Case 3:12-cv-30051-MAP Document 96 Filed 01/07/14 Page 1 of 23

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION SEXUAL MINORITIES UGANDA Plaintiff, v. SCOTT LIVELY, individually and as President of Abiding Truth Ministries Defendant. ) ) ) ) ) ) ) ) ) )

Civil Action 3:12-CV-30051

JOINT SUBMISSION REGARDING PROPOSED PROTECTIVE ORDER Pursuant to the Courts Order (dkt. 93), Plaintiff Sexual Minorities Uganda (SMUG) and Defendant Scott Lively (Lively) have met and conferred to narrow their differences regarding a protective order governing the disclosure and use of confidential information in this case. The following draft Order reflects the parties discussions. Paragraphs not followed by any objection reflect agreement by the parties as to their content. Paragraphs as to which the parties were unable to agree are followed (in bold) by Livelys Objection(s) and Counterproposal(s), and SMUGs justification for the provision as drafted.

ORDER REGARDING CONFIDENTIALITY OF CERTAIN DISCOVERY MATERIAL IT IS HEREBY ORDERED that the parties shall follow the procedures set forth below with respect to information, documents, electronically stored information, testimony, or things produced or otherwise disclosed (Discovery Material) in the above-captioned action (the Action). 1. Scope. All Discovery Material furnished by a party or non-party in conjunction

with this Action that is confidential (Confidential Discovery Material) may be designated

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CONFIDENTIAL and furnished to counsel for the parties, the parties, and/or other qualified persons pursuant to the terms of this Protective Order (Order). Any party or third party who provides Confidential Discovery Material in this Action (Designating Party) may designate it as CONFIDENTIAL if there is a good faith basis for the belief that it contains information that (a) is highly private and personal; (b) may subject a person or organization to a risk of imminent harm or undue harassment; or (c) is protected from public disclosure by law or contract. The individual or entity receiving the Confidential Discovery Material shall treat it as confidential and shall not use or disclose the material except as set forth in this Order. The provisions of this Order extend to all Confidential Discovery Material regardless of the manner in which it is disclosed, except that this Order shall not apply to or affect the use of information obtained by a party outside the course of formal discovery in this Action or information that is available publicly, including on the Internet. 2. Confidential Discovery Material Filed with the Court. If a party intends to file

with the Court any Confidential Discovery Material (or any pleading, motion or memorandum referring to Confidential Discovery Material), that party shall publicly file only a redacted version of the filing, omitting all references to the Confidential Discovery Material, even if the filing party believes that the material subject to this Order is not properly classified as confidential, and shall concurrently send to the Clerk of the Court and to Chambers an unredacted version in an envelope marked SEALED PURSUANT TO ORDER OF COURT DATED ________________, which the Clerk shall file under seal. 3. Use of Confidential Discovery Material. Confidential Discovery Material shall be

used by any party, other than the producing party, solely for the purpose of conducting this Action, except as required by United States federal or state law, and shall not be disclosed by the

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party receiving such material to anyone except as provided herein. If, after designating specific Discovery Material as CONFIDENTIAL, the producing party thereafter discloses such material publicly, the opposing party may seek the producing partys stipulation to lift the CONFIDENTIAL designation from the material; failing such a stipulation, the opposing party may motion the Court for the lifting of the CONFIDENTIAL designation from the Discovery Material on the grounds that the producing party has publicly disclosed such material. LIVELY OBJECTION: A party should not be permitted to use confidentiality restrictions as both a shield and a sword. Once the producing party publicly discloses material previously designated as CONFIDENTIAL, the receiving party should no longer be saddled with the restrictions of this Order, regardless of whether the producing party stipulates to such relief. At a minimum, it is the producing party that should bear the burdens of moving the Court for continued confidentiality restrictions following a public disclosure. This is consistent with the Courts requirement that the producing party bear the burden of moving the Court for protection of information whose confidentiality designation is in dispute (dkt. 93). LIVELY COUNTERPROPOSAL: Replace the last sentence of this paragraph (3) with: If, after designating specific Discovery Material as CONFIDENTIAL, the producing party thereafter discloses such material publicly or in a manner that is inconsistent with this Order, the receiving party may provide to the producing party written notice of its belief that this Order no longer applies as to the disclosed information. If the parties cannot agree, within seven (7) days of such notice the producing party may move the Court for continued protection of the disclosed information. If a motion is timely filed, this Order shall continue to apply pending adjudication of the motion. If no motion is timely filed, this Order shall no longer apply to the disclosed information. 4. Disclosure of Confidential Discovery Material. Subject to Paragraphs 5 and 6,

access to Discovery Material designated CONFIDENTIAL pursuant to this Order shall be limited to: (a) the parties, including any director, officer or employee of the Plaintiff

charged with the responsibility for making decisions dealing directly with the resolution of this Action, and counsel of record for the parties, including members or
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associates of such counsels firm, as well as their legal interns, paralegals, and secretarial and clerical personnel who are engaged in assisting such counsel in this Action; (b) any investigators assisting counsel of record for the parties in this Action,

so long as (i) Confidential Discovery Material is disclosed strictly for the purpose of investigating facts in this Action and only to the extent necessary to conduct the investigation, (ii) such investigators are not employed by or affiliated with any named co-conspirator or an affiliate of any named co-conspirator in this Action, (iii) counsel have a good faith basis to believe that such investigators will not disclose any Confidential Discovery Material with any person not qualified to receive such material under the provisions of this Order, and (iv) no more than five persons are designated by a party as investigators for the purposes of compliance with this Order; LIVELY OBJECTIONS AND COUNTERPROPOSALS: x The terms or affiliated with and or an affiliate of any named co -conspirator in subsection 4(b)(ii) are vague and ambiguous. The named co-conspirators are individuals, not entities. When is an individual affiliated with another? When they know each other? Live in the same city? Attend the same church? Communicate occasionally? Plaintiffs explanation below reveals its broad reading of affiliated with, stating that the prohibition is intended to apply to anyone affiliated with the named conspirators in any way. Such an expansive (and still vague) prohibition should not be allowed. These terms should be removed from subsection 4(b)(ii). x The five investigator limit in subsection 4(b)(iv) is entirely arbitrary and is inadequate in a case of this magnitude. If the parties comply with the other strictures of this paragraph, confidential information will be adequately protected regardless of the number of investigators employed, and there is no need for an arbitrary limit on the number of investigators a party may use. Subsection 4(b)(iv) should be deleted.
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PLAINTIFFS RESPONSE: First, subparagraph (iii) identifies a narrow class of persons who may not be qualified as investigators receiving Confidential Discovery Material: they must not be related to or affiliated with the named co-conspirators in any way. This provision would be interpreted reasonably: based on the examples Defendant provides, two persons living in the same city are not commonly understood as being affiliated with one another and thus would not be understood as such for the purposes of this Order; however, two persons who attend the same church or speak to each other on occasion are normally considered to be affiliated with one another and thus would be understood as such for the purposes of this Order. Given the dangers the named co-conspirators pose to Plaintiff and the LGBTI community Plaintiff represents, as alleged in the complaint, this provision is reasonably necessary to protect Plaintiff and testifying witnesses from harm as a result of participating in this Action. Plaintiff had originally proposed that investigators receiving Confidential Discovery Material be limited to only those persons who were already subject to the jurisdiction of a U.S. court, such as persons residing in the U.S. traveling to Uganda to investigate facts in this case, in order to ensure that such persons would comply with the terms of the Order and thus, Plaintiff and/or witnesses would not be subject to undue risk of harm due to their participation in this Action. However, given the Courts concern with Plaintiffs original proposed order to the extent it could be interpreted as shackling Defendant's investigation of facts and witnesses in Uganda, this subparagraph represents Plaintiffs attempt to balance the security concerns of its members and witnesses in this Action with Defendants ability to effectively investigate facts for the purpose of defending himself in this Action. Second, subparagraph (iv) is necessary to limit the number of people who can receive Confidential Discovery Material, particularly if Defendant plans to use investigators residing outside of the Courts jurisdiction. This provision does not limit the number of investigators the Defendant may use in this Action, but merely the number of investigators that may access Confidential Discovery Material, which as defined in Paragraph 1, is a narrow category of Discovery Material. (c) outside photocopying, data processing, graphic production, stenographers,

or videographers engaged by the parties or their counsel of record to assist in this Action, so long as such persons reside in the United States or are otherwise subject to the jurisdiction of a United States court such that the Order may be legally enforced with respect to such persons, or if they reside outside the jurisdiction of a United States court, upon the written consent of the Designating Party; LIVELYS OBJECTION AND COUNTERPROPOSAL: The parties will undoubtedly have to rely extensively on litigation support personnel (stenographers, videographers, photocopiers) outside of the United States, since most of the witnesses in this action are outside of the United States. Requiring Lively to transport such personnel from the United
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States to Uganda is absurd and unprecedented. Moreover, it would work a profound burden on Lively, an individual defendant. One round-trip airfare to Uganda is in excess of $2,000 (not to mention lodging, meals and other expenses), so travel by counsel alone will already be very expensive. Unless SMUG offers to charter a transatlantic jet and rent an entire hotel floor for the parties travels, its proposal is unworkable and unrealistic. Moreover, the Designating Party will virtually always be SMUG. Affording SMUG a veto power over Livelys selection of his own litigation support personnel is unfair and overly burdensome. the clause following so long in subjection 4(c) should be deleted, so that subsection 4(c) consists only of: outside photocopying, data processing, graphic production, stenographers, or videographers engaged by the parties or their counsel of record to assist in this Action. PLAINTIFFS RESPONSE: Given the sensitive nature of Confidential Discovery Material, Plaintiff is concerned with the use of persons for the services listed in this subparagraph who are not subject to the jurisdiction of a U.S. court and thus may not feel bound by the provisions of this Order. Given that it is possible to conduct this Action using only persons subject to the jurisdiction of a U.S. court for these services, such as having a U.S. court reporter travel to Uganda with counsel for depositions, which is not unprecedented, as standard court reporting agencies offer these services, Plaintiff believes it is unnecessary to expand the category of persons eligible to access to Confidential Discovery Material under this subparagraph without the consent of both parties. The parties can avoid these excess costs if they can identify such persons providing these services in a foreign jurisdiction upon whom they can both agree. (d) experts retained by counsel of record for the purposes of consulting and/or

testifying in this Action, so long as (i) Confidential Discovery Material is disclosed strictly for the purpose of seeking such experts consultation and/or testimony in this Action and only to the extent necessary for such experts to provide such consultation and/or testimony, (ii) such experts are not employed by or affiliated with any named co-conspirator or an affiliate of any named co-conspirator in this Action, (iii) counsel have a good faith basis to believe that such experts will not disclose any Confidential Discovery Material with any person not qualified to receive such information under the provisions of this Order, and (iv) no more than five persons are designated by a party as an expert for the purposes of compliance with this Order;

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LIVELY OBJECTIONS AND COUNTERPROPOSALS: x This provision is too narrow, because it only permits discussion of confidential information with retained experts. Counsel need flexibility to discuss all aspects of this case with consulting experts, whether or not they are formally retained. This provision seeming acknowledges this fact, yet unnecessarily limits disclosure to retained experts. the term retained in the first line of subsection (e) should be changed to consulted. x The terms or affiliated with and or an affiliate of any named co -conspirator in subsection 4(d)(ii) are vague and ambiguous. The named co-conspirators are individuals, not entities. When is an individual affiliated with another? When they know each other? Live in the same city? Attend the same church? Communicate occasionally? These terms should be removed from subsection 4(d)(ii). x The five expert limit in subsection 4(d)(iv) is entirely arbitrary and is inadequate in a case of this magnitude. If the parties comply with the other strictures of this paragraph, confidential information will be adequately protected, and there is no need for an arbitrary limit on the number of investigators a party may use. Subsection 4(d)(iv) should be deleted. PLAINTIFFS RESPONSE: First, requiring that the disclosure of Confidential Discovery Material be disclosed only to retained experts is standard, as there must be some identifiable limit on the category of people who can receive such information in order to maintain its confidential nature. Second, subparagraph (iii) identifies a narrow class of persons who may not be qualified as experts receiving Confidential Discovery Material: they must not be related to or affiliated with the named co-conspirators in any way. This provision would be interpreted reasonably: based on the examples Defendant provides, two persons living in the same city are not commonly understood as being affiliated with one another and thus would not be understood as such for the purposes of this Order; however, two persons who attend the same church or speak to each other on occasion are normally considered to be affiliated with one another and thus would be understood as such for the purposes of this Order. Given the dangers the named co-conspirators pose to Plaintiff and the LGBTI community Plaintiff represents, as alleged in the complaint, this provision is reasonably necessary to protect Plaintiff and testifying witnesses from harm as a result of participating in this Action. Plaintiff had originally proposed that experts receiving Confidential Discovery Material be limited to only those persons who were already subject to the jurisdiction of a U.S. court in order to ensure that such persons would comply with the terms of the Order and thus, Plaintiff and/or witnesses would not be subject to undue risk of harm due to their
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participation in this Action. However, to accommodate Defendants concerns, this subparagraph represents Plaintiffs attempt to balance the security concerns of its members and witnesses in this Action with Defendants ability to identify appropriate experts to assist him with his defense in this action. Third, subparagraph (iv) is necessary to limit the number of people who can receive Confidential Discovery Material, particularly if Defendant plans to use experts residing outside of the Courts jurisdiction. This provision does not limit the number of experts the Defendant may use or consult with in this Action, but merely the number of experts that may access Confidential Discovery Material, which as defined in Paragraph 1, is a narrow category of Discovery Material. (e) any person whose testimony is taken or is to be taken by deposition or at

trial in this Action who in good faith is required to be shown or questioned about such material in order to assist such attorney in the preparation or the conduct of this Action, provided that disclosing counsel determines in good faith that the disclosure is necessary to the effective prosecution or defense of the Action and that reasonable notice is given to counsel for the Designating Party (witnesses shown Confidential Discovery Material pursuant to this subparagraph shall not be allowed to retain copies); LIVELY OBJECTIONS: This provision would profoundly shackle Livelys efforts to verify and rebut SMUGs claims of alleged persecution in Uganda. Without exagg eration or hyperbole, the Court might as well enter an Order deeming all allegations of persecution as conclusively established without proof. x First, this proposed Order is by no means narrow SMUG can, and has indicated that it will, designate as CONFIDENTIAL the identity of ALL alleged victims of persecution, save for a handful of SMUGs officers whose identity and activities are already public knowledge. Requiring Lively to come back to this Court and seek special permission to interview potential witnesses on a case-by-case basis would grind Livelys factual investigation to a halt. After all, presumably some of these witnesses would only be discovered while in Uganda. Under Plaintiffs proposal, Lively would have to bring all investigation and discovery to a halt in Uganda, undertake the long and very expensive trip back to the U.S., present his arguments to this Court, and then, if successful, return to Uganda (once again incurring hefty travel expenditures), locate the witness again, and finally interview him. This process is entirely unworkable and calculated to virtually destroy Livelys ability to prepare his defense.
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Second, by limiting disclosure only to testifying witnesses, SMUG is seeking to prohibit Lively from interviewing witnesses who may not testify in this action, but who nevertheless may have critical information regarding the credibility and veracity of an alleged victim of persecution. In any litigation, a large majority of witnesses interviewed by counsel do not testify, and this case is no different in that regard. Third, requiring Livelys counsel to clear their witness interviews with SMUG in advance would invade work-product privilege and would disclose Livelys defense strategy to SMUG, with no such burdens imposed on SMUG. Fourth, and most importantly, coupled with paragraphs 5 and 6 below, this provision would essentially ensure that Lively cannot verify SMUGs claims of individual persecution with anyone in Uganda. No disinterested third party witness in Uganda would ever agree to be bound by the order of a United States court, assuming they could even read and understand it. In the typical scenario, Livelys counsel would contact a landlord who supposedly wrongfully evicted a homosexual tenant, or a supermarket owner who refused service to a homosexual client. Such individuals have no incentive to read a 12+ page court order in the English language (or any language), and execute an acknowledgement that they are bound by it and are subject to the jurisdiction of a foreign court, merely as a precursor to confirming or rebutting basic facts. Instead, these critical witnesses will likely decline to discuss the issues with Livelys counsel, thereby leaving SMUGs claims unchallenged.

LIVELY COUNTERPROPOSAL: Replace paragraph 4(e) with: any person, witness or potential witness who, in the good faith belief of a party and its counsel, may possess discoverable information about the credibility or veracity of any Confidential Discovery Material or its proponents.

PLAINTIFFS RESPONSE: This subparagraph represents a standard provision found in protective orders limiting the access to Confidential Discovery Material to only testifying, as opposed to non-testifying, witnesses. See, e.g., In Re: Blackwater Alien Tort Claims Act Litigation, Case No. 1:09-cv-616, Order filed Jul. 27, 2009, at 8(d) (E.D. Va.); Ibrahim v. Titan Corp., Civil Action No. 04-01248 (JR), dkt. 66, at 6(e) (D.D.C.); Wiwa v. Royal Dutch Petroleum Co., 96 Civ. 8386 (KMW), Order filed Sept. 18, 2002, at 9(f) (S.D.N.Y.). If it could be shared with non-testifying witnesses, then this Order would serve no purpose. However, Plaintiff added paragraph 18 below, in order to permit Defendant to make an application for the disclosure of specific Confidential Discovery Material to specific persons on a need to know basis to effectively conduct his investigation for the purposes of defending himself in this Action.

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Confidential Discovery Material, as defined in paragraph 1 above, consists of a narrow category of information. Contrary to Defendants false assertions, Plaintiff has never indicated that it plans to designate as CONFIDENTIAL the identity of ALL alleged victims of persecution, save for a handful of SMUGs officers. Rather, Plaintiff indicated that its Rule 26(a) disclosures of the names of persons it may use to support its claims may be supplemented once a protective order is entered in this Action, since certain witnesses may only be willing to participate in this Action with appropriate protections in place, as in any litigation. Plaintiff only plans to use the designation of CONFIDENTIAL when it fits the categories as outlined in Paragraph 1 of this Order. LIVELYS REPLY WITH RESPECT TO PLAINTIFFS AUTHORITIES: The authorities relied upon by SMUG here and elsewhere in this proposal do not support its request for debilitating discovery burdens on Lively. First, there is no such thing as a standard provision in this context. Second, that two or three isolated cases might have included similar language is not persuasive authority, especially where they did so BY AGREEMENT OF THE PARTIES. In each case cited by Plaintiff, the submission was jointly agreed upon by all parties. Those cases involved large corporations concerned as to trade secrets and proprietary information. That is decisively not so here, where Defendant is an individual who has not asked for any protective order whatsoever and is engaged in this exercise solely in an effort to accommodate Plaintiff. Critically, paragraph 8 in the Blackwater protective order, on which Plaintiff relies, specifically allowed vendors, court reporters and non-parties whom counsel in good faith believed needed to review confidential information to do so WITHOUT AGREEING TO BE BOUND by the terms of the Protective Order entered in that case. As for the Ibrahim case, again, the Protective Order was entered there upon the joint motion of both parties, who were in complete agreement as to all terms. ( See Ibrahim at dkt. #65). Moreover, the terms and conditions concerning to vendors, court reporters and non-party witnesses in the Ibrahim case vary significantly from those used in the Blackwater case, thus demonstrating that there is no such thing as a standard provision in this context. (Compare para. 6(d) and (e) of Ibrahim protective order with para. 8 (c)-(f) of the Blackwater protective order). Defendant does not contend that the parties could not agree to impose such onerous requirements on non-party witnesses and court reporters, but rather that the law does not require the imposition of such burdens where the parties do not agree. [Note: Lively was unable to retrieve the text of the Protective Order entered in the third case cited by Plaintiff, the Wiwa litigation, presumably because it was too old to allow such retrieval via PACER.]

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(f)

any person who authored or received the particular material to be

disclosed to that person (provided that the document has not been altered since that person authored or received the material); (g) this Court or any other Court in the United States exercising jurisdiction

with respect to this Action, such courts personnel, jurors, alternate jurors, and qualified persons (including necessary clerical personnel) recording, taking or transcribing testimony or argument at any deposition, hearing, trial, or appeal in this Action; and (h) any other person to whom the Designating Party agrees in writing.

LIVELY OBJECTION AND COUNTERPROPOSAL: A previous draft of this proposed Order included an additional category for permitted disclosures, to an appointed officer, director, or employee of Abiding Truth Ministries. Notwithstanding SMUGs recent clarification that Abiding Truth Ministries is not a party to this litigation (dkt. 94), Lively believes that this provision is still necessary, because any relevant conduct was undertaken by him as an officer and on behalf of Abiding Truth Ministries. As such, Abiding Truth Ministries is in a unique position to assist with the defense of this action. new subsection 4(i) should be added to include: an appointed officer, director, or employee of Abiding Truth Ministries. PLAINTIFFS RESPONSE: As Plaintiff has stipulated that Abiding Truth Ministries is not a party to this litigation, there is no reason why its officers, directors, or employees should be permitted to access Confidential Discovery Material. Plaintiff had originally offered to permit one appointed officer, director, or employee from Abiding Truth Ministries to access Confidential Discovery Material, but that was prior to Plai ntiffs agreement to enter into a stipulation stating affirmatively that Abiding Truth Ministries is not a defendant in this Action. 5. Notification of the Order for Confidential Discovery Material. Confidential

Discovery Material may be disclosed pursuant to paragraph 4 provided that the person who receives the Confidential Discovery Material is provided a copy of this Order, represents that he/she has read and understands the provisions of this Order and agrees to be bound by the provisions of this Order by signing a copy of the form attached as Exhibit A. Counsel for the
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respective parties shall retain copies of any acknowledgement forms executed by persons pursuant to this Order until such time as this Action, including all appeals, is concluded.

LIVELYS OBJECTIONS: x Applying principles of domestic litigation to this transnational case makes no sense, and is unworkable. For the reasons stated with respect to paragraph 4(e), above, the average and disinterested person in Uganda will have no interest in reading a lengthy legal document in the English language, understanding it, and signing documents submitting to the jurisdiction of a foreign court, just to verify or rebut factual claims made by SMUGs constituents. The burden is simply not worth it, and witnesses will just decline to speak with Livelys counsel, leaving SMUGs claims uncontested. Moreover, the shackles imposed by this provision are entirely meaningless, and therefore unnecessary. Suppose that a disinterested fact witness in a remote village in Uganda reads this Order, understands it, agrees to be bound by it, and signs a document submitting to the jurisdiction of this Court. Having accomplished that remarkable feat, Livelys counsel then discloses the claims made by a specific persecution victim, following which the witness carelessly makes an unauthorized disclosure. Notwithstanding a voluntary agreement to be subject to the jurisdiction of this Court, how could this Court hold such witness in contempt, or impose any meaningful sanctions across a vast ocean and continent? Whether intended or not, the actual effect of this provision is not to provide meaningful relief, but to discourage witnesses from rebutting SMUGs factual claims.

LIVELYS COUNTERPROPOSAL: Paragraph 5 should be replaced with the following provision: Notification of the Order for Confidential Information. Confidential Discovery Material may be disclosed pursuant to paragraph 4 provided that persons who receive the Confidential Discovery Material are advised of the existence of this Order, and, if feasible, are provided a copy of this Order. A witness residing in a foreign country who is being interviewed in any manner other than an in-person interview, and who does not have access to electronic mail, or who does not wish to provide interviewing counsel with an e-mail address, need not be provided with a copy of this Order.

PLAINTIFFS RESPONSE: This subparagraph, as well as the language of Exhibit A, represents a standard provision in protective orders. See, e.g., Ibrahim., Civil Action No. 04-01248 (JR), dkt. 66, at 6(e); Wiwa, 96 Civ. 8386 (KMW), Order filed Sept. 18, 2002, at 10. Only those categories of persons described in paragraph 4 are eligible to receive the narrow category of Discovery Material designated as CONFIDENTIAL, none of which
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include disinterested fact witnesses, but instead qualified investigators, experts, and testifying witnesses, all of whom should reasonably be able to review this Order and have the provisions of this Order explained to them by counsel. Investigators, experts, and testifying witnesses who agree to assist with or participate in this Action can also reasonably agree to be bound by the terms of this Order and consent to the jurisdiction of this Court. While it is true that the Court has no enforcement power outside of the United States, Plaintiff believes that such a provision provides some protection against unauthorized disclosure as it provides the person receiving such information insight as to gravity of this Order and the fact that should they travel to the United States, they would be subject to sanctions for any breach of this Order. 6. Limitations on Disclosure of Confidential Discovery Material. If, under a piece

of legislation commonly referred to as the Anti-Homosexuality Bill which passed in the Ugandan Parliament on or around December 20, 2013, any of the persons identified in paragraph 4 would be required by law to report any portion of Confidential Discovery Material to Ugandan authorities for potential criminal prosecution of those identified in the information in the event this bill is enacted into law, any such portions of Confidential Discovery Material must be withheld from those persons. LIVELYS OBJECTION AND COUNTERPROPOSAL: As with some of the prior provisions, this provision could essentially gut Livelys ability to investigate SMUGs persecution claims with anyone in Uganda. The Court might as well enter an Order deeming all allegations of persecution as conclusively established without further proof. Evidentiary burdens resulting from SMUGs apprehension to publicly disclose certain facts should be borne by SMUG, as the plaintiff and the proponent of those facts, and not by Lively. Paragraph 6 should be deleted in its entirety. PLAINTIFFS RESPONSE: Plaintiff believes this provision is necessary due to the recent passage of a bill commonly referred to as the Anti-Homosexuality Bill in the Ugandan Parliament. While neither party has yet had access to the bill as it was passed, and thus, the specific provisions of the bill are currently unknown, Plaintiff has included this provision based on an earlier version of the bill which provided that A person in authority, who being aware of the commission of any offence under this Act, omits to report the offence to the relevant authorities within twenty-four hours of having first had that knowledge, commits an offence and is liable on conviction to a fine not exceeding two hundred and fifty currency points or imprisonment not exceeding three years. See Declaration of Pam Spees, Esq. dated January 7, 2014, Exhibit A.
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Under the original version of the bill, offenses under the Act included not only private sexual conduct between consenting adults with drastically increased penalties, but also advocacy, speech and promotion of rights of LGBTI persons which would carry a sentence of imprisonment for up to seven years. If the version of the bill that passed in the Ugandan Parliament contains this provision or a similar provision, persons in Uganda with possession of certain Confidential Discovery Material would be required by law to report it to authorities or face a fine or imprisonment for up to three years in the event the bill is enacted into law. Thus, this provision is necessary to prevent against disclosure of a narrow category of Confidential Discovery Material. This provision would not unduly restrict Defendant in investigating the claims in this Action or consulting with experts as necessary, since the category of persons that would need to be excluded from access to Confidential Discovery Material if this language remains in the version of the bill that passed in the Ugandan Parliament appears to be narrow. In the aforementioned earlier version of the bill, this mandatory reporting requirement was directed to persons with authority, which was defined as those having power and control over other people because of your knowledge and official position; and shall include a person who exercises religious. [sic] political, economic or social authority. Neither Defendant nor his counsel need rely on persons who fit the description of someone having authority under the bill to investigate Confidential Discovery Material or provide expertise on the basis of such material. The parties may seek to modify the language of this provision once the terms of the current bill are known to them. 7. Designation of Confidential Discovery Material Used in Depositions. Transcripts

of depositions, or portions thereof, that refer to Confidential Discovery Material may be designated CONFIDENTIAL by counsel for the deponent or by counsel for the party who produced any Confidential Discovery Material used in the deposition pursuant to paragraph 4(f). Designation of Confidential Discovery Material may be made (a) on the record at deposition or (b) in writing to all parties and the court reporter specifying the portions of the transcript and exhibits which are to be so designated within ten (10) business days after receipt of the final unsigned deposition transcript. If requested by any party or third party before expiration of the aforesaid ten-day period, the entire deposition transcript shall be treated as Confidential Discovery Material pending specific designations within the allotted period of time.

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8.

Use of Confidential Discovery Material at Trial or Hearing. A party may, subject

to the rules of evidence and further Orders of the Court, use any Confidential Discovery Material for any purpose at trial or at any hearing before a judicial officer in this Action, provided reasonable notice is given to counsel for the Designating Party and that such material is discussed in camera, unless the Designating Party consents to the use of such material in open court. 9. Use of Confidential Discovery Material in a Foreign Court or Administrative

Body. A party may use Confidential Discovery Material in a filing under seal before any court or administrative body in a foreign jurisdiction to which application is made to permit or compel discovery from an individual or entity within its jurisdiction for the sole purpose of conducting this Action and may disclose such Confidential Discovery Material to any local counsel and support personnel whose assistance is reasonably necessary in making such application and who have read and agree to be bound by the provisions of this Order by signing Exhibit A, so long as the party obtains written consent from the Designating Party or, should the Designating Party refuse to consent, a favorable ruling of this Court on a motion to use such material in a foreign court or administrative body.

LIVELYS OBJECTION: Because individuals in Uganda (and elsewhere outside of the United States) are outside of this Courts subpoena power, the parties will have to commence ancillary proceedings in Uganda (and perhaps other countries) to obtain discovery from them. Such proceedings would necessarily require disclosure of the identity of the person from whom discovery is sought, and the nature of their knowledge and claims. Whether foreign tribunals accept a filing under seal, generally or in this specific case, is by no means certain. For the reasons stated above, requiring foreign individuals to agree to be bound by this Order, and to submit to this Courts jurisdiction is unworkable and does not provide any meaningful relief. And requiring Livelys counsel to clear their selection of local counsel and support personnel with SMUG would be unfair. SMUG is likely to be the only Designating Party in this case, so SMUG would not incur any similar burdens.

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LIVELYS COUNTERPROPOSAL: Paragraph 9 should be replaced with the following provision: A party may disclose Confidential Discovery Material as reasonably necessary to any court or administrative body in a foreign jurisdiction to which application is made to permit or compel discovery regarding Confidential Discovery Material from an individual or entity within its jurisdiction, and any local counsel and support personnel whose assistance is reasonably necessary in making such application. PLAINTIFFS RESPONSE: Normally, material is designated as confidential and subject to the terms of a protective order in order for the material to be used only in the Court where the Action is proceeding. In order to accommodate Defendants concerns about needing to disclose Confidential Discovery Material to a foreign court and local counsel in that jurisdiction in order to compel discovery in a foreign jurisdiction, Plaintiff requires either its consent or an Order from this Court to ensure that such disclosure is necessary for Defendants defense in this Action. Contrary to Defendants interpretation, he would not need to clear local counsel with Plaintiff; rather, any party seeking to use Confidential Discovery Material in a foreign court or administrative body would need to justify the use of such material to the Plaintiff, and if necessary, to the Court, before being able to use it in this manner. Moreover, by seeking to remove the requirement that the filing of Confidential Discovery Material be filed under seal in a foreign court, Defendant seeks to completely vitiate this Order, as his proposal would allow Defendant to unilaterally make public, through a foreign court filing, any material designated CONFIDENTIAL.

10.

Objections to Designations. In the event a party objects to the CONFIDENTIAL

designation under this Order by another party of any material, including, but not limited to deposition transcripts, the objecting party shall advise the Designating Party in writing of the objection and identify the document or material with sufficient specificity to permit the other to identify it. If the parties, after consulting, cannot resolve their differences, within fourteen (14) days of receiving the objection, the Designating Party shall either remove the designation or move the Court for a determination that the designation is proper. If a motion is timely filed, the objecting party shall treat the material as CONFIDENTIAL pending a decision by the Court. If a motion is not timely filed, the designation shall be deemed waived and removed.

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11.

Designation of Confidential Discovery Material After Production. If at any time

prior to the trial of this action, a producing person or entity realizes that some portion[s] of Discovery Material that that person or entity previously produced without limitation should be designated as CONFIDENTIAL, the producing person or entity may so designate by notifying all parties in writing, and such designated portion[s] of the Discovery Material will thereafter be treated as CONFIDENTIAL under the terms of this Order. In addition, the producing person or entity shall provide each other party with replacement versions of such Discovery Material that bears the CONFIDENTIAL designation within ten (10) business days of providing such notice. LIVELYS OBJECTION AND COUNTERPROPOSAL: This provision was not part of SMUGs first submission to this Court. Lively did not understand the Courts Order (dkt. 93) to be an invitation to bring new matters under the purview of this Order. Moreover, allowing after-the-fact confidentiality designations (without any time limit between the disclosure and the designation) will unfairly subject Lively and his counsel to potential liability for lawful disclosures that pre-dated the designation. The timing of the lawful disclosure would, in most instances, be difficult to prove after the fact. Paragraph 11 should be deleted in its entirety. Parties should exercise care to make appropriate confidentiality designations prior to disclosure. PLAINTIFFS RESPONSE: This is a standard provision found in protective orders to preserve the parties rights throughout the Action. See, e.g., In Re: Blackwater, Case No. 1:09-cv-616, Order filed Jul. 27, 2009, at 4; Wiwa, 96 Civ. 8386 (KMW), Order filed Sept. 18, 2002, at 13. If Defendant objects to Plaintiffs subsequent designation of Discovery Material as CONFIDENTIAL, he may follow the procedures outlined in paragraph 10 to make such an objection. 12. Preservation of Rights and Privileges. (a) Nothing contained in this Order shall affect the right, if any, of any party

or witness to make any type of objection, claim, or other response to discovery requests, including, without limitation, interrogatories, requests for admissions, requests for production of documents or questions at a deposition. However, no party

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may withhold materials or decline to answer questions based solely on a claim that the material sought is Confidential Discovery Material. Nor shall this Order be construed as a waiver by any party of the right to withhold any Confidential Discovery Material on grounds of any legally cognizable privilege, or of any right which any party may have to assert such privilege at any stage of this Action. Nor shall this Order be construed as a waiver by any party as to the relevance or admissibility of any Confidential Discovery Material at any hearing or trial. (b) Nothing in this Order shall diminish the existing rights and responsibilities

of the parties and other persons involved in this Action with respect to the protection of Confidential Discovery Material, as defined herein or otherwise. Nothing in this Order shall be construed to preclude a party from waiving, in writing or on the record, provisions set forth herein in specific instances to expedite this Action. Nothing in this Order shall be construed to preclude any party to this Action from seeking and obtaining additional protection with respect to the treatment of material covered by this Order. 13. Return of Materials. The provisions of this Order shall, absent written permission

of the Designating Party or further Order of this Court, continue to be binding throughout and after the conclusion of the Action. Within thirty (30) days after the final resolution of this Action, all Confidential Discovery Material produced by a party, copies of such material, and other documents containing Confidential Discovery Materialincluding all copies and other documents containing Confidential Discovery Material in the possession of experts, investigators, or others to whom Confidential Discovery Material was provided pursuant to Paragraphs 4 and 5shall be destroyed or, at the request of the Designating Party, returned to

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counsel for that party. Counsel shall be entitled to retain pleadings, deposition transcripts, and the trial record (including exhibits) even if such materials contain Confidential Discovery Material, so long as such material is clearly marked to reflect that it contains material subject to this Order. 14. Notice. Any party or person in possession of Discovery Material that has been

designated Confidential Discovery Material who reasonably should have knowledge of the designation and who receives a subpoena (or other process) from any person (including natural persons, corporations, partnerships, firms, governmental agencies, departments or bodies, boards or associations) who is not a party to this Order, which subpoena seeks production or other disclosure of such Confidential Discovery Material, shall promptly give written notice by e-mail and regular mail to counsel for the Designating Party, identifying the materials sought and enclosing a copy of the subpoena or other process. The party or person receiving the subpoena shall also inform the person seeking the Confidential Discovery Material that such material is confidential, subject to a protective order and may not be disclosed without the consent of the party that produced the material or court order. The person subject to the subpoena or other process shall not produce or disclose the requested material until ordered to do so by a United States court or otherwise required by United States federal or state law to produce or disclose such material. 15. Secure Facilities. All Confidential Discovery Material shall be kept in secure

facilities. For purposes of this provision, secure facilities includes the law offices, residences, and password-protected computers of counsel of record for the parties and of any person authorized to receive Confidential Discovery Material under this Order.

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16.

Inadvertent or Unintentional Disclosure. The inadvertent or unintentional

disclosure by the producing party of Discovery Material subject to a claim of privilege, including, but not limited to, the attorney-client privilege or work product doctrine (an Inadvertently Produced Privileged Document), regardless of whether the material was so designated at the time of disclosure, shall not be deemed a waiver in whole or in part of a partys claim of privilege, either as to the specific material disclosed or as to any other material relating thereto or on the same or related subject matter. Upon learning of an Inadvertently Produced Privileged Document, the producing party shall within ten days assert a claim of privilege and request that the Inadvertently Produced Privileged Document be destroyed or returned. Upon receipt of a request to return an Inadvertently Produced Privileged Document, the receiving party will return or destroy the document, and all copies and derivations, within two business days. The party having returned or destroyed the Inadvertently Produced Privileged Document may thereafter seek production of the document, but shall not assert waiver as a grounds for such production. LIVELYS OBJECTION AND COUNTERPROPOSAL: This provision regarding waiver of attorney-client privilege does not belong in a protective order seeking protection for confidential information. This is an entirely separate issue, which SMUG may and should address separately with the Court. Paragraph 16 should be deleted in its entirety. PLAINTIFFS RESPONSE: A protective order may cover issues related to both confidentiality and privilege, and often do. Plaintiff believes it unnecessary to address this in a separate Order and questions why Defendant is reluctant to agree to a provision requiring the return or destruction of inadvertently produced privileged documents. 17. Violation. Any party to this Action may file a motion requesting the Court to

sanction or hold in contempt of Court anyone who violates the terms of this Order.

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18.

This Order shall remain in force and effect until modified, superseded, or

terminated by consent of the parties or by Order of the Court made upon reasonable written request. Nothing in this Order shall preclude a party from making applications to the Court to disclose specific Confidential Discovery Material with persons not covered in paragraph 4, upon a showing of a particularized and compelling need to know basis, for the party to be able to effectively investigate and/or prosecute this Action; nor shall anything in this Order preclude a party from making applications to the Court for heightened confidentiality protections, including attorneys eyes only protections, for specific Discovery Material, upon a showing of a particularized and compelling need. LIVELYS OBJECTION AND COUNTERPROPOSAL: The parties have already litigated the attorneys eyes only issue, (which no other court to which Plaintiff has cited has ever approved) and the Court has decided it. In addition, requiring Lively to seek permission to interview ordinary fact witnesses in Uganda on a case-by-case basis, only after a showing of a particularized and compelling need, in no way addresses Livelys concerns with this proposed Order. Since SMUG will likely designate as CONFIDENTIAL the identity of most, if not all, of its alleged persecution victims, Lively will have to interrupt his discovery, waive work product privilege, and trouble this court for permission every time he wishes to interview an ordinary fact witness in Uganda to investigate SMUGs claims. This does not remove any shackles, but merely adds more. This is not a workable solution to an otherwise unworkable and debilitating discovery Order. PLAINTIFFS RESPONSE: Plaintiff rejects Defendants baseless assertions that it plans to designate as CONFIDENTIAL the identity of most, if not all, of its alleged persecution victims. Plaintiff plans to designate material CONFIDENTIAL only if it if fits the narrow categories set forth in Paragraph 1. Plaintiff has added this provision in good faith in order to allow Defendant some room to disclose Confidential Discovery Material to those not falling within the categories of paragraph 4. Subject to further modification by the Court, it is so ORDERED.

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Exhibit A

I, the undersigned, have received a copy of the Order entered by the Court on __________ in Sexual Minorities Uganda v. Lively, Civil Action 3:12-CV-30051 (D. Mass.). I have read and understood that Order, and have had it explained to me by counsel for ______________________. I agree to be bound by and comply with the terms of that Order. I further agree to be subject to the jurisdiction of the United States District Court for the District of Massachusetts in connection with any dispute thereunder.

Dated: __________________________

________________________________ [Signature]

________________________________ [Print name here]

LIVELYS OBJECTIONS: see above objections to Paragraphs 4(e), 5 and 9. Common standard practice for domestic litigation is not appropriate in this transnational and unique case. PLAINTIFFS RESPONSE: As noted in Plaintiffs justification under Paragraph 5, Defendant has objected to the requirement that persons in receipt of Confidential Discovery Material be required to sign an acknowledgment of receipt. It is common and standard practice with protective orders to require recipients of confidential material to sign an acknowledgment of receipt, affirming that the material is subject to a protective order and that they agree to be bound by the order. Otherwise, it is not possible for the court and the parties to determine who has been given access to such information, whether they are aware of their obligations to protect such information and whether there has been a breach of the protective order. Defendants objections to this and other provisions set out above would render a protective order meaningless.

Case 3:12-cv-30051-MAP Document 96 Filed 01/07/14 Page 23 of 23

Dated: January 7, 2014 /s/Pamela C. Spees_________________ Pamela C. Spees, admitted pro hac vice Baher Azmy, admitted pro hac vice Jeena Shah, admitted pro hac vice Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Tel. 212-614-6431 Fax 212-614-6499 pspees@ccrjustice.org Luke Ryan (MA Bar No. 664999) 100 Main Street, Third Floor Northampton, MA 01060 Tel. 413-586-4800 Fax 413-582-6419 lryan@strhlaw.com Attorneys for Plaintiff

Respectfully submitted, /s/Horatio G. Mihet_____________________ Horatio G. Mihet, admitted pro hac vice Stephen M. Crampton, admitted pro hac vice Mathew D. Staver, admitted pro hac vice Liberty Counsel P.O. Box 540774 Orlando, FL 32854-0774 Tel. 800-671-1776 Fax 407-875-0770 court@lc.org Philip D. Moran (MA Bar No. 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel. 978-745-6085 Fax 978-741-2572 philipmoranesq@aol.com Attorneys for Defendant

CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was filed electronically, that it will be served electronically upon all parties of record who are registered CM/ECF participants via the NEF, and that paper copies will be sent to any parties indicated on the NEF as non-registered participants on January 7, 2014. /s/Pamela Spees Pamela Spees

Case 3:12-cv-30051-MAP Document 96-1 Filed 01/07/14 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION SEXUAL MINORITIES UGANDA ) ) Plaintiff, ) ) v. ) ) SCOTT LIVELY, individually and as ) President of Abiding Truth Ministries, ) ) Defendant. ) )

Civil Action 3:12-CV-30051

DECLARATION OF PAM SPEES, ESQ. I, Pam Spees, hereby declare as follows: 1. I am an attorney with the Center for Constitutional Rights in New York, New York

and counsel to the plaintiff in the above-captioned action. I have been admitted to appear pro hac vice in this litigation. I submit this Declaration in Support of the parties joint submission of a document setting out the points of agreement and disagreement concerning a proposed protective order dated January 7, 2014. 2. Attached as Exhibit A is a true and correct copy of a version of THE ANTI

HOMOSEXUALITY BILL proposed in the Ugandan Parliament in 2009. 3. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is

true and correct. Dated: January 7, 2014 New York, New York /s/Pam Spees Pam Spees

Case 3:12-cv-30051-MAP Document 96-1 Filed 01/07/14 Page 2 of 2

CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was filed electronically, that it will be served electronically upon all parties of record who are registered CM/ECF participants via the NEF, and that paper copies will be sent to any parties indicated on the NEF as non-registered participants on January 7, 2014. /s/Pamela Spees Pamela Spees

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