1

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

______________________________________________________________________________

 

 

CONSUMER FINANCIAL PROTECTION Civil Action No. 1:20-cv-04176 

BUREAU, 

Plaintiff, Judge Franklin U. Valderrama 

v. Magistrate Judge Gabriel A. Fuentes

 

 

TOWNSTONE FINANCIAL, INC., et al., 

Defendants. 

_____________________________________________________________________________ 

 

DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL

CFPB’s motion to compel is not made on a blank slate. It comes after a three-year 

investigation in which Townstone produced over 100 GB of information, answered detailed 

interrogatories, and produced Mr. Sturner for a sworn interview. As part of the investigation, 

Townstone searched emails and other documents for a long list of derogatory terms provided by 

CFPB. These searches revealed nothing that CFBP relied on in its complaint, amended complaint,

or in the instant motion. As part of this lawsuit, CFPB has made identical requests to Townstone 

and Mr. Sturner for documents “discussing, disparaging, or generalizing particular groups or 

communities.” CFPB Mot. to Compel [Dkt. No. 87] at 6.1 Despite having a number of objections 

to all of the requests, Defendants have agreed to produce documents responsive to the requests to 

Townstone and business documents responsive to the requests to Mr. Sturner. 

What Defendants oppose, however, is producing Mr. Sturner’s personal communications. 

This is hardly an unreasonable objection. Among other things, this case concerns Townstone’s 

statements to prospective applicants, not Mr. Sturner’s personal affairs or conversations with 

friends and family. But even if CFPB’s requests sought relevant information, they are absurdly 

1 Compare CFPB Doc Requests Nos. 1-3 to Townstone to CFPB Requests Nos. 1-3 to Mr. Sturner.

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overbroad, as they would cover virtually any comment about any neighborhood or geographic area 

and any discussion of issues such as race, religion, gender, sex, and national origin, as it is virtually

impossible to discuss any of these issues without using generalizations. Finally, CFPB’s requests 

threaten the privacy and First Amendment rights of Mr. Sturner and any of the friends, 

acquaintances, or family members who happened to have had a discussion with him about issues 

such as crime in Chicago, race relations in America generally, gay marriage, the #MeToo 

movement, or immigration, to name just a few. This Court should deny CFPB’s motion to compel. 

ARGUMENT

While it is true that relevance for discovery purposes is broad, after the 2015 amendments 

to Rule 26, relevancy is “now gauged in relation to claims or defenses in the action.” Coleman v. 

State of Illinois, No. 19 C 3789, 2020 WL 5752149, at *3 (N.D. Ill. Sept. 25, 2020). As a 

consequence, whether information is relevant will turn on the facts and claims in a given case. Id. 

at *5. And the party seeking discovery has the burden of showing that it is relevant. Contreras v. 

Ill. State Bd. of Elections, No. 21-CV-3139, 2021 WL 7708965, at *3 (N.D. Ill. Aug. 20, 2021). 

Discoverable information must also be “proportional to the needs of the case, considering the 

importance of the issues at stake in the action, the amount in controversy, the parties’ relative 

access to relevant information, the parties’ resources, the importance of the discovery in resolving 

the issues, and whether the burden or expense of the proposed discovery outweighs its likely 

benefit.” Fed. R. Civ. P. 26(b)(1). Proportionality turns not only on financial burdens, but also on 

whether production would impact policy considerations or the exercise of rights such as privacy 

and freedom of speech. See, e.g., Washtenaw Cty. Employees’ Retirement Sys. v. Walgreen Co., 

No. 15 C 3187, 2019 WL 6108220, at *5-*6 (N.D. Ill. Nov. 15, 2019); Henson v. Turn, Inc., No. 

15-cv-01497-JSW (LB), 2018 WL 5281629, at *5 (N.D. Cal. Oct. 22, 2018) (“[P]rivacy interests 

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can be a consideration in evaluating proportionality, particularly in the context of a request to 

inspect personal electronic devices.”).

CFPB cannot meet this standard for three reasons. First, Mr. Sturner’s private 

conversations simply cannot be relevant to whether Townstone’s public statements “would 

discourage” a reasonable person from seeking credit. Regulation B pertains to statements made to 

applicants or prospective applicants, not anything CFPB might imagine to be discouraging to 

someone. And private conversations between Mr. Sturner and his friends and family cannot affect 

whether Townstone’s on-air statements “would discourage” anyone from seeking credit. Second, 

CFPB’s requests are wildly overbroad. CFPB obtained a giant amount of information from 

Townstone during its investigation and is getting more as part of this lawsuit. Mr. Sturner has tens 

of thousands of text messages during the relevant time period and, given the breadth of CFPB’s 

requests, searching them will be burdensome and costly. As a result, CFPB’s request is not 

proportional to the needs of the case. Finally, and independently, compelling production of Mr. 

Sturner’s private conversations would violate the First Amendment.

I. Mr. Sturner’s Personal Communications are not Relevant.

This case is about alleged discouragement under Regulation B. CFPB does not allege that 

Townstone violated ECOA by discriminating against applicants. It alleges that Townstone violated 

Regulation B by making statements on its radio show that allegedly “would discourage” reasonable 

people from seeking credit on the basis of race. See Am. Cmplt. ¶ 22. As CFPB made clear in its 

opposition to Townstone’s motion to dismiss, Regulation B “is the basis for the Bureau’s claims 

against Townstone.” CFBP Opp. to Mot. to Dismiss [Dkt. No. 35] at 4.

Regulation B applies only to statements, and, in particular, “oral or written statements” 

made to “applicants or prospective applicants.” 12 C.F.R. § 1002.4(b). Thus, by its terms, 

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Regulation B does not apply to conduct, acts, or practices, and it certainly does not apply to the 

alleged failure to take any actions. While CFPB often implies otherwise,2 the regulation’s official 

commentary confirms that only statements could constitute “acts” that violate Regulation B’s 

discouragement provision. Quoted in full, the commentary states:

Paragraph 4(b) 

1. Prospective applicants. Generally, the regulation’s protections apply only to 

persons who have requested or received an extension of credit. In keeping with 

the purpose of the Act - to promote the availability of credit on a 

nondiscriminatory basis - § 202.4(b) covers acts or practices directed at 

prospective applicants that could discourage a reasonable person, on a prohibited 

basis, from applying for credit. Practices prohibited by this section include: 

i. A statement that the applicant should not bother to apply, after the applicant 

states that he is retired.

ii. The use of words, symbols, models or other forms of communication in 

advertising that express, imply, or suggest a discriminatory preference or a policy 

of exclusion in violation of the Act. 

iii. The use of interview scripts that discourage applications on a prohibited 

basis.3

Thus, the only “actions” alleged in the complaint that could conceivably violate Regulation 

B are Townstone’s on-air statements. While CFPB also alleges that Townstone failed to draw 

enough loan applications from African Americans and failed to hire African-American loan 

officers, these allegations cannot form the basis of separate claims under either Regulation B or 

ECOA. They are not statements or even actions, but only alleged inaction, and neither Regulation 

B nor ECOA requires creditors to lend to or hire from particular segments of the population. 

Indeed, the official commentary to Regulation B makes clear that a creditor “may affirmatively 

2 See, e.g., CFPB Mot. to Compel [Dkt. No. 87] at 2 (referring to allegedly discouraging “business 

practices” including “hiring and marketing practices”); Am. Cmpl. at ¶ 2 (claiming that Regulation 

B applies to discouraging “acts or practices.”) 

3 See Official interpretation of Paragraph 4(b), available at 

https://www.consumerfinance.gov/rules-policy/regulations/1002/4/#a (emphasis added).

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solicit or encourage members of traditionally disadvantaged groups to apply for credit,”4 but 

nothing in Regulation B or ECOA requires a creditor to do so. 

Townstone raised these points in its motion to dismiss, and CFPB responded that it is not 

claiming ECOA or Regulation B “creat[es] new affirmative obligations” to market to or hire from 

any particular population or racial group. CFBP Opp. to Mot. to Dismiss [Dkt. No. 35] at 13; id.

at 26 n.128. Instead, according to CFPB, these allegations “support the Bureau’s claims that 

Townstone made statements that ‘would discourage on a prohibited basis a reasonable person from 

making or pursuing an application’” because “the most likely explanation for these disparities is 

Townstone’s discouraging” statements. Id.

5 In other words, according to CFPB, the allegations 

that Townstone failed to market to or hire from the right racial groups is allegedly evidence of 

discouragement; it is not itself discouragement—nor could it be under the law. 

The point is that the only actual legal claim at issue is the claim that Townstone violated 

Regulation B by doing what Regulation B prohibits, which is making discouraging statements. 

And the question for purposes of this motion is therefore whether Mr. Sturner’s personal 

communications are relevant to that claim. The answer is “no.” And the reason is straightforward. 

Whatever Mr. Sturner’s personal conversations reveal, they cannot impact whether on-air 

statements “would discourage” a “reasonable” “prospective applicant” from seeking credit. The 

meaning or impact of the statements will not change no matter what Mr. Sturner said in private 

4 Id.(emphasis added). 5 See also id. at 26 n.128 (“Contrary to Townstone’s allegations that the Bureau punished 

Townstone for things like not hiring loan officers ‘that include every specific racial or ethnic 

demographic in their market area,’ (Townstone Mem. at 22–23), as explained above, the Bureau 

focused on conduct that would discourage, on the basis of race, a reasonable potential applicant.”). 

Here, again, CFPB misuses the work “conduct,” but the point of this passage is to make clear that 

CFPB is not claiming the failure to hire particular types of loan officers is itself a violation of 

ECOA. And it cannot coherently claim that this alleged failure violates Regulation B. 

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conversations to friends and family. Regulation B, by its terms, establishes an objective test of 

discouragement. Cf. FDRLST Media, LLC v. NLRB, 35 F.4th 108, 122 (3d Cir. 2022) (interpreting 

requirement that employers not make statements that “tend to coerce a reasonable employee,” as 

embodying an objective test (emphasis added)). And CFPB has made clear in its own guidance 

that even disparate-treatment claims against applicants under ECOA do not turn on whether a 

creditor intended to discriminate. See Official interpretation of Paragraph 4, available at 

https://www.consumerfinance.gov/rules-policy/regulations/1002/4/ (“conscious intent to 

discriminate” is irrelevant). Unless CFPB is prepared to concede that Townstone’s intentions or 

views about the meaning of its on-air statements are controlling—in which case, this action can be 

dismissed immediately—it cannot demand that Mr. Sturner turn over his private conversations 

anymore than it could require him to turn over a list of books he has read, or magazines to which 

he subscribes, or websites he reads. None of that information will make it more or less likely that 

Townstone’s statements “would discourage” a reasonable prospective applicant from seeking 

credit. 

All of the arguments CFPB raises in its motion proceed from the same flawed premise, 

which is that by stating something in the complaint, it necessarily becomes the basis for discovery. 

But that is not so. Conclusory or legally irrelevant allegations cannot sustain a cause of action. See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). It follows that they cannot support 

discovery, especially as relevance must be “gauged in relation to” to those causes of action. 

Coleman, 2020 WL 5752149, at *3. 

Thus, CFPB’s argument that “statements regarding African Americans made by Sturner to 

a personal friend may influence whether that friend refers any African American prospective 

borrowers or employees to Townstone” is a red herring. CFPB Mot. to Compel [Dkt. No. 87] at 7. 

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Neither ECOA nor Regulation B requires Townstone to seek referrals at all, let alone referrals of 

prospective applicants of any particular race. Like much of what CFPB alleges in this case, this 

argument is an attempt to twist legal prohibitions on discrimination against applicants and 

discouragement of prospective applicants into requirements that creditors market, lend, and hire 

based on race. But ECOA does not and could not impose such requirements, and no amount of 

clever pleading can create in the law what is not there or entitle CFPB to discovery on matters 

irrelevant to its actual legal claims. See BankDirect Cap. Fin., LLC v. Cap. Premium Fin., Inc., 

No. 15 C 10340, 2018 WL 946396, at *3 (N.D. Ill. Feb. 20, 2018) (The rules of discovery are “not 

intended to be a ticket to unlimited, never-ending exploration of every conceivable matter that 

captures an attorney’s interest. Were it otherwise, discovery would be measured by the creativity 

and skill of counsel. It is not.”). 

Finally, CFPB’s claim that there is no distinction between Mr. Sturner’s business and 

personal communications does not make the communications they seek more relevant. First, CFPB 

does not take its own distinction seriously, as it seeks personal communications whether the

distinction Defendants draw is valid or not. Second, CFPB’s claim that there is no such distinction 

is not serious judged from any perspective. People have jobs and they have personal lives, and 

although the twain sometimes meets, it is not difficult to tell the difference between shop talk and 

personal talk. Mr. Sturner’s conversations with friends and family about crime in Chicago are not 

somehow transformed into “business communications” because sometimes he discusses his 

business with the same people. In any event, Townstone’s argument is not that whatever it deems 

to be personal is by that fact alone not discoverable. Townstone’s argument is that Mr. Sturner’s 

private communication are not relevant and proportional to the needs of the case. 

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II. Mr. Sturner’s Personal Communications are not Proportional to the needs of the 

Case.

CFPB contends that its requests are not burdensome, but this is belied by the requests 

themselves. They seek not only disparaging comments about people based on the prohibited 

categories in ECOA, but also all communications making or referring to “any generalization, 

differentiation, or stereotyping” based on ECOA’s categories, and all communications “referring 

to characteristics or any geographic areas or neighborhoods.” (Emphasis added). These requests 

are incredibly broad and would cover virtually any discussions of race, sex, gender, religion, and 

national origin and any discussions of life in Chicago or any other geographic area. The prohibited 

bases listed in ECOA are the subjects of some of the most significant, and often controversial, 

issues in America today. Race pertains to issues such as crime, affirmative action, and the Black 

Lives Matter movement. Sex pertains to issues such as wage gaps, the #MeToo movement, and 

gay marriage. Religion involves issues such as terrorism in the Middle East, abortion, and 

antisemitism. And national origin pertains to immigration, among other things. Both political 

parties, along with polarizing political figures such as former President Trump, are often 

implicated in discussions of such topics. Any discussion of these issues or topics will almost 

certainly involve generalizations about groups, as the subjects of race, sex, religion, and national 

origin are necessarily about groups. They are themselves generalizations, so it is practically 

impossible to discuss any of these subjects without making some sort of a generalization. 

Thus, for example, if any of Mr. Sturner’s friends or family members were to share a video 

of Dave Chappelle’s recent opening monologue on Saturday Night Live, that would implicate 

virtually every one of the categories in ECOA and every aspect of CFPB’s requests. That is just 

one example, but one can imagine an endless number of examples of discussions of important 

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social and political issues, or simply personal experiences, that pertain to the issues of race, sex, 

religion, and national origin that would be responsive to CFPB’s requests. 

The same is true for the request concerning characteristics of geographic areas. People 

discuss the characteristics of where they live and the surrounding neighborhoods constantly. This 

includes mundane conversations: “I don’t want to eat there, it’s in a shabby neighborhood.” 

“Before you start at U. Chicago, let me tell you how to navigate the dangerous neighborhood.” “I 

don’t feel comfortable going to that park. It’s in a scary part of town.” “I hate driving through that 

area. Traffic is horrible.” “I love New York City. It’s so diverse.” And it includes discussions of 

salient issues of the day, such as crime, homelessness, the ethnic makeup of cities, corruption in 

government, even potholes in the streets. Indeed, during the hearing on the motions to compel, 

Defendants’ counsel pointed the Court to an example from a recent news story about crime on the 

South Side, which included the quote: “‘It looks like a war zone, police cars everywhere. People 

can’t even live in this area, they’re coming home to all this chaos and anarchy,’ one neighbor 

said.”6 Simply sharing the news story would be “referring to the characteristics of a 

neighborhood.” Any discussions of the story would be responsive as well. (And, indeed, if the 

quoted neighbor were a creditor, he or she would be subject to a claim under Regulation B, 

according to CFPB’s theory in this case.) 

Mr. Sturner has tens of thousands of text messages during the relevant time frame (likely 

more than 50,000). He has texted with approximately 250 people during that time. These include 

his mother and sisters, his in-laws, his wife and kids, childhood and college friends, his children’s 

friends and the parents of his children’s friends, people with whom he attends hockey and baseball 

6

 Nate Rodgers, CPS student chased by car, fatally shot on South Side identified, FOX 32

CHICAGO (Sept. 9, 2022), https://www.fox32chicago.com/news/chicago-police-to-provideupdate-after-17-year-old-boy-fatally-shot-on-south-side. 

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games, contractors who work on his home, parents and coaches involved in hockey and baseball 

leagues with Mr. Sturner, and many others. In short, like everyone, Mr. Sturner has a private life 

and, also like virtually everyone today, he texts with those involved in his private life. Searching 

his texts will be tremendously burdensome and expensive because someone will have to read the 

texts and understand the context, as individual text messages are often cryptic or partial 

communications. But the burden is more than that. It is a profound intrusion into Mr. Sturner’s 

personal life and the personal lives of those close to him. Proportionality involves more than an 

assessment of time and money, and even more than an assessment of whether the request will 

trample an individuals’ rights. It also involves a common-sense assessment of whether discovery 

is truly necessary. CFPB’s intrusive, far-reaching requests do not come close to meeting this 

standard. 

III. Requiring Mr. Sturner to Produce Personal Communications Would Violate His 

and Others’ Privacy and First Amendment Rights. 

The abridgment of the “indispensable liberties” of “speech, press, or association, . . . even 

though unintended, may inevitably follow from varied forms of governmental action.” NAACP v. 

Alabama ex rel Patterson, 357 U.S. 449, 461 (1958). Here, the government’s attempted 

abridgement of speech is intentional. That’s what CFPB’s lawsuit is all about. It contends 

Townstone and Mr. Sturner’s statements about controversial issues of the day—crime, policing, 

and others—are unlawful. And it now demands that Mr. Sturner produce personal text messages. 

But courts have long applied the First Amendment to quash discovery that chills the rights of 

speech and association. See Marrese v. Am. Academy of Orthopedic Surgeons, 726 F.2d 1150, 

1159 (7th Cir. 1984) (en banc), rev’d on other grounds, 470 U.S. 373 (1985); Perry v. 

Schwarzenegger, 591 F.3d 1147, 1152 (9th Cir. 2010). Accordingly, CFPB may not obtain Mr. 

Sturner’s personal text messages unless it can satisfy an exacting scrutiny; it must show that its 

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requests are narrowly tailored and that Mr. Sturner’s texts are essential to the case. See, e.g., Hale 

v. State Farm Mut. Auto. Ins. Co., No. 12-cv-660-DRH-SCW, 2014 WL 6854416, at *2 (S.D. Ill. 

Dec. 5, 2014). CFPB comes nowhere close to meeting this standard—its requests are wildly 

overbroad and personal texts have no bearing whatsoever on CFPB’s claims.

The First Amendment doctrine precluding the disclosure of private information originated 

in association cases, but it applies with equal force to protect all First Amendment rights because 

such “freedoms need breathing space to survive.” Americans for Prosperity Found. v. Bonta, 141 

S.Ct. 2373, 2389 (2021) (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)); see id. at 2382 

(noting that the right to associate is itself implicit in and derived from the First Amendment rights 

of speech, press, assembly, and petitioning the government). In Bonta, therefore, the Supreme 

Court took pains to protect merely the identity of donors to a nonprofit organization to protect 

those donors from harassment and reprisals that might result from the organization’s controversial 

views. Id. at 2388–89. 

If the First Amendment protects donors from publicly associating with an organization’s 

views, then it necessarily protects an individual’s own views from compelled disclosure. And, 

indeed, the Supreme Court has recognized the right to keep one’s views or one’s identity in 

connection with one’s views private. See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 

(1995) (striking down law requiring disclosure of authors of election-related publications for 

violating First Amendment); Watchtower Bible and Tract Soc. of N.Y., Inc. v. Village of Stratton, 

536 U.S. 150, 166-67 (2002) (striking down law making door-to-door advocacy without a permit 

a misdemeanor because it would “result[] in a surrender of . . . anonymity”). The reason is simple.

“[B]road and sweeping state inquiries into these protected areas” will unlawfully “discourage 

citizens from exercising rights protected by the Constitution.” Bonta, 141 S.Ct. at 2382 (cleaned 

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up). See also Hale, 2014 WL 6854416, at *2 (“A First Amendment privilege” “applies to discovery 

issues, and it protects “against the disclosure of the identity of members and the content of internal 

communications between members, employees, and agents of associations.”) (cleaned up); Dunnet 

Bay Const. Co. v. Hanning, No. 10-cv-3051, 2011 WL 5417123, at *3 (C.D. Ill. Nov. 9, 2011) 

(same). 

Here, CFPB’s investigation, lawsuit, and its latest document requests have chilled 

Townstone’s and Mr. Sturner’s speech. As he explains in his declaration, Mr. Sturner has engaged 

in self-censorship since the CFPB began its investigation in 2017. For example, while talking on 

the Townstone Financial Show, Mr. Sturner has made great efforts to avoid discussions about 

crime in Chicago and his decision to move his family out of Chicago because he is concerned that 

CFPB will (mis-)interpret his statements to be a violation of ECOA and Regulation B. See Ex. A, 

Sturner Decl., ¶¶ 3–8. And Mr. Sturner has censored even his private messages concerning crime 

and other social issues. Id. ¶¶ 9–12. His friends and family have similarly watched what they say 

to him through text messages. Id. ¶ 13. This reaction is, of course, entirely sensible, given that no 

one wants to have their personal views dragged into a federal lawsuit or scrutinized by the 

government. See McIntyre, 514 U.S. at 341–42 (“The decision in favor of anonymity may be 

motivated by fear of economic or official retaliation, by concern about social ostracism, or merely 

by a desire to preserve as much of one’s privacy as possible.”). 

These private discussions about current issues—crime, affirmative action, Black Lives 

Matter, social security, gay marriage, abortion, transgender issues, and more—fall within core 

protected speech. See Snyder v. Phelps, 562 U.S. 443, 453 (2011) (The First Amendment protects 

speech “fairly considered as relating to any matter of political, social, or other concern to the 

community . . . or when it is a subject of a legitimate news interest.” (cleaned up)). 

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As noted in the previous section, CFPB’s broad requests would implicate all these issues

and many more. Even comments such as the popular “OK Boomer” (or any in-kind rejoinder to a 

young person) would be subject to CFPB’s scrutiny, because they involve generalizations about 

“attitudes typically associated with baby boomers,” a demographic group defined by age.7

Similarly, discussions about affirmative action and Black Lives Matter involve generalizations 

about race; abortion and transgender issues involve generalizations about sex; and so on. 

Speech about such issues is entitled to protection, not punishment. See New York Times 

Co. v. Sullivan, 376 U.S. 254, 270 (1964) (recognizing a “profound national commitment to the 

principle that debate on public issues should be uninhibited”). As courts have recognized, 

compelled disclosure of one’s connection with controversial views can subject one to reprisals of 

all sorts, which will, in turn, often chill speech. See, e.g., Bonta, 141 S.Ct. at 2388; McIntyre, 514 

U.S. at 341–42. Compare Wisconsin Family Action v. FEC, 2022 WL 844436, at *8 (E.D. Wis. 

Mar. 22, 2022) (describing how the Internet enables “cancel culture” by allowing people to 

“aggressively target[] individuals or groups, whose views aggressors deem unacceptable, in an 

effort to destroy them personally and/or professionally,” which “undermines and stifles First 

Amendment privileges.”). Indeed, this principle goes back to the beginning of the republic. See 

McIntyre, 514 U.S. at 342 (discussing Federalist Papers).

Further, disclosure of personal texts would chill not only Mr. Sturner, but anyone engaged 

in private text conversations with him. “If the First Amendment means anything it means that a 

state has no business telling a man, sitting alone in his own house, what books he may read or what 

films he may watch” because “the right to be let alone [is] the most comprehensive rights and the 

right most valued by civilized man.” Stanley v. Georgia, 394 U.S. 557, 564–65 (1969). And it is 

7 See OK Boomer, WIKIPEDIA available at, https://en.wikipedia.org/wiki/OK_boomer.

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“well settled . . . that the constitution protects the right to receive information and ideas.” 

Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). By peering into the private conversations of Mr. 

Sturner and anyone he associates with, the government violates this fundamental precept.

Here, the threats faced by Mr. Sturner (and his friends and family) fall well within the 

Supreme Court’s decision in Bonta, which explained that unconstitutional “chills” occur when 

compelled disclosure would pose a “reasonable probability of threats, harassment, and reprisals,”

whether economic, personal, or otherwise. 141 S. Ct. at 2382, 2388, 2388 n.*; see also John Doe 

No. 1 v. Reed, 561 U.S. 186, 207 (2010) (Alito, J., concurring) (noting that “a half century of our 

case law . . . firmly establishes that individuals have a right to privacy of belief and association”). 

Because disclosure of the sought text messages would chill core speech rights, CFPB must 

show a “compelling need” for the information. Marrese, 726 F.2d at 1159. The inquiry mirrors the 

Bonta “exacting scrutiny” standard: To obtain protected information, the government must show 

it is necessary for its case. Nat. Resources Defense Council Inc. v. Ill. Power Resources, LLC, 2015 

WL 4910204 (C.D. Ill. Aug. 17, 2015) (holding that party seeking protected information must 

show information is “highly relevant” and the request must be “carefully tailor[ed]”); Hale, 2014 

WL 6854416, at *2 (“The party seeking the document must then show that the information is 

essential to their case.”). 

Courts consider three factors in making this determination: (1) relevance, (2) the need for 

the information, and (3) the extent of the injury that disclosure may cause. Hale, 2014 WL 

6854416, at *2. As explained above, Mr. Sturner’s texts are not relevant at all to the underlying 

case, and CFPB has received mountains of information from Townstone, so it has no need for 

personal communications. CFPB’s requests are extremely broad and burdensome, and the threat 

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to First Amendment rights is severe. Thus, CFPB can meet none of the factors that would overcome 

the First Amendment privilege, and the texts must be kept private. 

CONCLUSION

For the reasons stated above, CFPB’s motion should be denied. 

Dated: November 30, 2022

Respectfully submitted,

/s/ Steven M. Simpson 

STEVEN M. SIMPSON 

DC Bar No. 462553 

JESSICA L. THOMPSON 

DC Bar No. 1542170 

Pacific Legal Foundation

3100 Clarendon Boulevard, Suite 1000

Arlington, VA, 22201

Tel: (916) 288-1398 

SSimpson@pacificlegal.org

JLThompson@pacificlegal.org

OLIVER DUNFORD 

FL Bar No. 1017991 

Pacific Legal Foundation

4440 PGA Boulevard Suite 307 

Palm Beach Gardens, FL 33410 

Tel: (916) 503-9060 

ODunford@pacificlegal.org

Sean P. Burke

Mattingly Burke Cohen & Biederman LLP 

155 E. Market St., Suite 400 

Indianapolis, IN 46204

Marx David Sterbcow

The Sterbcow Law Group LLC

824 Elmwood Park Boulevard, Suite 205 

New Orleans, LA 70123 

Case: 1:20-cv-04176 Document #: 100 Filed: 11/30/22 Page 15 of 16 PageID #:553
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on November 30, 2022, I electronically filed the 

foregoing document with the Clerk of the Court via the CM/ECF system, which will cause a 

copy to be served upon counsel of record. 

/s/ Steven M. Simpson 

STEVEN M. SIMPSON

Case: 1:20-cv-04176 Document #: 100 Filed: 11/30/22 Page 16 of 16 PageID #:554