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Case 3:12-cv-30051-MAP Document 159 Filed 05/22/15 Page 1 of 15

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MASSACHUSETTS
SPRINGFIELD DIVISION
SEXUAL MINORITIES UGANDA,
Plaintiff,
v.
SCOTT LIVELY,
Defendant.

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CIVIL ACTION
3:12-CV-30051-MAP
JUDGE MICHAEL A. PONSOR
MAGISTRATE JUDGE
KATHERINE A. ROBERTSON

DEFENDANT SCOTT LIVELYS MEMORANDUM IN OPPOSITION


TO PLAINTIFFS MOTION TO AMEND THE ORDER REGARDING
CONFIDENTIALITY OF CERTAIN DISCOVERY MATERIAL
Defendant, Scott Lively (Lively), pursuant to Local Rule 7.1(b)(2), files this
memorandum in opposition to the Motion to Amend the Order Regarding Confidentiality of
Certain Discovery Material (Dkt. No. 149) filed by Plaintiff, Sexual Minorities Uganda
(SMUG). For the reasons stated herein, the motion should be denied.
PRELIMINARY STATEMENT
SMUGs motion asks the Court to change its mind on an issue the Court already decided
against SMUG in the Courts Order Regarding Confidentiality of Certain Discovery Material (Dkt.
No. 106) (the Confidentiality Order). The sole issue for the Courts decision is whether to create
a new category of Confidential Discovery Material (as defined in the Confidentiality Order)
designated Attorneys Eyes Only (or AEO), which SMUG wants to prevent Lively from
seeing. But there has been no material change in circumstances justifying the Courts departure
from its prior ruling against an AEO restriction. And, like before, SMUG fails to make a sufficient
showing of compelling need to justify blocking Livelys access to critical discovery, thereby
profoundly hindering Livelys ability to participate and assist his counsel in his own defense.

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As before, SMUG offers no evidence to justify an AEO restriction, but is travelling on the
mere allegations of wrongdoing by Lively in its Complaint, which SMUG has made little attempt
to prove in the more than three years since its filing. To be sure, SMUG does not care whether it
ever proves its allegations against Lively. In March of this year, Frank Mugisha, SMUG's
Executive Director, boasted to an American publication, Our goal is not actually about the
outcome of the case; our goal is the advocacy weve been able to do around the case.1 In
other words, the process is the punishment. In light of this admission that proving its case is not
the goal, every SMUG claim of injury caused by Lively is suspect; every security measure SMUG
claims to have taken in response to Lively's alleged conduct demands scrutiny; and the person on
whose name SMUG is flippantly trading for influence, Scott Lively, has the right to see and
evaluate all evidence SMUG may use to further its cause at Livelys expense. It is disingenuous
for SMUG to feign the desire for secrecy and obscurity behind an AEO restriction, while
promoting internationally its political human rights case against Lively for the admitted purpose
of increasing SMUG's profile. SMUGs failure to meet the standards for an AEO restriction, shown
below, and admitted ulterior motives, shown above, require denial of SMUGs motion to amend
the existing Confidentiality Order. Any other outcome would further hamstring Livelys ability to
rebut SMUGs baseless claims.

James McDonald, 3 Questions on The Battle for Uganda: Frank Mugisha brings the fight against
oppression to America (May 11, 2015 6:00 AM), http://www.advocate.com/
world/2015/05/11/3-questions-battle-uganda.

Case 3:12-cv-30051-MAP Document 159 Filed 05/22/15 Page 3 of 15

THE EXISTING CONFIDENTIALITY ORDER


SMUGs latest entreatment for an AEO restriction that would eject Lively from his own
defense is nothing new. The existing Confidentiality Order (Dkt. No. 106) represents the Courts
resolution of a contentious and thoroughly briefed dispute regarding the appropriate scope of
confidentiality protections for discovery materials in this case.2 Importantly, Lively did not object
to the entry of an appropriate protective order shielding certain genuinely confidential information
from disclosure. (Dkt. No. 90 at 1.) Lively by no means, however, conceded that the actual
situation in Uganda bore any resemblance to the gross exaggerations and misrepresentations set
forth in SMUGs motion for protective order, or in the Amended Complaint, and unequivocally
denied (and denies) that he has engaged in any wrongdoing whatsoever. (Id.) Nevertheless, Lively
was amenable to entry of a protective order to be used in those rare instances where the evidence
establishes a reasonable probability that public disclosure may cause legitimate harm. (Id.)
The proposed protective order submitted by SMUG, however, went much too far, and
would have profoundly prejudiced Livelys ability to assist in his own defense, and the ability of
his counsel to effectively defend him. (Id.) Included in SMUGs proposed protective order was an
attorneys eyes only designation for certain limited discovery, which would have prevented

The filings reflecting the disputed issues are Plaintiffs Motion for Protective Order (Dkt. No.
85); Plaintiffs Memorandum of Law in Support of Its Motion for Protective Order (Dkt. No. 86);
Defendant Scott Livelys Response to Plaintiffs Motion for Protective Order (Dkt. No. 90);
Electronic Order denying without prejudice Plaintiff's Motion for Protective Order (Neiman, M.J.)
(Dkt. No. 93); Joint Submission Regarding Proposed Protective Order (Dkt. No. 96); Defendant
Scott Livelys Response to the Parties Joint Submission Regarding Protective Order (Dkt. No.
98); Plaintiffs Proposed Reply to Defedants Response to the Parties Joint Submission Regarding
Protective Order (Dkt. No. 99-1) (allowed by Dkt. No. 100); and Memorandum and Order with
Regard to the Parties Countervailing Submissions Regarding A Proposed Protective Order (Dkt.
No. 102).
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Lively from considering and discussing with his own counsel admittedly relevant evidence. 3 But,
as determined by the Court, SMUG provided insufficient justification for imposing such handicaps
on Livelys defense.
In the Courts Electronic Order initially denying SMUGs motion for protective order (Dkt.
No. 93), Judge Neiman held,
the court is not inclined to adopt the attorney's eyes only provision . . . for many of
the reasons raised by Defendant in his opposition; given that Defendant, as the
sole defendant in this action and as uniquely positioned to assist in his defense
with regard to the events at issue, his counsel will no doubt need to
communicate with him without the strictures proposed by Plaintiff.
(Emphasis added.) In the Courts subsequent Memorandum and Order addressing additional issues
involving the scope of confidentiality protection sought by SMUG (Dkt. No. 102), Judge Neiman
reiterated that he was not inclined to accept an attorneys eyes-only provision given that
Defendants counsel would no doubt need to communicate with him as a sole defendant uniquely
positioned to assist in his defense, and stated he was also concerned about shackling
Defendants investigation of facts and witnesses in Uganda. (Dkt. No. 102 at 3 (emphasis
added).) Judge Neiman further concluded that Lively, to mount his defense, does need to
investigate highly sensitive matters without undue trammels. (Id. (emphasis added).)
Thus, the Court made clear its antipathy towards AEO restrictions in this case, (Dkt. No.
93; Dkt. No. 102 at 3), and ultimately entered the existing Confidentiality Order with no AEO
restriction. While the Court did not foreclose completely the possibility of a future AEO restriction
upon a proper application, the Court conditioned any such restriction on a showing of
particularized and compelling need. (Conf. Order, 17.) This high bar set by the Court reflects

The AEO restriction in SMUGs first proposed protective order was for materials designated
HIGHLY CONFIDENTIAL, disclosure of which was limited to counsel and specified non-party
persons. (Dkt. No. 86-3, 8.)
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the near universal aversion of courts to AEO restrictions except in very limited contexts not
applicable here. SMUGs current motion to amend the Confidentiality Order fails to satisfy this
high standard.
To be sure, the Court did rule in SMUGs favor on numerous other contested issues in the
fashioning of the Confidentiality Order, which Lively respectfully contends has already adversely
impacted his ability to test and rebut SMUGs outrageous claims. (See Defendant Scott Livelys
Objection to Protective Order, Dkt. No. 118.) To the extent the Courts rejection of an AEO
provision reflected an attempt to compromise and strike a balance between the parties competing
interests, SMUG now wishes to deprive Lively even of that hard fought concession, while retaining
all of the other, numerous benefits it obtained. The unfairness of SMUGs requested relief is
evident.
LAW AND ARGUMENT
I.

SMUGS MOTION TO AMEND THE CONFIDENTIALITY ORDER SHOULD BE


DENIED BECAUSE SMUG AGAIN FAILS TO JUSTIFY THE DRASTIC
ATTORNEYS EYES ONLY RESTRICTION EXCLUDING LIVELY FROM HIS
OWN DEFENSE.

A.

Imposing an AEO restriction on relevant discovery is a drastic measure


which is highly disfavored.

The Courts preclusion of any AEO restriction except upon a showing of particularized
and compelling need (Conf. Order, 17) reflects the highly disfavored nature of such restrictions.
The common law presumes a right of public access to judicial records. Siedle v. Putnam
Investments, Inc., 147 F.3d 7, 9 (1st Cir. 1998). Although this right is not absolute, and courts may
fashion protective orders prohibiting public disclosure in limited circumstances, id. at 9-10,
attorneys eyes only provisions are the most restrictive possible protective order, and pose a
significant handicap on the restricted litigant by making it difficult, and perhaps impossible, for
an attorney to counsel a client . . . on the basis of information kept secret from the client. Arvco

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Container Corp. v. Weyerhaeuser Co., 1:08-CV-548, 2009 WL 311125, *5-6 (W.D. Mich. Feb. 9,
2009) (denying request for attorneys eyes only protection). As such, an attorneys eyes only
restriction is highly disfavored because,
it is a drastic remedy given its impact on the party entitled to the
information. For one thing, it limits the ability of the receiving party
to view the relevant evidence, fully discuss it with counsel, and
make intelligent litigation decisions. Also, in many cases, it limits
the ability of a party to provide needed assistance to counsel.
Ragland v. Blue Cross Blue Shield of N. Dakota, 1:12-CV-080, 2013 WL 3776495 , *1-2 (D.N.D.
June 25, 2013) (emphasis added) (collecting cases where restriction was denied). For this reason,
attorneys eyes only restrictions will only be justified in those rare instances where, unlike here,
there is no other effective alternative. Id. at *2 (denying attorneys eyes only restriction).
B.

SMUGs motion is wholly insufficient to justify the drastic and highly


disfavored AEO restriction.
1.

SMUG fails to put forth evidence of a compelling need for


an AEO restriction.

SMUGs purported justifications for imposing an AEO restriction on documents relevant


to Livelys defense are protecting the safety of SMUGs constituents and preventing Livelys
campaign of discrimination and persecution. (Dkt. No. 150 at 8-9.) SMUG has presented
absolutely no evidence that such a drastic measure is warranted here. The only evidence before
this Court is that Lively has never outed a homosexual, lesbian or transgender person by publicly
revealing their sexuality or sexual preferences or whereabouts without their consent. (Declaration
of Scott Lively in Opposition to Plaintiffs Motion to Amend Protective Order (Lively
Declaration, attached hereto as Exhibit A), 2; Declaration of Scott Lively in Response to
Plaintiffs Motion for Protective Order (Dkt. No. 90-1, Lively Declaration 90-1, attached hereto
as Exhibit B), 2.) Lively has never assisted anyone in perpetrating such outings, nor has he
encouraged or condoned such outings. (Lively Decl., 2; Lively Decl. 90-1, 3-4). On the
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contrary, Lively has unequivocally condemned others in Uganda who have engaged in such
outings, and has praised the Ugandan courts for punishing them. (Lively Decl., 2; Lively Decl.
90-1, 4.) Lively has no intention to publicly disclose the identity, sexuality, sexual preferences
or practices, whereabouts or associational activities of any homosexual, lesbian or transgender
person in Uganda or anywhere else. (Lively Decl., 2; Lively Decl. 90-1, 5.)
SMUG has failed to rebut this evidence with anything that contradicts it. Notably,
SMUGs motion comes after more than one year and a half of extensive, full-fledged discovery
in which literally tens of thousands of documents have been exchanged by the parties. Still, the
only justification that SMUG can muster now for excluding Lively from his own defense is
SMUGs unproven allegations which provide a background to the instant dispute over a
protective order. (Dkt. No. 150 at 4 (quoting Dkt. No. 102 at 2).) These background allegations
include a coordinated and sustained campaign [by an unnamed person] to target and demonize
the LGBTI community in Uganda, a leaked document [by an unnamed person] that discussed
the strategies of Plaintiff, and Livelys mere alleged association with four Ugandan individuals
who allegedly conspired to out LGBTI advocates. (Dkt. No. 150 at 4-5.) However, SMUG
does not present a shred of evidence that Lively was himself involved in such alleged conduct, or
that he encouraged it, or that he even knew about it. There is nothing in SMUGs motion that even
comes close to rebutting Livelys sworn declarations that he has, in fact, condemned such conduct
and that his association with individuals in Uganda, including Stephen Langa, Martin Ssempa
and James Buturo, has always been and remains strictly for lawful and constitutionally-protected

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purposes, that is, to lawfully speak and to engage in public and political advocacy on civil and
political matters of public importance. (Lively Decl., 2; Lively Decl. 90-1, 9.) 4
Punishing Lively for his lawful association with other individuals without any, much less
strict, proof that he was himself responsible for any unlawful conduct allegedly committed by
those individuals, would be an unconstitutional violation of Livelys First Amendment rights. See
N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982) (Civil liability may not be
imposed merely because an individual belonged to a group, some members of which committed
acts of violence). SMUG has brought forth no evidence that Lively has personally agreed to
employ the illegal means contemplated by his associates in this case the alleged forced outing
of homosexuals which is the minimum threshold requirement for punishing speech and
association within the shadow of the First Amendment. United States v. Spock, 416 F.2d 165,
172, 176 (1st Cir. 1969). Indeed, SMUG has not even alleged that Lively has personally agreed
to employ the forced outing of homosexuals, much less proven it. Yet SMUG invites the Court
to impose a debilitating litigation handicap upon Lively, based solely upon his lawful association
with others. This is nothing short of an invitation to violate the associational rights of a United

In the nearly three years since filing the Amended Complaint, the only evidence adduced by
SMUG relevant to what Lively actually did in Uganda disproves SMUGs allegations. On May
12, 2105, SMUG took the deposition of Caleb Brundidge, who spoke along with Lively at the
March 2009 Seminar on Exposing the Homosexual Agenda in Uganda. (Dkt. No. 27, 36;
Transcript of Deposition of Caleb Brundidge on May 12, 2015 (Brundidge Deposition, excerpts
of which are attached hereto as Exhibit C.) (The attached excerpts are from the preliminary rough
copy of the Brundidge Deposition transcript provided to Livelys counsel by SMUGs counsel;
the parties await the final transcript.) Brundidge testified that Lively did not advocate violence
against homosexuals, that the death penalty be imposed for homosexual behavior or against
homosexuals, that life sentences be imposed against homosexuals, that the media publish the
names and/or pictures and/or addresses of homosexuals, that landlords should evict . . .
homosexuals, that police should raid either the homes or the meetings of homosexuals, or that
police should arrest homosexuals or homosexual advocates. (Brundidge Dep. at 109:20-111:21.)
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States citizen, even while invoking those very same rights on behalf of a foreigner and stranger to
the U.S. Constitution and U.S. courts.
SMUGs evidentiary failures are fatal to its request for an attorneys eyes only litigation
burden. See, e.g., Ragland, 2013 WL 3776495 at *2 (attorneys eyes only provision should not
be authorized simply because one of the parties would prefer that certain information not be
disclosed to an opposing party); Arvco Container Corp., 2009 WL 311125 at * 8 (A litigant's
vague feeling of discomfort or its desire to hobble its opponent in litigation do not establish good
cause); Dorchen/Martin Assoc., Inc. v. Brook of Cheboygan, 11-10561, 2012 WL 1936415, *1
(E.D. Mich. May 29, 2012) (Defendants submit good cause exists but they make no specific
allegations, let alone demonstrations of fact, indicating why good cause exists to impose the most
restrictive order regarding the requested information) (denying attorneys eyes only restriction);
EQ Oklahoma, Inc. v. A Clean Env't Co., 11-CV-510-GKF-PJC, 2012 WL 5429869, *1 (N.D.
Okla. Nov. 7, 2012) (ACE set forth various factual assertions in opposition to EQ's proposed
order, but provided no evidentiary support to this Court) (denying attorneys eyes only
restriction) (emphasis in original).
Moreover, SMUG has presented no authority for its proposition that attorneys eyes only
provisions are even suitable outside of the trade secrets context, where they have been traditionally
employed. See, e.g., Ragland, 2013 WL 3776495 at *1 (limiting disclosure on an attorneys' eyes
only basis is recognized as an appropriate method of protecting information in very limited
situations, e.g., cases involving trade secrets) (emphasis added); Multi-Core, Inc. v. S. Water
Treatment Co., 139 F.R.D. 262 (D. Mass. 1991) (cited by SMUG) (ordering disclosure of
defendants secret formula to only plaintiffs counsel and experts). It is one thing to preclude a
litigant from knowing the secret formula of his competitors product, and another thing entirely to

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preclude that litigant from even knowing who is suing him, who is pointing the finger at him, and
what their damages claims are, and to prevent him from assisting in his own defense against them.
SMUG has presented no case in which this type of litigation handicap has ever been imposed.
Indeed, SMUG unconvincingly cites two other commercial trade secret cases to attempt to
justify an AEO restriction in this case, Voice Domain Technologies, LLC v. Apple, Inc., No.
CIV.A. 13-40138-TSH, 2014 WL 5106413 (D. Mass. 2014); Westside-Marrero Jeep Eagle, Inc.
v. Chrysler Corp., Inc., No. CIV. A. 97-3012, 1998 WL 186728 (E.D. La. 1998). Both, of course,
are distinguishable.
In Voice Domain Technologies and Westside-Marrero Jeep Eagle, a finding of risk of
subconscious or inadvertent disclosure was necessitated by the indisputable position of the parties
seeking disclosure as competitors of the parties seeking the restriction. See 2014 WL 5106413 at
*5; 1998 WL 186728 at *2. In neither, however, was the requesting partys position as a
competitor the ultimate issue in the case. By contrast, in the instant case, SMUGs argument that
Livelys mere possession of confidential information creates a risk of disclosure endangering
SMUG presumes the ultimate fact in the case on which SMUG bears the burden of proof at trial
that Lively is persecuting SMUG. Lively unequivocally denies this ultimate fact of persecution,
and SMUG has yet to even attempt to prove it. It would be improper and unfair for this Court to
presume that SMUG has already prevailed on its claims, which the Court must do to accept
SMUGs arguments, with the result being a substantial restriction on Livelys ability to participate
in his own defense against those very claims.
The only non-commercial case cited by SMUG, In re The City of New York, 607 F.3d 923
(2d Cir. 2010), strays even farther from relevance to the instant dispute. In City of New York, the
court held that the confidential intelligence files of the New York City Police Department were

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protected from any disclosure by the law enforcement privilege, which shifted the burden to the
plaintiffs seeking disclosure to show a compelling need for the files. 607 F.3d at 929. Furthermore,
the primary interest at stake in restricting disclosure was the safety of not only NYPD officers, but
also the entire general public of New York City. Id. at 936. In the instant case, SMUG can point
to no similarly applicable privilege shifting the burden to Lively to justify disclosure, nor can
SMUG claim that it is seeking to protect the safety of the entire general public of Uganda (or any
of its cities).
Having no evidence to prop up its motion, SMUG turns to bald innuendo.5 In between
recitations of its unproved allegations against Lively of a coordinated and sustained campaign to
target and demonize the LGBTI community in Uganda, and more unproved allegations of
Livelys work with Ugandan-based co-conspirators, SMUG indelicately interposes an account
of a confidential document leaked in Uganda that discussed the strategies of Plaintiff . . . .
(Dkt. No. 150 at 4-5.) But SMUG fails, as usual, to cite a single fact connecting Lively to the
leak. The alleged leak supposedly took place in 2012. (Dkt. No. 150 at 4-5.) Since this was
well before discovery in this case began, and before SMUG produced any documents to Lively,
Lively could not possibly have been the source of the alleged leak. Tellingly, SMUG does not

This is not the first time SMUG has turned to innuendo in the absence of evidence. For example,
in its original Complaint, SMUG alleged that David Kato, SMUGs Advocacy Officer, was
bludgeoned to death in his home, four months after he was outed by a tabloid newspaper
under the headline, HANG THEM, thereby implying that Kato was killed by a homophobe
presumably enraged by Livelys speeches and writings. (Dkt. No. 1, 8, 126-130.) As reported
in leading homosexual publications and respected international media, however, Kato was killed
not by an enraged homophobe but by a homosexual prostitute whom Kato hired for sexual services
and refused to pay. (Dkt. No. 22 at 5 & n.5, 6; Dkt. No. 33 at 7-8 & nn.6-7.) SMUG ignored these
rebuttals outright, and continued to make the same insinuations in its Amended Complaint, albeit
in a somewhat more nuanced fashion. (Dkt. No. 5, 10, 219-222.)

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expressly blame Lively for the alleged leak, and is content to simply allege that the leak occurred,
hoping that innuendo will adequately fill the place of proof. Moreover, Lively has provided his
sworn declarations of strict compliance with the existing Confidentiality Order, which SMUG
cannot refute. (Lively Decl., 2, 3; Lively Decl. 90-1, 6-8.)
2.

The existing Confidentiality Order is more than adequate


to accommodate any discovery materials to be produced by
SMUG.

In addition to failing to establish any new, compelling need for an AEO restriction, SMUG
has also failed to show that there is no other effective alternative to the restriction. Ragland,
2013 WL 3776495 at *2. Here, there plainly is such an alternativethe existing Confidentiality
Order, which already prohibits disclosure of confidential information to others outside of this
litigation who have no legitimate need for such information. Livelys sworn, unrebutted
declarations demonstrate that he has strictly complied with the Confidentiality Order, and will
continue to do so with respect to SMUGs ostensibly more sensitive information. (Lively Decl.,
2-4; Lively Decl. 90-1, 6-8.) SMUG has not, and cannot, counter Livelys declarations.6
C.

SMUGs proposed AEO restriction would unfairly prejudice Lively.

Here, SMUG seeks a drastic AEO restriction that would work extreme prejudice on
Lively, who is uniquely positioned to assist in his defense. Lively is an attorney (although his
California license is on inactive status, because of his residence in Massachusetts), and has been
actively involved in assisting his counsel in the defense of this suit. (Lively Decl., 2; Lively Decl.
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To be sure, SMUG has itself violated the existing Confidentiality Order by withholding
confidential material outright, instead of producing it with the Confidential designation required
by the order. (Conf. Ord. 11(a) ([N]o party may withhold materials . . . based solely on a claim
that the material sought is Confidential Discovery Material.) Among the nearly 25,000 pages of
documents produced by SMUG (neither organized to correspond to the categories requested nor
as kept in the usual course of business), numerous pageslikely in the hundredsshow redactions
supposedly based on confidentiality. Counsel for the parties are conferring in an effort to resolve
SMUGs deficient production.
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90-1, 8, 10.). Lively is uniquely aware of his speech and conduct in Uganda, his interaction with
various individuals in the context of the allegations raised by SMUG (some of whom may be
shown in the video of the workshop allegedly raided in 2012), and many of the facts and
circumstances surrounding the events giving rise to this action. As such, Livelys counselnone
of whom have been to Ugandamust rely heavily on him for this knowledge. Lively plans to
continue to play an integral part in his own defense, by assisting with the rebuttal of the claims
asserted by Plaintiff and its witnesses. (Lively Decl., 2; Lively Decl. 90-1, 10.) But SMUGs
proposed attorneys eyes only restriction would effectively shut Lively out of his own defense,
by keeping him in the dark about the identity of the secret SMUG members and constituents who
are accusing him, and hiding the extent of damages SMUG intends to recover from him.
For example, SMUG alleges in its Amended Complaint that it suffered harm from having
to retain security personnel and take additional security measures, and prays for compensatory
damages, as well as punitive and exemplary damages, as a result of the alleged harm. (Dkt. No.
27, 223-24, at 59.) Thus, the nature and scope of security measures implemented by SMUG are
critically relevant to its damages claim (which SMUG has yet to quantify), and therefore critically
important to Livelys defense.7 Lively has a right to test, verify, and rebut each SMUG claim that
any particular security measure was taken in response to his conduct. Given that SMUG has made
the extent of its security response a damages issue, SMUGs self-serving statement that Lively
does not himself need to know the details of how SMUG, its member organizations and the health

Nor can the relatively small number of documents SMUG (currently) seeks to designate AEO,
approximately 220, justify the drastic restriction. Given the critical relevance of the documents
demonstrated herein, restricting Lively from even one page is not justified.

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clinic are working to protect themselves from the persecution defies logic. (Dkt. No. 150 at 1011.)
Also illogical is SMUGs stance that the danger of Lively, an individual, seeing SMUGs
particularly sensitive information is greater than multiple representatives of foreign
governments having access to the same information. (Dkt. No. 150 at 6, 11.) SMUG does not
even attempt to explain how widespread distribution of its particularly sensitive information to
multiple, presumably sovereign foreign governments is more secure than disclosure to Lively who
is subject to this Courts Confidentiality Order (and has strictly complied therewith).

CONCLUSION
At the end of the day, the Court has already and correctly denied the drastic relief prayed
for by SMUG. The existing Confidentiality Order has proven more than adequate to protect the
confidentiality of thousands upon thousands of documents produced thus far in discovery. SMUG
does not and cannot allege that Lively has disregarded the strict confidentiality obligations
imposed by the Court, nor that Lively intends to disregard them in the future. The only evidence
before the Court is to the contrary. As such, there is no good reason to impose now the shackles
and trammels that this Court has previously considered and rightfully rejected. For these reasons,
the Court should deny SMUGs motion.

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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: philipmoranesq@aol.com

s/ Roger K. Gannam
Mathew D. Staver
Admitted Pro Hac Vice
Horatio G. Mihet
Admitted Pro Hac Vice
Roger K. Gannam
Admitted Pro Hac Vice
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854-0774
800-671-1776 Telephone
407-875-0770 Facsimile
court@lc.org
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 May 22, 2015. Service will be effectuated by the Courts electronic notification
system upon all counsel or parties of record.
s/ Roger K. Gannam________________
Roger K. Gannam
Attorney for Defendant Scott Lively

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UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MASSACHUSETTS
SPRINGFIELD DIVISION
SEXUAL MINORITIES UGANDA,
Plaintiff,
v.
SCOTT LIVELY, individually and as
president of Abiding Truth Ministries,
Defendant.

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CIVIL ACTION
3:12-CV-30051-MAP
JUDGE MICHAEL A. PONSOR

DECLARATION OF SCOTT LIVELY IN OPPOSITION


TO PLAINTIFFS MOTION TO AMEND PROTECTIVE ORDER
I, SCOTT LIVELY, declare under oath as follows:
1)

I am over the age of 18 years, and have personal knowledge of the matters

below. The statements made in this Declaration are true and correct, and if called upon to
testify to them I would and could do so competently.
2)

All averments in the Declaration of Scott Lively in Response to Plaintiffs

Motion for Protective Order filed December 9, 2013 (Dkt. No. 90-1) were true when I first
made them, remain true today, and are incorporated into this Declaration, in their entirety,
as if fully set forth herein.
3)

I have strictly complied with the Order Regarding Confidentiality of Certain

Discovery Material entered March 3, 2014 (Dkt. No. 106) (the Confidentiality Order).
Specifically, I have not disclosed any Confidential Discovery Material (as defined in the
Confidentiality Order) produced by SMUG to any person in Uganda or otherwise in
violation of the Confidentiality Order.

EXHIBIT A

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UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MASSACHUSETTS
SPRINGFIELD DIVISION
SEXUAL MINORITIES UGANDA,
Plaintiff,
v.
SCOTT LIVELY, individually and as
president of Abiding Truth Ministries,
Defendant.

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CIVIL ACTION
3:12-CV-30051-MAP
JUDGE MICHAEL A. PONSOR
MAGISTRATE JUDGE NEIMAN

DECLARATION OF SCOTT LIVELY IN RESPONSE


TO PLAINTIFFS MOTION FOR PROTECTIVE ORDER
I, SCOTT LIVELY, declare under oath as follows:
1)

I am over the age of 18 years, and have personal knowledge of the matters

below. The statements made in this Declaration are true and correct, and if called upon to
testify to them I would and could do so competently.
2)

I have never outed a homosexual, lesbian or transgender person by

publicly revealing their sexuality or sexual preferences, or whereabouts, without their


consent.
3)

I have never assisted anyone to out a homosexual, lesbian or transgender

person by publicly revealing their sexuality or sexual preferences, or whereabouts, without


their consent.
4)

I have never encouraged or condoned the outing of any homosexual,

lesbian or transgender person by publicly revealing their sexuality or sexual preferences, or


whereabouts, without their consent. On the contrary, I have unequivocally condemned such

EXHIBIT B

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practices. For example, when a Ugandan tabloid published the names of individuals
allegedly involved in homosexuality under a banner that said Hang Them, I condemned
that action and I praised the Ugandan courts for punishing it. I wrote publicly:
The Ugandan newspaper which "outed" the Ugandan homosexual activists
under a banner saying "Hang Them," clearly WAS an incitement to
violence and I join the rest of the civilized world in condemning it. The
Ugandan court was right in declaring it illegal.
Dr. Lively Comments on Uganda Murder, Defend the Family International, January
28, 2011 (available at
http://www.defendthefamily.com/pfrc/newsarchives.php?id=5842336).
5)

I have no intention to publicly disclose the identity, sexuality, sexual

preferences or practices, whereabouts or associational activities of any homosexual, lesbian


or transgender person in Uganda (or anywhere else for that matter).
6)

If this Court were to enter a Protective Order prohibiting the public

disclosure of the identity, sexuality, sexual preferences or practices, whereabouts or


associational activities of any homosexual, lesbian or transgender person in Uganda, I
would strictly comply with it, for two reasons.
7)

First, as stated above, I have no interest or intention in making such

disclosures, and I believe them to be wrong.


8)

Second, as an attorney (licensed by the State of California, but currently on

inactive status due to may residence in Massachusetts), I have the utmost respect for the law
and court orders. I also understand that violating a court order is a crime that carries serious
consequences and penalties. During the time I practiced law in California, I was routinely
entrusted with confidential information about clients and others, and I have never even been

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accused, much less adjudicated guilty, of breaching confidentiality, making improper


disclosures or disregarding court orders.
9)

My association and communications with individuals in Uganda, including

Stephen Langa, Martin Ssempa and James Buturo, has always been and remains strictly for
lawful and constitutionally-protected purposes, that is, to lawfully speak and to engage in
public and political advocacy on civil and political matters of public importance. I have no
knowledge that these individuals have ever themselves outed, or assisted others to out,
any homosexual, lesbian or transgender person by publicly revealing their sexuality or
sexual preferences, or whereabouts, without their consent. I have no intention or interest in
ever engaging in such activity with these or any other individuals. I would not disclose any
information protected by court order to these individuals, or to anyone else who is not
authorized to receive such information.
10)

Throughout this litigation, I have been actively involved in assisting my

attorneys as they defend me against Plaintiffs baseless and frivolous allegations. I intend to
continue to play an integral part in my own defense, until Plaintiffs charges are exposed for
the sham that they are, and the lawsuit is dismissed. Knowing my accusers and the
witnesses gathered by Plaintiff against me, and being able to test, verify and rebut their
allegations, is a critical aspect of my defense that requires my participation, without which
neither I nor my attorneys can effectively defend this suit.

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Case 3:12-cv-30051-MAP Document 159-3 Filed 05/22/15 Page 1 of 6


[Page 1]

UNITED STATES DISTRICT COURT


DISTRICT OF MASSACHUSETTS
SPRINGFIELD DIVISION
-----------------------------------x
SEXUAL MINORITIES UGANDA,
Plaintiff,
Civil Action No.
-against3-12-CV-30061-MAP
SCOTT LIVELY,
Defendant.
-----------------------------------x
May 12, 2015
10:10 a.m.

Deposition of CALEB BRUNDIDGE, taken by


Plaintiff, pursuant to Notice, at the
offices of Dorsey & Whitnety, 51 West 52nd
Street, New York, New York, before Joelle
Falsetta, a certified Shorthand Reporter
and Notary Public within and for the State
of New York.

EXHIBIT C
877-479-2484

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Case 3:12-cv-30051-MAP Document 159-3 Filed 05/22/15 Page 2 of 6


[Page 2]
1
2

A P P E A R A N C E S:

3
4
5

DORSEY & WHITNEY, LLP


6

Attorneys for Plaintiffs


51 West 52nd Street

7
8

New York, New York

^ ZIP ^

BY: VIKRAM KUMAR, ESQ.


KALEB MCMEELY, ESQ

9
10

LIBERTY COUNSEL
Attorneys for Defendant

11

P.O. Box 540774


Orlando, Florida

540774

12

BY: HORATIO G. MIHET


13

ESQ.

VP of LegaL Affairs and Chief Litigation


Counsel

14
15
16

JOHN P. MARGAND

17

Attorneys for witness


670 white plains

18
19

ALSO PRESENT:
20

juan Torres, Videographer


21

Pam Spees,
Azure Wheeler

22
23
24
25

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Case 3:12-cv-30051-MAP Document 159-3 Filed 05/22/15 Page 3 of 6


[Page 109]
1

CALEB BRUNDIDGE

there was nothing I could really do to

help because I am over here and they

are over there.

kind of just sympathizing with them

because there was nothing I could do to

help.

8
9
10

Q.

And yes, so it was

Do you remember how many

additional communications you may have


had with that person?

11

A.

That was it.

12

Q.

You responded back?

13

A.

Yes.

14

Q.

Did he ever -- did he or she

15

ever respond back to you?

16

A.

Not to my --

17

Q.

Recollection?

18

A.

-- recollection.

19

Q.

Okay.

20

During your visit to Uganda, did

21

you at any time advocate violence

22

against homosexuals?

23

A.

No.

24

Q.

Did Mr. Lively?

25

A.

No.

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Case 3:12-cv-30051-MAP Document 159-3 Filed 05/22/15 Page 4 of 6


[Page 110]
1

CALEB BRUNDIDGE

Q.

During your time in Uganda,

or at any time other time, did you

advocate that the death penalty be

imposed for homosexual behavior or

against homosexuals?

A.

No.

Q.

Did Mr. Lively?

A.

Not to my knowledge.

10

Q.

Did you ever advocate in

11

Uganda that life sentences be imposed

12

against homosexuals or homosexual

13

behavior?

14

A.

No.

15

Q.

Did Mr. Lively?

16

A.

Not to my knowledge.

17

Q.

Did you ever advocate in

18

Uganda that the media publish the names

19

and/or pictures and/or addresses of

20

homosexuals?

21

A.

Did I?

22

Q.

Yes.

23

A.

No.

24

Q.

Did Mr. Lively?

25

A.

Not to my knowledge.

877-479-2484

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Case 3:12-cv-30051-MAP Document 159-3 Filed 05/22/15 Page 5 of 6


[Page 111]
1

CALEB BRUNDIDGE

Q.

Did you ever advocate in

Uganda that landlords should evict

tenants who might be homosexuals or who

might engage in homosexual behavior?

A.

No.

Q.

Did Mr. Lively?

A.

Not to my knowledge.

Q.

Did you ever advocate in

10

Uganda that police should raid either

11

the homes or the meetings of

12

homosexuals?

13

A.

No.

14

Q.

Did Mr. Lively?

15

A.

Not to my knowledge.

16

Q.

Did you ever advocate in

17

Uganda that police should arrest

18

homosexuals or homosexual advocates?

19

A.

No.

20

Q.

Did Mr. Lively?

21

A.

Not to my knowledge.

22

Q.

These things that we talked

23

about just now, the violence, the death

24

penalty, life sentences, forced

25

outings, evictions, police arrests and

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Case 3:12-cv-30051-MAP Document 159-3 Filed 05/22/15 Page 6 of 6


[Page 112]
1

CALEB BRUNDIDGE

police brutality, did you hear any of

those things discussed while you were

in Uganda?

A.

No.

MR. MIHET:

Thank you,

Mr. Brundidge.

questions that I had for you.

Those are all the

THE WITNESS:

10

MR. KUMAR:

Thank you.
We have a brief

11

redirect based on the questions

12

you just asked.

13

EXAMINATION BY MR. KUMAR:

14

Q.

Mr. Brundidge I would like

15

to refer you back to the IHF summer

16

2009 newsletter?

17

A.

Yes.

18

Q.

To page eight?

19

A.

Yes.

20

Q.

And to the last sentence of

21

the second paragraph?

22
23

MR. MARGAND:
column?

24
25

877-479-2484

Which

MR. KUMAR:

Until the left

column.

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