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MOTION TO INTERVENE AND MODIFY THE PROTECTIVE ORDER

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CHARLES F. ROBINSON #113197

charles.robinson@ucop.edu

MARGARET L. WU #184167

margaret.wu@ucop.edu

JOHN GHERINI #220981

john.gherini@ucop.edu

University of California

Office of the General Counsel

1111 Franklin Street, 8th Floor

Oakland, CA 94607-5200

Telephone: 510-987-9800

Facsimile: 510-987-9757

Attorneys for Third-Party

THE REGENTS OF THE UNIVERSITY OF 

CALIFORNIA

FEE EXEMPT – GOV’T CODE § 6103

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CALIFORNIA PARENTS FOR THE 

EQUALIZATION OF EDUCATIONAL 

MATERIALS, et al.

Plaintiffs,

v.

TOM TORLAKSON, in his official 

capacity as State Superintendent of Public 

Instruction and Director of Education for 

the California Department of Education, 

et al.,

Defendants.

CASE NO. 17-CV-00635-CRB

THIRD PARTY THE REGENTS OF THE 

UNIVERSITY OF CALIFORNIA’S NOTICE 

OF MOTIONS AND MOTION TO 

INTERVENE AND MOTION TO MAINTAIN 

CONFIDENTIAL DESIGNATION AND TO 

AMEND PROTECTIVE ORDER

Date: August 16, 2018

Time: 11:00 a.m.

Courtroom: F

Judge: Honorable Jacqueline Corley

TO ALL PARTIES, THIRD PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on August 16, 2018 at 11:00 a.m. in Department F third 

party, The Regents of the University of California (“The Regents”), will and hereby does move 

this Court for an order allowing The Regents to intervene in this case for the purpose of arguing 

in favor of protecting the confidential designation of certain researcher emails and for an order 

modifying the protective order in the case to add more protection for private researcher emails.

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MOTION TO INTERVENE AND MODIFY THE PROTECTIVE ORDER

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The Regents first seek an Order under Federal Rule of Civil Procedure 24 allowing it to 

intervene in this matter for the sole purpose of arguing in favor of continuing the confidential 

designation of various researcher emails at issue, including, but not limited to, the private 

communications of University of California San Diego professor Kamala Visweswaran, which 

were produced by Jonathan Mark Kenoyer (“Kenoyer”) at the University of Wisconsin. The 

Regents bring this motion under both Rule 24(a) (intervention as a matter of right) as well as rule 

24(b) (permissive intervention). 

The Regents next seek to join in the motion filed by Kenoyer and seek an order that the 

private researcher communications at issue maintain their confidential designation on the ground 

these communications should be protected under the First Amendment and case law supporting 

the protection of academic freedom.

Finally, The Regents seek an order modifying the current protective order that applies to 

the private researcher communications at issue to increase the protection of these communications 

and build in safeguards that prevent any improper use of the communications.

These motions are based on this Notice of Motion and Motion, the Memorandum of 

Points and Authorities listed below, the Declarations of Kamala Visweswaran and John Gherini, 

filed herewith, and any other such documents or evidence in the case as determined by the Court.

Dated: July 5, 2018 OFFICE OF THE GENERAL COUNSEL

UNIVERSITY OF CALIFORNIA

By: ____________________________

John Gherini

Attorneys for Third-Party 

THE REGENTS OF THE UNIVERSITY 

OF CALIFORNIA

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TABLE OF CONTENTS

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TABLE OF CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES ................................................................. 1

I. Introduction........................................................................................................................... 1

II. Statement of Issues To Be Decided ...................................................................................... 2

III. Factual Background .............................................................................................................. 2

IV. Argument .............................................................................................................................. 6

A. The Regents of the University of California Should Be Permitted to Intervene in This 

Matter on Behalf of its Faculty To Protect Private Researcher Communications............ 6

1. The Regents qualify for intervention as a right under FRCP 24(a) ............................... 6

2. Even if the Court determines The Regents do not have a right to intervene, they should 

be permitted to intervene under FRCP 24(b)................................................................. 7

B. The Private Communications of Researchers Should Continue to be Protected Under a 

Protective Order, and the Current Protective Order Should be Modified to Provide 

Additional Protections for the Designated Communications............................................ 8

1. The Continued Confidential Designation of Private Researcher Communications Is 

Critical to Protect Academic Freedom........................................................................... 9

2. Any Balancing Weighs in Favor of Protection ............................................................ 11

C. The Regents Request Slight Modifications to the Protective Order to Add Necessary 

Protections For the Private Researcher Communications at Issue.................................. 14

V. Conclusion .......................................................................................................................... 15

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TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES

CASES

Alvarado v. City of San Jose, 94 F.3d 1223, 1232 (9th Cir. 1996)................................................. 14

Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992)....................................... 9

Brown v. Li, 308 F.3d 939, 951 (9th Cir. 2002)............................................................................ 11

Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996) ................................................................... 8

Cusumano v. Microsoft Corp., 162 F.3d 708, 710 (1st Cir. 1998 .................................................. 12

Dow Chemical v. Allen, 672 F.2d 1262 (7th Cir. 1982)........................................................... 11, 12

In re NCAA Student-Athlete Name & Likeness Licensing Lit., 2012 U.S. Dist. LEXIS 110824 

(N.D. Cal. 2012)......................................................................................................................... 13

Keyishian v. Board of Regents, 385 U.S. 589, 602 (1967.)........................................................... 10

McCreary v. ACLU of Kentucky, 545 U.S. 844, 862 (2005)........................................................ 15

Richards v. Pacific Gas and Electric Company, 71 F.R.D. 388, 390 (N.D. Cal. 1976)..... 13, 14, 15

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984).......... 10

Sierra Club v. United States EPA, 995 F.2d 1478, 1482 (9th Cir. 1993.......................................... 8

Southwest Ctr. For Biological Diversity v. Berg,268 F.3d 810, 818 (9th Cir. 2001)....................... 7

The Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978).......................... 8

United States v. C.B.S., 666 F.2d 364, 371-72 (9th Cir. 1982) ..................................................... 13

United States v. Zolin, 809 F.2d 1411, 1413 (9th Cir. 1987) .......................................................... 8

OTHER AUTHORITIES

University of California, Academic Personnel Manual, APM 010 (Rev. 2003)........................... 10

RULES

Federal Rule of Civil Procedure 24(a) ............................................................................................. 4

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MEMORANDUM OF POINTS AND AUTHORITIES

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MEMORANDUM OF POINTS AND AUTHORITIES

I. Introduction

Plaintiff has chosen to litigate the issue of the discoverability of private researcher 

communications through a “divide and conquer” strategy. Without notice to The Regents of the 

University of California (“The Regents”), plaintiff served subpoenas to several researchers, which 

ostensibly requested University of California, San Diego (“UCSD”) professor Kamala 

Visweswaran’s private communications. To this point the strategy has been successful as 

plaintiff convinced Professor Kenoyer, at the University of Wisconsin, to produce under a 

protective order several of Professor Visweswaran’s private communications. While those 

communications were designated as confidential, plaintiff has now sought to have the confidential 

designation removed and Professor Kenoyer has been forced to file a motion to maintain the 

confidentiality. Plaintiff’s Opposition to that motion wrongly asserts the subject email 

communications were political advocacy rather than scholarly and were not intended to be private

because they “showed no indication of confidentiality.” This could not be further from the truth.

As a result, The Regents seek to intervene in this matter for the sole purpose of protecting 

the private communications of researchers. The Regents also request the protective order be 

slightly modified to ensure that private communications of researchers are not used for an 

improper purpose, are restricted to “attorney’s eyes only” and that The Regents have the ability to 

enforce the protective order in the future to the extent there are any violations.

On April 18, 2018 plaintiff delivered a subpoena to the UCSD Department of Ethnic 

Studies addressed to professor Kamala Visweswaran. The subpoena requests production of her 

private communications with other researchers pertaining to the development of reports that were 

later submitted to the California Department of Education (“CDE”). (See Declaration of Kamala 

Visweswaran (“Visweswaran Decl.), ¶ 5.) On behalf of Professor Visweswaran, The Regents 

timely objected to the subpoena on the grounds the scope of the subpoena was unduly 

burdensome because it sought materials not relevant to the issues remaining in the case and on the 

grounds the subpoena sought the private communications of researchers that should be protected. 

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Professor Visweswaran is particularly concerned about the chilling effect on her scholarship, and 

that of other researchers, if their private communications are made public.

The threat to Professor Visweswaran’s academic freedom through the production of her 

private communications is significant. Professor Visweswaran focuses her research on the Hindu 

nationalist movement in India, and its relationship to Hindu nationalist groups in the United 

States. She, and many other scholars in the area of South Asian studies, have been subjected to 

campaigns of harassment and intimidation by Hindu nationalist groups in response to their 

research, scholarship and publications. She has already experienced the chilling effect these 

campaigns can have on her academic freedom because certain researchers have declined to 

collaborate with her out of fear they will become targets. Her private communications with 

researchers must be protected from disclosure to prevent any further erosion of her academic 

freedom.

II. Statement of Issues To Be Decided

1. Do The Regents have a right to intervene in this case under either Federal Rule of 

Civil Procedure 24(a) or 24(b) to protect the confidentiality of Professor 

Visweswaran’s private researcher communications;

2. Should the private communications of researchers, including but not limited to 

Professor Visweswaran, continue to be entitled to confidential designations in 

order to protect the researchers academic freedoms; and

3. Should the current protective order in this case be modified slightly to add 

additional protections against the misuse of private researcher communications?

III. Factual Background

Professor Visweswaran is an anthropology professor at UCSD. She was previously a 

Professor of Anthropology and South Asian Studies at the University of Texas. (Visweswaran 

Decl., ¶ 1.) Her research focuses on the Hindu nationalist movement (also known as the 

“Hindutva movement”) in India, Hindutva groups’ targeted killings of Indian minorities, and the 

relationship between Hindu nationalist groups in India and those in the United States. 

(Viswanathan Decl., ¶ 3.)

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MEMORANDUM OF POINTS AND AUTHORITIES

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On April 18, 2018 Professor Visweswaran received a subpoena from plaintiffs in this 

case. The subpoena sought all her communications with researchers pertaining to the preparation 

of two reports that were shared with the California Department of Education. (Viswanathan 

Decl., ¶ 4.) The subpoena also specifically requests her private communications with researcher 

Michael Witzel, with whom she co-authored an article about the Hindutva movement’s efforts to 

influence textbook content in India and the United States. In a separate lawsuit in 2007, the 

California Parents for the Equalization of Educational Materials (“CAPEEM”), which is the 

plaintiffs in this case, sought Professor Witzel’s private communications via subpoena and had its 

motion to compel those communications denied by the Massachusetts District Court. In 2008, the 

denial was upheld on appeal by the First Circuit. (See Declaration of John Gherini (“Gherini 

Decl.”), ¶ 3, Opinion of the First Circuit attached thereto as Exhibit A.)

On May 1, 2018 The Regents timely served an objection to the subpoena to Professor 

Visweswaran. The objection made clear that The Regents sought to protect the private 

communications of its researchers. (Gherini Decl., ¶ 4, Objection attached thereto as Exhibit B.) 

Upon learning that Professor Kenoyer and the University of Wisconsin had produced private 

researcher communications, albeit under a protective order, counsel for The Regents attempted to 

meet and confer with counsel for plaintiff on proper steps to give all third parties a chance to be 

heard on the issue. Plaintiff’s counsel denied that request. (Gherini Decl., ¶ 5.) Then with full 

knowledge of The Regents’ interest in protecting these communications, plaintiff challenged the 

confidential designation of the communications, which prompted The Regents to attempt to 

intervene in this proceeding.

Because of her area of research and her scholarly activities, Professor Visweswaran is 

acutely aware of the threat to her academic freedom that Hindu nationalist groups can pose. 

United States based Hindu nationalists have launched a series of campaigns to intimidate and 

harass Sanskritists and scholars of Hinduism in the United States. Those or similar groups have 

charged textbook publishers with bias against Hinduism. (Visweswaran Decl., ¶6.) The 

campaigns have included the use of aggressive tactics with the apparent attempt to harass and 

intimidate American South Asian scholars, which have included threats, throwing eggs at 

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MEMORANDUM OF POINTS AND AUTHORITIES

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researchers, sending communications to Universities asking for removal of the faculty members 

and the filing of lawsuits against publishers of the researcher’s books. (Visweswaran, ¶ 7.)

Professor Visweswaran initially became involved with the California process for review 

of the public school curriculum in 2005. She assisted with compiling testimony that was 

submitted to the CDE with the goal of providing a scholarly assessment of textbook content based 

on the then current consensus and understanding of the issues from the perspective of South 

Asian studies. (Visweswaran Decl.,¶ 8.) As a result of her role in that 2005-2006 process, 

Professor Visweswaran was subjected to harassing communications from Hindu nationalists. 

(Visweswaran Decl., ¶ 9.)

In 2015 members of the community alerted faculty to certain group’s attempts to alter the 

factual basis for the California framework curriculum. In response, in 2016, Professor 

Visweswaran again became involved with an ad hoc committee of researchers and scholars to 

provide testimony to the California Board of Education. Contrary to CAPEEM’s Opposition, the 

ad hoc committee was not created at request of the CDE or it member Tom Adams. The ad hoc 

committee was comprised of faculty from the South Asia studies programs at major California 

universities as well as researchers from universities outside California. The goal was to create a 

well-balanced committee of scholars from a wide range of disciplines who conduct research for

public and private universities. (Viswanathan Decl., ¶ 12.) Based on her involvement with the 

committee, Professor Visweswaran became aware that some researchers withdrew from the 

committee because they were concerned about harassment and retaliation from Hindu nationalist 

groups to the extent their involvement became public. Other researchers declined to participate at 

all because they had previously faced harassment. The threat to these researchers is real. Once 

the committee’s recommendations became public, there was a virulent campaign against one of 

the contributors. (Visweswaran Decl., ¶ 13.) In addition, the researchers that provided live 

testimony in Sacramento were spat on, and subjected to verbal harassment. (Visweswaran Decl., 

¶ 19.) The concern is that many others would face harassment and intimidation if their 

communications on the subject, that they sent with the expectation the communications would be 

private, were produced without restriction.

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MEMORANDUM OF POINTS AND AUTHORITIES

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The ad hoc committee reviewed hundreds of pages of the framework curriculum. 

Hundreds of emails were exchanged between committee members evaluating the curriculum and 

debating each other’s opinions and contributions as well as generating several drafts of the reports 

that were ultimately provided to CDE. (Visweswaran Decl., ¶ 15-16.)

Professor Visweswaran is seriously concerned about the production of her private 

communications and the effect that would have on her areas of research becoming. The 

communications she had with other researchers were conducted with an expectation of privacy 

considering the prior attacks on scholars in this area of study. (Vesweswaran Decl., ¶ 15.) Her 

concern is that if these documents are made public, researchers will be afraid to weigh in on 

important public issues (like the development of curriculum for California public schools) and 

there would be a chilling effect on scholar’s ability to continue researching in this area of study. 

(Visweswarn Decl., ¶ 20.)

While the motive for CAPEEM’s request to remove the confidential designation in this 

case is unclear, it is worth noting that CAPEEM posts material on its website from their cases for 

promotional purposes. In fact, CAPEEM currently has posted private emails of Professor Witzel 

under the headings “Harvard Professor and CDE expert colludes with evangelical group and 

deletes references to their nature on Wikipedia.” (Gherini Decl., ¶6.)

The Regents attempted to meet and confer with counsel for CAPEEM on these issues. 

Plaintiff’s counsel indicated that in the absence of a confidentiality agreement between the ad hoc 

committee members, CAPEEM would not agree to allow The Regents to intervene. He also 

indicated CAPEEM would oppose any request to alter the language of the protective order 

because The Regents and Professor Visweswaran have not demonstrated a “legal interest” in the 

subject matter of the protective order. Also, as indicated in the meet and confer email, counsel 

for The Regents is unavailable on August 16 and plaintiff’s counsel denied a request to continue 

the hearing date by one week. As a result, The Regents will likely need to file a motion to 

continue the hearing date for this motion. (Gherini Decl., ¶7.)

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MEMORANDUM OF POINTS AND AUTHORITIES

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IV. Argument

A. The Regents of the University of California Should Be Permitted to Intervene 

in This Matter on Behalf of its Faculty To Protect Private Researcher Communications

Federal Rule of Civil Procedure 24, contemplates that a third party can intervene in an 

action to protect its interests either as a matter of right, or with the permission of the Court. The 

Ninth Circuit has stated Rule 24 should be interpreted liberally in favor of potential intervenors 

and that these broad considerations should be guided by practical, rather than technical 

distinctions. (Southwest Ctr. For Biological Diversity v. Berg,268 F.3d 810, 818 (9th Cir. 2001).) 

Here, The Regents seek to intervene in this action, on behalf of Professor Visweswaran, both as a 

matter or right, and in the alternative permissively, for the sole purpose of protecting private 

researcher communications that plaintiff in this matter wants to make public.

1. The Regents qualify for intervention as a right under FRCP 24(a)

On timely motion, FRCP 24(a) permits third party intervention as a right when a third 

party “claims an interest relating to the property or transaction which is the subject of the action 

and the applicant is so situated that the disposition of the action may as a practical matter impair 

or impede the applicant's ability to protect that interest, unless the applicant's interest is 

adequately represented by existing parties.” (FRCP 24(a)(2).) The Ninth Circuit applies the 

following four part test to determine whether a party has a right to intervene. 

(1) the application for intervention must be timely; (2) the applicant 

must have a "significantly protectable" interest relating to the 

property or transaction that is the subject of the action; (3) the 

applicant must be so situated that the disposition of the action may, 

as a practical matter, impair or impede the applicant's ability to 

protect that interest; and (4) the applicant's interest must not be 

adequately represented by the existing parties in the lawsuit.

(Sw. Ctr. For Biological Diversity, 268 F.3d at 817.) The Regents meet all four requirements.

In terms of timeliness, the Ninth Circuit looks to the stage of the proceedings, whether 

there is any prejudice to the parties and the reason for any delay. (See Council v. Glickman, 82 

F.3d 825, 836 (9th Cir. 1996).) Here, there was no delay because The Regents started preparation 

of, and filed this motion, as soon as it became aware that plaintiff was challenging the 

confidential designation of private researcher communications, including the communications of 

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MEMORANDUM OF POINTS AND AUTHORITIES

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Professor Visweswaran. There is also no prejudice to plaintiff because there is more than 

adequate notice and time for plaintiff to respond to this motion before the selected hearing date.

The Regents also have a significantly protectable interest in the matter. The plaintiff 

seeks to make public, and to use for any purpose, the private email communications of a UCSD 

faculty member. The plaintiff also contends erroneously that the emails were not sent with any 

expectation of privacy. The Regents must now intervene to protect the privacy of those emails. 

Courts have found such an interest supports intervention when a third party needs to prevent 

production of a document. (See Sierra Club v. United States EPA, 995 F.2d 1478, 1482 (9th Cir. 

1993); United States v. Zolin, 809 F.2d 1411, 1413 (9th Cir. 1987).) As set forth more fully 

below, Courts have recognized the need to protect the academic freedom of researchers because 

academic freedom is a “special concern of the First Amendment.” (The Regents of the University 

of California v. Bakke, 438 U.S. 265, 312 (1978).

As a third party, neither Professor Visweswaran, nor The Regents, are in a position to 

protect the disclosure of private researcher communications without intervening in this action. 

While The Regents interests may be aligned with the Professor Kenoyer and the University of 

Wisconsin in seeking to maintain the confidentiality of these communications, The Regents 

interests have not been fully represented. First, Professor Visweswaran’s perspective is more 

relevant to the issue as all the communications that plaintiff wants de-designated are her private 

communications. She also is particularly suited to respond to plaintiff’s claims that her email 

communications were not scholarly and were not sent with an expectation of privacy. Second, as 

indicated in Kenoyer’s brief to maintain the confidentiality, in deciding to produce these 

communications in the first place, the University of Wisconsin applied a Wisconsin public 

records act analysis, not one based on California law. As a result, The Regents must intervene to 

ensure Professor Visweswaran’s testimony and The Regent’s position on the discoverability of 

private researchers’ communications is considered by the Court.

2. Even if the Court determines The Regents do not have a right to 

intervene, they should be permitted to intervene under FRCP 24(b)

FRCP Rule 24(b) provides the Court with discretion to permit intervention by a third party 

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upon timely motion when that party “has a claim or defense that shares with the main action a 

common question of law or fact.” Permissive intervention generally requires three things: "(1) an 

independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and 

fact between the movant's claim or defense and the main action." (Beckman Indus., Inc. v. Int'l 

Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992). The jurisdictional requirement is not an issue in 

federal question cases like the case at issue. (See id.) The timeliness issue should not be a 

concern here for the reasons set forth above, nor should common questions of law and fact. A 

motion for permissive intervention has long been recognized as the proper vehicle for a third 

party to challenge or modify a protective order. (See Beckman industries, Inc. v. International 

Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992)). That is essentially what The Regents seek to do here 

through this motion. To join in the motion to maintain the confidentiality of private researcher 

communications to prevent those communications from becoming available to the public, and to 

slightly modify the subject protective order to add additional protections to ensure the private 

communications of researchers will be protected. 

The issue is particularly important to Professor Viswanathan who has been subjected to 

harassment for her research in the past and due to her knowledge regarding the various campaigns 

that have been waged against other researchers in her area of study.

B. The Private Communications of Researchers Should Continue to be Protected 

Under a Protective Order, and the Current Protective Order Should be Modified to Provide 

Additional Protections for the Designated Communications

Federal Rule of Civil Procedure 26(c) provides that "[t]he court may, for good cause, issue 

an order to protect a party or person from annoyance, embarrassment, oppression, or undue 

burden or expense, including . . . requiring that a trade secret or other confidential research, 

development, or commercial information not be revealed or be revealed only in a specified way."

(emphasis added.) The district court has "broad discretion . . . to decide when a protective order 

is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart, 467 

U.S. 20, 36, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984). For the reasons set forth below, good cause 

exists to maintain the confidential designation of the subject private researcher communications.

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1. The Continued Confidential Designation of Private Researcher 

Communications Is Critical to Protect Academic Freedom 

The Regents have long recognized the importance of protecting the academic 

freedoms of its faculty, researchers and students:

The University of California is committed to upholding and 

preserving principles of academic freedom. These principles reflect 

the University’s fundamental mission, which is to discover 

knowledge and to disseminate it to its students and to society at 

large. The principles of academic freedom protect freedom of 

inquiry and research, freedom of teaching, and freedom of 

expression and publication. These freedoms enable the University 

to advance knowledge and to transmit it effectively to its students 

and to the public.

(University of California, Academic Personnel Manual, APM 010 (Rev. 2003).)1 Courts from 

around the country have agreed that academic freedom should be protected. “Our Nation is 

deeply committed to safeguarding academic freedom, which is of transcendent value to all of us 

and not merely to the teachers concerned. That freedom is therefore a special concern of the First 

Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” 

(Keyishian v. Board of Regents, 385 U.S. 589, 602 (1967.)) The Court cautioned that “[t]he 

essentiality of freedom in the community of American universities is almost self-evident.... To 

impose any strait jacket upon the intellectual leaders in our colleges and universities would 

imperil the future of our Nation.” (Id.) The Ninth Circuit has also recognized the importance of 

protecting academic freedom of university professors and has acknowledged the need to protect 

the “uninhibited exchange of ideas among teachers.” (Brown v. Li, 308 F.3d 939, 951 (9th Cir. 

2002).

The uninhibited exchange of ideas, the freedom of inquiry, the freedom of research and 

the freedom of expression are all threatened by the plaintiff’s attempts in this case to remove the 

confidential designation from private researcher communications. In order for these freedoms to 

be protected, researchers must be free to communicate with each other pertaining to their views 

on controversial topics and to provide drafts and comments on other researcher’s work without 

fear of reprisal. These concerns are not hypotheticals. Professor Visweswaran has explained in 

 

1

https://www.ucop.edu/academic-personnel-programs/_files/apm/apm-010.pdf

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detail the harassment she has experienced in the past, the harassment and intimidation that she is 

aware other South Asian scholars have been subjected too, and the effects of campaigns of 

harassment on some researcher’s lack of willingness to participate in controversial projects.

Many courts have agreed that subpoenas to third parties can pose a risk to academic 

freedom. Those courts have quashed subpoenas that sought information similar to the 

communications at issue here. In Dow Chemical (Dow Chemical v. Allen, 672 F.2d 1262 (7th

Cir. 1982)), the court protected notes, reports, working papers and other materials related to 

academic studies that were still in progress over fear that allowing those materials to be disclosed 

could have a chilling effect on the researcher’s ability to conduct their work. Here, several of the 

private emails at issue discuss draft reports and debate changes proposed thereto. The freedom to 

have a private debate among researchers on a controversial topic is precisely the type of 

communication that needs protection. According to Professor Visweswaran, the purpose of the 

ad hoc committee of researchers was to develop a report that defined the scholarly consensus on 

the matters at issue. That required a robust debate amongst researchers because the committee 

was made up of a diverse group of researchers with expertise in different areas of study and 

differing views. 

Plaintiff’s attempt to distinguish the Dow Chemical case on the grounds that the subject 

communications did not reflect a collection of “original source material” misses the point. The 

emails clearly depict an effort by many researchers to collect varying viewpoints from each other 

to inform the committee on each of the issues. At several points, Professor Visweswaran solicits 

varying viewpoints from committee members. Each committee member was acting as the 

provider of “source material” for the committee as a whole. As Professor Visweswaran states, if 

there was a belief that their communications were to become public, committee members would 

have been much less inclined to be candid and, in some cases, would have been disinclined to 

participate at all. This is precisely the chilling effect that the Dow Chemical court was mindful of 

and sought to avoid. 

In Cusumano v. Microsoft Corp., 162 F.3d 708, 710 (1st Cir. 1998, the court prevented 

Microsoft from accessing researcher’s communications pertaining to their research because like 

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journalists, researcher’s sources need to be protected so that they continue to be inclined to 

confide in and provide information to the researcher. The same can be said of the private 

communications at issue here. The expectation of privacy among the researchers encouraged a 

frank discussion on the issues that informed the committee, which may not have been possible if 

participating researchers believed their communications would become publicly available.2 Just 

as with Dow Chemical, plaintiff again attempts to distinguish this case by arguing the private 

communications at issue “show no original research being conducted” and even suggests there 

was no expectation of privacy amongst the researchers. As Professor Visweswaran lays out in 

her declaration, this could not be farther from the truth. The research here was the collection of 

various viewpoints from different researchers and the scholarly debate that transpired regarding 

the issues discussed. Professor Visweswaran was very much acting like a journalist by collecting 

facts and opinions from a diverse group of experts and then synthesizing that information into a 

report. Her declaration also makes clear that the communications were absolutely intended to be 

private and were not intended to be shared outside the group. The members of the committee 

were well aware of the campaigns of harassment that had been perpetrated by Hindu nationalists

in response to the very thing the committee had tasked itself with doing. Professor Visweswaran 

was even aware of researchers that declined to participate over fear of retaliation. If the emails 

show anything, it is how candid the committee was with a discussion of the issues and the 

expressed concern over how the reports would be perceived by Hindu nationalists. This candor

was based on the belief that the communications were private.

2. Any Balancing Weighs in Favor of Protection

In considering whether to allow confidential documents to be declassified it is worth 

noting at the outset that "the Ninth Circuit has long held that nonparties subject to discovery 

requests deserve extra protection from the courts." (In re NCAA Student-Athlete Name & 

Likeness Licensing Lit., 2012 U.S. Dist. LEXIS 110824 (N.D. Cal. 2012)). The Ninth Circuit has 

explained that "[n]onparty witnesses are powerless to control the scope of litigation and 

discovery, and should not be forced to subsidize an unreasonable share of the costs of litigation to 

 

2

See also Humane Society v. Superior Court.

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which they are not a party...." (United States v. C.B.S., 666 F.2d 364, 371-72 (9th Cir. 1982).) 

It is within this context that plaintiff seeks unfettered access to the private 

communications of researchers. Plaintiff’s opposition to the University of Wisconsin’s motion is 

more notable for what it does not say then what it does. Nowhere in the brief is there a citation to 

case law supporting plaintiff’s position that researcher communications are “not scholarly” and 

not entitled to protection simply because the subject matter has a political component to it or, 

more specifically, concerns the preparation of a report that is provided to a governmental entity. 

Perhaps more importantly, the brief is silent on why plaintiff believes the communications at 

issue should be de-classified at all and there is no stated purpose for the declassifying the emails.

Plaintiff’s brief begins with a citation to Richards v. Pacific Gas and Electric Company for 

the proposition that the public is entitled to every person’s evidence. However, what plaintiff’s 

brief does not cite is the next paragraph of that opinion which clarifies that “[t[he private litigant 

and the public have a strong interest in the fair and efficient resolution of civil disputes in courts 

of law. On the other hand, society has a profound interest in the research of its scholars, work 

which has the unique potential to facilitate change through knowledge.” (Richards v. Pacific Gas 

and Electric Company, 71 F.R.D. 388, 390 (N.D. Cal. 1976).) In Richards, this court went on to 

say “[c]ompelled disclosure of confidential information would without question severely stifle 

research into questions of public policy, the very subjects in which the public interest is greatest.”

The Richards case is instructive on the need to protect academic research. In that case, 

Richards sued PG&E for breach of contract alleging it was owed payment on the design and 

construction of cooling towers. During discovery, plaintiff subpoenaed a third party Harvard 

professor who had conducted research that included interviewing PG&E employees. He withheld 

from production the identity of the employees and what they said. Like the Court in Cusomano, 

the Richards court analogized the need to protect academic research with the need to protect 

journalists. It defined some factors to determine if protecting the information is justified which 

included looking at: “the nature of the proceeding, whether the deponent is a party, whether the 

information sought is available from other sources, and whether the information sought goes to 

the heart of the claim.” (Richards, 71 F.R.D. at 390.) In Richards the court recognized it was a 

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civil matter and the professor was a third party which favored protecting the materials. (Id.) The 

Court also thought it was important that the research was not conducted with an eye towards 

litigation and had its independent purpose. (Id.) Finally, and most importantly for this analysis, 

the Court found the information largely supplementary. (Id.)

Just as in Richards, here we have a civil matter where the academic research materials are 

sought from third parties. Just as in Richards, the subject documents were created for the 

independent purpose of preparing a report for the CDE. Which is to say, the communications 

were not done with an eye toward this litigation. Most importantly, the communications sought 

here appear to not only be supplementary, but appear to be irrelevant to the matters at issue in the 

case. 

There should be no dispute that following the State’s Motion to Dismiss, the only claim 

remaining at issue in the case is under the “primary effect” prong of the Establishment Clause. 

That claim requires an analysis of whether a hypothetical reasonable observer in the community 

would conclude that the California state curriculum disfavors Hinduism in some way. (See

Alvarado v. City of San Jose, 94 F.3d 1223, 1232 (9th Cir. 1996).) A hypothetical reasonable 

observer would have no occasion to review the private communications of researchers, like those 

of Professor Visweswaran, exchanged during the development phase of a report. As a result,

those communications are irrelevant to this case. Nor would that hypothetical reasonable person 

be privy to various drafts of a report, even if the final version of that report becomes a public 

document. Plaintiff’s opposition brief pays short shrift to this issue and dismisses it with a 

citation to McCreary County v. ACLU, which plaintiff claims supports a broad reach of discovery 

because “historical context” and the “specific sequence of events” leading up to a government 

action sould be considered. (See McCreary v. ACLU of Kentucky, 545 U.S. 844, 862 (2005).) 

Plaintiff misreads and misinterprets the McCreary case. While the Court uses the terms cited by 

plaintiff, the Court clearly states that the scope of understanding of an objective observer would 

include the current text or government action, as well as the community’s objective memory of 

events including recollection of “the ‘text, legislative history, and implementation of the statute,’ 

or comparable official act.” (See id.) Clearly, McCreary does not expand the knowledge of an 

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objective observer to private communications that others had and things outside the public record, 

but merely allows the inquiry to include the history of what has publicly transpired. As a result, 

private communications of researchers that were never incorporated into the public record are 

irrelevant to the remaining issues in the case.

For these reasons, just as in Richards v. PG&E the factors here clearly weigh in favor of 

protecting the researcher communications.

C. The Regents Request Slight Modifications to the Protective Order to Add 

Necessary Protections For the Private Researcher Communications at Issue

The protective order at issue in this case primarily includes language from the Northern 

District of California approved form protective order, with some slight modifications requested 

by the parties. Section 9(a) of the order indicates the order applies to documents produced by a 

non-party. That section also contemplates that “[n]othing in these provisions should be construed 

as prohibiting a Non-Party from seeking additional protections.” For the reasons set forth herein, 

The Regents as a Non-Party seek the following modifications to the protective order.

Professor Visweswaran described the history and significance of the propagation of 

campaigns of harassment and intimidation perpetrated by Hindu nationalists in the United States 

against certain scholars of South Asian studies. She discussed the impact those campaigns have 

had on her own scholarship and experiences. As a result, the evidence supports protecting her 

private communications. Of particular concern is the fact CAPEEM has posted promotional 

material on its website, including the private communications of other researchers. It uses 

derogatory language on the website links to those communications like “Harvard Professor and 

CDE expert colludes with evangelical group and deletes references to their nature on Wikipedia.” 

The concern would be that Professor Visweswaran’s emails would be improperly posted on the 

website and used for promotional purposes or to encourage further harassment of her or others. 

For these reasons, The Regents request the following modifications:

 Paragraph 7.2(b): DELETE in its entirety. This section allows confidential 

materials to be viewed by the parties, its officers, directors and employees. 

Because of the history of harassment and intimidation, there is heightened concern 

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regarding the misuse of materials designated as confidential. As a result, The 

Regents request disclosure of private researcher communications be limited to 

“attorneys eyes only.” Not only has plaintiff not articulated any reason why there 

is a need to de-designate these communications, but there is no reason why the 

client needs to review the emails. Especially considering the limited relevance any 

emails have to the remaining issues in the case.

 Paragraph 10: ADD The Regents as an entity that will be notified if there is an 

unauthorized disclosure or use of the documents.

 Paragraph 13: ADD The Regents as an entity that will be notified of the 

destruction of the documents following conclusion of the lawsuit.

V. Conclusion

For the reasons set forth herein, The Regents the Court allow it to intervene in this matter 

for the purpose of joining the motion to maintain the classification of emails as confidential and 

to modify the terms of the protective order to add additional protections to ensure that the private 

researcher communications that have previously been produced will not be misused.

Dated: July 5, 2018 OFFICE OF THE GENERAL COUNSEL

UNIVERSITY OF CALIFORNIA

By: ____________________________

John Gherini

Attorneys for Third-Party 

THE REGENTS OF THE UNIVERSITY 

OF CALIFORNIA

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