[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]
Courts have a great way of making a point.
Plaintiffs call this a fishing expedition. In part, I agree. The subpoenas demand a large share of documents in Plaintiffs’ control for the last ten years. But even on a fishing expedition, hoping to just get one bite in the vast and quiet water, a person brings a fishing pole. And in other cases, perhaps, a net. Here, AG McCuskey has abandoned both the fishing pole and the net. Instead, he has brought dynamite to the lake. Tossing a couple in, he hopes to catch something.
West Virginia Rivers Coalition, Inc. v. McCuskey, __ F.Supp.3d__, 2026 WL 3259758, at *12 (S.D. W. Va. Oct. 29, 2026).
The court wrote:
The Attorney General of West Virginia has used the State’s power to compel two citizen organizations to open ten years of their files: their drafts and internal arguments, the groups they have funded, the people who serve on their boards, the coalitions they have joined, and what they have told the agencies they petition. Neither organization markets goods nor services relevant to the subpoenas. The Attorney General identifies no consumer who was cheated, no sale, and no purchase made in reliance on anything either group said.
What these organizations do is argue in public about what coal, oil, and gas do to West Virginia’s waters and climate. The State’s chief legal officer, who has publicly condemned that advocacy, now demands to know how they reached their views and who stood with them.
The First Amendment forbids a State from using its investigative power that way, and I will not allow it while this case is pending.
The country was founded on the premise that a citizen owes the government no account of his opinions or of the people he holds them with. The Attorney General has demanded that two citizen organizations hand the State their working lives.
The State wants a decade of what they published, down to a note sent to a single person outside the organization, along with the unreleased drafts and the internal arguments over what to say. He demanded the names of the organizations that fund them and what each gave, and he has now withdrawn that demand. He still wants the groups they paid, the board members they share, the coalitions they joined, and the comments they filed with the agencies they were petitioning. Because the demand period runs to the date of compliance, the subpoenas reach new communications written while they remain outstanding. No demand identifies a consumer, a sale, or a statement anyone relied on. The subpoenas go into how these citizens arrived at their positions on public questions and who helped them get there.
The Plaintiffs in this case, West Virginia Rivers Coalition, Inc. (“WVRC”) and 350.org, promote clean waters, reduced carbon emissions, and healthier lives for the people of West Virginia and beyond. They do not sell any service. They do not advertise a certain product of their own. Instead, they promote ideas. Some of that advocacy and some of those ideas are based, in part, on one model. For that, they have been subpoenaed and asked to turn over ten years’ worth of information far beyond any use of that one model.
AG McCuskey’s actions violate the protections afforded by the United States Constitution. The Plaintiffs, on this record, have only engaged in protected advocacy speech, not commercial speech. The subpoenas issued on the Plaintiffs trespass on their freedom of association, chill their exercise of the First Amendment, and deter others from engaging in similar conduct.
The West Virginia Rivers Coalition court described the AG’s subpoenas as “shockingly broad” and gave many examples. My favorite was:
The term “Document” includes “the original and all drafts or non-identical copies of all written or graphic matter of any kind, however produced or reproduced,” and it lists 25 different forms of a document.
“Document” included “[F]acsimiles, summaries, financial statements, diaries, communications, invoices, receipts, log books, e-mails, telegrams, ledgers, accounts, press releases, reports, white papers, paid advertising, website and social media content (including posts, reposts, comments, and videos on organizational or work-related individual accounts), minutes, pamphlets, notes interoffice communications, training materials, records of meetings, conferences, and telephone or other conversations or communications, and any electronic or magnetic record of the foregoing, or non-identical copies thereof, whether prepared by you or by any other person, that are in your possession, custody, or control.”
After law school, I clerked for the late Hon. R. Dorsey Watkins. Judge Watkins wrote:
The use of definitions is not prohibited by the Federal Rules of Civil Procedure. Prefacing a long series of interrogatories by reasonable definitions may be helpful, avoiding tedious repetition. But the use of unreasonable ‘definitions’ may render the interrogatories so burdensome to the answering party and to the Court, that objections to the entire series should be sustained with sanctions, whether or not an occasional interrogatory might be reasonable. Even if the interrogatories are considered one by one, the answering party is required to incorporate the applicable ‘definitions’ in each question. The definitions in this case, particularly (f) and (g) in the second paragraph quoted above, have so expanded the information requested that many of the interrogatories are unduly burdensome.
Diversified Prods. Corp. v. Sports Ctr. Co., 42 F.R.D. 3, 4 (D. Md. 1967)(emphasis added).
The District of Maryland form discovery defines the term succinctly and clearly:
The terms “document” and “documents” are defined to be synonymous in meaning and equal in scope to the term “items” in Fed. R. Civ. P. 34(a)(1) and include(s), but is not limited to, electronically stored information. The terms “writings,” “recordings,” and “photographs” are defined to be synonymous in meaning and equal in scope to the usage of those terms in Fed. R. Evid. 1001. A draft or non-identical copy is a separate document within the meaning of the term “document.”
In addition to the definition of “document,” the West Virginia Rivers Coalition court pointed to many other problems. It wrote: “The 16 categories of demands include every statement Plaintiffs have ever published about a West Virginia energy business with a ‘Climate Claim…. The rest of the demands do not even try to mask their broad and sweeping intentions.”
It added: “Plaintiffs are self-censoring and second-guessing every advocacy statement and position—protected speech and association under the First Amendment. Plaintiffs have canceled programs and withheld protected statements in response to these subpoenas. And because of these subpoenas, Plaintiffs have notified their members, grantees, and funders that every subsequent action or communication may be subject to review by the State. The loss of faith or commitment to these organizations, as well as the denial of protected speech and association, cannot be cured with damages and this constitutes irreparable harm.”
Much more could be said. Indeed, the opinion is lengthy. On this point, however, no more needs to be said. No fishing is enough.
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