Case 0:09-cv-00138-DWF-JJG Document 167 Filed 01/20/10 Page 1 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

AMERICAN CIVIL LIBERTIES Civil File No. 09-CV-138 DWF/JJG

UNION OF MINNESOTA,

Plaintiff, PLAINTIFF’S RESPONSE TO THE

TIZA DEFENDANTS’ OBJECTIONS
v. TO PROTECTIVE ORDER
TAREK IBN ZIYAD ACADEMY, et
al.

Defendants.

INTRODUCTION

Plaintiff American Civil Liberties Union of Minnesota (“ACLU”) submits this

response to the Objections filed by Defendants Tarek ibn Ziyad Academy, Asad Zaman,

Asif Rahman, Mahrous Kandil, Mona Elnahrawy, Moira Fahey, and Mohamed Farid

(“TIZA”), seeking to overturn Magistrate Judge Graham’s rejection of TIZA’s effort to

have every document it produces in the case identified as Confidential. The ACLU

opposes TIZA’s request, except to the extent that it seeks reinstatement of language in the

parties’ proposed protective order to which all parties had agreed. As to those issues, the

ACLU accepts the points made in the memorandum filed by the Commissioner (Doc. No.

164) and proposes that the most effective means of dealing with those issues is to return

to the stipulated language the parties proposed.

The ACLU opposes TIZA’s request for an extraordinarily broad, even

unprecedented, protective order because neither the law nor the evidence supports it.

TIZA apparently cannot locate even a single piece of documentary evidence connecting
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this lawsuit to any threat. All its cited evidence of threats to TIZA precede the filing of

this case by at least six months. What is far more significant to the administration of

justice in this case are (1) that as the one-year anniversary of the January 21, 2009, filing

of this case passes, TIZA still refuses to produce a single document in discovery, despite

discovery requests outstanding for months; and (2) the only party in this case who has

acted to intimidate witnesses is TIZA, not the ACLU or any other party. Those are very

substantial problems that must be resolved in this case, but they will not be remedied by

granting TIZA’s request for an overbroad secrecy order.

ARGUMENT

I. TIZA OFFERS NO AUTHORITY SUPPORTING ITS PROPOSED ALL-

ENCOMPASSING PROTECTIVE ORDER

TIZA acknowledges the deferential review to which Judge Graham’s order is

entitled. TIZA Mem. Supp. Obj. Prot. Order 4 (“TIZA Mem.”); Fed. R. Civ. P. 72(a); D.

Minn. LR 72.2(a). Although hundreds, perhaps thousands, of protective orders have been

entered in this district, TIZA cannot identify a single one approving the blanket

restrictions it now argues Judge Graham was compelled to implement, on pain of having

the Protective Order deemed “clearly erroneous or contrary to law.” That is a striking

argument: a form of Protective Order apparently never adopted by any court in this

district is suddenly required by some rule of law that all the judges in this district, though

repeatedly deciding similar issues, have apparently overlooked for decades.

Certainly no case TIZA cites supports its argument for such a protective order.

TIZA suggests that discovery may be confidential by default. The rule is the opposite:

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courts are not to issue protective orders at all without a showing of good cause. Fed. R.

Civ. P. 26(c)(1); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th

Cir.1973). Overbroad protective orders are widely disfavored. Gillard v. Boulder Valley

School District RE-2, 196 F.R.D. 382, 385-87 (D. Colo. 2000). “As a general rule,

pretrial discovery proceedings are conducted in public unless compelling reasons exist to

deny public access.” Am. Tel. & Tel. v. Grady, 594 F.2d 594, 596 (7th Cir. 1979). This

presumption exists in part because “the public at large pays for the courts and therefore

has an interest in what goes on at all stages of a judicial proceeding.” Citizens First Nat’l

Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999).

TIZA’s status as a public entity reduces the appropriateness of conducting a case

in secrecy. “Privacy interests are diminished when the party seeking protection is a

public person subject to legitimate public scrutiny.” Pansy v. Borough of Stroudsburg,

23 F.3d 772, 787-88 (3d Cir. 1994). “A factor which a court should consider in

conducting the good cause balancing test is whether a party benefiting from the order of

confidentiality is a public entity or official.” Id. That this case will determine whether

TIZA’s expenditure of public money violates the federal and state Constitutions cuts

strongly against complete secrecy.

TIZA’s reliance on Northbrook Digital, LLC v. Vendio Servs., Inc., 625 F.Supp.

2d 728 (D. Minn. 2008), ignores that court’s recitation of long-established law: “[t]o

make [a showing of good cause], the moving party cannot rely on broad or conclusory

allegations of harm.” 625 F.Supp. 2d at 757. Accord General Dynamics Corp. v. Selb

Mfg. Co., 481 F.2d 1204, 1212 (8th Cir.1973) (“The burden is therefore upon the movant

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to show the necessity of [the protective order’s] issuance, which contemplates ‘a

particular and specific demonstration of fact, as distinguished from stereotyped and

conclusory statements .’“). TIZA’s reliance on Chappell v. Butterfield-Odin Sch. Dist.,

No. 08-cv-0851, Doc. 166 (D. Minn. Nov. 19, 2009) is also misplaced. There, Judge

Schiltz decided that a school district could be compelled to respond to a MGDPA request

even after formal discovery ended. The case undercuts TIZA’s argument by holding that

litigation-based constraints cannot prevent disclosure of information deemed public by

the legislature. It also illustrates a strange aspect of TIZA’s proposed gag order: any

journalist could demand and publicize the same documents that TIZA’s proposed

protective order would compel the parties to treat as secret.

TIZA’s reliance upon Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), is

equally misplaced. In Seattle Times, the Supreme Court decided only that the First

Amendment does not prevent a court from entering a protective order against discovery

into the financial affairs, names, and addresses of private citizens. Id. at 32. No party in

Seattle Times argued that the Court should compel confidential treatment for every

document produced during discovery.

II. THIS CASE IS NOT SO UNIQUE OR SECRET AS TO REQUIRE

COMPLETE SECRECY

A. There is No Connection Between TIZA’s Hate Mail and This Case

Relying on a handful of hate mail and threatening statements, TIZA argues that

this case is unique and therefore calls for an unprecedented protective order. What is

missing from its argument is evidence establishing any connection between those

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statements, however ugly, and either any action taken by any party in this case or the

remedy TIZA is proposing. Indeed, if TIZA’s causal arguments were to be taken

seriously – i.e., that there is a causal connection between events in this case and threats to

TIZA – its own evidence would establish that this lawsuit did not cause the hate mail and

threats; it ended them. Apparently every piece of hate mail sent to TIZA was generated

over six months before this lawsuit commenced. Apart from one reference to a recently-

published book and apparently unrelated to either TIZA or the ACLU, TIZA cannot find

anything to cite after the commencement of this case. Every piece of hate mail that cites

a triggering event cites some event completely unrelated to either the ACLU or this

lawsuit: a newspaper article, a book, or something on the Internet.

TIZA contends that this Court should enact its proposed order “regardless of the

cause or origin” of the alleged threats. TIZA Mem. at 7 n.1. That makes no sense, and

instead highlights the absence of any connection between the hate mail and threats TIZA

cites and the secrecy it demands. TIZA offers no plausible basis for concluding that the

ACLU will somehow misuse evidence in this case. The Zaman Affidavit submitted by

TIZA suggests that some threats “have coincided with the ACLU’s contact with the

media.” TIZA Mem. at 7 n. 1. The Affidavit makes no effort to connect the evidence to

that assertion, and there is no basis for it. In any event, TIZA does not attempt to explain

how labeling thousands of pages of public documents “Confidential” would affect the

threats in any way.

The Protective Order proposed to Judge Graham by the ACLU and the

Commissioner and unopposed by Islamic Relief, already addresses legitimate issues

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about student and parent identities and privacy. In the ACLU’s view, in fact, Judge

Graham’s Protective Order already goes too far in granting TIZA near carte-blanche, in

practical terms, to designate as secret whatever it chooses to designate. Judge Graham’s

Order provides TIZA more protection than it truly needs. Given this Court’s right to act

sua sponte, as TIZA argues, the most appropriate result of this challenge to the

Magistrate Judge’s Order would be to enter the protective order proposed by the ACLU

and the Commissioner. See Doc. No. 151-2.

B. The Threats and Intimidation Attempted by TIZA Constitute the Real

Challenge to Achieving Justice in this Case

There is a serious irony in TIZA’s assertion that it is the victim of threats and

intimidation relevant to this case. In every respect relevant to the actions of the parties in

this case, the only party generating threats or intimidation that interfere with the fair and

efficient administration of justice is TIZA. Consider the facts about the connections

between the parties’ actions and this case, rather than TIZA’s speculations.

The ACLU pointed out some time ago TIZA’s incorporation into its staff

handbook of a provision threatening sanctions against its employees if they discuss

events occurring at a public school outside the school. Amended Complaint ¶19. That is

a relevant threat. TIZA’s initial response to this lawsuit was a series of baseless tort

claims against the ACLU, premised upon nothing other than the bringing of this lawsuit.

After it realized that those claims could not be sustained, it sought, through additional

baseless claims demanding hundreds of thousands of dollars in damages, to intimidate the

ACLU from stating publicly its belief that TIZA is an Islamic school. Those baseless

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claims were relevant efforts at intimidation. Through its own public statements, far more

aggressive than any issued by the ACLU, it has emphasized the baseless charge that both

the ACLU and the state are focused on TIZA merely because its students are

predominantly persons of color. Those were relevant efforts at intimidation. TIZA’s

tactics have achieved some success. Just this week, the ACLU was forced to cancel or

postpone a scheduled deposition of a third party because the witness feared physical harm

resulting from naked intimidation by TIZA, issued almost immediately after TIZA

became aware that he was willing to speak publicly. Stopping TIZA’s intimidation of

potential witnesses is expected to be the subject of motion practice before Judge Graham

soon.

The ACLU has no reason to question TIZA’s claim that it has been the recipient of

hate mail and threats, and it deplores such actions. But the ACLU also regularly receives

vulgar, offensive, and threatening communications. It has also sought law enforcement

protection from the FBI for some such threats. But the ACLU still maintains that the

right response to hateful propaganda is more speech, not speech suppression, especially

when it is a government entity that is so vigorously trying to silence public criticism.

III. TIZA’S BLANKET CONFIDENTIALITY WOULD CREATE

UNNECESSARY BURDENS AND COMPLICATIONS, AND FAVORS
TIZA’S PUBLIC RELATIONS CAMPAIGN

TIZA’s proposed order would complicate litigation of this case for all parties. The

Zaman Affidavit claims that TIZA just wants “this Court to order all documents disclosed

by TIZA and the individual TIZA defendants be used solely for purposes of this

litigation.” Affidavit of Asad Zaman (Doc. No. 158-1) ¶17. That is simply wrong. The

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assertion is contradicted by the protective order TIZA is proposing. Implementing

TIZA’s proposed order would mean that virtually every substantive filing from this point

on would have to be filed under seal, because virtually every substantive filing will likely

mention in some way a document that TIZA designates as “Confidential.” It would mean

that the public, who as taxpayers and persons interested in upholding the Constitution

surely have a legitimate interest in these proceedings, are deprived of access to and

knowledge of the key events in the case. This would become a case involving public

institutions conducted almost entirely in secrecy.

These are among the other practical issues TIZA’s proposal would cause:

• Would the hundreds of documents that TIZA filed publicly in responding to

the ACLU’s motion to dismiss its defamation claims be suddenly deemed
“confidential”? Or would TIZA’s restrictions apply only to those
documents that it chose not to file because it decided they did not support
its positions?

• Would TIZA’s “confidential” documents remain “confidential” or, worse,

suddenly become “confidential,” even if another party produced the same
document?

• Would the Commissioner have to file under seal documents her agency is
obliged to keep public if TIZA produces a duplicate?

• If any party fails to notice that TIZA claims as “confidential” a duplicate

document that is not, in reality, confidential at all, is that party subject to
motion practice alleging sanctions for a public filing of the public
document?

• Will parties responding to media requests be subject to sanctions for

discussing publicly available documents that TIZA also happens to
produce?

In short, TIZA’s proposal solves no problems and would create many more.

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CONCLUSION

There is no connection between the threats and hate mail TIZA describes and the

gag order it seeks in this case. The real threats to the administration of justice in this case

are TIZA’s continuing refusal to produce any documents in this year-old case and TIZA’s

own intimidation tactics. TIZA’s proposed gag order does nothing to solve the real

problems in the case. The ACLU respectfully requests that, if Judge Graham’s Protective

Order is changed, it is changed only (1) to incorporate the languages all parties jointly

proposed and (2) to revert to the language proposed by both the ACLU and the

Commissioner, and opposed only by TIZA. A copy of that proposed protective order is

on file as Doc. No. 151-2.

DORSEY & WHITNEY LLP

Dated: January 20, 2010.

By s/Ivan Ludmer
Peter M. Lancaster #0159840
Christopher Amundsen #0388096
Ivan M. Ludmer #0389498
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
Telephone: (612) 340-2600

Attorneys for Plaintiff American Civil

Liberties Union of Minnesota

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