Cave et al v. Thurston

Filing 78

ORDER on #74 motion to quash and for protective order finding Senator Rapert's deposition will proceed as subpoenaed as set forth in this Order; granting a temporary protective order, consistent with this Order's terms; and taking under advisement #74 Senator Rapert's motion. Signed by Judge Kristine G. Baker on 9/11/2019. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DONNA CAVE, et al.,

PLAINTIFFS

EUGENE LEVY, et al.,

CONSOLIDATED PLAINTIFFS

THE SATANIC TEMPLE, et al.,
v.

INTERVENORS

Case No. 4:18-cv-00342-KGB

JOHN THURSTON, Arkansas Secretary
of State, in his official capacity

DEFENDANT
ORDER

Before the Court is a motion to quash and for protective order filed by non-party witness
Senator Jason Rapert (Dkt. No. 74). Plaintiffs Anne Orsi, Eugene Levy, Gale Stewart, Teresa
Grider, the Arkansas Society of Freethinkers, American Humanist Association, and the Freedom
from Religion Foundation (the “Orsi Plaintiffs”) filed a response in opposition to the motion (Dkt.
No. 75).

The Satanic Temple, Lucien Greaves, and Erika Robbins (the “Satanic Temple

Intervenors”) have also filed a response in opposition to the motion (Dkt. No. 76).
Arkansas State Senator Rapert informs the Court that his deposition has been subpoenaed
for Thursday, September 12, 2019, at 9:30 a.m. (Dkt. No. 74, at 1). On August 2, 2019, plaintiffs
Donna Cave, Judith Lansky, Pat Piazza, and Susan Russell (the “Cave Plaintiffs”) served a
subpoena for his deposition but did not request video or documents with the deposition (Dkt. No.
74-1). On August 14, 2019, the Orsi Plaintiffs caused to issue a deposition subpoena and subpoena
duces tecum commanding the videotaped testimony of Arkansas State Senator Rapert (Dkt. No.
74-2). Arkansas State Senator Rapert represents that he was served with the subpoena on August
20, 2019 (Dkt. No. 74, at 1).

He moves to “(1) quash the subpoena commanding Senator Rapert’s attendance at a
videotaped deposition noticed for 9:30 a.m. September 12, 2019, and (2) enter a protective order
limiting the possession and use of any subsequent videotaped deposition to his personal attorneys
and counsel of record in this matter only.” (Id.).
The Court attempted to convene a telephone hearing among counsel on September 11,
2019, with respect to this matter to discuss the status of the matter with all counsel (See Court’s
Exhibit No. 1, at 3). Although lawyers for the Cave Plaintiffs, the Orsi Plaintiffs, the Satanic
Temple Intervenors, and Arkansas State Senator Jason Rapert agreed to make themselves available
for such a hearing (Id., at 4-5, 7-8, 13), counsel for Mr. Thurston stated that there were prior
engagements during that time and “request[ed] that the Court not hold a conference,” on that date
(Id., at 10). Counsel for Mr. Thurston represented that they would “work to reshuffle . . . prior
commitments” if ordered to do so by the Court (Id.).
The Court has reviewed controlling and persuasive authorities, including but not limited to
Jones v. William Jefferson Clinton, et al., Case No. LR-C-94-290 (Dkt. No. 166), and United States
v. McDougal, 940 F.Supp. 224 (E.D. Ark.), aff’d 103 F.3d 651 (8th Cir. 1996). For good cause
shown, the Court orders as follows:
(1)

Arkansas State Senator Rapert’s deposition will proceed as subpoenaed by the Cave

Plaintiffs and Orsi Plaintiffs;
(2)

That deposition may be videotaped in accordance with the Orsi Plaintiffs’

subpoena;
(3)

Immediately upon the conclusion of Arkansas State Senator Rapert’s deposition the

original video recording shall be labeled, dated, and initialed by the individual responsible for
operating the recording equipment and handed to counsel for the Orsi Plaintiffs. Counsel for the

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Orsi Plaintiffs shall be responsible for maintaining the confidentiality of the video recording of
Arkansas State Senator Rapert’s deposition pursuant to this Order.
(4)

No copies shall be made of the video recording of Arkansas State Senator Rapert’s

deposition except as provided by Order of the Court after reasonable notice to all parties, including
counsel for Arkansas State Senator Rapert. This provision includes but is not limited to no copies
of the video recording being made or distributed to any other counsel, parties, or third-parties in
this litigation except as provided by Order of the Court.
(5)

This Order grants a temporary protective order, consistent with its terms. The Court

has under advisement Arkansas State Senator Rapert’s motion (Dkt. No. 74). The disposition of
the video recording of Arkansas State Senator Rapert’s deposition shall remain subject to further
orders of this Court, and this Order is without prejudice to Arkansas State Senator Rapert’s right
to petition this Court for further protection. The parties have not fully briefed this issue, and the
Court will grant all parties the opportunity to do so before ruling on the motion.
It is so ordered, this the 11th day of September 2019.

Kristine G. Baker
United States District Judge

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