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3:12-cv-30051 #104

3:12-cv-30051 #104

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Published by Equality Case Files
Doc 104 - Scott Lively's objection to Magistrate Judge Neiman's Memo and Order of 2/14/14
Doc 104 - Scott Lively's objection to Magistrate Judge Neiman's Memo and Order of 2/14/14

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Published by: Equality Case Files on Mar 07, 2014
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06/15/2014

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION SEXUAL MINORITIES UGANDA, : CIVIL ACTION : Plaintiff, : 3:12-CV-30051-MAP : v. : JUDGE MICHAEL A. PONSOR : SCOTT LIVELY, individually and as : MAGISTRATE JUDGE NEIMAN president of Abiding Truth Ministries, : : Defendant. : DEFENDANT SCOTT LIVELY’S OBJECTION TO MEMORANDUM AND ORDER REGARDING PROPOSED PROTECTIVE ORDER
Pursuant to Fed. R. Civ. P. 72(a), Defendant Scott Lively (“Lively”) respectfully objects to the Memorandum and Order Regarding Proposed Protective Order entered by Magistrate Judge Kenneth P. Neiman on February 14, 2014 (dkt. 102), including the following subsections:
 
II(2) and II(4) – prohibiting Lively (in proposed Protective Order paragraphs 4(b) and 4(d), respectively) from using investigators or experts who are “affiliated with any named co-conspirator or an affiliate of any named co-conspirator in this Action.” The term “affiliate” is vague and subject to varying forms of interpretation, particularly where, as here, it refers to individuals (not corporations), and it purports to prohibit not one but two degrees of “affiliation” (
i.e.
, an individual who is “
affiliated
 with ...
an affiliate
 of any named co-conspirator”). SMUG has taken an exceedingly broad view of what it means for two individuals to be “affiliated,” concluding that even “two persons who attend the same church
or speak to each other on occasion
” meet its definition. (Dkt. 96 at p. 5) (emphasis added). Under that view, Lively could not use an investigator in Uganda who on occasion has talked to a third party, who, in turn on occasion has talked to one of the alleged co-conspirators, regardless of the scope, nature and
Case 3:12-cv-30051-MAP Document 10
4
 Filed 02/
28
/14 Page 1 of
5
 
2 contents of those conversations, because that investigator would be “affiliated with an affiliate” of an alleged co-conspirator. This is overly restrictive on Lively’s ability to fully investigate the facts alleged by Plaintiff, and it imposes uncertainty in the already complex transnational discovery process. In addition, it is violative of the freedom of association protected by the First Amendment, insofar as it effectively codifies guilt by association. Since Plaintiff will almost always be the designator of “Confidential Information,” the provision also saddles Lively with  burdens not imposed on Plaintiff, such as having to interrupt the discovery process to seek further clarifications from the Court, and, in that process, having to unilaterally and prematurely disclose the identity of his investigators and experts. Lively therefore requests that references to “affiliates” be removed from paragraphs 4(b) and 4(d) of the proposed Protective Order.
 
II(5) – requiring Lively (in proposed Protective Order paragraph 4(e)) to provide “reasonable prior notice” to Plaintiff’s counsel before Lively’s counsel interview a witness or  potential witness needed to verify the “Confidential” facts advanced by Plaintiff. This requirement invades Lively’s work-product privilege, and requires his counsel to provide their litigation opponents with a roadmap of their factual investigation. Whenever Lively’s counsel receive “Confidential” factual claims from Plaintiff in discovery, they will have to disclose to their counterparts all of the individuals whom they will interview to confirm or rebut those claims, thereby revealing their defense strategies, mental impressions and thought processes. Since Plaintiff will be the designator of “Confidential Information” in the vast majority of the time, Plaintiff will not be subject to the same burdens and forced privilege waivers imposed on Lively, thereby gaining an unfair advantage in the litigation. Moreover, this unilateral, forced waiver of privilege is unnecessary to protect the confidentiality of any information exchanged in discovery, particularly if the Court upholds the other provisions contemplated in the Protective
 
3 Order, such as those requiring Lively to advise witnesses of the Protective Order and to secure their written consent to this Court’s jurisdiction prior to any interview.
 
II(7) and II(13) – requiring Lively (in proposed Protective Order paragraph 5) to  persuade disinterested fact witnesses in foreign countries to agree in writing to be bound by this Court’s Protective Order, and to be subject to this Court’s jurisdiction, prior to interviewing them to confirm or rebut Plaintiff’s “Confidential” factual claims. A landlord, shopkeeper or other witness in Uganda who has no interest in this action also has no interest in reading a 12-page legal document in English, understanding it, agreeing to be bound by it, and subjecting themselves to this Court’s jurisdiction, all as a pre-requisite to merely answering a few questions about claims of “persecution” (
e.g.
, wrongful eviction or discrimination) by Plaintiff’s witnesses. Lively’s counsel will be fortunate if even a handful of these witnesses agree to talk without any conditions. It is unrealistic and unworkable to impose these requirements in this transnational case, where access to foreign witness is already very limited and difficult, but where witness veracity is so crucial. Moreover, this profound shackling of Lively’s discovery efforts is unnecessary, because Plaintiff agrees that this Court “has no enforcement power outside of the United States.” (Dkt. 96, p. 13). Scuttling Lively’s investigation and defense through onerous discovery burdens that Lively has no hope to overcome is too high a price to pay for a mere symbolic gesture that simply apprises witnesses of the existence of this action, but does not  practically bring them within this Court’s jurisdiction.
 
II(9) – requiring Lively (in paragraph 8 of the proposed Protective Order) to file “Confidential” documents “under seal” in foreign courts. The parties will undoubtedly need to employ ancillary judicial proceedings in foreign jurisdictions, including Uganda, to obtain discovery. Those proceedings will require Lively to reveal the identity of the witnesses from

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