Judicial Watch Response To Cheryl Mills Motion

Case 1:13-cv-01363-EGS Document 80 Filed 05/26/16 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,

Plaintiff,
v.
U.S. DEPARTMENT OF STATE,
Defendant.
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Civil Action No. 13-cv-1363 (EGS)
PLAINTIFFS OPPOSITION TO NON-PARTY DEPONENT

CHERYL MILLS MOTION FOR PROTECTIVE ORDER
Plaintiff Judicial Watch, Inc., by counsel and pursuant to the Courts May 25,
2016 minute order, respectfully submits this opposition to Non-Party Deponent Cheryl
Mills motion for a protective order:
MEMORANDUM OF POINTS AND AUTHORITIES
1.
As this Court stated when it granted Plaintiffs motion for discovery from
the bench, This is a public proceeding. This is all about the publics right to know.
Never before has Plaintiff seen an agency or its head create an off-grid communications
system to conduct official government business, the effect of which was to shield an
agency heads records from the public for years. Mrs. Clintons and the State
Departments actions were so egregious that this Court granted Plaintiff discovery to
uncover evidence as to whether Mrs. Clinton and the State Department deliberately
thwarted FOIA. As Chief of Staff and Counselor to Mrs. Clinton during her entire four
years as Secretary of State, Ms. Mills testimony is instrumental not only to Plaintiffs
case but also to the publics understanding of the creation, purpose and use of the
clintonemail.com system. The release of Ms. Mills videotaped deposition will likely
shed significant light on the questions at issue in this very public case.
2.
As an initial matter, Plaintiff respectfully submits that Ms. Mills motion,
filed at 5:10 p.m. on May 25, 2016, less than two days before her deposition,1 is
premature at best given the three-day hold already in place, if not intentionally disruptive.
It is a transparent attempt to distract Plaintiff from its preparation for Ms. Mills May 27,
2016 deposition, scheduled for her convenience on the only date she claimed to be
available during the entire eight-week period allotted by the Court for Plaintiff to conduct
discovery. It also was filed without regard for Plaintiffs counsels other, substantial
professional commitments. Obviously, Plaintiff does not have the substantial resources
available to Ms. Mills, much less her client or the State Department, and moving on the
eve of her deposition imposes a substantial burden on Plaintiff. To ensure that the issues
raised by Ms. Mills motion receive a full airing, Plaintiff requests the opportunity to file
a supplemental opposition within the time period set by the Courts local rules, if the
Court believes it would be helpful. No prejudice could possibly result to Ms. Mills
because Plaintiff has already agreed not to disseminate the videotape of her deposition
pending the resolution of her motion.
Ms. Mills has known about her deposition since at least May 6, 2016, when
Plaintiffs counsel provided Ms. Mills counsel with a copy of the Courts order. After
numerous emails and at least one telephone conversation, Plaintiff served the subpoena
on Ms. Mills counsel on May 16, 2016, notifying Ms. Mills that the deposition would be
videotaped. Although several other email exchanges occurred, including a request by
Ms. Mills counsel to change the time of the deposition, Ms. Mills counsel did not raise
Ms. Mills concern about the videotaping until May 25, 2016. Ms. Mills had ample
notice and opportunity, but did not move until less than 48 hours before her deposition.
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3.
Ms. Mills characterizations of Plaintiffs actions are both unfair and
inaccurate, and the concerns she raises are baseless. Plaintiff has no intention of
publicizing snippets or soundbites of her videotaped deposition. If it is released, the
videotaped deposition will be released in full on Plaintiffs website so that all interested
persons can watch and assess Ms. Mills entire testimony for themselves.
4.
Under Rule 26(c) of the Federal Rules of Civil Procedure, a court may
issue a protective order upon a showing of good cause. As the movant, Ms. Mills bears
the burden of proof. Burgess v. Town of Wallingford, 2012 U.S. Dist. LEXIS 135781,
*35 (D. Conn. Sept. 21, 2012). The good cause standard requires that the movant
identify specific prejudice or oppression that will be caused by disclosure. Id. In
addition, if the movant fails to present concrete reasons justifying a protective order, the
discovery materials in question will not receive judicial protection and may remain open
to public inspection. Id. Ms. Mills fails to identify any specific reason justifying good
cause for a protective order. The closest she comes to providing any reason is her bald
assertion that the audiovisual recording of Ms. Mills deposition could be used in attacks
against Secretary Clinton and her presidential campaign, either by Judicial Watch or
some other entity. She supports her assertion by stating that Judicial Watch has filed no
fewer than 16 lawsuits related to Mrs. Clinton. Ms. Mills fails to inform the Court that
many of those lawsuits were filed after the public revelation of Mrs. Clintons use of an
off-grid email system to conduct official government business and that each of the
lawsuits were filed pursuant to FOIA or the Federal Records Act. She also fails to inform
the Court that, far from being partisan, Plaintiff has been a vigorous advocate for
transparency in government for decades and across several administrations. Had Mrs.
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Clinton not created and used her extraordinary and exclusive email system, and had the
State Department not seemingly condoned and abetted its use, Plaintiff would not have
filed 16 lawsuits over the past year. The lawsuits are not attacks on Mrs. Clinton; they
are attempts to compel the State Department to comply with basic FOIA obligations.
5.
The concern identified by Ms. Mills does not satisfy her burden under
Rule 26(c). In Burgess, the plaintiff intended to make available on his website entire
deposition transcripts. Burgess, 2012 U.S. Dist. LEXIS 135781 at *42. The court
described the plaintiffs motives for posting the transcripts as unrelated to the resolution
of the lawsuit and for the purpose of garner[ing] public interest in the ensuing legal
battles of those who elect to carry firearms in public. Id. at *43. Although the Court
noted that the plaintiffs intent in publishing may be personally objectionable to the
defendants, the court found that such a concern does not satisfy the burden imposed by
Rule 26(c). Id. at *43-44. The court continued:
Case precedent suggests that even when a party admittedly seeks to
publicly embarrass his opponent, no protection should issue absent
evidence of substantial embarrassment or harm. See, e.g., Flaherty v.
Seroussi, 209 F.R.D. 295, 299 (N.D.N.Y. 2001) (even where plaintiff
admitted his intention to use the local media to personally embarrass the
defendant mayor in front of his constituents, i.e., to figuratively knock his
teeth down his throat during deposition questioning, [t]he mere fact
that some level of discomfort, or even embarrassment, may result from the
dissemination of [mayors] deposition testimony [was] not in and of itself
sufficient to establish good cause to support the issuance of protective
order.). See also Pia v. Supernova Media, Inc., 275 F.R.D. 559, 561-62
(D. Utah 2011) (entertainment attorney failed to establish good cause
for issuance of protective order to restrict dissemination of transcripts and
tapes of his deposition testimony because even if public dissemination
might cause him some level of discomfort, there was no legitimate
concern that any deposition in this case [would] be used for commercial or
other private [financial] pursuits).
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Burgess, 2012 U.S. Dist. LEXIS 135781 at **44-45. Plaintiffs sole objective in
discovery is to uncover and present admissible evidence to the Court about whether the
State Department and Mrs. Clinton deliberately thwarted FOIA. It is not to embarrass or
harass Ms. Mills. It is not to embarrass or harass Mrs. Clinton or her campaign. Ms.
Mills attacks are not only unfounded, but fail to satisfy her burden of showing good
cause for a protective order.
6.
Felling v. Knight, which Ms. Mills claims is instructive, is completely
inapposite, as are Ms. Mills other cases. Mrs. Clinton was one of the nations highest
public officials and now seeks the nations highest office. She is not a basketball coach,
musician, or actor. The public interest in her conduct in office cannot fairly be compared
to the public interest in Bobby Knight, Prince, or Bill Cosby.
7.
Finally, Mr. Fitton did not say that he hopes the depositions being taken
in this case would be embarrassing or more than embarrassing to Mrs. Clinton. Ms.
Mills assertions to that effect are a gross distortion of his already distorted comments.
Far from constituting good cause for suppressing the videotape of Ms. Mills deposition,
the media reports only highlight the substantial public interest and demand for timely
information about Mrs. Clintons email practices as Secretary of State and this litigation.
WHEREFORE, Plaintiff respectfully requests that Ms. Mills motion for a
protective order be denied.
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Dated: May 26, 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, DC 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.
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Case 1:13-cv-01363-EGS Document 80 Filed 05/26/16 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

JUDICIAL WATCH, INC.,

Civil Action No. 13-cv-1363 (EGS)

PLAINTIFFS OPPOSITION TO NON-PARTY DEPONENT

Case 1:13-cv-01363-EGS Document 80 Filed 05/26/16 Page 2 of 6

As an initial matter, Plaintiff respectfully submits that Ms. Mills motion,

Case 1:13-cv-01363-EGS Document 80 Filed 05/26/16 Page 3 of 6

Ms. Mills characterizations of Plaintiffs actions are both unfair and

Case 1:13-cv-01363-EGS Document 80 Filed 05/26/16 Page 4 of 6

Case 1:13-cv-01363-EGS Document 80 Filed 05/26/16 Page 5 of 6

Felling v. Knight, which Ms. Mills claims is instructive, is completely

Case 1:13-cv-01363-EGS Document 80 Filed 05/26/16 Page 6 of 6

Dated: May 26, 2016

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