*1 This matter is before the Court upon Plaintiff Roanoke River Basin Association's (“RRBA”) Motion for a Protective Order (Case No. 1:17CV452, Docket Entry 53; Case No. 1:16CV607, Docket Entry 61) and Motion to Compel Production of Documents Pursuant to a Subpoena (Case No. 1:17CV452, Docket Entry 59; Case No. 1:16CV607, Docket Entry 65). Both matters are ripe for disposition. For the following reasons, the Court will grant RRBA's motion for a protective order. Furthermore, the Court will order an in-camera inspection of all documents at issue in RRBA's motion to compel.

I. BACKGROUND

RRBA filed the instant Clean Water Act enforcement actions against Defendant Duke Energy Progress, LLC (“Duke Energy”), for alleged coal ash pollution of groundwater, rivers, lakes, and streams at its Mayo and Roxboro coal ash facilities in the Roanoke River basin in Person County, North Carolina. (See Complaint, No. 1:16CV607, Docket Entry 1 (the Mayo action); Complaint, No. 1:17CV452, Docket Entry 1 (the Roxboro action).) After discovery commenced in these actions, Duke Energy served deposition notices and accompanying document requests upon RRBA which RRBA filed timely objections to, asserting that Duke Energy “impermissibly seek[s] to intrude into and burden the freedom of association rights of the [RRBA] and its members.” (Docket Entry 54 at 1.)[1] Thus, RRBA seeks protection from the Court under the First Amendment and based upon relevancy grounds. Additionally, RRBA has filed a motion to compel in the Mayo and Roxboro actions seeking documents relating to communications between Duke Energy and its insurer, Associated Electric & Gas Insurance Services, Limited, (“AEGIS”). (Docket Entry 59.) Both Duke Energy and AEGIS have filed responses in opposition to RRBA's request.

II. DISCUSSION

As a general rule, Federal Rule 26(b) provides general provisions regarding the scope of discovery:

Fed. R. Civ. P. 26(b)(1). District courts generally have broad discretion in managing discovery, including whether to grant or deny a motion to compel. hone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 929 (4th Cir. 1995); Erdmann v. Preferred Research, Inc. of Georgia, 852 F.2d 788, 792 (4th Cir. 1988). “[T]he party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion.” Carter Hughes v. Research Triangle Inst., No. 1:11CV546, 2014 WL 4384078, at *2 (M.D.N.C. Sept. 3, 2014) (citation omitted) (unpublished).

*2 Additionally, pursuant to Rule 26(c) Federal Rules of Civil Procedure, “[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 ... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1). Protective orders pursuant to Rule 26(c) “should be sparingly used and cautiously granted.” Medlin v. Andrew, 113 F.R.D. 650, 652 (M.D.N.C. 1987). “Not only are protective orders prohibiting depositions rarely granted, but [P]laintiff has a heavy burden of demonstrating the good cause for such an order.” Id. at 653 (citation omitted). “Normally, in determining good cause, a court will balance the interest of a party in obtaining the information versus the interest of his opponent in keeping the information confidential or in not requiring its production.” UAI Tech., Inc. v. Valutech, Inc., 122 F.R.D. 188, 191 (M.D.N.C. 1988) (citation omitted). Thus, “[i]n order to obtain a protective order prohibiting a deposition, the proponent must convince the Court that the information sought by the deposition lacks relevance to the extent that the likelihood and severity of the harm or injury caused by the deposition outweighs any need for the information.” Id. Trial courts have 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 (1984).

RRBA seeks protection from Duke Energy's deposition notice and accompanying document requests that seek the identities of individual members of RRBA. For example, in deposition Topic 16, Duke Energy seeks: “The identities of all of [RRBA's] members who you allege have been harmed by Duke Energy's alleged violations of law that are the subject of this action, the type or nature of the alleged harm to each member, and the factual basis for the alleged harm to each member.” (Ex. 1, Dep. Topic 16, Docket Entry 54-1 at 10.) RRBA asserts that the information Duke Energy seeks has no relevance to the claims and defenses in these actions and that it also violates RRBA's members’ First Amendment protection from freedom of association. (Docket Entry 54 at 3.)

The Court will first address RRBA's First Amendment protection argument. “The United States Constitution guarantees a right to association to engage in activities protected by the First Amendment, such as speech, assembly, and petition for the redress of grievances [and] [t]hese First Amendment protections apply in the context of discovery orders.” Pulte Home Corp. v. Montgomery Cty. Maryland, No. GJH-14-3955, 2017 WL 1104670, at *3 (D. Md. Mar. 24, 2017) (unpublished) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984); NAACP p. Alabama, 357 U.S. 449, 462-63 (1958); Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987)). Thus, “compelled disclosure of affiliation with groups engaged in advocacy” may infringe upon constitutional rights. NAACP, 357 U.S. at 462. In the context of discovery, the right to associate applies “as a qualified privilege against disclosure of information when the party asserting the privilege demonstrates that the disclosure would likely impair the associational activities of the group.” Marfork Coal Co. v. Smith, 214 F.R.D. 193, 205 (S.D.W. Va. 2011) (citation omitted). The party asserting the privilege must make a prima facie showing that it applies by “demonstrat[ing] an objectively reasonable probability that compelled disclosure will chill associational rights, i.e. that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members’ physical well-being, political activities or economic interests.” In re Motor Fuel Temperature Saks Practices Litig., 707 F. Supp. 2d 1145, 1153 (D. Kan. 2010). “Once a party has made a prima facie showing,” the Court engages in a balancing test where the party seeking disclosure has the burden of proving “that the information sought is of crucial relevance to its case; that the information is actually needed to prove its claims; that the information is not available from an alternative source; and that the request is the least restrictive way to obtain the information.” Pulte, 2017 WL 1104670, at *4.

*3 Here, the nature of Duke Energy's request (disclosure of anonymous members of RRBA) is the very type of demand that some courts have found establishes a prima facie showing of First Amendment protection. See Wyoming v. U.S. Dep't of Agric., 239 F. Supp. 2d 1219, 1237 (D. Wyo. 2002) (“Federal courts have consistently held that disclosure of internal associational activities (i.e., membership lists, volunteer lists ...) satisfy this prima facie showing because disclosure of these associational activities chills freedom of association.”), vacated as moot, 414 F.3d 1207 (10th Cir. 2005); Anderson v. Hale, No. 00 C 2021, 2001 WL 503045, at *7 (N.D. Ill. May 10, 2001) (unpublished) (“Disclosure that aims to reveal the identity of anonymous ... members directly chills associational rights.”); Fed. Election Comm'n v. Machinists Non-Partisan Political League, 655 F.2d 380, 389 (D.C. Cir. 1981) (plaintiff's “demand for a list of all members and volunteers of this political group implicates the rigorously protected first amendment interest in privacy of political association”). But of., United States v. Duke Energy Corp., 218 F.R.D. 468, 473 (M.D.N.C. 2003) (finding that “the level of scrutiny markedly increases when the discovery is for membership lists[,]” but ultimately concluding that the discovery requests were “limited and for a specific purpose other than inquiry into the [group's] associational activities”), aff'd, No. 1:00CV1262, 2012 WL 1565228 (M.D.N.C. Apr. 30, 2012).

A declaration submitted by RRBA's executive director outlines the concerns of the organization's ability to effectively advocate on behalf of its members, and “current members will be discouraged from voicing their concerns and other community members will hesitate to join [RRBA].” (Hyde Decl. ¶ 5, Docket Entry 54-8.) Five of RRBA's members have voluntarily provided statements; however, “many others of [their] members value their personal privacy highly.” (Id. ¶ 4.) Considering carefully the nature of the circumstances here, RRBA has “demonstrated an objectively reasonably probability that compelled disclosure of the information sought will result in these chilling effects.” Pulte, 2017 WL 1104670, at *7. Indeed, the party seeking protection need not prove to an absolute certainty that its First Amendment rights will be chilled by disclosure. Black Panther Party v. Smith, 661 F.2d 1243, 1267-68 (D.C. Cir. 1981). Neither does it have to “be as compelling of an effect as in NAACP, 357 U.S. 449, where rank-and-file members of the NAACP had on past occasions been subject to ‘economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.’ ” Pulte, 2017 WL 1104670, at *7 (citation omitted). As stated in Pulte,

Id. at *8. Having found that disclosure of RRBA's anonymous member will probably result in a chilling effect, the Court will next determine if disclosure is still warranted under the balancing test.

Duke Energy's demand for personal identification of harmed members raises the question of relevancy and whether this information is indeed necessary to properly defend against Plaintiff's action. “[T]he party seeking the discovery must show that the information sought is highly relevant to the claims or defenses in the litigation—a more demanding standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1).” Perry v. Schwarzenegger, 591 F.3d 1147, 1161 (9th Cir. 2010). RRBA is a citizen's group; there are no individual plaintiffs named in this action. Membership information for all anonymous members has no relation to any defense related to RRBA's standing, where only one member with standing is needed for an organization to file suit on behalf of its members. In Friends of the Earth, Inc. v. Eaidlaw Envtl. Servs. (TOC), Inc., the Supreme Court held that

528 U.S. 167, 181 (2000). “To have representational standing, as asserted by the plaintiffs in this case, an organization must show that one of its members would have standing to sue in his or her own right.” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 397 (4th Cir. 2011) (emphasis added). Here, RRBA has already disclosed the identity of five of its members, none of which are parties to this litigation, but who have highlighted their concerns regarding Duke Energy's alleged coal ash pollution. (Exs. 6, 7, Docket Entries 54-6, 54-7.) Thus, Duke Energy's demand for identification of all of RRBA's anonymous members who have been harmed is not relevant to any standing defense.

Duke Energy's demand also fails to have any connection to the outcome of injunctive relief in this case. Evaluation of any injury as part of issuing injunctive relief under the Clean Water Act would relate more broadly to environmental pollution and its effects on RRBA's and the public's interest in the protection of water resources; this has no bearing on the personal identification of individual members of RRBA. Again, this is a citizen suit by which RRBA's organizational standing is based upon the fact that “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, 528 U.S. at 181. Duke Energy has not cited any case to support its contention that evaluation of injunctive relief required the personal identification and circumstances of all individual members of RRBA who are not a party to this action. See Sierra Club v. Virginia Elec. &Power Co., 247 F. Supp. 3d 753, 766 (E.D. Va. 2017), appeal dismissed, No. 17-1537, 2017 WL 5068149 (4th Cir. July 13, 2017)(denying both parties’ proffered remedies after evaluating water samples, test results, and expert testimony); Nat'l Audubon Soc'y v. Dep't of Navy, 422 F.3d 174, 201 (4th Cir. 2005) (analyzing issuance of an injunction under the National Environmental Policy Act for an adverse environmental impact or limitation of reasonable alternatives, the interests protected by that statute; it did not require any showing of harm to individual members of the Audubon Society).[2]

As such, the undersigned concludes that the first two factors of the balancing test weigh in favor of non-disclosure. As to the fourth factor, the Court considers the substantiality of the RRBA's First Amendment interests in connection with the requests. RRBA has a great interest in protecting the personal identification of its anonymous members. Thus, this factor weighs against disclosure. Considering the totality of the balancing test, the Court concludes that RRBA's First Amendment interests outweigh Duke Energy's interest in the disclosure of all personal identities of RRBA's anonymous members who have allegedly been harmed by Duke Energy's actions.[3]

*5 Duke Energy further asserts that a protective order could protect the confidentiality of any personal information disclosed. (Docket Entry 72 at 12; citing United States v. Duke Energy Corp., 218 F.R.D. 468, 473 (M.D.N.C. 2003) (“[T]he answer is not to suppress such evidence, but rather to exercise judicial discretion by providing protection short of suppression.”), aff'd, No. 1:00CV1262, 2012 WL 1565228 (M.D.N.C. Apr. 30, 2012)). However, the concern for threat of harassment and intimidation to RRBA members surrounds Duke Energy itself. Thus, limiting disclosure to Duke Energy does not resolve the issue of protecting personal identification. See Perry, 591 F.3d at 1164 (“A protective order limiting dissemination of this information ... cannot eliminate these threatened harms.”); Int'l Action Ctr. v. United States, 207 F.R.D. 1, 3 (D.D.C. 2002) (“It is the government itself that Plaintiffs fear, and therefore confining that information to government ... will hardly assuage those fears or avoid the intimidation that Plaintiffs fear might follow.”). As such, Duke Energy's argument is unpersuasive. In sum, for all the above reasons, the Court will grant RRBA's motion for a protective order.

RRBA also moves for an order compelling nonparty AEGIS to produce documents subject to a subpoena. (Docket Entry 59.) AEGIS, Duke Energy's insurer, withheld documents on the grounds that Duke Energy contends that the documents are confidential settlement documents. (Exs. 8-10, Docket Entries 60-8, 60-9, 60-10.) Consideration of RRBA's motion requires some background understanding of Duke Energy and AEGIS's relationship. During the mid-1990s, Carolina Power & Light Company (“CP&L”), predecessor to Duke Energy, received certain claims that implicated its insurance policies with AEGIS and other insurers. (Docket Entry 81 at 4.) In 1996, Duke Energy retained counsel to negotiate settlements with a number of pre-1986 general liability insurers including AEGIS. (Laurence J. Eisenstein Decl. ¶ 2, Docket Entry 81-1.) As part of the negotiations, the parties entered into Standstill Agreements to ensure that negotiations were kept confidential and to ensure that neither party would sue the other during a defined period of negotiations. (Id. ¶ 7; see also Standstill Agreements, Docket Entries 60-2, 60-3.) Duke Energy and AEGIS extended the Standstill Agreements over a period of years, during which time AEGIS ultimately reached a settlement on certain claims covered by CP&L's notice to AEGIS. (Eisenstein Decl. ¶ 11.) The settlement did not include any coal-ash related claims or potential claims. (Id.)

AEGIS filed a federal complaint, later dismissed, against Duke Energy which alleged more information about the settlement negotiations. (See AEGIS v. Duke Energy Corp. et al., Civil Action No. 3:17-cv-172 (W.D.N.C. Mar. 29, 2017)). RRBA highlights portions of the complaint; for example, Duke Energy first notified AEGIS that AEGIS was potentially responsible for Duke Energy's coal ash liability costs at its Roxboro site in 1996, and “demanded that AEGIS pay a substantial amount of money for its [coal combustion residuals] liabilities.” (Ex. 1, AEGIS Compl. ¶¶ 59, 68, Docket Entry 60-1.) It also stated that in 2002, negotiations were expended to the Mayo site. (Id. ¶ 69.) In the instant action, RRBA contends that the communications between Duke Energy and its insurers “would likely contain key information about the causes and extent of Duke Energy's coal ash pollution at the Mayo and Roxboro sites,” and thus the documents should be produced. (Docket Entry 66 at 3.)

RRBA's subpoenas specifically requested, among other things: “Any claims made under any insurance policy; Notifications to AEGIS of potential responsibility for liabilities; Duke Energy estimates of costs to address CCRs at its sites; [and] AEGIS communications denying claims for CCR liability.” (Exs. 4-5, Docket Entries 60-4, 60-5.) AEGIS and Duke Energy both objected to the subpoenas, and also filed responses to RRBA's motion to compel. (Exs. 6-10, Docket Entries 60-6, 60-7, 60-8, 60-9, 60-10.) Duke Energy objected on the basis of relevance and based upon the documents’ designation as confidential settlement communications. (Exs. 6-7, Docket Entries 60-6, 60-7.) AEGIS provided some of the requested documents, but filed objections and withheld other documents asserting that the documents were confidential settlement documents. (Exs. 9-10, Docket Entries 60-9, 60-10.) In its objections, AEGIS also stated that it did not concede that such withheld documents were governed by the confidentiality of the Standstill Agreements. (Id.)

*6 In its opposition brief, Duke Energy further asserted that the Court should defer its ruling on this motion until the state business court decides this issue on the very same documents in the pending action. (Docket Entry 81 at 26-27.) The state court action is a suit whereby Duke Energy sued AEGIS and other insurers, seeking a declaration concerning coverage for its liabilities relating to implementation of the North Carolina Coal Ash Management Act of 2014 (“CAMA”) and the federal CCR Rule. See Duke Energy Carolinas, LLC v. AG Ins. SA/NV, et al., No. 17-CVS-5594 (N.C. Super. Ct). Duke Energy filed a motion for a protective order “limiting discovery of the 367 confidential documents currently withheld or redacted by AEGIS that relate to the previous settlement negotiations between AEGIS and Duke [Energy].” Duke Energy Carolinas, LLC v. AG Ins. SA/NV, et al., No. 17-CVS-5594, 2018 WL 2025901, at *2 (N.C. Super. Apr. 30, 2018). That court granted in part and denied in part Duke Energy's motion, finding that there is no settlement privilege and that some of the documents were relevant to the claims and defenses in that action. Id. at *4-5. In the instant action, Duke Energy asserts that this finding by the state business court does not resolve the motion before this Court as the claims and defenses here are postured differently. (Docket Entry 112 at 2.) RRBA argues that, “as confirmed by [the state business court's] in camera review and decision, the withheld documents contain information about the Duke Energy coal ash pollution that is at the heart of these citizen enforcement actions.” (Docket Entry 113 at 3.)

The Court first notes that the state business court's ruling is not binding upon this Court. Notwithstanding such, for many similar reasons to follow, this Court also concludes here that there is no settlement privilege to prevent production of the documents which RRBA seeks. However, the issue of relevance remains unclear. Thus, the Court will order an in-camera inspection of the documents to determine if any of the documents should be produced to RRBA.

Duke Energy contends that that documents which RRBA seeks are confidential documents under the Standstill Agreements. The Fourth Circuit has not recognized a settlement privilege and district courts within the Fourth Circuit have declined to do so. See Amick v. Ohio Power Co., No. 2:13-CV-06593, 2013 WL 6670238, at *2 (S.D.W. Va. Dec. 18, 2013) (unpublished) (“[C]ourts in the Fourth Circuit have generally declined to recognize a federal settlement privilege.”); Polston v. Eli Lilly & Co., No. 3:08-3639, 2010 WL 2926159, at *1 (D.S.C. July 23, 2010) (unpublished) (“The Fourth Circuit has never recognized a settlement privilege or required a particularized showing in the context of a subpoena for confidential settlement documents. Nor can the court find any statute or rule excepting a confidential settlement agreement from Rule 26(b)(1).”); Equal Rights Ctr. v. Arch stone-Smith Jr., 251 F.R.D. 168, 170 (D. Md. 2008) (“[T]he court notes that neither party apparently urges this court to recognize a federal settlement privilege, nor does the court find, based upon its review of the case law, that such a privilege should be recognized.”). This district also agrees. See Volumetrics Med. Imaging LLC p. Toshiba Am. Med. Sys., Inc., No. 1:05CV955, 2011 WL 2470460, at *4 n.5 (M.D.N.C. June 20, 2011) (unpublished) (citing Polston). “Instead, when determining whether a settlement agreement or information concerning settlement negotiations are subject to production in discovery, courts in this circuit have found that relevance not admissibility, is the appropriate inquiry.” Townsend v. Nestle Healthcare Nutrition, Corp., No. 3:15-CV-06824, 2016 WL 1629363, at*5 (S.D.W. Va. Apr. 22, 2016) (citing Herchenroeder v. Johns Hopkins Univ. Applied Physics Lab., 171 F.R.D. 179, 181 (D. Md. 1997) (emphasis in original)).

Here, the parties disagree as to whether the information RRBA seeks is relevant to this action. Both AEGIS and Duke Energy argue that the documents sought are irrelevant because they do not relate to discharges regulated by the Clean Water Act, nor do they relate to National Pollutant Discharge Elimination System (“NPDES”) permit violations. RRBA argues that the documents are relevant, specifically stating that “[t]he withheld and redacted documents contain important information on the history of Duke Energy's coal ash operations and maintenance, the extent of its lawful pollution, and what steps Duke Energy failed to take to prevent it.” (Docket Entry 88 at 1.) Considering the parties’ positions as to the relevancy of the documents, the Court finds it necessary and appropriate to conduct an in-camera inspection of the documents to determine whether they should be produced to RRBA. After review of such documents, the Court will render its ruling regarding RRBA's motion to compel.[4]

III. CONCLUSION

*7 For the reasons stated herein, IT IS HEREBY ORDERED that RRBA's Motion for Protective Order Regarding Rule 30(b)(6) Deposition (Case No. 1:17CV452, Docket Entry 53; Case No. 1:16CV607, Docket Entry 61) is GRANTED.

IT IS FURTHER ORDERED that the documents at issue in RRBA's Motion to Compel Production of Documents Pursuant to a Subpoena (Case No. 1:17CV452, Docket Entry 59; Case No. 1:16CV607, Docket Entry 65) shall be produced to the Court no later than fourteen (14) days from the date of this Order for an in-camera inspection. RRBA's Motion to Compel Production of Documents Pursuant to a Subpoena shall remain under advisement at this time.

Unless otherwise noted, reference to documents will reflect the filings in Case No. 1:17CV452.

Duke Energy also references an unpublished slip opinion from the Northern District of Alabama. See Sierra Club et al. v. Tenn. Valley Auth., No. 3:02-cv-2279, slip op. at 7 (N.D. Ala. Jan. 22, 2007), Ex. A, Docket Entry 70-1. That court did note — in dicta — the appropriateness of consideration of injury sustained to the plaintiffs’ members. Id. However, this statement also included harm to “the public at large” in connection to remedial aspects of the case. Id.

The third factor — weighing alternative sources — has not been discussed by either party and neither is it clear whether any other source would have access to the personal identification of RRBA's alleged harmed anonymous members. However, even if this factor was in favor of disclosure, this would be insufficient to shift the balancing test in Duke Energy's favor.

The Court will also determine if any other asserted objections are applicable.