Case 3:12-cv-30051-MAP Document 107 Filed 03/05/14 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION SEXUAL MINORITIES UGANDA Plaintiff, v. SCOTT LIVELY, individually and as President of Abiding Truth Ministries Defendant. ) ) ) ) ) ) ) ) ) )

Civil Action 3:12-CV-30051

PLAINTIFFS OPPOSITION TO DEFENDANTS OBJECTION TO MAGISTRATE JUDGES ORDER REGARDING PROTECTIVE ORDER Pursuant to Fed. R. Civ. P. 72, Plaintiff Sexual Minorities Uganda respectfully submits this response to Defendant Scott Livelys Objection to Memorandum and Order Regarding Proposed Protective Order (ECF No. 104) (Defendants Objection). In short, Defendants Objection should be denied because it fails to establishor even attempt to establishthat the rigorous standard for setting aside a Magistrate Judges order regarding a non-dispositive issue has been satisfied. Such orders are only to be set aside or modified if they are clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). As the Magistrate Judges Memorandum and Order (ECF No. 102) amply reflects, the Magistrate Judge carefully and methodically considered each of the arguments raised by the parties as to the propriety of each provision of the proposed protective order. After extensive briefing, see, e.g., ECF No. 96, the Magistrate Judge carefully balanced the need to protect the safety of those in Uganda with Defendants needs to investigate and prepare his defense. The Magistrate Judges decision did not grant either party all that it wished, and in several instances reflected compromises aimed at preserving Defendants rights while at the same time protecting the 1

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disclosure of sensitive, potentially life-threatening information, albeit in a somewhat less robust manner than Plaintiff had proposed. See, e.g., ECF No. 102, pp. 6-8 (providing Defendant additional flexibility in obtaining a witnesss agreement to abide by the Protective Order in certain instances). Put simply, the Magistrate Judges order is not clearly erroneous. With regard to Defendants specific objections, for which, notably, Defendant provides no supporting case law, Plaintiff responds as follows: II(2) and II(4) Defendant argues that it was improper for the Magistrate Judge to have

forbidden the disclosure of potentially life-threatening Confidential Discovery Material to private investigators or experts who are affiliated with co-conspirators, when co-conspirators are perhaps among those most likely to cause or inflict harm on Plaintiffs members. Defendant argues that the meaning of affiliated is vague and speculates that Defendant could be prevented from hiring or retaining as an investigator or expert someone who on occasion has talked to a third party, who, in turn on occasion has talked to one of the alleged co-conspirators. ECF No. 104, p. 1. As Plaintiff agreed in the proceedings before the Magistrate Judge, the meaning of affiliated would be subject to a reasonable interpretation. To the extent that Defendant has a future concern regarding whether a specific expert or investigator may be affiliated with a coconspirator, and therefore not permitted to view Confidential Discovery Material, Defendant can easily bring any particularized, as opposed to hypothetical, concern to the attention of Plaintiffs counsel or the Court. II(5) As crafted by the Magistrate Judge, Paragraph 4(e) permits Confidential

Discovery Material to be submitted to witnesses or potential witnesses who a party believes may possess discoverable information regarding the Confidential Discovery Material, provided that reasonable prior notice is given to counsel of the party that designated the material

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confidential. Defendant argues that this requirement would infringe on his work-product privilege. But, as the Magistrate Judge ruled, this provision does not give the designating party the right to veto or withhold clearance of a partys ability to interview or provide Confidential Discovery Material to a witness. Nor does the mere revelation that a witness was provided with certain Confidential Discovery Material reveal privileged information. II(7) and II(13) Paragraph 5 of the Protective Order contains a standard provision

requiring those who receive Confidential Discovery Material pursuant to the Protective Order to be provided with a copy of the Protective Order and agree to be bound by its provisions. Absent such a provision, the Protective Order would be meaningless, as those who receive Confidential Discovery Material from the parties could remain completely unaware of the sensitivity of the information and/or ignore the Orders protections. Notwithstanding that obvious reality, Defendant argues that it will be too burdensome to have potential witnesses in foreign countries sign the Protective Order. However, the Magistrate Judge accommodated Defendants hypothetical concern by adding a provision requiring the parties to reach an agreement as to how a witness in a foreign country without ready access to electronic communications could acknowledge consent to be bound by the Protective Order in the event that such a scenario arises. See, e.g., ECF No. 102, pp. 6-7. II(9) Defendant objects to the requirement that Confidential Discovery Material be filed

under seal in foreign courts. However, if there were no such requirement, the entire Protective Order would be undermined. Revealing protected information in foreign courtsmost likely a Ugandan courtwould be even more dangerous than revealing it in open court in the United States.

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II(11) Finally, Defendant objects to a provision governing claw back of inadvertently

produced privileged information. Such provisions are standard in protective orders, and Defendant provides no substantive objection to the provision. In sum, as outlined above, the Magistrate Judges resolution of the parties disputes regarding the Protective Order was not clearly erroneous, and Defendant has failed to establish that Rule 72s requirements have been satisfied. For the foregoing reasons and for the reasons outlined in Plaintiffs briefing on the Protective Order before the Magistrate Judge (ECF Nos. 86, 96), which are incorporated by reference, Defendants objection should be denied. Dated: March 5, 2014 Respectfully submitted, /s/Pamela C. Spees_________________ Pamela C. Spees, admitted pro hac vice Baher Azmy, admitted pro hac vice Jeena Shah, admitted pro hac vice Center for Constitutional 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

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was filed electronically, that it will be served electronically upon all parties of record who are registered CM/ECF participants via the NEF, and that paper copies will be sent to any parties indicated on the NEF as non-registered participants on March 5, 2014. /s/ Pamela Spees Pamela Spees