ABDOULAYE GUEYE, Plaintiff, v. MIKE BLOOMBERG 2020 INC., Defendant. MELINDA HAMILTON, Plaintiff, v. MIKE BLOOMBERG 2020 INC., Defendant. ARGUNDA JEFFERSON, Plaintiff, v. MIKE BLOOMBERG 2020 INC., Defendant. GREGORY SNOW, Plaintiff, v. MIKE BLOOMBERG 2020 INC., Defendant Civil Action No. 4:20-cv-00487-BP United States District Court, N.D. Texas, Fort Worth Division Signed February 26, 2021 Counsel Jason C. N. Smith, Law Offices of Jason Smith, Fort Worth, TX, for Plaintiff. Greg W. Curry, Dina McKenney, Jennifer Meghan Nylin McCaig, Thompson & Knight LLP, Dallas, TX, for Defendant. Ray Jr., Hal R., United States Magistrate Judge ORDER *1 On February 25, 2021, the Court held a telephonic hearing on Plaintiffs' Motions to Compel Deposition of Mike Bloomberg and Brief in Support Thereof (ECF No. 57 in Gueye, 61 in Hamilton, 62 in Jefferson, and 60 in Snow), Defendant's Motions to Maintain the Confidentiality Designation of Certain Excerpts from and Exhibits to the Deposition Transcript of Daniel Kanninen and Appendix in Support (ECF Nos. 66 and 67 in Gueye, 68 and 69 in Hamilton, 69 and 70 in Jefferson, and 66 and 67 in Snow), and Defendant's Motions to Maintain Confidentiality of Certain Documents Produced in Discovery (ECF No. 58 in Hamilton and 59 in Jefferson). For the reasons stated at the hearing, the Court orders as follows: 1. Plaintiffs' Motions to Compel Deposition of Mike Bloomberg and Brief in Support Thereof (ECF No. 57 in Gueye, 61 in Hamilton, 62 in Jefferson, and 60 in Snow) are DENIED. The Court states for the record that it took notice of Mr. Bloomberg's Statement of Candidacy filed with the Federal Election Commission, which was attached to Plaintiffs' Request for Judicial Notice for Hearing on Plaintiffs' Motion to Compel Deposition of Mike Bloomberg (ECF No. 70 in Gueye, No. 4:20-cv-00487-BP). Based upon the evidence presented by the parties, the Court concludes that Mr. Bloomberg is not an employee, officer, or director of Defendant. Plaintiffs testified in their depositions that they never had contact with Mr. Bloomberg or discussed employment with him. As Defendant established, because Mr. Bloomberg is not a party, he cannot be noticed to appear for a deposition. In re Honda Am. Motor Co., Inc. Dealership Relations Litig., 168 F.R.D. 535, 540 (D. Md. 1996). Moreover, Plaintiffs failed to establish that Mr. Bloomberg is a “managing agent” of Defendant for purposes of Federal Rule of Civil Procedure 30(b)(6). Accordingly, Plaintiffs' Motions to Compel Mr. Bloomberg's deposition must be denied. 2. Defendant's Motions to Maintain the Confidentiality Designation of Certain Excerpts from and Exhibits to the Deposition Transcript of Daniel Kanninen (ECF No. 66 in Gueye, 68 in Hamilton, 69 in Jefferson, and 66 in Snow) are GRANTED in part and DENIED in part. Defendant's Motions are granted in regard to Mr. Kanninen's personal information contained on his deposition at page twelve, lines ten through sixteen; page fifteen, line twenty-three; and page eighteen, lines eleven through thirteen. Defendant's Motions are denied in regard to the remaining excerpts and exhibits that Defendant seeks to maintain as confidential. Based upon a full review of the remaining deposition excerpts and exhibits at issue, the Court concludes that the testimony and exhibits do not contain information that is “Confidential Information” as defined in the Protective Order (ECF No. 56, ¶ 2). They are not “confidential employee or financial information, trade secrets, information related to political campaign strategy and/or operations, or proprietary information that is not publicly known and is of technical or other advantage to its possessor, in accordance with Fed. R. Civ. P. 26(c)(1)(G), or other information required by law or agreement to be kept confidential” as is required for “Confidential Information” in the Protective Order. *2 Instead, the testimony and exhibits in general concern communications that occurred after Mr. Bloomberg withdrew from the race for the Democratic presidential nomination in 2020. They address the matter of continued employment of campaign staff after Mr. Bloomberg's candidacy ended and are relevant to the issues raised by Plaintiffs in this case. Although some of the testimony and documents could be viewed as concerning “information related to political campaign ... operations,” the same could be said for any communications between and among employees and contractors to Defendant. The Court does not view communications about payment to staff made after the candidate withdraws from the race to be the type of communications regarding campaign operations that the Confidentiality Order addresses. The Defendant additionally asserts that the Court should maintain the confidentiality of the deposition excerpts and documents because Plaintiffs signed a confidentiality agreement with Defendant when they were employed and because disclosure could chill the First Amendment rights of non-parties to this case. The Court is not aware of any authority, nor did Defendant provide any, that requires the Court to maintain records as confidential in the course of litigation because a party signed a confidentiality agreement regarding records obtained and reviewed in the course of his or her employment prior to the instigation of litigation. The Court does not exercise its discretion to maintain the confidential designation of the deposition excerpts and documents at issue on that basis. The Court agrees that the First Amendment rights of non-parties to this case must be considered in its decision regarding Defendant's Motions. As the United States Court of Appeals for the Ninth Circuit noted in Perry v. Schwarzenegger, “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.’’ NAACP v. Alabama, 357 U.S. 449, 460 (1958); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (‘‘An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.’’). Thus, ‘‘[t]he First Amendment protects political association as well as political expression,’’ Buckley v. Valeo, 424 U.S. 1, 15 (1976), and the ‘‘freedom to associate with others for the common advancement of political beliefs and ideas is ... protected by the First and Fourteenth Amendments.’’ Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973). 591 F.3d 1147, 1159 (9th Cir. 2009). The privilege provided by the First Amendment is “not absolute, however, as it only protects a party from compelled disclosure that would chill the associational rights at issue.” Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm'n, No. A-15-cv-134-RP, 2016 WL 5922315, at *6 (W.D. Tex. Oct. 11, 2016) (citing NAACP, 357 U.S. at 462-63). The “party asserting the privilege must make a prima facie showing of an objectively reasonable probability of a chilling effect on their First Amendment rights if the discovery is permitted.” Id. (citing Perry, 591 F.3d at 1160-61). To do so, “the party must show that disclosure will deter members of the association from maintaining membership due to fears of threats, harassment, or reprisal from ... other private parties.” Id. Here, the Defendant has not made a prima facie showing that public disclosure of the deposition excerpts or exhibits would have a chilling effect either on itself or on any person. Likewise, there has been no showing that any employees or contractors, or former employees or contractors, of Defendant would be deterred from exercising their First Amendment rights if the deposition excerpts or exhibits are not kept confidential. There is no evidence before the Court to make out such a case. Moreover, there is no dispute that the Plaintiffs are entitled to discovery of the excerpts and exhibits at issue and that their counsel has copies of such material. The Defendant simply wishes to maintain the confidentiality of those items to prevent disclosure to the public or others outside the confines of this case. *3 The facts supporting Defendant's request for confidentiality are not as compelling as those at issue in Perry or in the Fifth Circuit case that cites Perry on the issue of the First Amendment privilege, Whole Woman's Health v. Smith, 896 F.3d 362 (5th Cir. 2018). Here, an employer seeks to prevent disclosure to the public of information that is relevant to the claims of its former employees. There is no overbroad discovery request to a political campaign or movement in the middle of a campaign, or a request to a religious organization that is not a party to the case. Instead, the excerpts and exhibits have been produced in the normal course of discovery in four employment cases subject to a Protective Order. There is no compelling reason to maintain that confidentiality and prevent disclosure to the public based on the facts and evidence presented in the Defendant's Motions. 3. Defendant's Motions to Maintain Confidentiality of Certain Documents in Hamilton (ECF No. 58) and Jefferson (ECF No. 59) are DENIED for the same reasons stated in section 2 above. 4. The Court stays the effect of its Order regarding confidentiality of the deposition excerpts and exhibits at issue until March 11, 2021. 5. Also, by March 11, 2021, Defendant's shall provide Plaintiffs' counsel with the best address they have for Mike Bloomberg in order for Plaintiff's counsel to issue a subpoena and cause it to be served on Mr. Bloomberg. It is so ORDERED on February 26, 2021.