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Lerner, Paz Seek Protective Order in Exempt Organizations Suit

APR. 10, 2017

NorCal Tea Party Patriots et al. v. IRS et al.

DATED APR. 10, 2017
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NorCal Tea Party Patriots et al. v. IRS et al.

NORCAL TEA PARTY PATRIOTS, ET AL.,
Plaintiffs,
v.
INTERNAL REVENUE SERVICE, ET AL.,
Defendants.

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION — CINCINNATI

Judge Michael R. Barrett

ORAL ARGUMENT REQUESTED

CERTAIN INDIVIDUAL MANAGEMENT DEFENDANTS’ MOTION FOR LEAVE TO FILE MOTION FOR A PROTECTIVE ORDER AND SUPPORTING MATERIALS UNDER SEAL

Lois Lerner and Holly Paz, who were individual defendants in this litigation until the Court dismissed the claims against them (see Order, dated July 17, 2014 (ECF 102)), respectfully request that this Court, pursuant to S.D. Ohio Civ. R. 5.1, permit the filing of their Motion for a Protective Order (“Motion for a Protective Order”) and accompanying memorandum of law, declarations, and exhibits attached thereto (“Supporting Materials”) under seal.

In further support of this motion, Mss. Lerner and Paz state as follows:

1. Plaintiffs seek to depose Mss. Lerner and Paz. Mss. Lerner and Paz are willing to be deposed, but seek a protective order requiring that their depositions be sealed.

2. Specifically, Mss. Lerner and Paz intend to file their Motion for a Protective Order and Supporting Materials once this Court rules on this Motion for Leave to File Under Seal. The Motion for a Protective Order will seek an order sealing their depositions as provided for in Federal Rule of Civil Procedure 26(c)(1)(F). See Fed. R. Civ. P. 26(c)(1)(F) (permitting a court to issue a protective order, for good cause shown).

3. In their Motion for a Protective Order and Supporting Materials, Mss. Lerner and Paz will demonstrate that allowing public dissemination of their deposition testimony would put their lives in serious jeopardy. In so doing, they will provide extensive documentation of the harassment and death threats they faced when they received significant media coverage of the events giving rise to this lawsuit. This documentation, as the Court will see, makes very personal references and contains graphic, profane and disturbing language that would lead to unnecessary intrusion and embarrassment if made public. Moreover, although there is a compelling need for sealing, there is no countervailing need to make those details public. And furthermore, allowing public dissemination of the Motion for a Protective Order and Supporting Materials would likely lead to media coverage that may then subject both individuals to the very harms they seek a protective order to avoid.

4. Settled law holds that the Court can withhold documents from public view when there is a credible threat that releasing those documents would result in harm. Seattle Times v. Rhinehardt, 467 U.S. 20, 26–27 (1984); Fears v. Kasich (In re Ohio Execution Protocol Litig.), 845 F.3d 231, 237 (6th Cir. 2016); United States Tobacco Coop., Inc. v. Big S. Wholesale of Va., Civil Action No. 5:13-CV-00527-F, 2016 U.S. Dist. LEXIS 97450, at *6–7 (E.D. N.C. July 26, 2016); Dish Network L.L.C. v. Sonicview USA, Inc., Case No. 09-CV-1553 L (NLS), 2009 U.S. Dist. LEXIS 63429, at *18–19 (S.D. Ca. July 23, 2009).

5. Further, the information in the Motion for a Protective Order and Supporting Materials is neither relevant nor necessary to the adjudication of the underlying matter and thus, there should be no concerns about filing it under seal. Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 305 (6th Cir. 2016) (“secrecy is fine at the discovery stage,” because discovery “concerns the parties’ exchange of information that might or might not be relevant to their case”) (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002)).

6. There is no risk to permitting Mss. Lerner and Paz to proceed under seal, but considerable risk to denying this Motion for Leave to File Under Seal. If the Court grants permission to proceed under seal, the Court can then evaluate the Motion for a Protective Order and make a decision as to whether the materials should be public. But if the Court now denies this Motion for Leave to File Under Seal and later grants the Motion for a Protective Order, Mss. Lerner and Paz will potentially be subjected to irreparable harm.

For the reasons set forth above, Mss. Lerner and Paz respectfully request leave to file their Motion for a Protective Order and accompanying documents under seal.

Counsel for Individual Management Defendants have met and conferred with counsel for Plaintiffs, and Plaintiffs oppose this Motion for Leave to File Under Seal.

Dated: April 10, 2017

Respectfully Submitted,

Mark Hayden, Trial Attorney (0066162)
TAFT STETTINIUS & HOLLISTER LLP
425 Walnut Street, Suite 1800
Cincinnati, Ohio 45202
Telephone: (513) 381-2838
E-mail: mhayden@taftlaw.com

-and –

Brigida Benitez (admitted pro hac vice)
Catherine Cockerham (admitted pro hac vice)
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
Telephone: (202) 429-3000
E-mail: bbenitez@steptoe.com
E-mail: ccockerham@steptoe.com


Counsel for Individual Management
Defendants Lois G. Lerner and Holly Paz


[PROPOSED] ORDER GRANTING CERTAIN INDIVIDUAL MANAGEMENT DEFENDANTS’
MOTION FOR LEAVE TO FILE MOTION FOR A PROTECTIVE ORDER AND SUPPORTING
MATERIALS UNDER SEAL

Certain Individual Management Defendants’ Motion for Leave to File Motion for a Protective Order and Supporting Materials Under Seal is GRANTED. Individual Management Defendants Lois Lerner and Holly Paz shall file their Motion for a Protective Order and all supporting materials under seal using the CM/ECF system.

IT IS SO ORDERED.

Judge Michael R. Barrett
United States District Court

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