Anda di halaman 1dari 13

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 1 of 13

UNITED STATES DISTRICT COURT


DISTRICT OF MASSACHUSETTS
SPRINGFIELD DIVISION

SEXUAL MINORITIES UGANDA,


Plaintiff,
CIVIL ACTION
v.
NO. 3-12-CV-30051-MAP
SCOTT LIVELY, individually and as President of
Abiding Truth Ministries,
Defendant.
PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION TO AMEND THE ORDER REGARDING
CONFIDENTIALITY OF CERTAIN DISCOVERY MATERIAL
PRELIMINARY STATEMENT
Plaintiff Sexual Minorities Uganda (SMUG or Plaintiff) respectfully submits this
memorandum of law in support of its Motion to Amend the Order Regarding Confidentiality of
Certain Discovery Materials (Dkt. No. 106) (the Protective Order) so that SMUG may
designate certain exceptionally sensitive documents for Attorneys Eyes Only protection (the
Motion).
The Protective Order provides that either party may make an application to the Court for
heightened confidentiality protections, including Attorneys Eyes Only protections, for
specific Discovery Material, upon a showing of a particularized and compelling need.
Protective Order at 17. In the process of reviewing thousands of documents responsive to
Defendants discovery requests, SMUG has identified a discrete set of approximately 220
documents (the AEO Documents) for which there is a compelling need for heightened
confidentiality protections. Without the protection sought by the Motion, the safety and well-

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 2 of 13

being of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons in Uganda will be
put at risk and Plaintiff and its member organizations will not be able to adequately protect
themselves and their constituency from further harm.
The documents at issue fall within four categories: documents concerning (1) SMUGs
recent or ongoing efforts to address its own security needs and the security needs of its member
organizations and the LGBTI community; (2) SMUGs recent or ongoing assistance with and
security planning for a health clinic for the LGBTI community; (3) SMUGs communications
with representatives of foreign

governments concerning the persecution of the LGBTI

community in order to protect the community; and (4) highly sensitive information about
SMUGs workshop held in February 2012 that was raided by the Minister of Ethics and Integrity
as described in paragraphs 176185 of SMUGs First Amended Complaint (Dkt. No. 27) (the
Complaint).
The existing Protective Order (Dkt. No. 106) does not address the types of risks raised by
disclosure of the information in the AEO Documents. Under the current Protective Order,
SMUG may designate specific discovery material as Confidential, but cannot mark any
material Attorneys Eyes Only to prevent Defendant Scott Lively (Lively) from seeing
particular documents. With respect to the particular set of documents at issue here, there is a risk
that Lively would learn how the LGBTI community in Uganda presently seeks to protect itself
from the effects of Livelys campaign of discrimination, how SMUG presently supports and
protects health care services to LGBTI individuals, and how SMUG secures international
assistance for its members and this oppressed minority. That kind of information, once learned,
cannot be unlearned or forgotten. It would affect how Lively strategizes his ongoing campaign
of discrimination in Uganda, presenting a serious risk that Lively might use the information in

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 3 of 13

the AEO Documents, or perhaps disclose that information, even if inadvertently. Such use or
inadvertent disclosure would almost certainly imperil the safety and work of SMUG, its member
organizations, and the oppressed LGBTI community in Uganda.
Accordingly, SMUG moves the Court to amend the Protective Order to provide as
section 18:
18(a). Attorneys Eyes Only. Any party may designate material
ATTORNEYS EYES ONLY if such material concerns: (a) the safety
and security needs of LGBTI people in Uganda in the wake of the passage
of the Anti-Homosexuality Act; (b) security assistance to a health clinic
for the LGBTI community in Uganda; (c) communications with
representatives of international governments concerning the persecution
and the safety and well-being of LGBTI persons in Uganda; or (d)
documents concerning a February 2012 raid on a workshop attended by
LGBTI persons in Uganda. Attorneys Eyes Only information and
documents may include documents, portions of deposition transcripts,
interrogatory answers, responses to requests for admission, and any other
discovery materials designated as ATTORNEYS EYES ONLY. Access
to Discovery material designated by the producing party as
ATTORNEYS EYES ONLY pursuant to this Order shall be limited to
counsel of record, including members or associates of such counsels firm,
as well as their legal interns, paralegals, and secretarial and clerical
personnel who are engaged in assisting such counsel in this Action, and to
consulting and testifying experts. Material designated by the producing
party as ATTORNEYS EYES ONLY may not be disclosed, in whole or
in part, to counsel of records client, the requesting party.
18(b). Protection of Attorneys Eyes Only During Depositions. During the
deposition of any witness, questions which directly pertain to information
designated as Attorneys Eyes Only or questions that reasonably could
lead to discussion of information designated as Attorneys Eyes shall be
reserved for a closed portion of the deposition. During such closed
portion of the deposition, only the witness, attorneys, and court reporter
may be present in the deposition room; all others must leave, including
any parties. Should a question during the unrestricted portion of the
deposition threaten the appropriate handling of Attorneys Eyes Only
information, counsel may object and the question may be reserved for the
closed portion. Following the deposition, the entire transcript and any
video or audio footage shall be kept under the Attorneys Eyes Only
designation for a minimum of thirty days, during which time specific lines
of the transcript may be designated as subject to Attorneys Eyes Only
protection through clearly written designations of ATTORNEYS EYES

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 4 of 13

ONLY. Video footage will be considered Attorneys Eyes Only based


upon designations correlating with the marked lines of the transcript. Until
the end of this review period, all transcripts, audio, and video recordings
will be held, labeled, and stored as if they are, in their entirety, Attorneys
Eyes Only information. Any disputes over which information is
designated Attorneys Eyes Only must be addressed within five business
days of the receipt of the designated materials, else no objections will be
considered.
FACTUAL AND PROCEDURAL BACKGROUND
A.

The Persecution of LGBTI Persons in Uganda


In its February 14, 2014 ruling in anticipation of the existing Protective Order, the Court

referenced Judge Ponsors finding that Plaintiff has stated a claim against Defendant for
persecution that amounts to a crime against humanity and determined that while they will need
to be proved at trial, the allegations, together with Judge Ponsors comprehensive ruling
[denying Defendants motion to dismiss], do provide a background to the instant dispute over a
protective order. Dkt. 102 at 2.
SMUGs allegations in the Complaint detail a coordinated and sustained campaign to
target and demonize the LGBTI community in Uganda that has in many cases isolated LGBTI
people and deprived them of their basic human rights protections. Complaint at 25. Individual
members of SMUGs staff and its constituent organizations live in persistent fear of harassment,
arbitrary arrest and physical harm. Id at 6. Meetings of SMUG and its member organizations
have been raided by police and government officials. Id. at 4042, 165185. Names of
LGBTI activists, including SMUG staff and members, have been publicized in the media without
their consent, with some even accompanied by calls to violence. Id. at 10, 216219.
Notably, subsequent to the commencement of this action, one Ugandan publication
published details of a leaked document that discussed the strategies of Plaintiff and other
organizations involved in efforts to prevent the passage of the Anti-Homosexuality Bill and in

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 5 of 13

support of LGBTI rights. See Declaration of Pam Spees (Spees Decl.), Exhibit A, NGOs Gay
Plans Leak, Govt Furious, The Observer, June 27, 2012. The publication quoted the Ugandan
Minister of Ethics and Integrity as saying, There is now sufficient evidence to move against
these evil people. Well punish them with a deterrent punishment. Id.
The Complaint also details Livelys work with Ugandan-based co-conspirators Stephen
Langa, Martin Ssempa, Member of Parliament David Bahati, and former Minister of Ethics and
Integrity James Buturo. Complaint at 7-8, 47-56. At least one of those co-conspirators,
Martin Ssempa, has personally posted the names, photos and contact information of LGBTI
advocates whom he called homosexual promoters. Id. at 126.
Subsequent to the Courts ruling on the scope of the Protective Order, the AntiHomosexuality Bill, which Lively worked to bring about, id. at 9, 36-39, 75-93, was signed
into law on February 24, 2014. The Anti-Homosexuality Act (AHA) criminalized, among
other things, promotion of homosexuality, including the very existence of non-governmental
organizations like SMUG that advocate for the rights of and provide services to Ugandas
LGBTI community. See Spees Decl., Exhibit B, The Anti-Homosexuality Act, 2014, Part III,
1213. While the law was nullified five months later by the Constitutional Court of Uganda on
procedural grounds, Spees Decl., Exhibit C, more than 200 members of the Ugandan Parliament
have reportedly demanded that the law be tabled again and have vowed to ensure it passes. See
Spees Decl., Exhibit D, Uganda Anti-Gay Law to be Re-introduced in Parliament: Speaker, The
East African, Aug. 13, 2014. Media reported in late 2014 that a new version of the law has been
drafted and is expected to be re-introduced in Parliament during its current session. See Spees
Decl., Exhibit E, Saskia Houttuin, Gay Ugandans Face New Threat from Anti-Homosexuality
Law, The Guardian, Jan. 6, 2015.

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 6 of 13

B.

Attorneys Eyes Only Dispute

SMUG has already produced 24,934 pages of documents in response to Livelys First Set of
Requests for Production of Documents. During the course of its document review, SMUG has
identified approximately 220 documents subject to production, which, on account of their
particularly sensitive nature, merit heightened confidentiality protection. See Spees Decl. at 2
3. Each of the AEO Documents fits into one of the four following categories (the AEO
Categories):
(1) Security-Related Documents: These documents concern the recent or ongoing
planning and organization of SMUGs efforts to respond to (a) emergent
security situations of the LGBTI community, particularly in the wake of the
passage of the AHA and (b) the safety and security needs of its member
organizations, in particular post-passage of the AHA. See id. at 3(a). By
contrast, documents relating to past planning and organization of SMUGs
security efforts, which are no longer pertinent, have been produced with a
CONFIDENTIAL designation pursuant to the existing Protective Order.
See id. at 5.
(2) Health Care- and Security-Related Documents: These documents concern
SMUGs recent or ongoing assistance with and security planning for a health
clinic for the LGBTI community, which provides HIV/AIDS testing,
treatment and counseling. See id. at 3(b). Other documents concerning
SMUGs efforts with respect to these services, which do not bear on its recent
or ongoing security planning and assistance, have been produced with a
CONFIDENTIAL designation pursuant to the existing Protective Order.
See id. at 6.
(3) Communications with Foreign Government Representatives: These
documents contain confidential communications between SMUG and
representatives of foreign governments concerning the persecution as part of
their effort to ensure the safety and well-being of LGBTI persons in Uganda
and guard against additional acts of persecution. See id. at 3(c).
(4) Video, Photographs, and Emails Concerning a Workshop Raided in 2012:
These documents concern a workshop held in February 2012 that was raided
by the Minister of Ethics and Integrity, as described in paragraphs 176-185 of
Plaintiffs First Amended Complaint. The videos and photographs contain
images of people in attendance whose safety and liberty could be endangered
were their images and identities to be publically disclosed. The videos also
6

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 7 of 13

contain footage of the closed workshop sessions involving detailed


discussions of human rights advocacy strategies for the LGBTI community.
See id. at 3(d). By contrast, SMUG has produced other documents
concerning this event with a CONFIDENTIAL designation that do not
reveal images and identities of workshop participants who are not publicly
known to be members or supporters of the Ugandan LGBTI community or
that do not reveal details about confidential advocacy strategies discussed at
the workshop. See id. at 7.
Pursuant to Local Rule 37.1, the parties met and conferred by telephone on Thursday,
April 23, 2015 to discuss whether Lively would agree to allow Attorneys Eyes Only
designations for the AEO Documents. Declaration of Daniel W. Beebe at 2. For purposes of
the conference, SMUG sent Livelys counsel an index titled Index of Documents for Attorneys
Eyes Only Designation, identifying each of the AEO Documents by bates range, date, author,
recipient, and description with SMUGs basis for making an AEO designation. See id.

Mr.

Daniel W. Beebe and Kaleb McNeely participated on behalf of SMUG, and Mr. Horatio Mihet
and Mr. Roger Gannam participated on behalf of Lively. Id. at 3. Despite conferring in good
faith, the parties were unable to reach agreement. Id. at 4.
SMUGs position is that the Protective Order should be amended to permit SMUG to
designate documents Attorneys Eyes Only if they fit within any of the four AEO Categories,
and that documents so-marked should not be disclosed to Lively. Id. at 5.

Livelys position,

as articulated by his counsel during the telephonic conference, is that he personally should be
allowed to review all documents produced by SMUG in this litigation. Id. at 6.
ARGUMENT
Pursuant to Federal Rule of Civil Procedure 26, the Court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense. Fed.R.Civ.P. 26(c)(1). The Court has broad discretion to decide when a protective
order is appropriate, and what degree of protection is required. Seattle Times Co. v. Rhinehart,

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 8 of 13

467 U.S. 20, 36 (1986). Protective orders are particularly appropriate when disclosure may
endanger a party or subject a party to harassment and reprisals. See id. at 2627.
[A]mple precedent exists for Attorneys Eyes Only protection of highly sensitive,
confidential or proprietary information. Westside-Marrero Jeep Eagle, Inc. v. Chrysler Corp.,
1998 WL 186728, at *2 (E.D.La. Apr. 17, 1998) (collecting cases). Attorneys Eyes Only
designations are appropriate to prevent disclosure of highly confidential information to a
defendant who would be especially situated to take positions that are directly harmful and
antagonistic to [the plaintiff] such that the defendants subconscious use [of that information]
in his future endeavors is unavoidable. Voice Domain Technologies, LLC v. Apple, Inc., 2014
WL 5106413, at *4, 5 (D. Mass. Oct. 8, 2014) (internal quotations omitted). This level of
protection prevent[s] a party from viewing the sensitive information while nevertheless
allowing the partys lawyers to litigate on the basis of that information. In re City of New York,
607 F.3d 923, 93537 (2d Cir. 2010). Any hardship to the party from being unable to view
highly confidential material is mitigated by the fact [his] counsel will have access to the AEO
materials and can therefore competently advise the client. Voice Domain, 2014 WL 5106413,
at *5.
The Protective Order provides that SMUG may make an application to the Court for
heightened confidentiality protections, including attorneys eyes only protections, for specific
Discovery Material, upon a showing of a particularized and compelling need. Protective Order
at 17. As set forth in greater detail below, the facts warrant the Courts exercise of its broad
discretion to amend the Protective Order to allow Attorneys Eyes Only protection for the
AEO Documents because: (1) disclosure of the information in the AEO Documents could further
endanger the vulnerable LGBTI community in Uganda; and (2) there is a risk that Lively would

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 9 of 13

use the information in the AEO Documents to continue his campaign of discrimination and
persecution. Further, Lively does not need to view this information himself in order to assert a
defense in this action.
I.

Disclosure Of The Contents Of The AEO Documents Could Cause Irreparable


Harm To The Persecuted LGBTI Community in Uganda.
Attorneys eyes only protection is especially appropriate to protect vulnerable

individuals. See U.S. v. Padilla, 2011 WL 1103876, at *1 (D.N.M. March 14, 2011) (noting that
the court previously permitted attorneys eyes only designation on a list of witnesses alleged to
be vulnerable). Further, while attorneys eyes only designation is a routine feature of civil
litigation involving trade secrets, when the revelation of a litigants strategies would endanger
lives, they are entitled to the same, if not more, protection than trade secrets since any injury
resulting from inadvertent disclosure of such information could not be remedied by an
injunction or money damages. In re City of New York, 607 F.3d at 935-37.
Disclosure of the AEO Documents to Lively would inform him of critical strategies for
securing the safety, health, and well-being of the LGBTI community in Uganda. Although the
current Protective Order prevents Lively from publically disseminating SMUGs confidential
documents, it is not sufficient protection for the information at issue here. If Lively were to
review detailed information about how the LGBTI community is currently seeking to protect
itself from persecutors such as himself, then Lively will be able to counter those defensive
strategies, whether he publically discloses the actual documents or not.
There is also some risk that Lively might use the information or disseminate it to
others, further putting lives at risk. Westside-Marrero Jeep Eagle, 1998 WL 186728, at *2.
Lively has waged a decade-long campaign, in coordination with his Ugandan associates, to
persecute LGBTI persons. He views SMUG and LGBTI individuals as part of an evil and

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 10 of 13

genocidal, pedophilic gay movement. He has influenced, advised on and promoted the
AHA in Uganda. His close associate Martin Ssempa has publically posted the names, photos
and contact information of LGBTI advocates who he called homosexual promoters. Put
simply, there is no way SMUG can be certain that Lively will never use the AEO Documents (or
the information contained in them) to further his anti-gay campaign in Uganda and endanger the
lives and well-being of the persecuted LGBTI minority in Uganda. And once Lively views the
information, SMUG can never un-ring the bell.
Accordingly, because there is a risk of Livelys use, subconscious or not, or disclosure of
the information contained in the AEO Documents, this Court should exercise its broad discretion
under Rule 26 to amend the Protective Order to permit SMUG to designate the AEO Documents
for Attorneys Eyes Only.
II.

The Potential For Harm to SMUG and the LGBTI Community in Uganda
Outweighs Livelys Need to Access the Information Himself.
In assessing whether to issue a requested protective order, courts must weigh the risk of

harm to a litigant against the relevance and necessity for the information. Multi-Core, Inc. v.
Southern Water Treatment Co., 139 F.R.D. 262, 264 (D. Mass. 1991); see also In re City of New
York, 607 F.3d at 945946. The risks posed by disclosure of the information contained in the
AEO Categories is not merely conjectural. Plaintiff and its member organizations have already
experienced sensationalized publication of their leaked, sensitive planning documents; degrading
and demonizing outings of its staff, members and constituency in tabloids; and government
crackdowns of their meetings.
By contrast, Lively would suffer minimal, if any, impairment in his ability to participate
in his own defense as a result of attorneys eyes only protection on information falling within
the four discrete and contained AEO Categories or small set of AEO Documents. SMUG has

10

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 11 of 13

already produced documents concerning the persecutory events in its Complaint, including the
raid of its workshop in February 2012 and the need for and threats to the LGBTI-centered health
clinic that SMUG supports, as well as documents discussing the harms to SMUG and its
members caused by those events. See Spees Decl. 57. In order to defend against SMUGs
claim of widespread or systematic persecution and Livelys role in bringing it about, Lively does
not himself need to know the details of how SMUG, its member organizations and the health
clinic are working to protect themselves from the persecution, including the assistance SMUG
has sought from foreign governments. Similarly, Lively himself need not view video footage,
photos, and documents capturing the February 2012 workshop and that contain detailed
discussions about the very work Lively is trying to suppress, as well as images and identities of
vulnerable persons who are not publicly known as members or supporters of the Ugandan
LGBTI community, in order to assist his attorneys in determining whether the workshop and raid
actually occurred.
Thus, the potential harm to Plaintiff, its member organizations, and the LGBTI
community in Uganda from disclosure of the information in the AEO Categories far outweighs
Livelys need to view such information himself, and the Court should amend the Protective
Order to permit SMUG to designate the AEO Documents for Attorneys Eyes Only protection.

11

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 12 of 13

CONCLUSION
For the reasons stated above, Plaintiff respectfully requests that its Motion to Amend the
Courts March 3, 2014 Order Regarding Confidentiality of Certain Discovery Materials be
granted.
Dated: May 5, 2015

Respectfully submitted,
/s/ Daniel W. Beebe
Mark S. Sullivan, admitted pro hac vice
Joshua Colangelo-Bryan, admitted pro hac vice
Daniel W. Beebe, admitted pro hac vice
DORSEY & WHITNEY, LLP
51 West 52nd Street,
New York, New York 10019-6119
Tel. 212-415-9200
sullivan.mark@dorsey.com
Pamela C. Spees, admitted pro hac vice
Baher Azmy, admitted pro hac vice
Jeena D. Shah, admitted pro hac vice
CENTER FOR CONSITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
Tel. 212-614-6431
Fax 212-614-6499
pspees@ccrjustice.org
Luke Ryan (MA Bar No. 664999)
100 Main Street, Third Floor
Northampton, MA 01060
Tel. 413-586-4800
Fax 413-582-6419
lryan@strhlaw.com
Attorneys for Plaintiff

12

Case 3:12-cv-30051-MAP Document 150 Filed 05/04/15 Page 13 of 13

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
electronically with the Court on May 5, 2015. Service will be effectuated by the Courts
electronic notification system upon all counsel or parties of record.
/s/ Daniel W. Beebe
Daniel W. Beebe

13