PLAINTIFFS' OPPOSITION TO MOTION OF LINDA R. TRIPP

FOR A PROTECTIVE ORDER AND

OBJECTION TO SUBPOENA

Larry Klayman, Esq.

DC Bar No. 334581

Paul J. Orfanedes, Esq.

DC Bar No. 429716

Allan J. Favish, Esq.

JUDICIAL WATCH, INC.

501 School Street, S.W., Ste. 725

Washington, DC 20024

(202) 646-5172

Attorneys for Plaintiffs

Plaintiffs, by counsel, respectfully submit this opposition to the motion of Linda R. Tripp for a protective order and objection to subpoena.

I. Introduction.

Ms. Linda R. Tripp moves the court for a protective order and objects to Plaintiffs' subpoena regarding her upcoming, September 4, 1998 deposition. Although Plaintiffs agreed to postpone Mr. Tripp's deposition, first until after she had completed her grand jury testimony, then again to accommodate her schedule and the schedule of her counsel, she now objects to the timing of her deposition. Ms. Tripp also belatedly objects to having her deposition videotaped, although at all times it was clear that Plaintiffs intended to videotape the deposition, as they have every other deposition that has been taken in this case.

Importantly, on Saturday, August 29, 1998, Ms. Lucianne Goldberg, Ms. Tripp's literary agent, spokesperson and friend, admitted during an interview by Matt Drudge on WABC radio, that Ms. Tripp had accepted service of Plaintiffs' deposition subpoena, was prepared to testify to everything she knew about "Filegate," and understood that her deposition would be videotaped and likely made public:

Drudge: [Linda Tripp has stated] . . . "I was taping to save my family."

Goldberg: I know . . .

Drudge: . . . "save my well-being." With Bruce Lindsey out there telling her "we'll destroy you."

Goldberg: Well [Linda] is going . . . she has now accepted this . . . the subpoena from Larry Klayman, who is the lawyer who has the subpoena power on the FBI . . .

Drudge: Now, when is that, when is that going down?

Goldberg: She . . . she . . . I think its going up like the September 6th and she has agreed to do that and she . . . Linda has never talked about . . . eighty percent of what she knows about is not Monica.

Drudge: Oh, really.

Goldberg: She knows the FBI files, the travel office. Her office was right next door to Hillary's, and she watched these oriental gentlemen . . . beautifully dressed with briefcases, coming into Hillary's office day after day after day.

Drudge: Doing what?

Goldberg: Well . . . we would think that there was cash money. . . we didn't know it . . . she didn't know it at the time, but now she's got an idea.

Drudge: Boy Larry Klayman . . .

Goldberg: But she . . .

Drudge: . . . is going to get her on videotape and ask her these questions?

Goldberg: Well . . . not about the Chinese gentlemen. She . . . will be asked about the FBI files, that she has a lot of new information about. And she will talk about it. She. . . this is . . . these are videotaped depositions and Larry Klayman as we know is not shy about releasing every bit of information he has during depositions.

See Transcript of Radio Interview, attached as Exhibit 1 hereto (Emphasis added); see also Cassette of Radio Interview, attached as Exhibit 1B to Plaintiffs' Reply to Clinton Administration Defendants' Response to Motion of the United States for Limited Intervention and to Stay Subpoena Issued to Linda Tripp, and Plaintiffs' Opposition.

Consistent with Ms. Goldberg's admissions on August 29, 1998, Plaintiffs believed that they had resolved all genuine concerns Ms. Tripp raised regarding her upcoming deposition. In fact, Plaintiffs had, as stated, agreed to Ms. Tripp's timetable for the deposition. They also reassured Ms. Tripp the questions she would be asked at deposition would concern only "Filegate" and related matters. Plaintiffs even offered to provide Ms. Tripp with an understanding of possible questions in advance of her deposition. Based on Plaintiffs' good faith representations, Ms. Tripp did not seek to avail herself of this offer.

In addition, Ms. Tripp raised concerns about being asked questions about threats to her physical safety. Obviously, such questions are relevant and probative to "Filegate," because they concern attempts to intimidate and interfere with a witness in an ongoing civil matter before this Court. They also are relevant to the issue of intent, motive and course of conduct. Plaintiffs understand, and are sympathetic to, Ms. Tripp's concerns. As Plaintiffs have themselves set forth in prior pleadings, a public airing of threats might embolden someone seeking to act on them.⁽¹⁾ Consequently, Plaintiffs, who themselves have similar concerns, agreed to keep that limited portion of her deposition under seal

In light of Ms. Goldberg's public admissions on behalf of Ms. Tripp, and because Plaintiffs believed they had addressed Ms. Tripp's stated concerns about her upcoming deposition, Plaintiffs are disappointed that Ms. Tripp now seeks to impose new conditions on her deposition. They must, respectfully, be rejected, and Ms. Tripp's motion should be denied.

II. Discussion.

A. Ms. Tripp's Deposition Cannot Be Stayed.

After publicly announcing through her agent, Ms. Goldberg, that she would appear at Plaintiffs' deposition and testify about "Filegate," Ms. Tripp now belatedly claims that her deposition should be postponed until after the independent counsel staff has completed its investigation. Ms. Tripp's request opportunistically mirrors that of the independent counsel staff. Plaintiffs will not reiterate the persuasive arguments they asserted in their opposition to the independent counsel staff's unfounded motion, but incorporate their opposition by reference.

In sum, however, Plaintiffs' opposition demonstrated how it is crucial that Ms. Tripp's deposition go forward at this time because she was uniquely positioned to witness the unlawful use of Plaintiffs' FBI files at the White House and is one of the few -- if not the only -- witness who has not conveniently "lost" her memory. Thus, Ms. Tripp can provide Plaintiffs with a "road map" that will allow them to complete their discovery in as expeditious and cost-effective manner as possible, now that most underlying documents have allegedly been produced by Defendants. Plaintiffs' opposition also demonstrated how it is crucial that Ms. Tripp's deposition go forward at this time precisely because of the threats she has received. Having been subjected to threats against her life and children, she could leave the jurisdiction, or even worse could happen. Finally, Plaintiffs' opposition also demonstrated that Ms. Tripp's deposition must go forward at this time because there is no end in sight to the independent counsel staff's investigation of "Filegate." The reply brief of the independent counsel staff, which incorrectly asserts that Plaintiffs consented to its intervention (in fact, it lacks standing), conspicuously does not provide any timetable for the investigation's completion, obviously because its "Filegate" investigation is not in an advanced stage. Indeed, informed sources have represented that the independent counsel staff's "Filegate" report will not be submitted to Congress any time soon.

Because Plaintiffs have accommodated what Ms. Tripp previously stated were her concerns about the timing of her deposition -- by waiting until after she completed her grand jury testimony, then agreeing to reschedule the deposition to take into account her schedule and that of her counsel -- Plaintiffs respectfully submit that her latest concern is not genuine. Rather, it is likely that Ms. Tripp is simply trying to take opportunistic advantage of the independent counsel staff's motion to stay for her own financial interests. The likely reason behind Ms. Tripp's now belated objection to the timing of her deposition -- and the other purported basis for her motion -- is that she no longer wishes to have her deposition videotaped because it might undermine the value of future appearances on programs such as CBS's "60 Minutes." It has been widely reported that she met with Mike Wallace of "60 Minutes" and was offered nearly $1 million dollars for an exclusive interview. See Exhibit 2, attached hereto.

Ms. Tripp's counsel admitted this was Ms. Tripp's likely motivation at the end of a lengthy telephone conference on the afternoon of September 1, 1998, during which Plaintiffs' counsel reassured Ms. Tripp's counsel about the scope of the deposition and agreed to seal any discussion about the threats to which she has been subjected. Indeed, the videotaping of Ms Tripp's deposition was the last point her counsel raised during this conversation and which created the present impasse. When Plaintiffs' counsel continued to maintain that the deposition be videotaped, Ms. Tripp, through her counsel, then asserted that Ms. Tripp would object to the timing of the deposition as well. Thus, it is readily apparent that this belated concern about awaiting the conclusion of the independent counsel staff's investigation -- which is in direct conflict the admissions Ms. Tripp made through her agent, Ms. Goldberg only three (3) days earlier -- is nothing more than a "bargaining chip" to avoid having Ms. Tripp's deposition videotaped.

B. Ms. Tripp's Deposition Should Be Videotaped, As Have All Depositions Taken in This Public Interest Lawsuit.

Rule 26(b)(2) specifically allows for the videotaping of depositions "unless the court orders otherwise," and this Court has previously rejected requests by witnesses that their depositions not be videotaped. See, e.g., June 15, 1998 Memorandum and Order regarding deposition of Larry Potts. In fact, all of the depositions taken in this matter have been videotaped. There is no reason why Ms. Tripp's deposition should be any different -- especially as Plaintiffs have agreed to accommodate her concerns about being questioned about the threats against her by keeping that limited portion of the deposition under seal. In fact, as demonstrated by the admissions made by Ms. Tripp through her agent, Ms. Goldberg, on August 29, 1998, Ms. Tripp fully understood that her deposition would be videotaped and likely made public. Ms. Tripp's belated objection to the videotaping of her deposition is thus disingenuous at best.

Plaintiffs' reasons for videotaping depositions are obvious. The demeanor of a witness at a deposition can be as important, if not more so, than what the witness has to say, and only a videotape can record a witness' demeanor. With such an important witness as Ms. Tripp, it is thus crucial that her demeanor -- and not just her testimony -- be recorded. This is all the more so because of the threats that Ms. Tripp has received. Because of these threats, Ms. Tripp may leave the jurisdiction or worse, and thus be unavailable for trial. Without a videotape, the jury reviewing Ms. Tripp's testimony at trial would not be able to watch and access her demeanor, which Plaintiffs believe will only add to her credibility.

Indeed, courts have long recognized the substantial advantages videotaping a deposition offer over stenographic recording:

Stenographic transcripts record only spoken words. But people communicate in other ways in addition to the words used: facial expressions, voice inflection and intonation, gestures, "body language," and notes between counsel and deponent may all express a message to persons present at a deposition as to which a typed transcript is completely silent. Moreover, the finder or fact must assess the credibility of deposition testimony. Standard jury instructions inform jurors that in assessing testimony they may consider, inter alia, a witness's demeanor while testifying because it is common knowledge that facial expressions often reveal the veracity of the speaker. A videotape deposition, unlike a typed transcript, allows a trial jury to consider the demeanor of a witness while testifying. . . . The video deposition is allowed because it is a superior method of conveying to the fact finder the full message of the witness in a manner that assists the fact finder in assessing credibility and because Rule 30(b)(2) specifically permits the deposing party to select the method of recordation of the deposition.

Riley v. Murdock,156 F.R.D. 130, 131 (E.D.N.C. 1994) (Emphasis added); see also Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 259 n. 6 (5th Cir. 1985) (collecting cases). It is particularly important to record a witness's demeanor on videotape when that witness may be unavailable for trial. In re Agent Orange Product Liability Litigation, 28 Fed.R.Serv.2d 993, 995 (E.D.N.Y. 1980); see also In re Agent Orange Product Liability Litigation, 96 F.R.D. 587, 588 (E.D.N.Y. 1983) ("a videotaped deposition provides the best means for the court and the jury to judge the demeanor of the witness if he is unavailable for trial . . . .").

In addition, no restrictions should be placed on Plaintiffs' use of the videotaped deposition. This Court has routinely rejected such requests in this and other cases. See, e.g., June 15, 1998 Memorandum and Order regarding deposition of Larry Potts. It is well-settled that, "when a party obtains documents or information through the discovery process, he can 'use that information in any way which the law permits.'" In re Halkin, 598 F.2d 176, 1988 (D.C. Cir. 1979) (Citations omitted). Under Rule 26(c), the party or person s from whom discovery is sought must establish "good cause" for any restriction on the use of discovery documents. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 2208, 81 L.Ed.2d 17 (1984); Avrigan v. Hull, 118 F.R.D. 252 (D.D.C. 1987); see also Oklahoma Hospital Ass'n v. Oklahoma Publishing Co., 748 F.2d 1421, 1424 (10th Cir. 1984), cert. denied, 473 U.S. 905, 105 S.Ct. 3528, 87 L.Ed.2d 652 (1985) ("parties to a litigation have a constitutionally protected right to disseminate information gained by them through the discovery process absent a valid protective order."). "The resultant infringement of interests protected by the First Amendment . . . requires a district court to be careful to grant such an order only when essential to shield a party from significant harm or to protect an important public interest." Doe v. District of Columbia, 697 F.2d 1115 (D.C. Cir. 1983).

In light of Plaintiffs' agreement to seal that portion of the deposition concerning the threats Ms. Tripp has received, as well as the obvious public interest in learning the truth about "Filegate," Ms. Tripp has failed to demonstrate "specific facts showing clearly defined and serious injury" that would result from any publication or use of her deposition testimony. Avrigan, 118 F.R.D. 252, 253 (D.D.C. 1987). Ms. Tripp's financial interest in marketing herself for future television appearances and any belated concern about viewing herself on videotape⁽²⁾ are not, respectfully, sufficient basis for restricting Plaintiffs' First Amendment Rights and the public's right to know the truth about "Filegate." Indeed, this is a case of compelling public interest for the American people. The Court should not, respectfully, restrict the use of Ms. Tripp's videotaped deposition, no more than it has countenanced any restraint on prior depositions, in this and other cases.

IV. Conclusion.

Plaintiffs agreed to accommodate all of Ms. Tripp's concerns about her upcoming deposition, notably, the timing of the deposition, the scope of the questions she would be asked and the sealing of any questions and answers about the threats to which she has been subjected. Plaintiffs cannot, however, accede to Ms. Tripp's belated and opportunistic objection that her deposition await conclusion of the independent counsel staff's investigation. Not only is it crucial that Ms. Tripp's deposition go forward at this time, but there is no end in sight for that investigation, particularly since a report to Congress on "Filegate" is not contemplated any time soon.

Moreover, Plaintiffs respectfully submit that Ms. Tripp's belated concern that her deposition await the conclusion of the independent counsel staff's investigation is simply being asserted as a "bargaining chip" to avoid having her deposition videotaped, so she will maintain the marketability of a taped interview with network news magazines such as "60 Minutes."

Finally, videotaping Ms. Tripp's deposition is crucial to preserving her demeanor should she be unavailable when this matter goes to trial, and the public interest requires that no limitations be placed on the use of this videotape.

Consequently, Plaintiffs respectfully request that Ms. Tripp's motion be denied in its entirety.

Respectfully submitted,

JUDICIAL WATCH, INC.

__________________________

Larry Klayman, Esq.

DC Bar No. 334581

501 School Street, S.W.

Suite 725

Washington, DC 20024

(202) 646-5172

Attorneys for Plaintiffs

I hereby certify that on September 8, 1998 a true and correct copy of the foregoing PLAINTIFFS' OPPOSITION TO MOTION OF LINDA R. TRIPP FOR A PROTECTIVE ORDER AND OBJECTION TO SUBPOENA was served by facsimile and U.S. mail, postage prepaid, on on the following:

Attorneys for Defendants Federal Bureau of Investigation and Executive

Office of the President:

James J. Gilligan, Esq.

Elizabeth Shapiro, Esq.

Assistant United States Attorneys

U.S. DEPARTMENT OF JUSTICE

P.O. Box 883

Washington, DC 20044

Attorneys for Defendant Hillary Rodham Clinton:

David E. Kendall, Esq.

Paul B. Gaffney, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005

Attorneys for Intervenor United States:

Kenneth W. Starr, Esq.

Robert J. Bittman, Esq.

Stephen J. Binhak, Esq.

Terrence J. Galligan, Esq.

OFFICE OF THE INDEPENDENT COUNSEL

490 North

1001 Pennsylvania Avenue, N.W.

Washington, DC 20004

Attorneys for Non-Party Witness Linda R. Tripp:

Anthony J. Zaccagnini, Esq.

SEMMES, BOWEN & SEMMES, P.C.

250 West Pratt Street

Baltimore, MD 21201

_________________________

Paul J. Orfanedes

1. Strangely, however, Ms. Tripp has discussed the threats with Tony Snow of Fox News Channel, who then published them. See Fox News Channel Advertisements, attached as Exhibit 4 to Plaintiffs' Opposition to United States' Motion for Limited Intervention and to Stay Subpoena Issued to Linda Tripp.

2. During the September 1, 1998 telephone conference, Ms. Tripp's counsel represented that this also was a reason why Ms. Tripp did not want her deposition to be videotaped. Plaintiffs would point out that, at the end of her grand jury testimony, Ms. Tripp voluntarily spoke before an entire bank of television cameras on the steps of the courthouse, creating perhaps one of the most memorable television images of the entire Clinton-Lewinsky investigation. The news conference was then telecast worldwide.

Moreover, Lucianne Goldberg and Jennifer Grossman have made numerous media appearances on behalf of Ms. Tripp in which they revealed details about Tripp's testimony before the grand jury. Fox New Channel has broken stories directly attributable to conversations Mr. Tony Snow has had with Ms. Tripp. In fact, Fox has even advertised Mr. Snow's special relationship with Ms. Tripp. See Plaintiffs' Opposition to United States' Motion for Limited Intervention and to Stay Subpoena Issued to Linda R. Tripp, at Exhibit 4.