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Judicial Watch • JW v. State Opposition Pagliano 01363

JW v. State Opposition Pagliano 01363

JW v. State Opposition Pagliano 01363

Page 1: JW v. State Opposition Pagliano 01363

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Number of Pages:8

Date Created:June 10, 2016

Date Uploaded to the Library:June 10, 2016

Tags:parte, discussions, immunity, agreements, Pagliano, Opposition, amendment, 01363, Abedin, order, Secretary, clinton, filed, State Department, plaintiff, document, FOIA, department, states, district, united


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Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 13-cv-1363 (EGS)
PLAINTIFF COMBINED OPPOSITION NON-PARTY DEPONENT
BRYAN PAGLIANO MOTION FILE EXHIBITS PARTE
AND UNDER SEAL AND MEMORANDUM LAW
Pursuant the Court June 2016 and June 2016 minute orders, Plaintiff
Judicial Watch, Inc. respectfully submits this combined opposition Non-Party
Deponent Bryan Pagliano motion file exhibits parte and under seal and
memorandum law:
MEMORANDUM LAW
Introduction.
The issue before the Court whether Plaintiff may videotape Mr. Pagliano
deposition has done for the four depositions conducted date and intends
for the two other depositions scheduled for later this month. Mr. Pagliano does not object the deposition itself. only objects the videotaping it. His request for
protective order should denied.
II.
Argument.
Mr. Pagliano request file his immunity agreements parte and under seal
unfounded. First, the Court ordered Mr. Pagliano file memorandum, along with
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
copy his reported immunity agreements. The Court did not order the immunity
agreements filed parte under seal and could have done so. addition, Mr.
Pagliano ignored the Court order and failed provide details pertaining the scope
his immunity agreements his memorandum. Second, Mr. Pagliano claims that there understanding between him and the Justice Department that Mr. Pagliano
immunity agreements would remain confidential. However, Mr. Pagliano does not
explain what means understanding. Nor does provide any evidence
demonstrating that such understanding exists. Nonetheless, understanding
even agreement irrelevant. does not supersede court order.1
Third, Mr. Pagliano reliance FOIA withhold the immunity agreements
misguided. Mr. Pagliano not required produce the agreements response
FOIA request, but rather compliance with the Court order connection with Mr.
Pagliano anticipated assertion the Fifth Amendment civil discovery. Mr. Pagliano
also has not provided any evidence whatsoever how the public filing his immunity
agreements could reasonably expected interfere with ongoing investigation.
addition, the Justice Department not Mr. Pagliano assertion make. Fourth,
this Court has repeatedly emphasized, this case about the public right know
details related the creation, purpose and use the clintonemail.com system. Like all the extent the Court determines that the agreements should treated
confidential, Plaintiff, minimum, requests the opportunity review the agreements
under seal.
-2-
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
other filings this case well the transcripts the depositions, Mr. Pagliano
immunity agreements should publicly available. addition, the parte and under seal filing Mr. Pagliano immunity
agreements prejudicial Plaintiff. hinders Plaintiff ability respond Mr.
Pagliano request for protective order. also prevents Plaintiff from tailoring its
questions effort limit Mr. Pagliano need invoke the Fifth Amendment.3 Mr.
Pagliano has requested that his deposition not videotaped because will assert the
Fifth Amendment and will decline answer each and every question after identifies
himself for the record. support his request, Mr. Pagliano claims that the immunity
agreements will not protect him from future prosecution. Plaintiff however does not
know what contained any such agreements. Nor does Plaintiff know their scope.
Plaintiff therefore cannot sufficiently respond Mr. Pagliano claim that
appropriate for him assert the Fifth Amendment every question after his name.
Importantly, Mr. Pagliano does not identify whether has received statutory
informal immunity. received statutory immunity, the resulting effects are
predictable. If, the other hand, Mr. Pagliano received informal immunity, the
principles contract law apply determining the scope informal immunity. See
United States Plummer, 941 F.2d 799, 802 (9th Cir. 1991). Under those
This Circuit has made clear that parte filings are generally disfavored and
strong presumption exists favor public access judicial proceedings. United States Microsoft Corporation, F.3d 1448, 1464 (D.C. Cir. 1995).
Plaintiff however cannot tailor its questions manner that would preclude
from gathering the necessary evidence. civil case, adverse inferences are permitted
when witness asserts his Fifth Amendment right against self-incrimination. Baxter
Palmigiano, 425 U.S. 308, 318 (1976).
-3-
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
circumstances, the actual language the agreements highly instructive. Because
has described the exhibits agreements, Plaintiff can only assume that Mr. Pagliano
received informal immunity. that assumption correct, the actual agreements will
undoubtedly shed light the areas which Mr. Pagliano proffered testimony the
Justice Department and what issues Mr. Pagliano may have reasonable concern for
prosecution. only with this information that Plaintiff will able assess properly
whether Mr. Pagliano has legitimate fear that answers all Plaintiff questions
present danger him.
This Circuit strongly discourages blanket assertions the Fifth Amendment. See
United States Thornton, 733 F.2d 121, 125-126 (D.C. Cir. 1984) Usually, trial court
cannot speculate whether all relevant questions would would not tend incriminate
the witness; accordingly, the court normally requires that the privilege asserted
response specific questions. see also United States Ortiz, F.3d 1066, 1073
(D.C. Cir. 1996). Until Mr. Pagliano hears each and every question asked Plaintiff,
cannot know whether would have reasonable belief that his answers every
question would support conviction under federal criminal statute would furnish link the chain evidence needed prosecute [Mr. Pagliano] for federal crime.
Hoffman United States, 341 U.S. 479, 486 (1951). Mr. Pagliano can only refuse
answer each question can demonstrate that there reasonable basis for believing danger [Mr. Pagliano] might exist answering particular question. Thornton, 733
F.2d 126 (emphasis the original). Mr. Pagliano has not satisfied this burden. See
Hoffman, 341 U.S. 486 The witness not exonerated from answering merely
-4-
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
because declares that doing would incriminate himself his say-so does not
itself establish the hazard incrimination.
Mr. Pagliano has failed demonstrate that has legitimate fear that answers all Plaintiff questions present danger him. The underlying issue currently
before the Court whether Mrs. Clinton and the State Department deliberately thwarted
FOIA. answer that question, the Court granted discovery provide Plaintiff with the
opportunity uncover evidence concerning the creation and operation the
clintonemail.com system for State Department business well the State Department
approach and practice for processing FOIA requests that potentially implicated former
Secretary Clinton and Ms. Abedin emails and the State Department processing
the FOIA request issue this case. Although Plaintiff has not seen the immunity
agreements and therefore does not know what issues Mr. Pagliano proffered
testimony, Plaintiff believes that least some, not all, the questions will ask
during Mr. Pagliano deposition can answered without Mr. Pagliano incriminating
himself. Based the limited information provided Mr. Pagliano date, not
all evident how Mr. Pagliano has reasonable belief that answering questions about the
creation and operation the clintonemail.com system for State Department business
the processing FOIA requests for Mrs. Clinton and Ms. Abedin emails would lead his prosecution under federal criminal statute.4 this time, Plaintiff not prepared submit extensive complete line
questioning for Mr. Pagliano deposition. However, Plaintiff can provide the Court with
Mr. Pagliano does not allege any fear prosecution connection with potential
testimony about the processing FOIA requests.
-5-
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
some the broad issue areas that intends cover during Mr. Pagliano deposition. the extent the Court grants Mr. Pagliano request file the immunity agreements
parte and under seal,5 Plaintiff hopes this proffer will assist the Court determining
whether Mr. Pagliano claim that asserting the Fifth Amendment response every
question after his name appropriate. See Ortiz, F.3d 1073 [C]ounsel did not
proffer line questioning demonstrate that the witness was not entitled assert
blanket privilege much less indicate any doubt about the asserted privilege. this
time, minimum, Plaintiff intends ask Mr. Pagliano questions related to:
His education, training, and employment history from 2008 the
present, including whether was being paid Mrs. Clinton while
was State Department employee;
His involvement the creation and the operation the
clintonemail.com system; what capacity (State Department employee Mrs. Clinton)
was involved the creation and operation the clintonemail.com
system;
His involvement the processing FOIA requests the State
Department that potentially implicated emails Mrs. Clinton and Ms.
Abedin and this FOIA request;
Discussions had with employees within the Office the Executive
Secretariat responsible for the logistics and operations concerning Mrs.
Clinton communications while she was Secretary State;
Discussions had with employees within the Office the Executive
Secretariat responsible for records management Mrs. Clinton files
and records, including email, while she was Secretary State; the Court denies Mr. Pagliano motion file the immunity agreements
parte and under seal whole part Plaintiff requests another opportunity
address the information contained such agreements.
-6-
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
Discussions had with Under Secretary for Management Patrick
Kennedy concerning the creation and operation the
clintonemail.com system well Mrs. Clinton and Ms. Abedin
use email for State Department business; and
III.
Discussions had with employees within the Office the Secretary
about Mrs. Clinton and Ms. Abedin use email for State
Department government business;
Discussions had with Cheryl Mills concerning the creation and
operation the clintonemail.com system well Mrs. Clinton and
Ms. Abedin use email for State Department business.
Conclusion.
For the reasons stated above well Plaintiff opposition non-party
deponent Bryan Pagliano motion for protective order, Plaintiff respectfully requests
that Mr. Pagliano motion file exhibits parte and under seal denied, Mr.
Pagliano motion for protective order denied, and the Court order Mr. Pagliano
sit for videotaped deposition.
Dated: June 10, 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff
-7-
Case 1:13-cv-01363-EGS Document 90-1 Filed 06/10/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 13-cv-1363 (EGS)
[PROPOSED] ORDER
Upon consideration Plaintiff Opposition Non-Party Deponent Bryan Pagliano
Motion for Protective Order, Plaintiff Combined Opposition Non-Party Deponent Bryan
Pagliano Motion File Exhibits Parte and Under Seal and Memorandum Law, and the
entire record herein, hereby ORDERED that:
Mr. Pagliano motion file exhibits parte and under seal DENIED;
Mr. Pagliano motion for protective order DENIED; and
Mr. Pagliano sit for videotaped deposition. ORDERED.
DATE:
The Hon. Emmet Sullivan, U.S.D.J.