Case 3:12-cv-30051-MAP Document 104 Filed 02/28/14 Page 1 of 5


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

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


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


whom he seeks discovery, and the nature of that discovery. Plaintiff will undoubtedly designate some of that information as “Confidential,” thus requiring Lively to undertake “sealed filings” in foreign courts, without even establishing that Uganda courts, for example, accept such filings, and accept them in the specific circumstances contemplated by this action. Requiring Lively to undertake procedural hurdles that may not even be available as a condition for obtaining crucial discovery is the same as denying him that discovery altogether. This provision should therefore be stricken. • II(11) – dealing (in proposed Protective Order paragraph 15) with non-waiver of

privilege through inadvertent disclosure, to the extent that it changes applicable law. Ultimately, the current proposal considered by the Court adopts traditional confidentiality protections from run-of-the-mill trade secret litigation in domestic courts, and applies them to this transnational case that is anything but traditional. The proposal penalizes Lively merely because naked allegations of misconduct have been made against him, and, on the sole basis of those unsubstantiated allegations, his ability to disprove them has been profoundly impeded. Lively is therefore presumed guilty, contrary to fundamental principles of American law. Allegations of victimization based upon sexual conduct are often exaggerated and even entirely fabricated. (Dkt. 90, pp. 9-10 and n.1). Any evidentiary burdens resulting from the unwillingness of Plaintiff’s witnesses to make their accusations against Lively public should be borne by Plaintiff, not Lively. Moreover, it is of no moment that Lively may come back to this Court down the road to seek additional relief from the proposed Protective Order. Many of these witness issues will not materialize until the parties are in the midst of discovery in a foreign jurisdiction. Requiring Lively to interrupt that discovery, travel back to the United States, secure additional relief from


this Court, and then return to the foreign jurisdiction in hopes of relocating the relevant witness and then obtaining the desired discovery is unrealistic and untenable. Finally, Lively notes that the foregoing objections and concerns were fully briefed in the proceedings before the Magistrate Judge (i.e., dkts. 90, 96 and 98). For the sake of brevity, Lively adopts and incorporates those arguments and authorities here. Respectfully submitted, Philip D. Moran (MA Bar # 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: /s/ Horatio G. Mihet________________ Mathew D. Staver Admitted Pro Hac Vice Stephen M. Crampton Admitted Pro Hac Vice Horatio G. Mihet Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile Attorneys for Defendant Scott Lively

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically with the Court on February 28, 2014. Service will be effectuated by the Court’s electronic notification system upon all counsel or parties of record.

/s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively


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