JW v. State Opposition Pagliano 01363
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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.