Gueye v. Mike Bloomberg 2020 Inc.
Gueye v. Mike Bloomberg 2020 Inc.
2021 WL 3910341 (N.D. Tex. 2021)
March 12, 2021

Ray Jr., Hal R.,  United States Magistrate Judge

Protective Order
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Summary
The Court denied the Defendant's Motions to Maintain the Confidentiality Designation of Certain Excerpts from the Deposition Transcript of Tim O'Brien and Appendix in Support. The Court found that the testimony did not reveal confidential information and that the Defendant had not made a prima facie showing that public disclosure of the excerpts would have a chilling effect. The Court thus denied the Motions, noting the public's compelling interest in access to the courts and judicial documents.
Additional Decisions
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 March 12, 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 Before the Court are Defendant's Motions to Maintain the Confidentiality Designation of Certain Excerpts from the Deposition Transcript of Tim O'Brien and Appendix in Support (ECF Nos. 75 and 76 in Gueye, 73 and 74 in Hamilton, 74 and 75 in Jefferson, and 71 and 72 in Snow) and Plaintiffs' consolidated Response (ECF No. 79 in Gueye). After a full review of the Motions, Appendices, Response, and applicable legal authorities, the Court DENIES the Motions.
 
At the outset, the Court notes those sections of the Deposition Transcript of Tim O'Brien that remain at issue in the Motions. In his letter of February 19, 2021, Plaintiffs' counsel requested that certain questions and answers in the O'Brien Deposition Transcript no longer be designated as confidential. See ECF Nos. 75-1 in Gueye, 73-1 in Hamilton, 74-1 in Jefferson, and 71-1 in Snow. In Plaintiffs' Response to the Motions, Plaintiffs' counsel withdrew his request with regard to questions and answers concerning Mr. O'Brien's personal information on pages 11, 42, and 82. See ECF No. 79 at 1 n.1. Thus, the questions and answers on pages 11, lines 16-17 and 23-25; 42, line 3; and 82, lines 4-17 no longer are at issue.
 
The Court further notes that Defendant did not include all of the remaining questions and answers from the letter from Plaintiffs' counsel in its appendices filed with the Motions. Accordingly, the Court presumes that the following testimony from Mr. O'Brien's deposition no longer is disputed: pages 21, line 22 – 22, line 2; 27, lines 15-23; and 32, line 19 – 33, line 2.
 
The remaining questions and answers (pages 29, lines 7-12; 31, line 24 – 32, line 7; 35, line 23 – 36, line 20; and 37, line 20 – 38, line 7) should not be designated as confidential for the same reasons explained in the Court's order regarding 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). See ECF Nos. 74 in Gueye, 72 in Hamilton, 73 in Jefferson, and 70 in Snow. These very few questions and answers do not reveal “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.
 
Instead, the testimony from Mr. O'Brien at issue occurred after Mr. Bloomberg withdrew from the race for the Democratic presidential nomination in 2020. In general, it concerns the matter of continued employment of campaign staff after Mr. Bloomberg's candidacy ended and is relevant to the issues raised by Plaintiffs in this case. Although some of the testimony 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 Protective Order addresses. In including “information related to political campaign ... operations” within the definition of confidential information, the Court did not intend to permit wholesale confidentiality designation of all testimony by Defendant's former employees and contractors regarding all matters concerning the campaign.
 
*2 The Defendant additionally asserts that the Court should maintain the confidentiality of the deposition excerpts 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 deposition testimony 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 O'Brien deposition excerpts 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 excerpts from Mr. O'Brien's deposition 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 O'Brien deposition excerpts 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 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.
 
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 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 Finally, the Court notes the public's compelling interest in access to the courts and judicial documents filed there. As the Fifth Circuit recently noted in the case of a broad protective order that resulted in sealing of discovery documents from public view, “[e]xcessive secrecy—particularly displacing the high bar for sealing orders with the low bar for protective orders—undercuts the public's right of access and thus undermines the public's faith in our justice system.” Le v. Exeter Fin. Corp., ___ F.3d ___, 2021 WL 838266 (5th Cir. Mar. 5, 2021). While the issues of confidentiality before the Court are still at the protective order stage, the Court is unwilling to view every word from the mouth of Defendant's former employees and contractors as confidential when it is clear from the O'Brien deposition transcript excerpts at issue that neither the questions nor answers should receive that designation and protection from public view. Accordingly, the Motions are DENIED.
 
It is so ORDERED on March 12, 2021.