IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA Association of Equipment Manufacturers, ) AGCO Corporation, CNH Industrial ) America LLC, Deere & Company, and ) Kubota Tractor Corporation, ) ) AMENDED AND CORRECTED Plaintiffs, ) SUPPLEMENTAL ORDER ) RE ORDER COMPELLING vs. ) DISCOVERY AND ORDER RE ) MOTION FOR ATTORNEY FEES The Hon. Doug Burgum, Governor ) of the State of North Dakota, in his ) official capacity, and ) ) The Hon. Wayne Stenehjem, Attorney ) General of the State of North Dakota, ) in his official capacity, ) Case No. 1:17-cv-151 ) Defendants, ) ) North Dakota Implement Dealers ) Association, ) ) Intervenor-Defendant. ) ______________________________________________________________________________ I. BACKGROUND A. This case generally Plaintiffs AGCO Corporation, CNH Industrial America, Deere & Company, and Kubota Tractor Corporation are manufacturers of farm equipment. Plaintiff Association of Equipment Manufacturers is a not-for-profit trade association that represents and promotes the legal and business interests of its 900-plus members, including the plaintiff manufacturers in this case. Defendant Doug Burgum is the Governor of the State of North Dakota and defendant Wayne Stenehjem its Attorney General (collectively the “State”). Intervenor-defendant North Dakota Implement Dealers Association (“NDIDA”) is a trade association for approximately 115 franchised North Dakota farm equipment dealers. In this action, plaintiffs have sought to enjoin the enforcement of amendments enacted by the North Dakota Legislature in 2017 to N.D.C.C. chapters 51-07 and 51-261 by 2017 N.D. Sess. Laws Ch. 354 (Senate Bill 2289) entitled “AN ACT to amend and reenact sections 51-07-01.2,

51-07-02.2, and 51-26-06 of the North Dakota Century Code, relating to prohibited practices under farm equipment dealership contracts, dealership transfers, and reimbursement for warranty repair.” Plaintiffs contend the enacted amendments (hereinafter “SB 2289”) violate: (1) the Contract Clause of the United States Constitution, U.S. Const. art. I, § 10; (2) the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.; (3) the federal trademark statute, 15 U.S.C. § 1051 et seq. (the Lanham Act); (4) the Commerce Clause of the United States Constitution, U.S. Const. art. I, § 8, cl. ^[3]; and (5) interstate price regulation provisions found at 15 U.S.C. § 13 et seq. (the Robinson-Patman Act). On December 14, 2017, District Judge (then Chief Judge) Hovland preliminarily

enjoined enforcement of SB 2289 on the grounds it likely violates the Contract Clause of the Constitution and that certain of its provisions are expressly prohibited and preempted by the Federal Arbitration Act. Ass’n of Equip. Mfrs., No. 1:17-cv-151, 2017 WL 8791104, at[*11] (D.N.D. Dec. 17, 2017) (“Ass’n of Equip. Mfrs.”). Defendants appealed the order, limiting their appeal to the court’s conclusions with respect to the Contract Clause.

1 N.D.C.C. ch. 51-07 contains provisions that, among other things, regulate the relationships between manufacturers and dealers of automobiles, trucks, lawn and garden equipment, and farm equipment—some to a greater degree than others. Ch. 51-26 governs farm equipment warranties and handling of warranty repair work.

On August 2, 2019, the Eighth Circuit affirmed the grant of the preliminary injunction, stating in summary the following: For these reasons, the State has not carried its burden of showing a significant and legitimate public purpose underlying Senate Bill 2289. The district court thus did not err in concluding that the manufacturers were likely to succeed on the merits of their Contract Clause claim. The State does not challenge the scope of the preliminary injunction, so the question whether it should be limited to retroactive applications of SB 2289, or to certain provisions of the law, is not presented at this juncture. The motions to supplement the record are denied. The district court’s order granting a preliminary injunction is affirmed. Ass'n of Equip. Mfrs. v. Burgum, 932 F.3d 727, 734 (8th Cir. 2019). On September 19, 2019, the Eighth Circuit denied defendants’ petition for rehearing and rehearing en banc. Id. at 727. B. Plaintiffs’ document requests and motion to compel During the course of discovery, plaintiffs served defendants with document requests pursuant to Fed R. Civ. P. 34. The predicate instructions to the requests stated that plaintiffs were seeking responsive documents from January 1, 2015, through the date of the trial. They also defined SB 2289 by its official name, i.e., “AN ACT to amend and reenact sections 51-07-01.2, 51-07-02.2, and 51-26-06 of the North Dakota Century Code, relating to prohibited practices under farm equipment dealership contracts, dealership transfers, and reimbursement for warranty repair.” The State and NDIDA filed a joint response to plaintiffs’ document requests,2 stating initially with respect to Document Request No. 4: Document Request No. 4: All documents relating to the drafting, preparation, enactment, or passage of Senate Bill 2289. Response: Objection. The State has no documents responsive to this request other than which is already publicly-available. NDIDA objects to this Request because it implicates documents that are covered under attorney-client privilege. Further, NDIDA objects to 2 NDIDA is represented by the same firm that was retained to draft what was introduced as SB 2289.

this Request because it also implicates documents protected from disclosure as attorney workproduct. Otherwise, NDIDA has no other documents responsive to this Request. NDIDA will produce an appropriate privilege log. On March 23, 2018, one week prior to the expiration of the March 30, 2018 deadline for completing discovery and after plaintiffs had deposed NDIDA’s President and CEO, defendants served an amended response to Document Request No. 4 as follows: Amended Response: Objection. The State has no documents responsive to this request other than which is already publicly-available. NDIDA objects to this Request because it implicates documents that are covered under attorney-client privilege. Further, NDIDA objects to this Request because it also implicates documents protected from disclosure as attorney workproduct. NDIDA also objects because this request implicates documents protected from disclosure under it and its members’ First Amendment Privilege to engage in political activities as free speech and to not have such activities or speech chilled or otherwise used against them. Finally, the State and NDIDA interprets the above request to only reference those documents relating to the above that post-date the introduction of SB 2289. Further, the North Dakota Legislature, not NDIDA, drafts and prepares legislation, including SB 2289. Without waiving those objections above, NDIDA states that at the time of its initial response, investigation for potentially-responsive documents was ongoing and none had been found. As the investigation has continued, responsive documents have been discovered and those non-privileged, responsive documents will be provided. Otherwise, NDIDA will produce an appropriate privilege log. Several days later, defendants’ counsel identified responsive documents postdating the introduction of SB 2289 that were claimed to have been discovered after the initial response. Some of the documents were turned over to plaintiffs. A greater number were withheld on First Amendment privilege grounds. Also, for the first time, a privilege log of withheld documents was served on March 26, 2018. Notably, the privilege log referenced only documents that postdated the introduction of SB 2289 and claimed the First Amendment privilege. No documents were listed as being withheld based on claims of attorney-client or work-product privileges—even documents generated after the introduction of SB 2289 and notwithstanding the continued reference to these privileges in the amended response to Document Request No. 4.

Plaintiffs subsequently filed a motion to compel discovery seeking an order compelling NDIDA to: 1. fully respond to plaintiffs' Document Request No. 4, including production of documents predating the introduction of SB 2289; and 2. require its President and CEO to sit for a supplemental deposition to cover the

topics that were objected to during his deposition on First Amendment associational privilege grounds. NDIDA opposed the motion. C. The order granting the motion to compel On July 2, 2019, the undersigned issued an order granting in part the motion to compel discovery. Ass'n of Equip. Mfrs., 2019 WL 2871093 (D.N.D. July 2, 2019). At the outset, the undersigned rejected NDIDA’s argument that plaintiffs’ motion was untimely given the lateness and suspect timing of NDIDA’s revised disclosures.^[3] The undersigned also rejected NDIDA’s contention that Document Request No. 4 did not extend to documents related to the drafting of

SB 2289 prior to its formal introduction. The State’s and NDIDA’s last-minute “rewriting” of Document Request No. 4 was deemed unreasonable given the clear language of the Request and the fact NDIDA had represented in its motion to intervene as a reason why intervention should be permitted: NDIDA also helped draft this bill [SB 2289], which means NDIDA has firsthand knowledge of the purpose of the bill and other evidence. This knowledge and evidence is critical to showing that the bill does not violate the Lanham Act, the Robinson-Patman Act, or the Constitution. ^[3] To be fair, for all of plaintiffs’ chest-thumping about untimely disclosures, they were even later in producing their own privilege log, not serving it until afer the deadline for completing discovery.

Turning to NDIDA’s more meritorious arguments, the undersigned agreed that some of what was being withheld was likely First Amendment privileged. However, the court expressed doubts that it all would be and concluded that an in camera inspection of the documents was prudent under the circumstances. Finally, NDIDA argued that the withheld information and documents were irrelevant.

With respect to documents related to the drafting of SB 2289, the undersigned concluded some that were nonprivileged might be relevant and that NDIDA was estopped from claiming lack of relevancy upon what it had asserted in its motion to intervene. While not specifically addressed in the order, what the undersigned believed might be of some relevance was NDIDA’s final draft of the legislative language that it provided to the sponsors it had lined up to introduce its draft bill. By comparing that document to what was formally introduced as SB 2289, one could determine the exact extent to which NDIDA was the “drafter” of SB 2289. In granting the motion to compel, the undersigned assumed that at least the draft of what NDIDA provided to its legislative sponsors would be produced given that any claim of privilege would be specious for

reasons discussed later. The undersigned further concluded that what also might be of some relevance given NDIDA’s role in drafting SB 2289 (again putting aside the question of weight and any applicable privileges) would be any statements that NDIDA had made about SB 2289’s purpose. In concluding that information reflecting NDIDA’s role as drafter of SB 2289 and possibly statements about its purpose may be of some relevance, the undersigned relied upon: (1) United States Supreme Court precedent in which the Court had looked to material outside of the text of a challenged law and its legislative history in First Amendment Free Exercise and Fourteenth Amendment Equal Protection cases when legislative purpose was an issue; (2) prior cases in which the Eighth Circuit had considered material outside of the text of a challenged statute and its legislative history (or functional equivalent) in considering legislative purpose in both dormant Commerce Clause and Contract Clause cases; and (3) the fact that Judge Hovland had in one instance relied upon material outside of the legislative record in considering the purpose

of SB 2289 in his order granting the preliminary injunction, i.e., a press release issued by the NDIDA after its passage. As a result of what was decided, NDIDA was ordered to produce documents relating to the drafting, preparation, enactment, and passage of SB 2289, including those that predate the introduction of SB 2289, but excluding any documents for which there was a legitimate claim of privilege. With respect to the latter, the undersigned ordered NDIDA to: (1) prepare an updated privileged log listing all document being withheld based upon any claim of privilege; and (2) file with the court under seal all documents being withheld based upon a claim of privilege pursuant to the First Amendment.

As for that part of the motion to compel seeking a supplemental deposition of NDIDA’s President and CEO, the undersigned concluded that certain lines of questioning by plaintiffs in the deposition that was taken were simply attempts to “muck around” in the internal affairs of NDIDA, likely First Amendment privileged, and, in any event, irrelevant.^[4] Nonetheless, the undersigned concluded that plaintiffs should have some opportunity to depose NDIDA’s President and CEO with respect to any withheld documents that were ordered produced along with any lines of inquiry that the court deemed not to be First Amendment privileged. ^[4] In addition to numerous questions about NDIDA’s internal affairs, there were other lines of inquiry that were similarly irrelevant, e.g., why NDIDA and its members had not first attempted to negotiate with plaintiffs before seeking a legislative solution.

Consequently, the undersigned ordered a supplemental deposition following the production of the documents ordered produced and the undersigned’s resolution of the First Amendment privileged issues. D. NDIDA’s motions for a stay and for reconsideration, plaintiffs’ motion for fees and costs, and the filing of documents for court review and a revised privilege log NDIDA filed motions for a stay of the order compelling discovery pending the Eighth Circuit’s decision on the motion for preliminary injunction and for reconsideration, which the undersigned denied on July 18, 2019. While those motions were pending, plaintiffs filed its motion for attorney fees and costs, claiming $55,566—a breathtakingly huge number. On July 17, 2019, NDIDA served an amended privilege log identifying the documents that it was withholding based on a claim of First Amendment privilege. The amended privilege log also identified for the first time documents being withheld based on a claim of attorney-client and/or work-product privileges, both before and after SB 2289’s filing. On the same date, NDIDA forwarded to the court copies of the documents being withheld based only on a claim of

First Amendment privilege for in camera inspection. Documents claimed to be privileged based upon claims of both First Amendment privilege and attorney-client or work-product privileges were not included. E. The Eighth Circuit’s decision rendering irrelevant the withheld documents and information—at least as to the Contract Clause claim The extent to which legislative history and material outside of the official legislative record should be considered, if at all, in addressing whether SB 2289 had been passed for an improper purpose in violation of the Contract Clause was front and center in the appeal of Judge Hovland’s order granting the preliminary injunction. The State and NDIDA argued the legislative record was relevant and demonstrated that SB 2289 was passed in part to address economic problems of farmers and rural farm communities that went beyond the narrow interests of the equipment dealers who are the immediate, if not primary, beneficiaries of SB 2289. The State and NDIDA also argued, however, that material outside of what they characterized to be the “official” legislative record was immaterial, including, NDIDA’s role in drafting SB 2289.

Ass'n of Equip. Manufacturers v. Burgum, No. 18-1115, 2018 WL 2234314, at **5–16 (Appellant-Intervenor’s Reply Brief, May 18, 2018). Plaintiffs in their briefing on appeal also relied upon the legislative record to support their argument that SB 2289 was passed for an illegitimate purpose—except when it arguably did not. However, contrary to the State and NDIDA, plaintiffs contended that highly probative as to SB 2289’s purpose were: (1) the fact that SB 2289 been drafted by NDIDA; (2) certain statements attributed to NDIDA made outside of the legislative record that purportedly demonstrated SB 2289’s illegitimate purpose; and (3) NDIDA’s extensive lobbying efforts. Ass'n of Equip. Manufacturers v. Burgum, No. 18-1115, 2018 WL 2017937, at **26–45

(Appellees’ Response Brief, April 26, 2018). In deciding the State had not carried its burden of showing a significant and legitimate public purpose underlying SB 2289, the Eighth Circuit panel in a 2–1 decision refused to consider its legislative history and looked only to its text. In relevant part, the panel majority stated: The State’s primary argument is that even if SB 2289 substantially impairs the manufacturers’ contractual rights, the legislation reasonably advances a significant and legitimate public purpose, so the impairment is constitutional. In Equipment Manufacturers Institute, South Dakota conceded that the purpose of a similar law was “to level the playing field between manufacturers and dealers,” 300 F.3d at 860, and this court concluded that the conceded purpose did not qualify as a “significant and legitimate public interest.” Id. at 861. North Dakota makes no such concession and asserts that this law furthers a significant public interest in serving farmers and rural communities. But the mere assertion of a conceivable public purpose is insufficient to justify a substantial impairment of contractual rights. Virtually all legislation enacted by multi-member bodies will be motivated by multiple purposes in the minds of individual legislators, but those subjective intentions are not controlling. Whether the law passes constitutional muster requires a more discerning inquiry into the Act’s structure and design. * * * * In evaluating the present North Dakota law governing contracts between manufacturers and dealers, the State “bears the burden of proof in showing a significant and legitimate public purpose underlying the Act.” Id. at 859. The state legislature declined to follow the examples of the legislatures in Blaisdell and Keystone Bituminous, which included well-supported findings or purposes within their duly enacted laws, so any significant and legitimate public purpose must be discerned from the design and operation of the legislation itself. Statements in the legislative history of individual legislators, lobbyists, or advocates that the law would benefit farmers and rural communities are insufficient. Special-interest groups cannot establish that legislation serves a broad societal interest simply by ensuring that the record contains testimony or floor statements about a law’s conceivable public benefits. Ass'n of Equip. Mfrs. v. Burgum, 932 F.3d 727, 731–33 (8th Cir. 2019) (italics added). Likewise, consistent with its focus on the text alone, the panel majority did not mention and apparently did not rely upon (1) the fact that the NDIDA was the principal drafter of SB 2289, or (2) any statements made by NDIDA about the purpose of SB 2289—whether made outside of the legislative record or as a part of it. Id. at 730–34. This, coupled with what the panel majority had to say about statements of “lobbyists” and “special interest groups,” albeit with a different focus, supports the conclusion that the panel implicitly deemed the evidence irrelevant.^[5] 5 The dissenting member of the three-judge panel disagreed with the majority’s conclusion that material beyond the text of SB 2289 was irrelevant in considering SB 2289’s purpose. Ass'n of Equip. Mfrs. v. Burgum, 932 F.3d at 736.

F. NDIDA’s renewed request for reconsideration in light of the Eighth Circuit’s decision and plaintiffs’ response in opposition Following the Eighth Circuit’s decision, NDIDA again urged reconsideration of the order granting the motion to compel, arguing that the documents and information being sought by plaintiffs are now clearly irrelevant in light of the Eighth Circuit’s decision. In response, plaintiffs conceded the panel’s decision appears to make irrelevant what they were seeking in the motion to compel with respect to its Contract Clause claim. However, they argued the panel’s decision might not be the final word because the State and NDIDA had petitioned for a rehearing and en banc review, arguing, in part that the panel had erred in confining its analysis to SB 2289’s text. Also, plaintiffs argued that the withheld documents and information remain relevant

to their other claims. G. What is now before the court Before the court now is what further action, if any, should be taken with respect to the motion to compel in light of the Eighth Circuit’s decision. There is also plaintiffs’ motion for attorney fees and costs. II. THE MOTION TO COMPEL A. Introduction The undersigned agrees the landscape changed with what the Eighth Circuit stated about the lack of relevancy of anything beyond the text of SB 2289 in evaluating its purpose. For reasons that will be discussed first, the undersigned concludes that the prudent thing to do now is

to declare the prior order compelling discovery moot. However, because of the likelihood of an appeal, the undersigned will make alternative rulings on the withheld information and documents, putting aside what appears to be the clear import of the Eighth Circuit’s decision.

B. The Eighth Circuit’s statements about what is relevant in evaluating SB 2289’s purpose moots the order granting the motion to compel As noted above, plaintiffs conceded that the Eighth Circuit’s panel decision made irrelevant for purposes of the Contract Clause claim what they are seeking in the motion to compel, but noted that the State and NDIDA had moved for a rehearing and for en banc review. That motion for rehearing and for en banc review has since been denied. Plaintiffs argue, however, that the withheld documents and information are relevant to its other claims. But, with respect to the federal statutory claims, plaintiffs offer no explanation for why other than the assertion of relevancy made by NDIDA in its motion to intervene, which the undersigned concludes is not by itself sufficient to justify further costs and expenses with respect

to this matter.^[6] This leaves only the dormant Commerce Clause claim. Plaintiffs argue that statutory purpose is a relevant consideration in their dormant Commerce Clause claim and point to past Eighth Circuit cases that have considered matters beyond the text of the challenged statute and its legislative history or its functional equivalent. See South Dakota Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583, 593-96 (8th Cir. 2003) (considering a wide range of evidence with respect to the issue of purpose arising out of a dormant Commerce Clause challenge to a state constitutional amendment passed by referendum that prohibited corporations owning farm land); SDDS, Inc. v. State of S.D., 47 F.3d 263, 270 (8th Cir. 1995) (considering "protectionist propaganda" to voters on a state referendum being

6 With respect to the Robinson-Patman Act claim, NDIDA’s draft may have used the term “like” in the price discrimination provision and SB 2289, as formally introduced, used the term “similar.” Plaintiffs have not attempted to argue that NDIDA’s draft is material to understanding SB 2289’s meaning in light of this possible change. But, even if that argument had been made, the Eighth Circuit would likely conclude that attempting to draw any conclusions about SB 2289’s meaning based on this change would be a search for “fools gold,” given what it has had to say about the significance of legislative history.

challenged on dormant Commerce Clause grounds as a reason to diminish the weight of the result of the referendum); cf. Alliance of Auto Manufacturers v. Gwadosky, 430 F.3d 30, 39 (1st Cir. 2005) ("Where, as here, a party presents circumstantial evidence of an allegedly discriminatory purpose in support of a dormant Commerce Clause argument, it is that party's responsibility to show the relationship between the proffered evidence and the challenged

statute. See E. Ky. Res. v. Fiscal Court, 127 F.3d 532, 543 (6th Cir.1997). While statements by a law's private-sector proponents sometimes can shed light on its purpose, see, e.g., S.D. Farm Bureau v. Hazeltine, 340 F.3d 583, 594-95 (8th Cir. 2003), the correspondence of a single lobbyist has little (if any) probative value in demonstrating the objectives of the legislative body as a whole."). NDIDA disagrees. It argues that the purpose of SB 2289 would only be relevant, if at all, if the species of plaintiffs’ dormant Commerce Clause claim is that SB 2289 is discriminatory, either facially or in effect, with respect to interstate commerce or out-of-state interests. As NDIDA has correctly observed, the Eighth Circuit cases cited above are “discrimination” cases

and the dormant Commerce Clause claim made by plaintiffs is not one of discrimination but rather that SB 2289 creates an “undue burden” upon interstate commerce. For an “undue burden” dormant Commerce Clause claim, NDIDA argues SB 2289’s purpose is irrelevant. The undersigned is not so sure. The seminal case for the “undue burden” species of a dormant Commerce Clause claim is the Supreme Court’s decision in Pike v. Bruce Church, 397 U.S. 137 (1970) (“Pike”); see, e.g., Southern Union Co. v. Missouri Pub. Serv. Comm’n, 289 F.3d 505, 507–09 (8th Cir. 2002); Cotto Wax Co. v. Williams, 46 F.3d 790, 793–95 (8th Cir. 1995) (“Cotto Wax”). In a Pike type of case, a balancing test is employed to determine whether the Commerce Clause is violated. “Under the balancing test, a state statute violates the Commerce Clause only if the burdens it imposes on interstate commerce are ‘clearly excessive in relation to the putative local benefits.’” Cotto Wax, 46 F.3d at 793 (quoting Pike, 397 U.S. at 142). In arguing that SB 2289’s purpose is irrelevant in a Pike case, NDIDA cites only to Bens

Oehriens and Sons and Daughters, Inc. v. Hennepin County, 115 F.3d 1372 (8th Cir. 1997), which, upon close analysis, does not appear to say that. Further, plaintiffs ignore what the Supreme Court had to say in Pike itself. In Pike, the Supreme Court clearly appears to have considered the challenged law’s purpose. In relevant part, the Court stated: At the core of the Arizona Fruit and Vegetable Standardization Act are the requirements that fruits and vegetables shipped from Arizona meet certain standards of wholesomeness and quality, and that they be packed in standard containers in such a way that the outer layer or exposed portion of the pack does not ‘materially misrepresent’ the quality of the lot as a whole. The impetus for the Act was the fear that some growers were shipping inferior or deceptively packaged produce, with the result that the reputation of Arizona growers generally was being tarnished and their financial return concomitantly reduced. It was to prevent this that the Act was passed in 1929. The State has stipulated that its primary purpose is to promote and preserve the reputation of Arizona growers by prohibiting deceptive packaging. We are not, then, dealing here with ‘state legislation in the field of safety where the propriety of local regulation has long been recognized,' or with an Act designed to protect consumers in Arizona from contaminated or unfit goods. Its purpose and design are simply to protect and enhance the reputation of growers within the State. These are surely legitimate state interest. Sligh v. Kirkwood, 237 U.S. 52, 61, 35 S.Ct. 501, 503, 59 L.Ed. 835. * * * * Pike, 397 U.S. at 142–43 (footnotes omitted). Finally, it is difficult to treat NDIDA’s argument seriously when it and the State’s briefs addressing the merits of plaintiffs’ undue burden Commerce Clause claim are littered with references to SB 2289’s purpose. The following is but one example: Manufacturers’ dormant Commerce Clause claim again fails as a matter of law because they have failed to allege any facts showing cognizable burdens under the dormant Commerce Clause. Absent such material facts, their claim fails and there is nothing left to balance under the Pike standard. However, even if there exists some small recognizable burden, their claims fail because SB 2289 was enacted pursuant to North Dakota’s police power, and evenhandedly effectuates multiple broad symbiotic significant and legitimate public purposes, with only incidental and speculative effects on interstate commerce. (Doc. No. 119, p. 24). That being said, what is at issue now is what evidence is relevant to ascertaining SB 2289’s purpose. While NDIDA and the State have claimed that NDIDA’s role in drafting and promoting SB 2289 is irrelevant, they have not been consistent on that issue. Aside from NDIDA’s claim of relevancy in its motion to intervene, NDIDA and the State recently contended that the legislative testimony of NDIDA’s President and CEO is relevant for ascertaining SB 2289’s purpose, despite his being a lobbyist witness.7 (Doc. No. 154, pp. 15–16 & n. 2, 19, 29 & n. 15). In support, defendants in a footnote cited two cases and added parenthetical comments as to their significance as follows: See generally Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 221 (1979) (Court found the view of the National Association of Insurance Companies [NAIC] significant “because the Act was based in large part on the NAIC bill.”); * * * * Kohring v. Ballard, 325 P.3d 717, 725–27 (Or. 2014) (“In some cases, . . . it is appropriate to give greater weight to [non-legislator] legislative history, as when nonlegislators were the drafters of and principal proponents of a bill, and it is clear that the legislature relied on their explanation.”). (Doc. No. 154, pp. 15–16 & n. 2, 19, 29 & n. 15). Clearly, defendants are suggesting here that NDIDA’s role as drafter renders relevant the testimony of NDIDA’s President and CEO with 7 Granted, this was in a brief addressing plaintiffs’ Contract Clause claim, defendants have argued as already that SB 2289’s purpose as well as the legislative history (which includes Larsgaard’s testimony) remain relevant to plaintiffs’ dormant Commerce Clause claim.

respect to SB 2289’s purpose. And, if that is correct, it then begs the question of what exactly was NDIDA’s role as drafter. Notwithstanding all of this, however, the undersigned believes the Eighth Circuit would conclude that the role of NDIDA as the primary drafter of SB 2289 as well as what NDIDA has said about its purpose are simply too tenuous to be relevant regardless of the claim being

pursued. The undersigned reaches this conclusion based upon what the Eighth Circuit panel said about ascertaining legislative purpose generally and what it said about its ability to discern SB 2289’s purpose in this instance from its text alone.8 In view of this and the information that plaintiffs already possess as discussed in more detail below, the undersigned concludes that the prudent thing to do now to avoid the parties having to incur further costs and expenses for little or no practical gain (as well as for the court not to have to grapple with difficult First Amendment issues if there is an appeal) is simply to declare the prior order compelling discovery moot. C. The undersigned’s alternative rulings

Because the undersigned’s conclusion of mootness may be appealed, alternative rulings will be made with respect to what remains to be decided. These rulings will assume the Eighth 8 In so concluding, the undersigned acknowledges the matter is not without doubt—at least for part of the withheld documents. The panel decision did not mention NDIDA’s role in drafting SB 2289, one way or the other, and there may remain an argument that it is marginally relevant (even with respect to the Contract Clause claim) if for no other reason than for purposes of context. Further, as to the dormant Commere Clause claim, there remains: (1) what the Supreme Court had to say in Pike and what other courts have said about the purpose of the challenged legislation in that type of case; (2) the fact the Supreme Court and other courts have considered it noteworthy in other cases (albeit ones not involving the Commerce Clause) that the legislation at issue was drafted initially by a third party, as discussed in the foregoing excerpt from one of defendants’ briefs; and (3) the instances (some of which are noted in the undersigned’s prior order) in which the Supreme Court and other courts have considered the background of challenged legislation, including statements made outside of the legislative history as to the challenged law’s purpose, albeit for other kinds of constitutional challenges. Finally, in “undue burden” Commerce Clause cases, those defending the challenged law do not appear to be confined to its text in arguing either the existence or weight of the putative local benefits. See, e.g., Bens Oehriens and Sons and Daughters, Inc. v. Hennepin County, 115 F.3d 1372 (8th Cir. 1997); Cotto Wax, 46 F.3d at 794–95; see also Allstate Ins. Co. v. Abbott, 495 F.3d 151, 164 (5th Cir. 2007) (considering evidence that was presented to the state legislature).

Circuit’s decision has not rendered irrelevant all of what plaintiffs have sought by the motion to compel. First, however, it is necessary to consider what information plaintiffs already possess with respect to (1) NDIDA’s role in the drafting of and lobbying for SB 2289, and (2) what it has said about SB 2289’s purpose. Also, it is necessary to consider the applicability and scope of the First Amendment privilege claimed by NDIDA and its members.