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Judicial Watch • JW v. State 06 03 Pagliano Reply (2) 01363

JW v. State 06 03 Pagliano Reply (2) 01363

JW v. State 06 03 Pagliano Reply (2) 01363

Page 1: JW v. State 06 03 Pagliano Reply (2) 01363


Number of Pages:7

Date Created:June 3, 2016

Date Uploaded to the Library:June 03, 2016

Tags:macdougall, Video, Pagliano, Reply, presidential, Hillary Clinton Email Scandal, Cheney, amendment, deposition, order, filed, State Department, document, FOIA, Washington

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Case 1:13-cv-01363-EGS Document Filed 06/03/16 Page
Civil Action No. 13-CV-1363 (EGS)
Judicial Watch purported justifications for creating audiovisual recording Mr.
Pagliano deposition are without merit. set forth below, the narrow scope permissible
discovery allows Mr. Pagliano unequivocally represent the Court that will decline
answer every question asked him reliance his right under the Fifth Amendment.
addition, any advantages associated with audiovisual recording typical deposition are
inapplicable here. Judicial Watch has failed provide any assurances regarding the future use video recording and has expressly acknowledged the prospects motion lift the Sealing
Order, confirming the need for protective order. Judicial Watch cannot articulate legitimate,
case-oriented purpose video record the deposition. The Court should eliminate the burden
Mr. Pagliano constitutional rights and the risk that video recording may later used for
political purposes entirely unrelated this matter.
REPEATEDLY INVOKING HIS FIFTH AMENDMENT RIGHT threshold matter, given that Judicial Watch has been repeatedly notified that Mr.
Pagliano will not testify, persistent effort videotape Mr. Pagliano invoking the Fifth
Amendment would appear violate the principles set forth D.C. Legal Ethics Opinion 358
Case 1:13-cv-01363-EGS Document Filed 06/03/16 Page
(2011). Nevertheless, Mr. Pagliano has not objected being deposed, has cooperated the
scheduling the deposition, and has not sought limit the public access his responses
under oath. has merely requested that the Court limit the manner which the deposition
recorded light well-founded constitutional concerns.
Judicial Watch incorrectly presumes that Mr. Pagliano will answer certain questions
that not present any risk prosecution. Opp Here, the Court has authorized limited
discovery1 clarify discrete factual matters and resolve what the Court described the narrow
legal question presented. Given the limited scope permissible inquiry, Mr. Pagliano
counsel represents the Court, have repeatedly represented Judicial Watch, that Mr.
Pagliano will assert the Fifth Amendment and will decline answer each and every question
after identifies himself for the record. Under the highly speculative scenario suggested
Judicial Watch which Mr. Pagliano spontaneously decides testify contrary advice
counsel Judicial Watch free suspend the deposition and seek relief from the Court. That
will not necessary here.
Judicial Watch summarizes the virtues audiovisual recording typical case, but
those advantages are not present here. While [f]acial expressions, voice inflections, intonation,
gestures, and body language certainly directly deponent credibility the usual case,
Judicial Watch does not explain why the Court would need weigh the credibility deponent
plainly invoking his Fifth Amendment right and declining testify. Nor does Judicial Watch
acknowledge, much less demonstrate, why nonparty demeanor while invoking the Fifth
The scope permissible discovery shall follows: the creation and operation
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 State processing the
FOIA request that the subject this action. Memorandum and Order 12, May 2016, ECF No. (the
Discovery Order
Case 1:13-cv-01363-EGS Document Filed 06/03/16 Page
Amendment would shed light whether the U.S. Department State conducted reasonable
search for documents response Judicial Watch FOIA request.
Judicial Watch fails cite single case addressing witness who declines answer
constitutional grounds,2 let alone case authorizing the use audiovisual recording over the
objection deponent, who has provided notice that will invoke the Fifth Amendment.
After citing Riley Murdock, 156 F.R.D. 130, 131 (E.D.N.C. 1994), where the court permitted
video recording allow[] trial jury consider the demeanor witness while testifying,
Judicial Watch acknowledges that jury will impaneled this case. Opp Judicial
Watch claims this case about the public right know details related the creation,
purpose and use the system. Id. does not follow that
audiovisual recording nonparty witness, invoking his constitutional rights, required
achieve this purpose. Judicial Watch does not identify any legitimate benefit video
recording that would not achieved traditional deposition transcript.
Judicial Watch does not dispute the prospects forthcoming motion lift the Sealing
Order, but recommends that the Court address Mr. Pagliano constitutional concerns and
when motion made lift the existing protective order. Id. However, the risk Mr.
Pagliano will created soon the video recorded. If, Judicial Watch contemplates, the
recording were unsealed, there would be, one court put it, endless succession attempts,
not necessarily [the news organization] alone, obtain access [the video] for purposes
While the deponent Fanelli Centenary College, 211 F.R.D. 268, 269 (D.N.J. 2002) initially
expected invoke the Fifth Amendment spousal immunity privileges answer certain questions, the basis
for her objection video recording was her discomfort being videotaped, aggravation certain psychiatric
symptoms, and stress, which would turn result her giving less than her best testimony. The court did not
address the propriety audiovisual recording where deponent intends invoke the Fifth Amendment.
Case 1:13-cv-01363-EGS Document Filed 06/03/16 Page
unrelated the case and attendant drain [the deponent own vigilance, resolve, and
resources fending them off. Westmoreland CBS, Inc., 584 Supp. 1206, 1213 (D.D.C.
The very existence audiovisual recording presents risk that the video will
eventually exploited create widely broadcast public inference guilt. See Hobley
Burge, 225 F.R.D. 221, 225 (N.D. Ill. 2004) (barring dissemination police officer deposition
videos where the officers repeatedly invoked their Fifth Amendment rights and where the
dissemination the videos was designed create inference guilt). Judicial Watch argues,
[N]o jury will impaneled this case. Hence, harm can result from video being
created. Opp However, the danger from constitutional perspective not the effect the
video the trier fact this civil case, but the potential tainting effect the jury pool
potential government enforcement action. See, e.g., Hobley, 225 F.R.D. 226.
While Judicial Watch fails cite single analogous case involving assertion the
Fifth Amendment the narrow discovery authorized the Court, there ample precedent for
prohibiting the use audiovisual recording similar circumstances.3 See Lobb United Air
Lines, No. 92-15846, 1993 U.S. App. LEXIS 17495, (9th Cir. July 1993) (concluding
that the district court did not abuse its discretion deciding that the added presentation value
the videotape format did not outweigh the additional burden the defendants see Int Union,
United Auto., Aerospace and Agric. Implement Workers Am. Nat Caucus Labor Comm.,
525 F.2d 323, 326 (2d Cir. 1975) (upholding district court order allowing party record
deposition solely stenographic means); see Citizens for Responsibility and Ethics
Two the cases this string cite predate the 1993 amendment Federal Rule Civil Procedure 30.
However, the rationales for the decisions remain applicable here. While Rule 30(b) has been expanded more
liberally permit video recordings, the Rule expressly contemplates that the court may order[] otherwise. See FED. CIV. 30(b)(3)(A).
Case 1:13-cv-01363-EGS Document Filed 06/03/16 Page
Washington Cheney, 580 Supp. 168, 183-84 (D.D.C. 2008) (granting protective order
prohibiting audiovisual recording because the normal advantages videotaped deposition
were not implicated light the narrow permissible discovery); see Posr Roadarmel, 466
Supp. 527, 529 (N.D.N.Y. 2006) (issuing protective order prevent videotaped
deposition because the significant risk that plaintiff would misuse the videotape see
Westmoreland, 584 Supp. 1213 (denying permission news organization videotape the
deposition public figure where CBS would not agree unequivocally never broadcast the
tape and the deponent had well-founded fear that CBS would use the videotape broadcast
Citizens for Responsibility and Ethics Washington particularly instructive. There,
the plaintiff watchdog organization alleged that the Office Vice President, among other
government agencies, inadequately preserved records under the Presidential Records Act PRA claim that, like Judicial Watch claim, would not typically involve discovery. 580 Supp. 183. This Court granted the plaintiff request depose the Vice President
Chief Staff and the Director the Presidential Materials Staff the Office Presidential
Libraries. Id. 176. The defendants moved for protective order prohibiting the plaintiff from
videotaping the depositions. Id. 182. Granting the motion, this Court held:
The normal advantages videotaping depositions are not, however,
implicated this case. Rather, the Court granted limited discovery
resolve the factual and legal predicates for Defendants narrow definitions
associated with application the PRA. Resolution these issues does
not involve the presentation deposition testimony jury require
fact-finder weigh the credibility competing witnesses, i.e., the
situations which videotaped depositions are typically helpful Put
simply, being able watch videotaped depositions will not assist the
Court resolving the discrete legal issues before Although Rule
30(b) contemplates that, matter ordinary course, parties may
videotape depositions, the limited discovery issue here not matter
ordinary course. The Court finds its discretion that permitting Plaintiffs
Case 1:13-cv-01363-EGS Document Filed 06/03/16 Page videotape the deposition testimony will not assist the Court
resolution the discrete legal questions hand, and the Court therefore
orders that these two depositions shall not videotaped.
Id. 183-84. light Mr. Pagliano clear intention assert the Fifth Amendment, these
considerations apply with even greater force his prospective deposition.
For the reasons set forth above and Mr. Pagliano opening brief, the Court should
issue Order precluding Judicial Watch from recording Mr. Pagliano deposition
audiovisual means.
Dated: June 2016
Respectfully submitted,
By: /s/ Mark MacDougall
Mark MacDougall (DC Bar No. 398118)
Sean Arcy (DC Bar No. 440693)
Constance Connor (DC Bar No. 490885)
Connor Mullin (DC Bar No. 981715)
1333 New Hampshire Avenue,
Washington, 20036
(202) 887-4000
(202) 887-4288 (fax)
Counsel for Bryan Pagliano
Case 1:13-cv-01363-EGS Document Filed 06/03/16 Page
The undersigned certifies that this 3rd day June 2016, true and correct copy the
foregoing document was served upon the parties this case via the Court electronic filing
system and available for viewing and downloading from the ECF system.
/s/ Mark MacDougall
Mark MacDougall Bar No. 398118