2-25-2011 Cleco Second Protective Order Brief

8/7/2019 2-25-2011 Cleco Second Protective Order Brief

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

GREGORY WILLIS, EDDIE CULBERT,RONALD SMITH, SR., ROY HUDSON,JENNIFER HILL, ISAAC JORDAN, JOHNMURCHISON, THOMAS JONES, JR.,CALDWELL BURGESS, KELSOWWILLIAMS, JR., STAFFORD WILLIAMSAND VANDA WILLIS

NO. 09-2103

VERSUS JUDGE STAGG

CLECO CORPORATION MAGISTRATE JUDGE HORNSBY

REPLY TO THE PLAINTIFFS MEMORANDUM IN OPPOSITION

TO CLECOS MOTION TO AMEND THE COURTSSEPTEMBER 19, 2010 PROTECTIVE

ORDER

MAY IT PLEASE THE COURT:

I. INTRODUCTION

During the pendency of this motion, which the court, at Clecos request, has

taken up on an expedited basis, Gregory R. Aymond (Aymond) who states in his

declaration that he is a member of the bar of the United States District Court for the

Western District of Louisiana has posted on his website/blog Central La. Politics the

fulltranscripts of the pretrial discovery depositions of two Cleco executives, viz., Michael

Madison, the companys Chief Executive Officer, and Jeff Hall, the companys Senior

Vice President-Governmental Affairs and Chief Diversity Officer. The attached,

downloaded copies of the referenced website/blog show that prior to posting the

Case 5:09-cv-02103-TS-MLH Document 98 Filed 02/25/11 Page 1 of 9 PageID #:


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transcripts, Aymond was fully aware of this motion and Clecos privacy and other

concerns. See Second Affidavit of John T. Kalmbach (attached). Presumably, these

discovery depositions are being leaked to Aymond by the plaintiffs and/or their counsel.

The address of record for the plaintiffs local counsel is vacant, and the telephone and

facsimile numbers listed for him on their brief (and on file with the court) do not work.

The plaintiffs New York counsel who has been admitted pro hac vice has now filed

in connection with his opposition brief the fulltranscript of the deposition of Michael

Madison, even though that deposition contains matters that he implicitly admits are

private and within the spirit of the courts existing protective order. The court is not

obliged to countenance these litigation tactics and, in fact, has broad discretion to

protect and control the pretrial discovery materials generated in this case (and now

submitted in ostensible opposition to Clecos well-founded motion). See Seattle Times

Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 2208-09 (1984).

II. REPLY

A. The Court Should Control the Dissemination of Discovery Materials in ThisCase.

Despite the regrettable level of discourse on the referenced website/blog e.g.,

You [Jeff Hall] are referred to as Shine King of the Monkeys; [Jeff Hall] is a modern

day Uncle Tom; Is Mike Madison a Nazi; Mike Madison Clecos Slave Master We

take real good care of our darkies; [Mike Madison]: Ill keep you darkies in line; and

so on Cleco is not asking the court to restrain anyones First Amendment rights.

Rather, in light of what has already happened, the defendant is asking the court to



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protect the pretrial discovery depositionsthat have been taken in this case from any

further public dissemination. See Seattle Times Co., 467 U.S. at 33, 104 S.Ct. at 2208

([R]estraints placed on discovered, but not yet admitted, information are not a

restriction on a traditionally public source of information). The United States Supreme

Court has held that the public has no right of access to discovery materials, which are

conducted in private as a matter of modern practice. Id. Moreover, for good cause,

the court can protect discovery materials from voluntary public dissemination by the

parties. See U.S. v. $9,041,598.68 (Nine Million Forty One Thousand, Five Hundred

Ninety Eight Dollars and Sixty Eight Cents), 976 F. Supp. 654, 658 (Public access to

the discovery process does not play a significant role in the administration of justice). Cleco has made an adequate showing of the kinds of private and confidential

matters that are at issue in the discovery depositions in question, and this showing,

along with the harassment and embarrassment which has already ensued, is ample

grounds for the court to order the protection that Cleco urges.1 Additionally, the tactics

apparently afoot here threaten to debase the judicial process, causing the deponents

and defendants to have to defend themselves in a public forum against serious

allegations that remain unproven. At the very least, the ongoing leakage of pretrial

discovery depositions in this case constitutes oppression and an undue burden on

1As for the Declaration of Jullia Callis, Senior Attorney for Cleco Support Group, LLC, theundersigned submitted a motion seeking to file said declaration under seal, which the court immediatelygranted. The undersigned presumed that the sealed declaration would be available to the parties, asopposed to the public, via the courts CM/ECF electronic noticing system. Upon the service of theplaintiffs opposition brief and Mr. Van-Lares demand to see the affidavit [of Julia Callis], theundersigned emailed the same to him on Thursday, February 24, 2011, at 9:34 a.m. (central time). HadMr. Van-Lare pointed out our error earlier, we would have gotten him the declaration as soon as possible.



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the deponents and the litigants beyond what notions of fair play call for in the context of

the orderly and responsible adjudicative process. See Fed. R. Civ. Proc. 26(c).

B. The Court Should Not Abide Abuse of the Discovery Process for Extra-Judicial Advantage.

Despite the plaintiffs suggestion to the contrary, it is well-established that pre-

trial discovery materials, in particular video depositions, have a higher degree of

potential abuse and, thus, the courts have a heightened interest in protecting them.

See Stern v. Cosby, 529 F. Supp. 2d 417 (S.D.N.Y. 2007)(protective order prohibiting

the distribution of the video issued where court found release would add to media frenzy

over case, interfere with administration of justice, and subject the television journalist

deponent to annoyance, embarrassment, oppression, or undue expense or burden).

Insofar as video depositions are concerned, the court in Paisley Park Enterprises, Inc. v.

Uptown Productions, 54 F. Supp. 2d 347 (S.D.N.Y. 1999), observed:

Rule 30(b)(2) was amended to permit videotapeddepositions as a matter of routine in recognition of the factthat videotapes are a means of presenting depositiontestimony to juries that is superior to readings from cold,printed records. Cf., e.g., United States v. Tunnell, 667 F.2d1182, 1188 (5th Cir.1982); Weiss v. Wayes, 132 F.R.D. 152,154 (M.D.Pa.1990). It was not intended to be a vehicle forgenerating content for broadcast and other media. Hence,[party seeking video deposition] likely use of any videotapefor purposes unrelated to the resolution of the dispute that isthe subject of this lawsuit cuts in [party opposing videodeposition] favor.

54 F. Supp. 2d at 347 & n.2 (footnote included in text). See Felling v. Knight, No. 01-

571 (S.D. Ind. 12/21/01), 2001 WL 1782360, at *3 (Videotapes are subject to a higher



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degree of potential abuse than transcripts. They can be cut and spliced and used as

sound-bites on the evening news or sports shows).

In this instance, the dissemination began with the posting of the video discovery

deposition of Jeff Hall. When that video was removed by the video hosting website

(apparently over the posters objections), the poster responded by posting the transcript

of the video discovery deposition of Jeff Hall on the website/blog, as well asthe

transcript of the video discovery deposition of Michael Madison (the CEO) both

accompanied by patently offensive and inflammatory comments and images.

Numerous others comments on the website address topics and information discussed in

the discovery depositions. One commenter makes an offensive comment concerning

Michael Madisons wife, while others impugn Jeff Halls integrity in very personal ways

(one even references his father). As explained by Julia Callis in her declaration, both

depositions contain the type of information for which the deponents, non-parties, and

the parties alike have high expectations of privacy. The dissemination of these

depositions (and, at least, the implied threat of the dissemination of others) is

oppressive and an undue burden on the deponents and the litigants. See U.S. v.

$9,041,598.68 (Nine Million Forty One Thousand, Five Hundred Ninety Eight Dollars

and Sixty Eight Cents), 976 F. Supp. 654, 658 (The publics interest is in seeing that

the process works and the parties are able to explore the issues fully without excessive

waste or delay). Cleco is left with the assumption (perhaps, the presumption) that the

discovery depositions have been leaked by the parties or their lawyers to garner some

extrajudicial advantage in this case contrary to the publics interest in an orderly and



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responsible adjudicative system. Id. (reasoning that the ability to grant protective orders

under Rule 26(c) furthers a substantial governmental interest unrelated to the

suppression of expression). The court should not abide abuse of the discovery

process, and is well within the courts discretion to prohibit it.

C. The Deponents and Clecos Interest in Limiting the Public Disseminationof the Discovery Depositions in This Case Outweighs the PlaintiffsPurported Interest in Allowing It.The publics right of access to the discoverydepositions in this case is minimal,

and Cleco has shown good cause for the amendment of the protective order to preclude

the further public dissemination of the same. Under Rule 26(c), the trial court has

broad discretion . . . to decide when a protective order is appropriate and what degree

of protection is required. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct.

2199, 2209 (1984); Dove v. Atl. Capital Corp., 963 F.2d 15, 20 (2d Cir.1992)([T]he

grant or denial of a protective order lies within the sound discretion of the district court);

Galella v. Onassis, 487 F.2d 986, 997 (2d Cir.1973)(same). Again, the courts

reasoning in Word of Faith World Outreach Center Church, Inc. v. Morales, 143 F.R.D.

109, 113 (W.D. Tex. 1992), is particularly apropos:

Under the law of procedure, parties and relatedpersons often have no choice but to divulge information theywould not otherwise freely share. To allow a party to usethat information for purposes unrelated to the litigationand in a manner which harms the giver of thatinformation is abusive, and courts have a significantinterest in preventing such usage. See generallySeattleTimes Co. v. Rhinehart, 467 U.S. 20, 33-36, 104 S.Ct. 2199,2208-09, 81 L.Ed.2d 17 (1984).

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1984124682http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1984124682http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1984124682http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1984124682http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1984124682


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Id. (emphasis added).

III. CONCLUSION

Based on the foregoing, the court can and should act to limit the further public

dissemination of the discovery depositions in this case by amending its September 17,

2010 protective order to provide:

(i) that the pre-trial discovery depositions taken in thismatter, including video depositions, may only be usedfor the purposes of this litigation and

(ii) that, from this date forward, the public disseminationof any pre-trial discovery depositions taken in thismatter, including video depositions, by any person isprohibited.



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Charles H. Hollis #06961A. Nicole Seale #31317Claire H. McDaniel #31864The Kullman FirmA Professional Law Corporation

1100 Poydras Street1600 Energy CentrePost Office Box 60118New Orleans, Louisiana 70160Telephone: (504) 596-4189Facsimile: (504) 596-4114andCOOK, YANCEY, KING & GALLOWAYA Professional Law Corporation

By: s/ John T. Kalmbach

John T. Kalmbach #24484333 Texas Street, Suite 1700 (71101)P.O. Box 22260Shreveport, LA 71120-2260Telephone: (318) 221-6277Facsimile: (318) [email protected] FOR CLECOCORPORATION

mailto:[email protected]:[email protected]:[email protected]


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CERTIFICATE

I HEREBY CERTIFY that a copy of the above and foregoing was filed with the

United States District Court for the Western District of Louisiana by electronic case

filing/case management and that a copy of the same was either served on all counsel of

record by electronic notification or by U.S. Mail, postage pre-paid.

Shreveport, Louisiana, this 25th day of February, 2011.

s/ John T. Kalmbach

OF COUNSEL



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2-25-2011 Cleco Second Protective Order Brief