Groups Oppose Request to File Declaration Supporting Sealing Testimony

NORCAL TEA PARTY PATRIOTS, et al., ON BEHALF OF THEMSELVES,
THEIR MEMBERS, and THE CLASS THEY REPRESENT,
Plaintiffs,
v.
THE INTERNAL REVENUE SERVICE, et al.,
Defendants.

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION

Judge Michael R. Barrett

PLAINTIFFS' MEMORANDUM IN
OPPOSITION TO MOTION TO FILE SUPPLEMENTAL DECLARATION

Plaintiffs NorCal Tea Party Patriots, South Dakota Citizens for Liberty, Inc., Americans Against Oppressive Laws, Inc., Texas Patriots Tea Party, and San Angelo Tea Party (collectively, “Plaintiffs”), hereby submit their Memorandum in Opposition to the Motion to File Supplemental Declaration filed by Lois Lerner (Doc. #444).

In her filing, Lois Lerner makes two distinct requests for relief with the Court: The first request asks the Court for the ability to file materials under seal; the second asks for leave to file the Supplemental Declaration as record evidence to support Lois Lerner's arguments that her deposition testimony should be kept secret. These requests present different substantive issues and, as a result, should be addressed separately.

I. The Motion to File Under Seal

Although Lois Lerner has joined her separate requests for relief in the same motion, the Court should handle the motion to file under seal apart from the motion to supplement the record with a supplemental declaration. The reason is simple: Plaintiffs and other interested parties (including the Cincinnati Enquirer) have a right to respond substantively to arguments and statements in the declaration. To date, counsel for Lois Lerner has not agreed to provide to Plaintiffs' counsel a copy of the Supplemental Declaration and whatever evidence, if any, that supports it. We do not know whether the Supplemental Declaration contains requests for relief, or whether it reiterates old arguments or new ones pertaining to the underlying motions at issue. We have only been provided a vague, unsubstantiated statement by counsel for Lois Lerner. Plaintiffs' counsel does not know what the declaration actually says, other than that its purpose is to support the prior arguments made by Lois Lerner. The interested parties should be able to respond to those assertions on the merits.

The appropriate procedural path is for this Court to conditionally grant the motion to seal solely to allow Lois Lerner to file a Motion for Leave to File Supplemental Declaration that is appropriately supported by attaching the proposed Supplemental Declaration requested to be filed. The Court should deny the motion for leave to file without prejudice to a renewed motion. Any other path will decide these important issues as a matter of procedural fiat, not based on the underlying law.

II. The Motion to Supplement the Record with a Supplemental Declaration

If the Court is inclined to consider the Motion to File Supplemental Declaration, the motion should be denied. First, Lois Lerner has failed to adequately support the motion by failing to submit to the Court the proposed Supplemental Declaration to be filed. This not only handicaps opposing parties in responding to the motion, as previously detailed, but also prevents the Court from meaningfully considering whether the substance of that Supplemental Declaration warrants supplementing a record that has been closed for many months. In fact, the only argument cited by Lois Lerner in support of the motion is that the yet-to-be-seen Supplemental Declaration is “highly relevant.” These bald assertions by counsel are legally insufficient, and cannot alone satisfy the stringent requirements this Court must meet in order to introduce materials into the record under seal. See Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016) (“Only the most compelling reasons can justify non-disclosure of judicial records,” and the proponent of the sealing must “analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.”). Presumably, Lerner intends for this Court to consider the Supplemental Declaration in reaching its decision on the motions to seal, making these standards applicable. They have not been met.

Second, although Plaintiffs' counsel has not seen the Supplemental Declaration, the cursory, limited information provided by counsel for Lerner suggests that it does not help Lerner meet the heavy burden she must satisfy for her testimony to be withheld from the public. Specifically, no basis has been provided to suggest that the Supplemental Declaration will outline facts that bear any causal nexus to the deposition testimony at issue. Any new threat received by Lerner is a byproduct of information already known by the public, including her own public statements. It cannot plausibly relate to her still-secret deposition testimony. It is Lerner's burden to show that specific testimony she gave is likely to result in threats of harm or actual harm if released. She has not met this burden based on the information provided.

For these reasons, Plaintiffs consent to a limited, conditional approval to file the Supplemental Declaration under seal as an exhibit to a properly supported Motion for Leave to File Supplemental Declaration. In that circumstance, the Court can then decide the Motion for Leave based on argument from the interested parties. However, Plaintiffs oppose the request for relief as currently stated. The Motion for Leave to File Supplemental Declaration should be denied without prejudice because it seeks to keep materials from the public without any effort to satisfy the stringent standards that must be met to do so.

Dated: November 2, 2018

Respectfully submitted,

GRAVES GARRETT, LLC

Edward D. Greim (pro hac vice)
Todd P. Graves (pro hac vice)
Dane C. Martin (pro hac vice)
J. Benton Hurst (pro hac vice)
1100 Main Street, Suite 2700
Kansas City, MO 64105
Telephone: (816) 256-3181
Fax: (816) 256-5958
edgreim@gravesgarrett.com
tgraves@gravesgarrett.com
dmartin@gravesgarrett.com
bhurst@gravesgarrett.com

Christopher P. Finney (OH Bar No. 0038998)
FINNEY LAW FIRM LLC
2623 Erie Avenue
Cincinnati, OH 45208
Telephone: (513) 533-2980
Fax: (513) 533-2990
Chris@finneylawfirm.com

David R. Langdon (OH Bar No. 0067046)
Trial Attorney
LANGDON LAW, LLC
8913 Cincinnati-Dayton Road
West Chester, OH 45069
Telephone: (513) 577-7380
Fax: (513) 577-7383
dlangdon@langdonlaw.com

Bill Randles (pro hac vice)
RANDLES & SPLITTGERBER, LLP
N. Cypress Avenue
Kansas City, MO 64119
Telephone: (816) 820-1973
bill@billrandles.com

Class Counsel