislative communications between trade associations regarding ATC for retail motor fuel would chill First Amendment rights, see id. at 28-30; and (5) defendants did not show a reasonable probability that disclosure of publically available documents would chill First Amendment rights, see id. at 31-32.

Defendants assert that by requiring them to demonstrate a prima facie showing of chill on First Amendment rights, the Court imposed an erroneous standard. In its previous ruling, the Court found that to invoke associational privilege, defendants must demonstrate an objectively reasonable probability that compelled disclosure would chill associational rights, i.e. that disclosure would likely deter, membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See Memorandum And Order (Doc. # 1583) at 10-11 (citing NAACP v. State of Ala., 357 U.S. 449, 462-63, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Perry v. Schwarzenegger, 591 F.3d 1147, 1160-61 (9th Cir. 2010); Wyoming v. USDA, 239 F.Supp.2d 1219, 1236-37 (D.Wyo. 2002), appeal dismissed as moot, 414 F.3d 1207 (10th Cir. 2005); In re GlaxoSmithKline PLC, 732 N.W.2d 257, 270-71 (Minn. 2007)). Defendants assert that established precedent required the Court to presume that associational privilege applies to trade association documents related to lobbying and legislative affairs. See Memorandum In Support Of Joint Motion To Reconsider March 4, 2010 Memorandum Order (Doc. 1583) ("Defendants' Memorandum In Support Of Motion To Reconsider") (Doc. # 1591) filed March 16, 2010 at 3-9. In support of their assertion, defendants largely repeat the arguments which they made in their motion to review. See Defendants' Response To Plaintiffs' Motion To Review And Set Aside The Magistrate Judge's Order Dated May 28, 2009 And Defendants' Memorandum In Support Of Motion To Review Magistrate Judge Orders (Doc. 1080, 1196) ("Defendants' Memorandum In Support Of Motion To Review Magistrate Orders") (Doc. # 1215) filed June 25, 2009 at 8-14. The Court has fully considered and rejected defendants' argument in this regard, and it is not persuaded by its reiteration. See Voelkel, 846 F.Supp. at 1483 (motion to reconsider not second opportunity to rehash arguments or dress up arguments that previously failed).

Defendants contend that the Court erred in finding that they had not shown an objectively reasonable probability that compelled disclosure would chill associational rights. See Memorandum And Order (Doc. # 1583) at 21-24. Specifically, through evidence that compelled disclosure would interfere with trade association lobbying efforts, defendants assert that they demonstrated a prima facie showing of chill on associational rights. See Defendants' Memorandum In Support Of Motion To Reconsider (Doc. # 1591) at 12-18. Defendants apparently contend that they can demonstrate chill on associational rights by showing that disclosure will negatively impact their right to petition the government. Courts have generally held that efforts to petition the government are not protected from discovery. See, e.g., N.C. Elec. Membership Corp. v. Carolina P L Co., 666 F.2d 50, 52-53 (4th Cir. 1981); Stalling v. Union Pac. R.R. Co., No. 01 C 1056, 2003 WL 21688235, at *2 (N.D.Ill. July 17, 2003); In re GlaxoSmithKline, 732 N.W.2d at 273. Defendants cite no authority which supports the proposition that because they have formed an association, their right to petition is somehow entitled to heightened protection. In its previous order, the Court rejected similar arguments. See Memorandum And Order (Doc. # 1583) at 23-24. It will not reconsider its ruling on this ground. See Voelkel, 846 F.Supp. at 1483.

Defendants seek to supplement the evidentiary record. They contend at the time they briefed the issue before Judge O'Hara, they reasonably relied on existing case law which presumed a prima facie privilege and that they had no idea that the Court would expect them to show a reasonable probability of chill on associational rights. The Court disagrees. Only one case — Judge Bostwick's opinion in Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLBDWB, 2007 WL 852521 (D.Kan. March 16, 2007) — even arguably presumed prima facie privilege with regard to trade association internal lobbying and legislative activities. See Memorandum And Order (Doc. # 1583) at 21. The weight of long-standing authority requires that to invoke discovery privilege, one must show a reasonable probability of chill on associational rights. See, e.g., NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163; United States v. Comley, 890 F.2d 539, 544 (1st Cir. 1989); Wyoming v. USDA, 239 F.Supp.2d at 1236; In re GlaxoSmithKline plc, 732 N.W.2d at 271. Plaintiffs argued this point below. See Plaintiffs' Motion To Compel Discovery And Memorandum In Support (Doc. # 668) filed December 8, 2008 at 9-11. Moreover, at oral argument, Judge O'Hara stated that he would not hesitate to deviate from Heartland, if he believed that Judge Bostwick had wrongly decided it. See Transcript of Status Conference on May 13, 2009 (Doc. # 1587-1) filed March 8, 2010 at 43:24 to 44:1. Defendants have not shown good cause to supplement the record at this late date. See Van Skiver, 952 F.2d at 1243 (motion to reconsider not forum for new supporting facts which could have been presented originally). The Court will not reconsider its ruling on this ground.

Defendants assert that the Court should have reversed Judge O'Hara's ruling which "denied categorically that intergroup communications could be protected by the First Amendment privilege." Defendants' Memorandum (Doc. # 1591) at 23. In its previous order, the Court found that to invoke associational privilege for legislative and lobbying communications between trade associations and similar groups regarding ATC for retail motor fuel, defendants must show an objectively reasonable probability that disclosure of such communications would chill associational rights. See Memorandum And Order (Doc. # 1583) at 30. Defendants did not do so. Defendants seek to supplement the record, but they are too late and have not established good cause to do so. See Van Skiver, 952 F.2d at 1243. The Court will not reconsider its ruling on this ground.

Defendants complain that in balancing whether plaintiffs had shown a compelling need for the requested information, the Court applied the wrong standard. See Defendants' Memorandum In Support Of Motion To Reconsider (Doc. # 1591) at 25-26. The Court disagrees, and will not reconsider its ruling on this ground.

Finally, defendants assert that the Court erred in not ruling that the common interest privilege protects some of the requested documents from discovery. Defendants did not argue this issue in their motion to review the magistrate judge rulings. See Defendants' Memorandum In Support Of Motion To Review Magistrate Orders (Doc. # 1215) at 27-33. The Court will not reconsider its ruling on this ground. See Van Skiver, 952 F.2d at 1243 (motion to reconsider not forum for new arguments which could have been presented originally).

Based on the foregoing analysis, the Court overrules defendants' motion to reconsider. In light of this ruling, defendants' motion for emergency stay is moot and overruled as such.

IT IS THEREFORE ORDERED that the Joint Motion To Reconsider March 4, 2010 Memorandum Order (Doc. 1583) (Doc. # 1590) which defendants and certain third party trade associations filed March 15, 2010 be and hereby is OVERRULED. IT IS FURTHER ORDERED that the Application For Emergency Stay Of March 4, 2010 Order (Doc. 1583) (Doc. # 1592) which defendants and certain third party trade associations filed March 16, 2010 be and hereby is OVERRULED as moot.