The discovery stage of national security litigation rarely attracts much interest, at least where it does not involve an invocation of “state secrets” by the federal government. But in the case of Raza v. City of New York, it should. The ACLU lawsuit, filed a year ago in the Eastern District of New York, challenges the NYPD’s pervasive mapping, surveillance, and investigation of Muslim communities, which the plaintiffs argue have significantly harmed their ability to practice their faith and express their views. For over six months now, the NYPD has pursued discovery tactics that seem expressly designed to deter plaintiffs – indeed, anyone who objects to surveillance of political or religious activities – from maintaining suit. If settlement talks apparently underway do not pan out, the court’s resolution of these issues could significantly affect the practical availability of judicial review.

Raza is one of three federal lawsuits contesting the police department’s broad surveillance of Muslim communities. In April, the NYPD announced that it was disbanding the Zone Assessment Unit, the unit that sent undercover officers to hang out in Muslim neighborhoods and map out where Muslims lived, prayed, and shopped. But the NYPD hasn’t turned the page on other controversial tactics, including the widespread planting of undercover informants throughout Muslim communities.

In Raza, a group of New York religious and community leaders, a charity, and mosques allege they were subject to surveillance by NYPD officers and informants without suspicion and on account of their Muslim faith. They challenge that surveillance as violations of equal protection, free exercise of religion, and the Establishment Clause, arguing that it imposed “an unwarranted badge of suspicion and stigma” and suppressed attendance at houses of worship, interfered with their ability to raise funds for charity, and otherwise disrupted their lawful social and religious relationships.

In response, the NYPD served plaintiffs with sweeping discovery requests into their associations and speech (see here and here for the relevant briefs). Through either interrogatories or document requests, the NYPD seeks the names of all members, donors, or attendees of a charity’s events; the name of every congregant intimidated by NYPD surveillance at a mosque; and all of plaintiffs’ communications concerning “terrorism,” “jihad,” “the war in Afghanistan,” or “current events.” Forcing plaintiffs to identify individuals fearful of government surveillance or disclose years of core religious and political speech would plainly subject them, and their members, to the very chilling effects that the lawsuit seeks to alleviate. The discovery requests here call to mind employers’ attempts to discover the immigration status of workers challenging unfair employment practices, which courts have rejected as crippling immigrants’ ability to bring civil rights claims.

Could there be any plausible legal justification for these wide-ranging requests? The NYPD offers two main reasons in support of the disputed discovery. First, it claims that plaintiffs allege injury to their reputations, and that it is therefore entitled to probe whether other factors, apart from surveillance, affected their reputations, such as plaintiffs’ rhetoric or associations with suspected terrorists. Second, the department argues that it is entitled to information corroborating facts in the NYPD intelligence files that supplied the basis for its investigations.

The ordinary legal standard for discovery is simply whether material is “relevant to a party’s claims or defenses.” Despite that low bar, a party’s entitlement to information is qualified both by the rule that the burden of discovery should not outweigh its likely benefit and by the First Amendment privilege. Where a litigant shows that information sought would encroach on protected speech or associational rights, the party seeking discovery must demonstrate a “compelling need.” The Supreme Court recognized that heightened showing in NAACP v. Alabama, the landmark freedom of association decision in which it rejected compelled disclosure of the NAACP’s membership lists.

Here, the NYPD has hardly shown a compelling need for much of the information requested, and in some cases barely establishes its relevance. Its purported justifications fall short. First, it misrepresents the legal need for the plaintiffs even to establish reputational injury: the plaintiffs do not actually need to prove such injuries to demonstrate standing or establish their constitutional claims, which rest instead on the stigma imposed by a discriminatory policy applied directly to them. (The plaintiffs’ religious discrimination claims are distinct from a claim that the existence of an otherwise lawful surveillance program chilled their speech, which the Supreme Court long ago held insufficient for legal standing). In addition, even if reputational injuries were relevant, it would hardly excuse such a broad search for anything derogatory in plaintiffs’ private speech or associations that could theoretically affect their reputations.

Second, the lawfulness of the surveillance in question will turn on the information that the NYPD had at the time it decided to investigate these plaintiffs, not on information it might subsequently obtain. Thus, its search for “corroborative” information is beside the point. Legality depends not on the veracity of the facts in the NYPD’s possession at the time it initiated surveillance, but on whether those facts – rather than the plaintiffs’ religion – reasonably led it to scrutinize plaintiffs. The department is entitled to argue at trial that it investigated plaintiffs because it had reason to suspect them of terrorist activities, but not to use discovery to prop up a legitimate law enforcement purpose after the fact.

The NYPD’s sweeping discovery requests hardly seem to be a good faith attempt to obtain information reasonably necessary to defend the lawsuit. Rather, they come across as a deliberate attempt to deter individuals from asserting their rights in court. There’s a name for this, when it happens in reverse – “graymail.” That’s what the government calls it when criminal defense lawyers gratuitously insist on the disclosure of sensitive national security information to compel the prosecution to drop a case.   Here, the NYPD is telling plaintiffs: you can assert your legal rights only at the price of giving them up. That tactic should concern anyone, even those with differing views as to the merits of the suit.