Breitbart V Sherrod Doj Seeks Seal

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_____
) No. 1:11-cv-00477-RJL
SHIRLEY M. SHERROD, )
) MOTION OF THE UNITED STATES
Plaintiff, ) FOR AN ORDER REQUIRING
) CERTAIN DOCUMENTS AND
v. ) INFORMATION TO BE FILED, IF
) AT ALL, UNDER SEAL
SUSANNAH BREITBART, et al., )
)
Defendants. )
_____ )

The United States hereby moves for an order providing that documents in this action
bearing the following page numbers shall be filed, if at all, under seal, as shall any excerpts from
those documents:
EOP_00000001-2, 6-11, 13-14, 28, 36-52, 69-73, 125, 130-31, 146-48, 151-53,
304-06, 332-34, 437, 441-50, 455-56, 468, 477-79, 484, 507-10, 552, 674, 679-
80, 682-83, 706-07, 709-10, 1002-05, 1011-13, 1018-21, 1045-48, 1054-56, 1109,
1733-52, 1781-1800, 2221, 2888, 4018, 6017-20; USDA_00004039, 4084, 4217-
19, 4222, 4227, 4243, 4246, 4261-66, 4314-15, 4318, 4320-21, 4327-28, 4384,
4386, 4399, 4402-03, 4405, 4419, 4460, 4470-72, 4479, 4502-03, 4685, 4789-91,
4826-27, 4832-33, 4839, 4850, 4866-67, 4871, 4880, 4911-12, 4925-26, 4968,
4987, 5023-29, 5035-40, 5047-48, 5108, 5128, 5133, 5154, 5158, 5198-200,
5220, 5232-34, 5257, 5259-63, 5275, 6128-29, 6417-19, 6451-52, 6550, 6590-91,
6679-81, 6768, 6803-05, 6811-12.

Counsel for defendant Larry OConnor advises that he objects to the relief the United States
hereby seeks.
Respectfully submitted,

STUART F. DELERY
Assistant Attorney General
RONALD C. MACHEN
United States Attorney
ARTHUR R. GOLDBERG
Assistant Branch Director, Department of Justice,
Civil Division

Case 1:11-cv-00477-RJL Document 136 Filed 07/13/14 Page 1 of 15
2

s/ David M. Glass
DAVID M. GLASS, DC Bar 544549
Senior Trial Counsel, Department of Justice, Civil
Division
20 Massachusetts Avenue, N.W., Room 7200
Washington, D.C. 20530-0001
Tel: (202) 514-4469/Fax: (202) 616-8470
Email: david.glass@usdoj.gov
Dated: July 13, 2014 Attorneys for the United States

CERTIFICATE OF SERVICE

I hereby certify that on July 13, 2014, I served the within motion, the memorandum in
support of the motion, the exhibits to the motion, and the proposed order on all counsel of record
by filing them with the Court by means of its ECF system.
s/ David M. Glass
i

TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................1

ARGUMENT: THE DOCUMENTS THAT DEFENDANT OCONNOR INTENDS TO FILE
ON THE PUBLIC RECORD SHOULD BE FILED, IF AT ALL, UNDER SEAL, AS SHOULD
ANY EXCERPTS FROM THOSE DOCUMENTS ........................................................................3

CONCLUSION ................................................................................................................................7

ii

TABLE OF CASES
Page

Abou-Hussein v. Gates, 2010 WL 2574084 (D.C. Cir. June 11, 2010) ...........................................4
Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004) .................................................................................5
EEOC v. Natl Childrens Ctr., 98 F.3d 1406 (D.C. Cir. 1996) ......................................................5
In re Sealed Case, 237 F.3d 657, 666 (D.C. Cir. 2001) ...............................................................4, 5
Johnson v. Greater S.E. Cmty. Hosp., 951 F.2d 1268 (D.C. Cir. 1991) ..........................................4

iii

TABLE OF DOCKET ENTRIES

ECF No. 86 Protective Order (Jan. 22, 2014)

ECF No. 89 Status Conference Memorandum of the United States (Feb. 20, 2014)

ECF No. 89-2 USDA Transcript, Rel. No. 0421.10 (Aug. 24, 2010)

ECF No. 89-3 Statement of Secretary of Agriculture Tom Vilsack (July 20, 2010)

ECF No. 89-4 USDA Transcript, Rel. No. 0383.10 (July 21, 2010)

ECF No. 89-5 Press Briefing by Press Secretary Robert Gibbs (July 21, 2010)

ECF No. 89-6 Letter Beth A. Williams to Alexis R. Graves (Oct. 30, 2013)

ECF No. 89-7 Subpoena Larry OConnor to United States Department of Agriculture
(Nov. 19, 2013)

Ex. No. 89-8 Subpoena Larry OConnor to Executive Office of the President (Nov. 20,
2013)

ECF No. 93-3 Defendant Larry OConnors Memorandum in Support of Motion to
Compel Compliance with Subpoenas Directed to the United States
Department of Agriculture and the Executive Office of the President of the
United States, Ex. 1 (Mar. 3, 2014)

ECF No. 96 United States Response on Behalf of the Executive Office of the
President to Defendant OConnors Motion to Compel Compliance with
the Subpoenas (Mar. 13, 2014)

ECF No. 97 United States Response on Behalf of the U.S. Department of Agriculture
to Plaintiffs Motion to Adopt Modified Discovery Plan and to Defendant
OConnors Motion to Compel Compliance with Subpoenas and Motion
for a Protective Order Regarding Timing of Production (Mar. 13, 2014)

ECF No. 118 Motion for Leave to File Under Seal Defendant Larry OConnors
Opposition to the Motion of the United States to Quash Certain Deposition
Subpoenas and Certain Exhibits (filed under seal May 28, 2014)

ECF No. 123 Memorandum Opinion (June 9, 2014)

ECF No. 133-2 Letter Ravoyne Payton to Peter Nicholas (Feb. 24, 2012)

ECF No. 134-2 Declaration of Ramona E. Romero (July 2, 2014)

iv

TABLE OF EXHIBITS

Ex. A Letter David M. Glass to Peter A. Farrell (May 9, 2014)

Ex. B Letter David M. Glass to Peter A. Farrell (May 27, 2014)

Ex. C Email string ending with Thomas E. Hogan to David Glass (July 9, 2014)

Ex. D Status Conference Transcript (July 8, 2014)

Ex. E Email string ending with Peter A. Farrell to David Glass (Apr. 29, 2014)

PRELIMINARY STATEMENT

Defendant Larry OConnor has notified the United States of his intention to file on the
public record certain documents that the United States has produced in response to the
subpoenas, as modified, that he and plaintiff Shirley M. Sherrod have issued to the U.S.
Department of Agriculture (USDA) and the Executive Office of the President (EOP). The
United States has designated all of the documents that defendant OConnor intends to file on the
public record as Confidential under the protective order dated January 22, 2014. The United
States is not a party to this action. In responding affirmatively to the above subpoenas, it has
relied at all times on the provision of the protective order guaranteeing that any documents
produced in response to those subpoenas shall be used exclusively for the litigation of this action
and shielded, accordingly, from disclosure without its consent. For that reason, and for the other
reasons discussed below, the documents that defendant OConnor intends to file on the public
record should be filed, if at all, under seal, as should any excerpts from those documents.
STATEMENT OF FACTS
The background of this case is set forth in this Courts memorandum opinion dated June
9, 2014. ECF No. 123 at 2-3.
1
The following additional facts are relevant to this motion:
On October 5, 2010, USDA produced 900 pages of documents pertaining to plaintiff in
response to certain requests it had received under the Freedom of Information Act (FOIA), 5
U.S.C. 552. ECF No. 133-2 at 1. On February 24, 2012, USDA produced another 1,964 pages
of documents in response to those requests. Id.
By protective order dated January 22, 2014, this Court authorized any document
produced in this action to be designated Confidential by the person producing it. ECF No. 86
2-3. By the same order, the Court directed that any document designated as Confidential

1
A table of docket entries cited in this memorandum appears at p.iii, supra.
2

shall only be used by the Parties and their counsel for the purpose of the
prosecution or defense of this Action, including preparing for and conducting pre-
trial, trial, and post-trial proceedings (Permissible Uses) and shall not be used
for any other purpose except upon written consent of the Designating Party.

Id. 8. In addition, the Court required any person designating a document as Confidential to
be given three or more days notice of the proposed filing of the document on the public record
to allow [that person] an opportunity to file a motion to seal. Id. 16.
By subpoenas issued between October 30 and November 20, 2013, plaintiff asked USDA
to produce 10 categories of documents; defendant OConnor asked USDA to produce 44
categories of documents; and defendant OConnor asked EOP to produce 29 categories of
documents. ECF No. 89-6, att. at 4-5; ECF No. 89-7, sched. A at 4-7; ECF No. 89-8, sched. A at
4-6. Though considering the subpoenas to be objectionable for three separate reasons, ECF
No. 89 at 1-2, the United States entered into agreements with plaintiff and defendant OConnor
on or about March 13, 2014, to comply with those subpoenas as modified. ECF No. 96 at 1;
ECF No. 97 at 4.
On May 9, 2014, the United States produced 6,729 pages of documents in response to the
subpoena, as modified, that defendant OConnor had issued to EOP. See Ex. A.
2
These
documents consisted of emails and attachments from the mailboxes of nine former members of
the White House staff (or alleged members of the White House staff) for the period July 15-30,
2010. See ECF No. 93-3 ex. 1 at 2, 6. On May 27, 2014, the United States produced 2,864
pages of documents in response to the subpoenas, as modified, that plaintiff and defendant
OConnor had issued to USDA. See Ex. B at 1. These documents were the same documents that
USDA had produced pursuant to FOIA on October 5, 2010, and February 24, 2012, as reviewed
de novo to determine whether they could be produced to the parties in this action with fewer

2
References to exhibits are to the exhibits to this motion. A list of those exhibits appears at p.iv, supra.
3

redactions. See id. All of the documents produced on May 9 and 27, 2014, were designated by
the United States as Confidential under the protective order dated January 22, 2014, at the time
of their production. Ex. A; Ex. B at 2.
On May 28, 2014, defendant OConnor moved for leave to file certain documents and a
certain memorandum under seal. See ECF No. 118 at 1. The documents covered by his motion
were documents that the United States had produced on May 9 and May 27, 2014, and thus had
designated as Confidential. Id., Exs. A-2 & A-3. The memorandum covered by his motion
contained information taken from those documents. See id. at 2. The United States did not
oppose his motion. To date, his motion has not been ruled upon.
By email dated July 8, 2014, defendant OConnor advised the United States of his
intention to file on the public record the same documents that were the subject of his pending
motion to seal.
3
Ex. C at 2-4. By the same email, defendant OConnor advised the United States
of his intention to file on the public record certain other documents that the United States had
produced on May 27, 2014.
4
Id.
ARGUMENT
THE DOCUMENTS THAT DEFENDANT OCONNOR INTENDS TO FILE ON THE
PUBLIC RECORD SHOULD BE FILED, IF AT ALL, UNDER SEAL, AS SHOULD ANY
EXCERPTS FROM THOSE DOCUMENTS.

The adjudication of a motion to seal requires consideration of the following six factors:
(1) the need for public access to the documents at issue; (2) the extent of
previous public access to the documents; (3) the fact that someone has objected to

3
As produced by the United States, these documents bear the following page numbers: EOP_00000001-2, 6-11, 13-
14, 28, 36-52, 69-73, 125, 130-31, 146-48, 151-53, 304-06, 332-34, 437, 441-50, 455-56, 468, 477-79, 484, 507-10,
552, 674, 679-80, 682-83, 706-07, 709-10, 1002-05, 1011-13, 1018-21, 1045-48, 1054-56, 1109, 1733-52, 1781-
1800, 2221, 2888, 4018, 6017-20; USDA_00005158.
4
As produced by the United States, these documents bear the following page numbers: USDA_00004039, 4084,
4217-19, 4222, 4227, 4243, 4246, 4261-66, 4314-15, 4318, 4320-21, 4327-28, 4384, 4386, 4399, 4402-03, 4405,
4419, 4460, 4470-72, 4479, 4502-03, 4685, 4789-91, 4826-27, 4832-33, 4839, 4850, 4866-67, 4871, 4880, 4911-12,
4925-26, 4968, 4987, 5023-29, 5035-40, 5047-48, 5108, 5128, 5133, 5154, 5198-200, 5220, 5232-34, 5257, 5259-
63, 5275, 6128-29, 6417-19, 6451-52, 6550, 6590-91, 6679-81, 6768, 6803-05, 6811-12.
4

disclosure, and the identity of that person; (4) the strength of any property and
privacy interests asserted; (5) the possibility of prejudice to those opposing
disclosure; and (6) the purposes for which the documents were introduced during
the judicial proceedings.

In re Sealed Case, 237 F.3d 657, 666 (D.C. Cir. 2001) (quoting EEOC v. Natl Childrens Ctr.,
98 F.3d 1406, 1409 (D.C. Cir. 1996)); see Abou-Hussein v. Gates, 2010 WL 2574084, at *1
(D.C. Cir. June 11, 2010) (referring a motion to unseal certain exhibits for analysis under these
factors); Johnson v. Greater S.E. Cmty. Hosp., 951 F.2d 1268, 1277 & n.14 (D.C. Cir. 1991)
(holding that these factors should be weighed by the district court in determining whether and to
what extent a partys interest in privacy or confidentiality of its processes outweighs [the] strong
presumption in favor of public access to judicial proceedings). As is demonstrated below, the
application of these factors to this case requires the documents that defendant OConnor intends
to file on the public record, and any excerpts from those documents, to be filed, if at all, under
seal.
1. [T]he need for public access to the documents at issue
The parties to this case have no need for public access to the documents at issue
because they can litigate under seal any issue to which those documents are relevant. Neither
does the public at large have any need for access to those documents. As the United States has
acknowledged in this case, plaintiffs resignation from USDA implicate[d] sensitive issues and
significant public interest. ECF No. 134-2 16. Those matters have already been addressed,
however, by the statements about plaintiff made by Secretary of Agriculture Thomas J. Vilsack
and by then-White House Press Secretary Robert Gibbs at or about the time of plaintiffs
resignation. ECF No. 89-2 at 2-3, 5; ECF No. 89-3; ECF No. 89-4 at 1-3; ECF No. 89-5 at 1-14.
Those matters have also been addressed by the thousands of pages of documents dealing with
plaintiff that USDA has produced to the public pursuant to FOIA. See ECF No. 133-2 at 1.
5

Despite the speculation in which defendants continue to engage concerning the facts and events
surrounding plaintiffs resignation, e.g., Ex. D at 15:13-16:1, they have established no
justification for the filing on the public record of any document that the United States has
designated as Confidential. Neither political[] motivat[ions] nor a desire to publicize
allegations that are yet to be established provides such a justification. See Sealed Case, 237
F.3d at 668.
2. [T]he extent of previous public access to the documents
With certain exceptions, LCvR 5.2(a) provides that requests for documents * * * and
answers and responses thereto shall be served upon other counsel and parties but shall not be
filed with the Clerk until they are used in the proceeding or upon order of the Court. Relying on
that rule, the United States has refrained in this action from filing with the Court the documents
that defendant OConnor intends to file on the public record. No public access to those
documents thus has been provided.
3. [T]he fact that someone has objected to disclosure, and the identity of that
person

The appropriateness of making court files accessible is accentuated in cases where the
government is a party. Natl Childrens Ctr., 98 F.3d at 1409 (quoting FTC v. Std. Fin. Mgmt.
Corp., 830 F.2d 404, 410 (1st Cir. 1987)). In this case, the government is not a party. Nor is it
alleged by plaintiff to have engaged in any misconduct. It is, instead, nothing more than a third-
party witness.
In addition, the Office of the President occupies a unique position in the constitutional
scheme and the public interest requires that a coequal branch of Government afford
Presidential confidentiality the greatest protection consistent with the fair administration of
justice. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 382 (2004) (internal quotation marks omitted).
6

In this case, many of the documents that defendant OConnor intends to file on the public record
are EOP documents. See n.3, supra. The wish of the United States that those documents remain
confidential is therefore entitled to great weight.
4 & 5. [T]he strength of any property and privacy interests asserted and the
possible prejudice to those opposing disclosure

When the United States agreed to comply with the subpoenas, as modified, that plaintiff
and defendant OConnor had issued to USDA and EOP, it relinquished the opportunity to litigate
the enforceability of those subpoenas, even though it had good grounds upon which to do so.
See ECF No. 89 at 1-2. It took that action in reliance on the understanding that it could designate
as Confidential any document that it produced in response to those subpoenas and that the
parties would respect those designations. For that reason, it obtained the agreement of defendant
OConnor that the EOP may designate the documents it produces as confidential documents
under the terms of the 1/22/14 Protective Order * * * [and] he will not assert an objection to such
designation under paragraphs 18-19 of that Order. ECF No. 96 at 2. It also obtained the
commitment of plaintiff and defendant OConnor to treat documents designated by the EOP as
confidential under the terms of the 1/22/14 Protective Order according to the terms of that
Order.
5
Ex. E at 1.
To date, the parties have respected the confidentiality of the documents that the United
States has designated as Confidential. Defendant OConnor did so on May 28, 2014, when he
moved for leave to file certain of those documents under seal, together with information taken
from those documents. See ECF No. 118 at 1-2. No reason exists why he and the other parties
should not continue to do so.

5
The United States recalls, and is prepared to show, that it obtained the same commitment from defendants Andrew
and Susannah Breitbart.
7

6. [T]he purposes for which the documents were introduced during the judicial
proceedings

When asked why he intends to file certain documents on the public record, defendant
OConnor has said the following:
[O]ur near-term purposes * * * are as follows: (1) to provide the required notice
in connection with our two reply briefs that we intend to file on or about July 14
and (2) to provide the required notice in connection with a motion withdraw the
May 28, 2014 motion to seal [Dkt. No. 118] that we intend to file.

Ex. C at 1.
Neither the briefs nor the motion to which defendant OConnor refers in the above
statement needs to be filed on the public record. They can, instead, be filed under seal. They
provide no justification, accordingly, for the filing on the public record of the documents that
defendant OConnor intends to file there.
This case is not a complex piece of corporate litigation. It is, instead, a common-law tort
action in which all the parties are individuals and few material facts, if any, are subject to
dispute. It should not be made more complicated than it ought to be by actions like the
announcement of defendant OConnor that he intends to file on the public record documents that
the United States has designated as Confidential.
CONCLUSION
For the foregoing reasons, the motion of the United States for an order requiring certain
documents and information to be filed, if at all, under seal should be granted.
Respectfully submitted,

STUART F. DELERY
Assistant Attorney General
RONALD C. MACHEN
United States Attorney
8

ARTHUR R. GOLDBERG
Assistant Branch Director, Department of Justice,
Civil Division

s/ David M. Glass
DAVID M. GLASS, DC Bar 544549
Senior Trial Counsel, Department of Justice, Civil
Division
20 Massachusetts Avenue, N.W., Room 7200
Washington, D.C. 20530-0001
Tel: (202) 514-4469/Fax: (202) 616-8470
Email: david.glass@usdoj.gov
Dated: July 13, 2014 Attorneys for the United States
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____
) No. 1:11-cv-00477-RJL
SHIRLEY M. SHERROD, )
) PROPOSED ORDER
Plaintiff, )
)
v. )
)
SUSANNAH BREITBART, et al., )
)
Defendants. )
_____ )

Upon the motion of the United States for an order requiring certain documents and
information to be filed, if at all, under seal, the materials submitted in support of that motion and
in opposition thereto, and good cause having been shown, it is hereby ordered as follows:
1. The aforesaid motion is hereby granted.
2. Documents in this action bearing the following page numbers shall be filed, if at all,
under seal, as shall any excerpts from those documents:
EOP_00000001-2, 6-11, 13-14, 28, 36-52, 69-73, 125, 130-31, 146-48, 151-53,
304-06, 332-34, 437, 441-50, 455-56, 468, 477-79, 484, 507-10, 552, 674, 679-
80, 682-83, 706-07, 709-10, 1002-05, 1011-13, 1018-21, 1045-48, 1054-56, 1109,
1733-52, 1781-1800, 2221, 2888, 4018, 6017-20; USDA_00004039, 4084, 4217-
19, 4222, 4227, 4243, 4246, 4261-66, 4314-15, 4318, 4320-21, 4327-28, 4384,
4386, 4399, 4402-03, 4405, 4419, 4460, 4470-72, 4479, 4502-03, 4685, 4789-91,
4826-27, 4832-33, 4839, 4850, 4866-67, 4871, 4880, 4911-12, 4925-26, 4968,
4987, 5023-29, 5035-40, 5047-48, 5108, 5128, 5133, 5154, 5158, 5198-200,
5220, 5232-34, 5257, 5259-63, 5275, 6128-29, 6417-19, 6451-52, 6550, 6590-91,
6679-81, 6768, 6803-05, 6811-12.

Dated:
UNITED STATES DISTRICT JUDGE


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