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Judicial Watch • Reporters Comte Freedom of Press leter 071416 01363

Reporters Comte Freedom of Press leter 071416 01363

Reporters Comte Freedom of Press leter 071416 01363

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Date Created:July 14, 2016

Date Uploaded to the Library:December 05, 2016

Tags:leter, Comte, 071416, REPORTERS, Depositions, audiovisual, democratic, press, 01363, Comey, Freedom, motion, Mills, order, Secretary, Hillary Clinton, clinton, filed, State Department, document, American, FBI, Supreme Court, department, FOIA

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Case 1:13-cv-01363-EGS Document 108 Filed 07/14/16 Page
July 14, 2016
1156 15th St. NW, Suite 1250
Washington, D.C. 20005
(202) 795-9300
Bruce Brown
Executive Director
(202) 795-9301
The Honorable Emmet Sullivan
U.S. District Court for the District Columbia
333 Constitution Avenue, N.W.
Washington, 20001
The Associated Press
Judicial Watch, Inc. Dep State (No. 1:13-cv-01363)
Dear Judge Sullivan,
Temple University
Creators Syndicate
Tsinghua University, Beijing
Forbes Magazine
MANNY GARCIA write behalf the Reporters Committee for Freedom the
Press and the other undersigned media organizations regarding the Court
May 26, 2016 Minute Order directing that all audiovisual copies
depositions taken the above-referenced case sealed until further order the Court.
Naples Daily News
National Geographic
The Wall Street Journal
Davis Wright Tremaine
The Associated Press
Los Angeles Times
National Law Journal
The New Yorker
ANDREA MITCHELL this Court well aware, this Freedom Information Act FOIA lawsuit matter substantial interest the news media and the
public. arises out 2013 FOIA request plaintiff, Judicial Watch, Inc. Judicial Watch the Department State for copies certain agency
records relating Huma Abedin, advisor former Secretary State and
now presumptive Democratic presidential nominee Hillary Clinton.
Memorandum and Order Judicial Watch, Inc. Dep State, No.
1:13-cv-01363 (D.D.C. May 2016), ECF No. 73. Although the case was
dismissed 2014, was reopened June 2015 after The New York Times
reported that former Secretary Clinton had used nongovernmental email
account conduct government business while Secretary State. Id.
NBC News
Boston University
The Philadelphia Inquirer
The Miami Herald
Quinn Emanuel
The New York Times
The Atlantic
Bloomberg News
ABC News
USA Today
JUDY WOODRUFF May 2016, the Court entered order approving the parties
joint proposal for limited discovery concerning 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.
Id. 12. The order indicates that Judicial Watch intended take depositions certain current former State Department employees. Id. 13. The
order further states that Judicial Watch has reserved the right seek the
Court permission depose Donald Reid, the Senior Coordinator for
Security infrastructure, Bureau Diplomatic Security, well former
Secretary Clinton, necessary. Id. 14.
PBS/The NewsHour
Senior Advisor:
Affiliations appear only
for purposes identification. May 25, 2016, Cheryl Mills, who was Chief Staff Secretary
Clinton, filed motion for protective order pursuant Federal Rule
Case 1:13-cv-01363-EGS Document 108 Filed 07/14/16 Page
Civil Procedure 26(c)(1) preventing Judicial Watch from publicizing all any portion
any audiovisual recording made Ms. Mills deposition this case. Motion NonParty Deponent Cheryl Mills, Judicial Watch, Inc. Dep State, No. 1:13-cv-01363
(D.D.C. May 25, 2016), ECF No. (the Mills Motion Following briefing the
parties, May 26, 2016, the Court entered minute order granting the Mills Motion and
sealing all audiovisual copies her deposition. Minute Order, Judicial Watch, Inc.
Dep State, No. 1:13-cv-01363 (D.D.C. May 26, 2016) (the May Order The
Court also ordered sua sponte that all audiovisual copies depositions taken this
case shall sealed until further order the Court. Id. date, addition Ms. Mills and Ms. Abedin, Judicial Watch has deposed
Ambassador Lewis Lukens, former Deputy Assistant Secretary State and Executive
Director the State Department Executive Secretariat, Ambassador Stephen Mull,
former Executive Secretary the State Department, Bryan Pagliano, State Department official, and Patrick Kennedy, Under Secretary for Management the State
Department. July 2016, Judicial Watch filed motion seeking permission
depose former Secretary Clinton and two other individuals. That motion set
heard the Court July 18, 2016. understand that all the depositions taken date have been videotaped.
Pursuant the Court May Order, however, audiovisual copies those depositions
are not available the public.
The press and the public have powerful interest access audiovisual
copies the depositions taken this case.
There strong, legitimate public interest the part the citizenry have
unfettered access court proceedings, particularly when they involve elected officials
and the performance their governmental responsibilities. Flaherty Seroussi, 209
F.R.D. 295, 300 (N.D.N.Y. 2001); see also Condit Dunne, 225 F.R.D. 113, 120
(S.D.N.Y. 2004) (noting added public interest where the statements issue [in the
deposition] address the propriety then-sitting United States Congressman the
discharge his duties Padberg McGrath-McKechnie, No. CV-00-3355 RJD SMG (E.D.N.Y. April 27, 2005) (finding that public access the deposition former
New York City Mayor Rudolph Giuliani was warranted where the lawsuit involved
allegations related his actions mayor). The same true with respect court
proceedings involving appointed government officials. See Hawley Hall, 131 F.R.D.
578, 585 (D. Nev. 1990); Laugier City New York, No. 13-CV-6171 (JMF), 2014
6655283 (S.D.N.Y. Nov. 24, 2014); see also Roman Catholic Archbishop
Portland Oregon, 661 F.3d 417, 424 n.5 (9th Cir. 2011) (instructing courts considering
the public disclosure discovery documents consider whether party benefitting
from the order confidentiality public entity official; and whether the case
involves issues important the public (citation omitted)).
The matter before this Court speaks directly the actions government officials the performance their duties. All the individuals whom Judicial Watch has
Case 1:13-cv-01363-EGS Document 108 Filed 07/14/16 Page
deposed date, well those whom may depose the future, are current former
government officials. Further, under this Court May Order, the scope their
testimony this case limited matters relating the performance their official
duties. The use nongovernmental email account the former Secretary State,
and the actions other State Department officials and employees who themselves used,
were aware of, assisted the establishment that nongovernmental email system, are
matters legitimate interest the public.
That former Secretary Clinton now the presumptive Democratic nominee for
President the United States only heightens the public already strong interest access the audiovisual copies the depositions taken this matter. See Order Granting
Motion Non-Party Press Organization for Limited Purpose Intervention and Order
Unsealing Court Records 11, Cohen Trump, No.1:13-cv-02519-GPC-WVG
(S.D. Cal. May 27, 2016), ECF No. 211 (finding strong argument that the public
interest understanding the judicial process heightened case against the frontrunner for the Republican nomination the 2016 presidential race During the course her presidential campaign, former Secretary Clinton has repeatedly been called upon
answer questions relating her use nongovernmental email account and server
while Secretary State,1 and she has addressed the issue number occasions,
including her campaign website.2
FBI Director James Comey recent July 2016 announcement that the FBI has
recommended that criminal charges brought against former Secretary Clinton
despite her extremely careless email practices, characterized Director Comey
has reinvigorated public interest the former Secretary use nongovernmental
email account, and sparked additional public discussion and debate about the FBI
investigation.3 response Mr. Comey announcement, leaders the Republican
party have indicated that they intend make former Secretary Clinton use
See, e.g., The American Presidency Project, Democratic Candidates Debate Las Vegas,
Nevada (Oct. 13, 2015), available; The American Presidency Project,
Democratic Candidates Debate Des Moines, Iowa (Nov. 14, 2015), available; The American Presidency Project, Democratic Candidates Debate
Durham, New Hampshire (Feb. 2016), available; The American
Presidency Project, Democratic Candidates Debate Flint, Michigan (Mar. 2016), available; The American Presidency Project, Democratic Candidates Debate
Miami, Florida (Mar. 2016), available
See Updated: The Facts About Hillary Clinton Emails, available (last visited June 23, 2016).
See, e.g., Mark Landler Eric Lichtblau, F.B.I. Director James Comey Recommends
Charges for Hillary Clinton Email, N.Y. Times (July 2016), available; The Associated Press, Fact Check: Hillary Clinton Email Claims
Collapse Under FBI Investigation, NBC News (July 2016), available; Burgess Everett, Comey testify Clinton email probe Thursday,
Politico (July 2016), available
Case 1:13-cv-01363-EGS Document 108 Filed 07/14/16 Page
nongovernmental email central issue the presidential campaign.4 And because
criminal charges will brought against former Secretary Clinton, proceedings this
case, including deposition testimony, may one the public only opportunities
obtain full understanding former Secretary Clinton use nongovernmental email
account and server.
Where, here, litigation involves matters significant public concern, the
public interest access court proceedings general may asserted more forcefully Coordinated Pretrial Proceedings Petroleum Products Antitrust Litig.,
101 F.R.D. 34, (C.D. Cal. 1984). Because central issue this case former
Secretary Clinton use nongovernmental email account while the State
Department central issue the ongoing presidential race, full access the
depositions taken this matter heightened importance the public.
Cold transcripts the depositions, alone, provide incomplete information the public.
The Court May Order permits public access the written transcripts
depositions taken this case. However, access cold transcripts, alone, deprives the
public critical context and other information vital understanding the deponents
testimony. Access the audiovisual recordings would give both the press and the public more accurate and complete record the testimony given public officials this
case. written transcript provides only the deponent words, but words themselves
may carry only limited meaning. Fanelli Centenary College, 211 F.R.D. 268, 270
(D.N.J. 2002). People communicate other ways addition the words used: facial
expressions, voice inflection and intonation, gestures, body language and notes
between counsel and deponent may all express message persons present
deposition which typed transcript completely silent. Riley Murdock, 156
F.R.D. 130, 131 (E.D.N.C. 1994); see also Rice Toyota World, Inc. Southeast Toyota
Distributors, Inc., 114 F.R.D. 647, 649 (M.D.N.C. 1987) (stating that witness
demeanor may reflected his motions, expressions, voice inflections, etc.
written transcript omits such vital nonverbal information and, result, necessarily
limits the reader understanding that testimony. the words the U.S. Supreme
Court, cold record cannot recreate testimony. witness may credible paper but
not the stand. Harvard Florida, 459 U.S. 1128, 1134 (1983).
Audiovisual recordings, contrast, permit the viewer utilize greater portion his perceptive processes then when merely reading listening stenographic
deposition. Rice Toyota World, 114 F.R.D. 649. Such recordings show
deponent nonverbal communication, including facial expressions, eye contact, hand
See, e.g., Burgess Everett Nick Gass Republicans react FBI: The rules are different for
the Clintons Politico (July 2016), available; Republicans
respond Comey Clinton announcement, CBS News (July 2016), available
Case 1:13-cv-01363-EGS Document 108 Filed 07/14/16 Page
movements and gestures, posture and body orientation, voice pitch, and speed speech.
Rebecca White Berch, Proposal Amend Rule 30(B) the Federal Rules Civil
Procedure: Cross-Disciplinary and Empirical Evidence Supporting Presumptive Use
Video Record Depositions, Fordham Rev. 347, 362 (1990); see also United
States Tunnell, 667 F.2d 1182, 1188 (5th Cir. 1982); Fanelli, 211 F.R.D. 270; Rice
Toyota World, 114 F.R.D. 649. Audiovisual recordings also show delays response,
which the transcript would not well any coaching counsel, such notes,
gestures, whispered instructions inaudible court reporter. Riley, 156 F.R.D.
These forms nonverbal communication not only provide important context for witness statements, they are essential indicators witness credibility and veracity.
Courts have long recognized that the ability assess the demeanor witness
appearing court gives the factfinder unique advantage evaluating evidence.
Sandidge Salen Offshore Drilling Co., 764 F.2d 252, n.6 (5th Cir. 1985). Similarly,
because audiovisual recordings allow the viewer better assess witness demeanor
and credibility, courts around the country have acknowledged their superiority cold
transcripts. See, e.g., United States Bell, 795 F.3d 88, (D.C. Cir. 2015)
recognized that videotaped deposition generally more effective than reading
transcript for the presentation deposition testimony Sandidge, 764 F.2d n.6;
Fanelli, 211 F.R.D. 270; Paisley Park Enters., Inc. Uptown Prod., F.Supp.2d
347, 349 (S.D.N.Y. 1999); Riley, 156 F.R.D. 131; Weiss Wayes, 132 F.R.D. 152, 154
(M.D. Pa. 1990). For the same reason, least one scholar has concluded that audioand videotaped depositions are inherently more accurate and trustworthy than
stenographically recorded depositions. Berch, supra 349. Just jury court
obtains more accurate, complete information from viewing videotaped deposition
opposed merely reading cold transcript, too does the press and the public.
The deponent government officials have not and cannot establish good
cause seal audiovisual recordings their depositions this case.
Given the strong, legitimate interest the public this case case that
implicates directly the conduct government officials, including former Secretary
Clinton, their official capacities the press and the public have particularly powerful
interest access the audiovisual recordings the depositions taken this matter.
good cause exists deprive the public access the audiovisual recordings those
Where good cause established, Federal Rule Civil Procedure 26(c) authorizes the Court issue order protect party person from annoyance, embarrassment, oppression,
undue burden expense. The burden the party seeking such protective order
demonstrate good cause. See New York Microsoft Corp., 206 F.R.D. 19, (D.D.C. 2002).
While this standard applies protective orders governing material merely exchanged the
parties discovery civil matter, when such material submitted court becomes
presumptively accessible the public under both the First Amendment and common law. See
United States El-Sayegh, 131 F.3d 158, 160 (D.C. Cir. 1997). Accordingly, the extent
that audiovisual recordings the depositions issue, portions thereof, are submitted the
Case 1:13-cv-01363-EGS Document 108 Filed 07/14/16 Page
Only one deponent, Ms. Mills, moved for protective order restricting access
the audiovisual recording her deposition. She did the basis her contention that
the recording might used for partisan political purposes against former Secretary
Clinton connection with her current presidential campaign. Mills Motion see also
Reply Support Motion Non-Party Deponent Cheryl Mills Judicial Watch,
Inc. Dep State, No. 1:13-cv-01363 (D.D.C. May 26, 2016), ECF No. (the Mills
Reply According Ms. Mills, the audiovisual recording her deposition could
subject manipulation, and being cut into sound bites that she asserts could mislead
the public regarding the full substance her testimony and obscure the true purpose
this proceeding. Mills Reply Mills Motion
While the testimony Ms. Mills and the other deponents this case
unquestionably the subject legitimate public interest only heightened the current
presidential race, that not reason restrict public access. the contrary,
ground for greater public access. the U.S. Supreme Court has stated, [d]iscussion
public issues and debates the qualifications candidates are integral the operation the system government established our Constitution. Buckley Valeo, 424
U.S. (1976). For that reason, courts are especially unwilling issue protective
order merely spare the [individual] embarrassment where, here, the [individuals] are
public officials and the issues the case are matters public concern. Morrow City Tenaha, Civil Action No. 2-08-cv-228-TJW, 2010 3927969 (E.D. Tex.
While the audiovisual recordings the depositions this case may very well
become part public and partisan political discourse, that does not support the issuance protective order. See Flaherty, 209 F.R.D. 229. Moreover, [w]hile sound bites
are recognized Achilles heel videotaped depositions, the fact that the media may edit tape that may may not released the parties does not warrant protective order
barring all public dissemination the videotape. Condit, 225 F.R.D. 118 (internal
citations omitted). Indeed, contrary Ms. Mills assertion that the audiovisual recording her deposition could mislead the public, access the full audiovisual recordings
depositions taken this case will provide the public with the most complete and accurate
record the deponents testimony. See, e.g., Berch, supra 349; see also Constand
Cosby, 112 F.Supp. 308, 319 (E.D. Pa. 2015) (noting that not unfair unseal
deposition testimony that provides the deponents version certain events surrounding
this lawsuit his own words Indeed, release the entirety the video the
deposition will provide the public with the fullest context and most robust understanding Ms. Mills testimony.
For the foregoing reasons, and given the public strong interest this matter, the
undersigned media organizations respectfully urge the Court revisit its sua sponte
order directing that all audiovisual copies depositions taken the above-referenced
Court, any restrictions public access those court documents must meet more rigorous
standards. See, e.g., E.E.O.C. Nat Children Ctr., Inc., F.3d 1406, 1409 (D.C. Cir. 1996);
Washington Post Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991).
Case 1:13-cv-01363-EGS Document 108 Filed 07/14/16 Page
case sealed until further order the Court. Thank you for the Court
The Reporters Committee for Freedom the Press
American Society News Editors
The Associated Press
Association Alternative Newsmedia
Cable News Network, Inc.
CBS Broadcasting, Inc.
Chicago Tribune Company LLC
Dow Jones Company, Inc.
The E.W. Scripps Company
First Look Media Works, Inc.
Fox News Network LLC
Hearst Corporation
Los Angeles Times Communications LLC
National Press Photographers Association
NBC News, division NBCUniversal Media, LLC
Online News Association
Radio Television Digital News Association
Society Professional Journalists
The Washington Post
Case 1:13-cv-01363-EGS Document 108 Filed 07/14/16 Page