Sexual Minorities Uganda v. Lively
Filing
102
Magistrate Judge Kenneth P. Neiman: MEMORANDUM AND ORDER with regard to the parties' countervailing submissions regarding a proposed protective order (Dkt. No. 96) entered. As follows: The parties shall revise the Protective Order in accord herewith, execute it and provide it to the court for its endorsement no later than February 28, 2014. IT IS SO ORDERED. See the attached memo and order for complete details. (Lindsay, Maurice)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SEXUAL MINORITIES UGANDA,
Plaintiff
v.
SCOTT LIVELY, individually and as
President of Abiding Truth Ministries,
Defendant
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Civil Action No. 12-30051-MAP
MEMORANDUM AND ORDER WITH REGARD TO
THE PARTIES’ COUNTERVAILING SUBMISSIONS REGARDING
A PROPOSED PROTECTIVE ORDER (Document No. 96)
February 14, 2014
NEIMAN, M.J.
The court has been asked to resolve Plaintiff Sexual Minorities Uganda’s and
Defendant Scott Lively’s dispute with respect to a proposed protective order which
would govern the discovery process now underway. In short, Plaintiff is wary of placing
individuals in Uganda in significant jeopardy by the very nature of the discovery
process, while Defendant wants to engage in discovery unfettered by the strictures
Plaintiff seeks to impose. Although Defendant agrees to a number of paragraphs in the
order proposed by Plaintiff, the parties hotly contest many of its provisions, a contest
made particularly difficult because of the transnational nature of the litigation.
I. BACKGROUND
This underlying case concerns Plaintiff’s complaint that Defendant, in concert
with others and through actions taken both here and abroad, has fomented an
atmosphere of repression against lesbian, gay, bisexual, transgender and intersex
(“LGBTI”) people in Uganda. When denying Defendant’s motions to dismiss the
complaint, District Judge Michael A. Ponsor held, among other things, that Plaintiff has
stated a claim against Defendant for persecution that amounts to a crime against
humanity. (See August 14, 2013 Memorandum and Order Regarding Defendant’s
Motions to Dismiss (Document No. 59), at 30.) “In particular,” Judge Ponsor found,
“Plaintiff has set out plausibly that Defendant worked with associates within Uganda to
coordinate, implement, and legitimate ‘strategies to dehumanize, demonize, silence,
and further criminalize the [Ugandan] LGBTI community.’” (Id. at 34-35 (quoting
Plaintiff’s Amended Complaint (Document No. 27) at ¶ 27).)
Of course, as Judge Ponsor indicated, “all these allegations will need to be
proved at trial to entitle Plaintiff to a verdict.” (Id. at 35.) But the allegations, together
with Judge Ponsor’s comprehensive ruling, do provide background to the instant dispute
over a protective order. In essence, Plaintiff is concerned that Defendant could engage
in the very type of activity which it alleges harmed the LGBTI community in Uganda.
Defendant, in turn, dismisses Plaintiff’s claims as overblown and is concerned that the
protections Plaintiff proposes would undermine his ability to defend himself.
With this in mind, this court denied without prejudice Plaintiff’s original motion for
a protective order and directed the parties to provide a joint document setting forth the
provisions upon which they do agree as well as those upon which they do not, together
with their countervailing proposals for the latter. In setting this task, the court provided
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some guidance. It indicated that it was not inclined to accept an attorney’s eyes-only
provision given that Defendant’s counsel would no doubt need to communicate with him
as a sole defendant uniquely positioned to assist in his defense. The court was also
concerned about shackling Defendant’s investigation of facts and witnesses in Uganda.
The court was equally concerned, however, that Defendant betrayed an insufficient
understanding of how he could run afoul of his intended compliance with an even more
carefully crafted protective order. The parties appear to have been able to take some of
this guidance into account when offering the proposed order presently before the court,
but significant differences remain which the court will address seriatim.
II. DISCUSSION
The parties’ dispute is complicated by the nature of the protections at issue. This
is by no means the usual case where both parties merely seek to protect proprietary
information, e.g., trade secrets. Rather, this is a case in which one party, Plaintiff,
seeks to protect individuals from the type of danger and retribution it asserts Defendant
promoted in Uganda. Judge Ponsor, it must be remembered, found the bases of these
concerns plausible, although as yet unproven. Still, Defendant, to mount his defense,
does need to investigate highly sensitive matters without undue trammels.
The court has resolved the various issues concerning a protective order by either
accepting one or the other party’s proposal or by providing substitute language of its
own. In doing so, the court has chosen at times to err on the side of caution, open to
amending the protective order if certain provisions prove to be too burdensome or
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unwieldy.
1.
First, the court accepts Defendant’s counter-proposal with respect to the last
sentence of paragraph 3, without objection by Plaintiff.
2.
Second, the court approves paragraph 4(b) as proposed by Plaintiff, finding that
it reaches a proper balance between Defendant’s ability to effectively investigate facts
relevant to this action and the security concerns of Plaintiff’s members and witnesses.
If, in a particular instance, Defendant believes that he needs clarification as to whether
one of his investigators with whom he wishes to share “confidential discovery material”
is “employed by or affiliated with any named co-conspirator,” he may seek relief from
the court if unable to resolve the issue directly with Plaintiff. Further, as Plaintiff argues,
the five person limit in paragraph (b)(iv) only applies to the number of investigators who
may have access to confidential discovery material, not the overall number of
investigators which each party may utilize. Either party, of course, may seek to
increase that number by application to the court; as the last sentence of the order reads,
the order is “[s]ubject to further modification by the court.”
3.
The court will order that paragraph 4(c) read as follows, which differs somewhat
from both Plaintiff’s and Defendant’s proposals:
(c) outside photocopying, data processing, graphic production, stenographers
or videographers engaged by the parties or their counsel of record to assist
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in this Action, provided that the written consent of the Designating Party shall
be first obtained if an aforementioned individual resides outside the United
States, which consent shall not be unreasonably withheld.
The court believes that any problem regarding the enforcement of the protective order
can be minimized with respect to individuals outside its jurisdiction if the parties can
reasonably agree to the designation of these particular individuals.
4.
For similar reasons as those set forth above, the court will let stand the
provisions in paragraph 4(d) as proposed by Plaintiff with regard to both (1) affiliates of
co-conspirators and (2) the number of experts. However, the court agrees with
Defendant that an expert need not be “retained” in order to be provided confidential
discovery material when otherwise appropriate. A retainer requirement can been easily
evaded and the number of experts is quite limited. Accordingly, the first phrase in
paragraph 4(d) shall read as follows: “experts retained and/or consulted by counsel of
record in this action.”
5.
Paragraph 4(e) shall read as follows:
Any person, witness or potential witness who, in the good faith belief of a
party and its counsel, may possess discoverable information about the
credibility or veracity of any Confidential Discovery Material, provided that
reasonable prior notice is given to counsel for the Designating Party.
Individuals shown Confidential Discovery Material pursuant to this
subparagraph shall not be allowed to retain copies.1
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The court defines “reasonable prior notice” as sufficient to enable a Designating
Party to seek this court’s protection.
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As rewritten, this subparagraph addresses Defendant’s concerns that Plaintiff’s
proposal would preclude non-testifying witnesses from being shown confidential
discovery material under any circumstance. On the other hand, the court does not
adopt that part of Defendant’s counter-proposal which would eliminate notice to the
designating party, since such a provision would enable a party to disclose confidential
material without any limit whatsoever. Accordingly, reasonable prior notice to, albeit not
clearance by, the designating party is appropriate; this is, after all, confidential material.2
6.
For many of the reasons asserted by Defendant, the court agrees that a new
subparagraph 4(i) should be added. However, contrary to Defendant’s proposal -which would permit disclosure to any appointed officer, director, or employee of Abiding
Truth Ministries3 -- subparagraph 4(i) will read as follows:
(i) one designated officer and one designated director of Abiding Truth
Ministries, provided that these designees are subject to the jurisdiction of
this court.
Defendant’s proposal, in contrast, could lead to an open-ended disclosure of
confidential materials.
7.
With one addition, the court is prepared to accept the provisions in paragraph 5
2
Defendant’s concerns with the interplay between this subparagraph and
paragraphs 5 and 6 of the protective order are discussed below.
3
Abiding Truth Ministries is not a defendant in this case.
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as proposed by Plaintiff. Given the fact that the court, at Defendant’s request, has
expanded the scope of individuals to whom Confidential Discovery Material may be
provided, it remains important that those individuals also be subject to the provisions of
the protective order. The court is not persuaded by Defendant’s argument that requiring
individuals to whom confidential discovery material is revealed to endorse the order
“makes no sense and is unworkable.” Simply put, the court does not accept at face
value Defendant’s argument that “the average and disinterested person in Uganda will
have no interest in reading a lengthy legal document in the English language,
understanding it, and signing documents submitting to the jurisdiction of a foreign court,
just to retry or rebut factual claims made by SMUG constituents.” If, as Defendant
speculates, witnesses will decline en masse to speak with Defendant’s counsel, he can
seek alternative relief from this court. To be sure, enforcement of the endorsement
against foreign individuals may be problematic but, as Plaintiff argues, the required
endorsement will provide notice to interviewees of the gravity of the confidentiality
provisions.
Defendant’s counterproposal, however, does raise an issue which neither party
adequately addresses in their arguments, namely, interviewing witnesses in a manner
other than in-person. Given the transnational nature of this case, the court assumes
that such interviews may be necessary, thereby raising the issue of a distant
interviewee endorsing the protective order. To be sure, as Judge Ponsor pointed out in
his August 14, 2013 Memorandum and Order, “read fairly, the Amended Complaint
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alleges that the tortious acts committed by Defendant took place to a substantial degree
within the United States, over many years, with only infrequent actual visits to Uganda.”
(Id. at 38.) Accordingly, the number of necessary interviews in Uganda may be less
than this court expects. Still, there being little doubt that some interviews of Ugandans
may not be in-person, the issue of endorsements needs to be addressed.4
Given these countervailing concerns and upon reflection, the court will require
that the following be added to the end of paragraph 5 proposed by Plaintiff:
If a party’s counsel wishes to interview an individual residing in a foreign
country in a manner other than in-person and that individual does not have
access to electronic mail or does not wish to provide interviewing counsel
with an email address, but counsel needs to disclose Confidential Discovery
Material to that individual, counsel shall first inform opposing counsel and
they shall endeavor to come to an agreement with opposing counsel
regarding the manner the individual’s acknowledgment of the terms of the
Protective Order (and a willingness to be bound thereby) may be
accomplished, including but not limited to recording the relevant portion of
the interview.
The parties are free to come to any other agreement which accomplishes this
end.
8.
4
This would not be as problematic an issue if the amount of confidential
discovery material was not significant; at the present time, however, the court is
unaware of the extent to which the parties, Plaintiff in particular, will invoke
confidentiality. Nor would this be much of an issue were “Confidential Discovery
Material” defined as including only documents, whether electronically stored or not; if
that were the case, it would be relatively simple to have an interviewee endorse the
confidentiality order at the same time as receiving a copy of a confidential document for
review. The definition of such material, however, includes the content of such
documents, which could readily be passed on by telephone to an interviewee in
Uganda.
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The court has determined, for two reasons, that paragraph 6 of Plaintiff’s
proposal -- which concerns an “Anti-Homosexuality Bill” which passed the
Ugandan Parliament in December of 2013 -- should not be included in the
protective order at this time. First, as Plaintiff itself acknowledges, neither party
as of January 7, 2014, had access to the bill as passed and, thus, its specific
provisions are unknown; thus, it would be difficult for the court to assess the
propriety of the proposed paragraph, which would preclude any portion of
confidential discovery material to be revealed to an individual who might be
required by the bill to report its content to Ugandan authorities.
Second, the court has taken judicial notice of recent news reports which
indicate that Uganda’s President, Yoweri Museveni, has declined to sign the bill,
albeit with reference to supposedly inadequate parliamentary procedures not civil
rights concerns. See Uganda President Yoweri Museveni Blocks Anti-gay Law,
BBC NEWS, Jan. 17, 2014, available at http://www.bbc.co.uk/news/world-africa25775002; Faith Karimi, Gays and Lesbians ‘Sick,’ Ugandan President Says in
Blocking Anti-gay Bill, CNN.COM, January 17, 2014, available at
http://www.cnn.com/2014/01/17/world/africa/uganda-anti-gay-bill-rejected/;
Robyn Dixon, Ugandan President Slams Gays While Refusing to Sign Anti-gay
Law, LOS ANGELS TIMES, January 17, 2014, available at
http://www.latimes.com/world/worldnow/la-fg-wn-uganda-homosexualsmuseveni-20140117,0,7172231.story#axzz2t8ztWAh0. Accordingly, the bill with
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which Plaintiff is understandably concerned is not in effect. Of course, should
such a bill be enacted into law, whether by parliamentary or presidential action,
the parties shall halt all further disclosure of any confidential discovery material to
individuals who may be referenced in the law as required to reveal the
information, whereupon the court will be prepared to address any party’s
proposal for additional protection.
9.
The court approves paragraph 9 as proposed by Plaintiff, finding its
provisions appropriate and reasonable with respect to the use of confidential
discovery material in a foreign court or administrative body.
10.
The court concludes that the burdens of designating confidential material
after its production should fall more on the designating party than is provided in
Plaintiff’s proposed paragraph 11. Accordingly, paragraph 11 shall read as
follows:
If at any time prior to the trial of this action, a party realizes that some
portion(s) of discovery material that that party had previously produced
without limitation should be designated as CONFIDENTIAL, that party may
so notify the other party in writing and, within ten (10) business days of giving
notice, provide the other party with a replacement version of such discovery
material that bears the “CONFIDENTIAL” designation. If the notified party
objects to the CONFIDENTIAL designation, that party shall so notify the
Designating Party in writing within three days of receiving the replacement
version. If the parties are unable to resolve their differences, the
DESIGNATING PARTY, within fourteen (14) days of receiving the objection,
shall either remove the designation or move the Court for a determination
that the designation is proper. If a motion is not timely filed, the designation
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shall be deemed null and void.
In fashioning this provision, the court agrees with Defendant that the parties
should exercise care to make appropriate confidentiality designation prior to
disclosure.
11.
The court concludes that paragraph 16, which addresses inadvertent or
unintentional disclosure of material subject to a claim of privilege, should be
included as is in the instant protective order, rather than a separate order, if for
no other reason than to move discovery along at this juncture.
12.
The court believes that the provisions of paragraph 18 as proposed by
Plaintiff are appropriate with respect to individuals not covered by paragraph 4.
That said, the court notes that it has added non-testifying witnesses to
paragraph 4, who, thereby, would not be covered by paragraph 18.
13.
In light of the other provisions in the protective order, as specified herein,
the court finds Exhibit A appropriate.
III. CONCLUSION
The parties shall revise the Protective Order in accord herewith, execute it
and provide it to the court for its endorsement no later than February 28, 2014.
IT IS SO ORDERED.
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DATED: February 14, 2014
/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge
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