Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) No. 1:11-cv RJL SHIRLEY M. SHERROD, ) ) MOTION OF THE UNITED STATES Plaintiff, ) FOR AN ORDER REQUIRING ) CERTAIN DOCUMENTS AND v. ) INFORMATION TO BE FILED, IF ) AT ALL, UNDER SEAL SUSANNAH BREITBART, et al., ) ) Defendants. ) ) The United States hereby moves for an order providing that documents in this action bearing the following page numbers shall be filed, if at all, under seal, as shall any excerpts from those documents: EOP_ , 6-11, 13-14, 28, 36-52, 69-73, 125, , , , , , 437, , , 468, , 484, , 552, 674, , , , , , , , , , 1109, , , 2221, 2888, 4018, ; USDA_ , 4084, , 4222, 4227, 4243, 4246, , , 4318, , , 4384, 4386, 4399, , 4405, 4419, 4460, , 4479, , 4685, , , , 4839, 4850, , 4871, 4880, , , 4968, 4987, , , , 5108, 5128, 5133, 5154, 5158, , 5220, , 5257, , 5275, , , , 6550, , , 6768, , Counsel for defendant Larry O Connor advises that he objects to the relief the United States hereby seeks. Respectfully submitted, STUART F. DELERY Assistant Attorney General RONALD C. MACHEN United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director, Department of Justice, Civil Division

2 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 2 of 15 Dated: July 13, 2014 s/ David M. Glass DAVID M. GLASS, DC Bar Senior Trial Counsel, Department of Justice, Civil Division 20 Massachusetts Avenue, N.W., Room 7200 Washington, D.C Tel: (202) /Fax: (202) david.glass@usdoj.gov Attorneys for the United States CERTIFICATE OF SERVICE I hereby certify that on July 13, 2014, I served the within motion, the memorandum in support of the motion, the exhibits to the motion, and the proposed order on all counsel of record by filing them with the Court by means of its ECF system. s/ David M. Glass 2

3 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 3 of 15 TABLE OF CONTENTS Page PRELIMINARY STATEMENT...1 STATEMENT OF FACTS...1 ARGUMENT: THE DOCUMENTS THAT DEFENDANT O CONNOR INTENDS TO FILE ON THE PUBLIC RECORD SHOULD BE FILED, IF AT ALL, UNDER SEAL, AS SHOULD ANY EXCERPTS FROM THOSE DOCUMENTS...3 CONCLUSION...7 i

4 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 4 of 15 TABLE OF CASES Page Abou-Hussein v. Gates, 2010 WL (D.C. Cir. June 11, 2010)...4 Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004)...5 EEOC v. Nat l Children s Ctr., 98 F.3d 1406 (D.C. Cir. 1996)...5 In re Sealed Case, 237 F.3d 657, 666 (D.C. Cir. 2001)...4, 5 Johnson v. Greater S.E. Cmty. Hosp., 951 F.2d 1268 (D.C. Cir. 1991)...4 ii

5 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 5 of 15 TABLE OF DOCKET ENTRIES ECF No. 86 Protective Order (Jan. 22, 2014) ECF No. 89 Status Conference Memorandum of the United States (Feb. 20, 2014) ECF No USDA Transcript, Rel. No (Aug. 24, 2010) ECF No Statement of Secretary of Agriculture Tom Vilsack (July 20, 2010) ECF No USDA Transcript, Rel. No (July 21, 2010) ECF No Press Briefing by Press Secretary Robert Gibbs (July 21, 2010) ECF No Letter Beth A. Williams to Alexis R. Graves (Oct. 30, 2013) ECF No Subpoena Larry O Connor to United States Department of Agriculture (Nov. 19, 2013) Ex. No Subpoena Larry O Connor to Executive Office of the President (Nov. 20, 2013) ECF No ECF No. 96 ECF No. 97 ECF No. 118 Defendant Larry O Connor s Memorandum in Support of Motion to Compel Compliance with Subpoenas Directed to the United States Department of Agriculture and the Executive Office of the President of the United States, Ex. 1 (Mar. 3, 2014) United States Response on Behalf of the Executive Office of the President to Defendant O Connor s Motion to Compel Compliance with the Subpoenas (Mar. 13, 2014) United States Response on Behalf of the U.S. Department of Agriculture to Plaintiff s Motion to Adopt Modified Discovery Plan and to Defendant O Connor s Motion to Compel Compliance with Subpoenas and Motion for a Protective Order Regarding Timing of Production (Mar. 13, 2014) Motion for Leave to File Under Seal Defendant Larry O Connor s Opposition to the Motion of the United States to Quash Certain Deposition Subpoenas and Certain Exhibits (filed under seal May 28, 2014) ECF No. 123 Memorandum Opinion (June 9, 2014) ECF No Letter Ravoyne Payton to Peter Nicholas (Feb. 24, 2012) ECF No Declaration of Ramona E. Romero (July 2, 2014) iii

6 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 6 of 15 TABLE OF EXHIBITS Ex. A Letter David M. Glass to Peter A. Farrell (May 9, 2014) Ex. B Letter David M. Glass to Peter A. Farrell (May 27, 2014) Ex. C string ending with Thomas E. Hogan to David Glass (July 9, 2014) Ex. D Status Conference Transcript (July 8, 2014) Ex. E string ending with Peter A. Farrell to David Glass (Apr. 29, 2014) iv

7 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 7 of 15 PRELIMINARY STATEMENT Defendant Larry O Connor has notified the United States of his intention to file on the public record certain documents that the United States has produced in response to the subpoenas, as modified, that he and plaintiff Shirley M. Sherrod have issued to the U.S. Department of Agriculture (USDA) and the Executive Office of the President (EOP). The United States has designated all of the documents that defendant O Connor intends to file on the public record as Confidential under the protective order dated January 22, The United States is not a party to this action. In responding affirmatively to the above subpoenas, it has relied at all times on the provision of the protective order guaranteeing that any documents produced in response to those subpoenas shall be used exclusively for the litigation of this action and shielded, accordingly, from disclosure without its consent. For that reason, and for the other reasons discussed below, the documents that defendant O Connor intends to file on the public record should be filed, if at all, under seal, as should any excerpts from those documents. STATEMENT OF FACTS The background of this case is set forth in this Court s memorandum opinion dated June 9, ECF No. 123 at The following additional facts are relevant to this motion: On October 5, 2010, USDA produced 900 pages of documents pertaining to plaintiff in response to certain requests it had received under the Freedom of Information Act (FOIA), 5 U.S.C ECF No at 1. On February 24, 2012, USDA produced another 1,964 pages of documents in response to those requests. Id. By protective order dated January 22, 2014, this Court authorized any document produced in this action to be designated Confidential by the person producing it. ECF No By the same order, the Court directed that any document designated as Confidential 1 A table of docket entries cited in this memorandum appears at p.iii, supra.

8 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 8 of 15 shall only be used by the Parties and their counsel for the purpose of the prosecution or defense of this Action, including preparing for and conducting pretrial, trial, and post-trial proceedings ( Permissible Uses ) and shall not be used for any other purpose except upon written consent of the Designating Party. Id. 8. In addition, the Court required any person designating a document as Confidential to be given three or more days notice of the proposed filing of the document on the public record to allow [that person] an opportunity to file a motion to seal. Id. 16. By subpoenas issued between October 30 and November 20, 2013, plaintiff asked USDA to produce 10 categories of documents; defendant O Connor asked USDA to produce 44 categories of documents; and defendant O Connor asked EOP to produce 29 categories of documents. ECF No. 89-6, att. at 4-5; ECF No. 89-7, sched. A at 4-7; ECF No. 89-8, sched. A at 4-6. Though considering the subpoenas to be objectionable for three separate reasons, ECF No. 89 at 1-2, the United States entered into agreements with plaintiff and defendant O Connor on or about March 13, 2014, to comply with those subpoenas as modified. ECF No. 96 at 1; ECF No. 97 at 4. On May 9, 2014, the United States produced 6,729 pages of documents in response to the subpoena, as modified, that defendant O Connor had issued to EOP. See Ex. A. 2 These documents consisted of s and attachments from the mailboxes of nine former members of the White House staff (or alleged members of the White House staff) for the period July 15-30, See ECF No ex. 1 at 2, 6. On May 27, 2014, the United States produced 2,864 pages of documents in response to the subpoenas, as modified, that plaintiff and defendant O Connor had issued to USDA. See Ex. B at 1. These documents were the same documents that USDA had produced pursuant to FOIA on October 5, 2010, and February 24, 2012, as reviewed de novo to determine whether they could be produced to the parties in this action with fewer 2 References to exhibits are to the exhibits to this motion. A list of those exhibits appears at p.iv, supra. 2

9 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 9 of 15 redactions. See id. All of the documents produced on May 9 and 27, 2014, were designated by the United States as Confidential under the protective order dated January 22, 2014, at the time of their production. Ex. A; Ex. B at 2. On May 28, 2014, defendant O Connor moved for leave to file certain documents and a certain memorandum under seal. See ECF No. 118 at 1. The documents covered by his motion were documents that the United States had produced on May 9 and May 27, 2014, and thus had designated as Confidential. Id., Exs. A-2 & A-3. The memorandum covered by his motion contained information taken from those documents. See id. at 2. The United States did not oppose his motion. To date, his motion has not been ruled upon. By dated July 8, 2014, defendant O Connor advised the United States of his intention to file on the public record the same documents that were the subject of his pending motion to seal. 3 Ex. C at 2-4. By the same , defendant O Connor advised the United States of his intention to file on the public record certain other documents that the United States had produced on May 27, Id. ARGUMENT THE DOCUMENTS THAT DEFENDANT O CONNOR INTENDS TO FILE ON THE PUBLIC RECORD SHOULD BE FILED, IF AT ALL, UNDER SEAL, AS SHOULD ANY EXCERPTS FROM THOSE DOCUMENTS. The adjudication of a motion to seal requires consideration of the following six factors: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to 3 As produced by the United States, these documents bear the following page numbers: EOP_ , 6-11, 13-14, 28, 36-52, 69-73, 125, , , , , , 437, , , 468, , 484, , 552, 674, , , , , , , , , , 1109, , , 2221, 2888, 4018, ; USDA_ As produced by the United States, these documents bear the following page numbers: USDA_ , 4084, , 4222, 4227, 4243, 4246, , , 4318, , , 4384, 4386, 4399, , 4405, 4419, 4460, , 4479, , 4685, , , , 4839, 4850, , 4871, 4880, , , 4968, 4987, , , , 5108, 5128, 5133, 5154, , 5220, , 5257, , 5275, , , , 6550, , , 6768, ,

10 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 10 of 15 disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. In re Sealed Case, 237 F.3d 657, 666 (D.C. Cir. 2001) (quoting EEOC v. Nat l Children s Ctr., 98 F.3d 1406, 1409 (D.C. Cir. 1996)); see Abou-Hussein v. Gates, 2010 WL , at *1 (D.C. Cir. June 11, 2010) (referring a motion to unseal certain exhibits for analysis under these factors); Johnson v. Greater S.E. Cmty. Hosp., 951 F.2d 1268, 1277 & n.14 (D.C. Cir. 1991) (holding that these factors should be weighed by the district court in determining whether and to what extent a party s interest in privacy or confidentiality of its processes outweighs [the] strong presumption in favor of public access to judicial proceedings ). As is demonstrated below, the application of these factors to this case requires the documents that defendant O Connor intends to file on the public record, and any excerpts from those documents, to be filed, if at all, under seal. 1. [T]he need for public access to the documents at issue The parties to this case have no need for public access to the documents at issue because they can litigate under seal any issue to which those documents are relevant. Neither does the public at large have any need for access to those documents. As the United States has acknowledged in this case, plaintiff s resignation from USDA implicate[d] sensitive issues and significant public interest. ECF No Those matters have already been addressed, however, by the statements about plaintiff made by Secretary of Agriculture Thomas J. Vilsack and by then-white House Press Secretary Robert Gibbs at or about the time of plaintiff s resignation. ECF No at 2-3, 5; ECF No. 89-3; ECF No at 1-3; ECF No at Those matters have also been addressed by the thousands of pages of documents dealing with plaintiff that USDA has produced to the public pursuant to FOIA. See ECF No at 1. 4

11 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 11 of 15 Despite the speculation in which defendants continue to engage concerning the facts and events surrounding plaintiff s resignation, e.g., Ex. D at 15:13-16:1, they have established no justification for the filing on the public record of any document that the United States has designated as Confidential. Neither political[] motivat[ions] nor a desire to publicize allegations that are yet to be established provides such a justification. See Sealed Case, 237 F.3d at [T]he extent of previous public access to the documents With certain exceptions, LCvR 5.2(a) provides that requests for documents * * * and answers and responses thereto shall be served upon other counsel and parties but shall not be filed with the Clerk until they are used in the proceeding or upon order of the Court. Relying on that rule, the United States has refrained in this action from filing with the Court the documents that defendant O Connor intends to file on the public record. No public access to those documents thus has been provided. 3. [T]he fact that someone has objected to disclosure, and the identity of that person The appropriateness of making court files accessible is accentuated in cases where the government is a party. Nat l Children s Ctr., 98 F.3d at 1409 (quoting FTC v. Std. Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987)). In this case, the government is not a party. Nor is it alleged by plaintiff to have engaged in any misconduct. It is, instead, nothing more than a thirdparty witness. In addition, the Office of the President occupies a unique position in the constitutional scheme and the public interest requires that a coequal branch of Government afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 382 (2004) (internal quotation marks omitted). 5

12 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 12 of 15 In this case, many of the documents that defendant O Connor intends to file on the public record are EOP documents. See n.3, supra. The wish of the United States that those documents remain confidential is therefore entitled to great weight. 4 & 5. [T]he strength of any property and privacy interests asserted and the possible prejudice to those opposing disclosure When the United States agreed to comply with the subpoenas, as modified, that plaintiff and defendant O Connor had issued to USDA and EOP, it relinquished the opportunity to litigate the enforceability of those subpoenas, even though it had good grounds upon which to do so. See ECF No. 89 at 1-2. It took that action in reliance on the understanding that it could designate as Confidential any document that it produced in response to those subpoenas and that the parties would respect those designations. For that reason, it obtained the agreement of defendant O Connor that the EOP may designate the documents it produces as confidential documents under the terms of the 1/22/14 Protective Order * * * [and] he will not assert an objection to such designation under paragraphs of that Order. ECF No. 96 at 2. It also obtained the commitment of plaintiff and defendant O Connor to treat documents designated by the EOP as confidential under the terms of the 1/22/14 Protective Order according to the terms of that Order. 5 Ex. E at 1. To date, the parties have respected the confidentiality of the documents that the United States has designated as Confidential. Defendant O Connor did so on May 28, 2014, when he moved for leave to file certain of those documents under seal, together with information taken from those documents. See ECF No. 118 at 1-2. No reason exists why he and the other parties should not continue to do so. 5 The United States recalls, and is prepared to show, that it obtained the same commitment from defendants Andrew and Susannah Breitbart. 6

13 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 13 of [T]he purposes for which the documents were introduced during the judicial proceedings When asked why he intends to file certain documents on the public record, defendant O Connor has said the following: Ex. C at 1. [O]ur near-term purposes * * * are as follows: (1) to provide the required notice in connection with our two reply briefs that we intend to file on or about July 14 and (2) to provide the required notice in connection with a motion withdraw the May 28, 2014 motion to seal [Dkt. No. 118] that we intend to file. Neither the briefs nor the motion to which defendant O Connor refers in the above statement needs to be filed on the public record. They can, instead, be filed under seal. They provide no justification, accordingly, for the filing on the public record of the documents that defendant O Connor intends to file there. This case is not a complex piece of corporate litigation. It is, instead, a common-law tort action in which all the parties are individuals and few material facts, if any, are subject to dispute. It should not be made more complicated than it ought to be by actions like the announcement of defendant O Connor that he intends to file on the public record documents that the United States has designated as Confidential. CONCLUSION For the foregoing reasons, the motion of the United States for an order requiring certain documents and information to be filed, if at all, under seal should be granted. Respectfully submitted, STUART F. DELERY Assistant Attorney General RONALD C. MACHEN United States Attorney 7

14 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 14 of 15 ARTHUR R. GOLDBERG Assistant Branch Director, Department of Justice, Civil Division Dated: July 13, 2014 s/ David M. Glass DAVID M. GLASS, DC Bar Senior Trial Counsel, Department of Justice, Civil Division 20 Massachusetts Avenue, N.W., Room 7200 Washington, D.C Tel: (202) /Fax: (202) Attorneys for the United States 8

15 Case 1:11-cv RJL Document 136 Filed 07/13/14 Page 15 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) No. 1:11-cv RJL SHIRLEY M. SHERROD, ) ) PROPOSED ORDER Plaintiff, ) ) v. ) ) SUSANNAH BREITBART, et al., ) ) Defendants. ) ) Upon the motion of the United States for an order requiring certain documents and information to be filed, if at all, under seal, the materials submitted in support of that motion and in opposition thereto, and good cause having been shown, it is hereby ordered as follows: 1. The aforesaid motion is hereby granted. 2. Documents in this action bearing the following page numbers shall be filed, if at all, under seal, as shall any excerpts from those documents: EOP_ , 6-11, 13-14, 28, 36-52, 69-73, 125, , , , , , 437, , , 468, , 484, , 552, 674, , , , , , , , , , 1109, , , 2221, 2888, 4018, ; USDA_ , 4084, , 4222, 4227, 4243, 4246, , , 4318, , , 4384, 4386, 4399, , 4405, 4419, 4460, , 4479, , 4685, , , , 4839, 4850, , 4871, 4880, , , 4968, 4987, , , , 5108, 5128, 5133, 5154, 5158, , 5220, , 5257, , 5275, , , , 6550, , , 6768, , Dated: UNITED STATES DISTRICT JUDGE