2-25-2011 Cleco Second Protective Order Brief

Case 5:09-cv-02103-TS-MLH Document 98 Filed 02/25/11 Page 1 of 9 PageID #: 3153
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
GREGORY WILLIS, EDDIE CULBERT, NO. 09-2103

RONALD SMITH, SR., ROY HUDSON,
JENNIFER HILL, ISAAC JORDAN, JOHN
MURCHISON, THOMAS JONES, JR.,
CALDWELL BURGESS, KELSOW
WILLIAMS, JR., STAFFORD WILLIAMS
AND VANDA WILLIS
VERSUS JUDGE STAGG
CLECO CORPORATION MAGISTRATE JUDGE HORNSBY
REPLY TO THE PLAINTIFFS’ MEMORANDUM IN OPPOSITION

TO CLECO’S MOTION TO AMEND THE COURT’S
SEPTEMBER 19, 2010 PROTECTIVE
ORDER
MAY IT PLEASE THE COURT:
I. INTRODUCTION
During the pendency of this motion, which the court, at Cleco’s request, has
taken up on an expedited basis, Gregory R. Aymond (“Aymond”) – who states in his
declaration that he is a member of the bar of the United States District Court for the
Western District of Louisiana – has posted on his website/blog “Central La. Politics” the
full transcripts of the pretrial discovery depositions of two Cleco executives, viz., Michael
Madison, the company’s Chief Executive Officer, and Jeff Hall, the company’s Senior
Vice President-Governmental Affairs and Chief Diversity Officer. The attached,
downloaded copies of the referenced website/blog show that prior to posting the
transcripts, Aymond was fully aware of this motion and Cleco’s privacy and other
concerns. See Second Affidavit of John T. Kalmbach (attached). Presumably, these
discovery depositions are being leaked to Aymond by the plaintiffs’ and/or their counsel.
The address of record for the plaintiffs’ “local counsel” is vacant, and the telephone and
facsimile numbers listed for him on their brief (and on file with the court) do not work.
The plaintiffs’ New York counsel – who has been admitted pro hac vice – has now filed
in connection with his opposition brief the full transcript of the deposition of Michael
Madison, even though that deposition contains matters that he implicitly admits are
private and within the spirit of the court’s existing protective order. The court is not
obliged to countenance these litigation tactics and, in fact, has broad discretion to
protect and control the pretrial discovery materials generated in this case (and now
submitted in ostensible opposition to Cleco’s well-founded motion). See Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 2208-09 (1984).
II. REPLY
A. The Court Should Control the Dissemination of Discovery Materials in This

Case.
Despite the regrettable level of discourse on the referenced website/blog – e.g.,
“You [Jeff Hall] are referred to as ‘Shine’ King of the Monkeys”; “[Jeff Hall] is a modern
day ‘Uncle Tom’”; “Is Mike Madison a Nazi”; “Mike Madison Cleco’s Slave Master – ‘We
take real good care of our darkies’”; “[Mike Madison]: ‘I’ll keep you darkies in line’”; and
so on – Cleco is not asking the court to restrain anyone’s First Amendment rights.
Rather, in light of what has already happened, the defendant is asking the court to
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protect the pretrial discovery depositions that have been taken in this case from any
further public dissemination. See Seattle Times Co., 467 U.S. at 33, 104 S.Ct. at 2208
(“[R]estraints placed on discovered, but not yet admitted, information are not a
restriction on a traditionally public source of information”). The United States Supreme
Court has held that the public has no right of access to discovery materials, which are
“conducted in private as a matter of modern practice.” Id. Moreover, for good cause,
the court can protect discovery materials from voluntary public dissemination by the
parties. See U.S. v. $9,041,598.68 (Nine Million Forty One Thousand, Five Hundred
Ninety Eight Dollars and Sixty Eight Cents), 976 F. Supp. 654, 658 (“Public access to
the discovery process does not play a significant role in the administration of justice”).
Cleco has made an adequate showing of the kinds of private and confidential
matters that are at issue in the discovery depositions in question, and this showing,
along with the harassment and embarrassment which has already ensued, is ample
grounds for the court to order the protection that Cleco urges.1 Additionally, the tactics
apparently afoot here threaten to debase the judicial process, causing the deponents
and defendants to have to defend themselves in a public forum against serious
allegations that remain unproven. At the very least, the ongoing leakage of pretrial
discovery depositions in this case constitutes “oppression” and an “undue burden” on
1
As for the Declaration of Jullia Callis, Senior Attorney for Cleco Support Group, LLC, the
undersigned submitted a motion seeking to file said declaration under seal, which the court immediately
granted. The undersigned presumed that the sealed declaration would be available to the parties, as
opposed to the public, via the court’s CM/ECF electronic noticing system. Upon the service of the
plaintiffs’ opposition brief and Mr. Van-Lare’s “demand to see the affidavit [of Julia Callis],” the
undersigned emailed the same to him on Thursday, February 24, 2011, at 9:34 a.m. (central time). Had
Mr. Van-Lare pointed out our error earlier, we would have gotten him the declaration as soon as possible.
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the deponents and the litigants beyond what notions of fair play call for in the context of
the orderly and responsible adjudicative process. See Fed. R. Civ. Proc. 26(c).
B. The Court Should Not Abide Abuse of the Discovery Process for Extra-
Judicial Advantage.
Despite the plaintiffs’ suggestion to the contrary, it is well-established that pre-
trial discovery materials, in particular video depositions, have a higher degree of
potential abuse and, thus, the courts have a heightened interest in protecting them.
See Stern v. Cosby, 529 F. Supp. 2d 417 (S.D.N.Y. 2007)(protective order prohibiting
the distribution of the video issued where court found release would add to media frenzy
over case, interfere with administration of justice, and subject the television journalist
deponent to annoyance, embarrassment, oppression, or undue expense or burden).
Insofar as video depositions are concerned, the court in Paisley Park Enterprises, Inc. v.
Uptown Productions, 54 F. Supp. 2d 347 (S.D.N.Y. 1999), observed:
Rule 30(b)(2) was amended to permit videotaped

depositions as a matter of routine in recognition of the fact
that videotapes are a means of presenting deposition
testimony to juries that is superior to readings from cold,
printed records. Cf., e.g., United States v. Tunnell, 667 F.2d
1182, 1188 (5th Cir.1982); Weiss v. Wayes, 132 F.R.D. 152,
154 (M.D.Pa.1990). It was not intended to be a vehicle for
generating content for broadcast and other media. Hence,
[party seeking video deposition] likely use of any videotape
for purposes unrelated to the resolution of the dispute that is
the subject of this lawsuit cuts in [party opposing video
deposition] favor.
54 F. Supp. 2d at 347 & n.2 (footnote included in text). See Felling v. Knight, No. 01-
571 (S.D. Ind. 12/21/01), 2001 WL 1782360, at *3 (“Videotapes are subject to a higher
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degree of potential abuse than transcripts. They can be cut and spliced and used as
‘sound-bites’ on the evening news or sports shows”).
In this instance, the dissemination began with the posting of the video discovery
deposition of Jeff Hall. When that video was removed by the video hosting website
(apparently over the poster’s objections), the poster responded by posting the transcript
of the video discovery deposition of Jeff Hall on the website/blog, as well as the
transcript of the video discovery deposition of Michael Madison (the CEO) – both
accompanied by patently offensive and inflammatory comments and images.
Numerous others comments on the website address topics and information discussed in
the discovery depositions. One commenter makes an offensive comment concerning
Michael Madison’s wife, while others impugn Jeff Hall’s integrity in very personal ways
(one even references his father). As explained by Julia Callis in her declaration, both
depositions contain the type of information for which the deponents, non-parties, and
the parties alike have high expectations of privacy. The dissemination of these
depositions (and, at least, the implied threat of the dissemination of others) is
oppressive and an undue burden on the deponents and the litigants. See U.S. v.
$9,041,598.68 (Nine Million Forty One Thousand, Five Hundred Ninety Eight Dollars
and Sixty Eight Cents), 976 F. Supp. 654, 658 (“The public’s interest is in seeing that
the process works and the parties are able to explore the issues fully without excessive
waste or delay”). Cleco is left with the assumption (perhaps, the presumption) that the
discovery depositions have been leaked by the parties or their lawyers to garner some
extrajudicial advantage in this case – contrary to the public’s interest in an orderly and
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responsible adjudicative system. Id. (reasoning that the ability to grant protective orders
under Rule 26(c) “furthers a substantial governmental interest unrelated to the
suppression of expression”). The court should not abide abuse of the discovery
process, and is well within the court’s discretion to prohibit it.
C. The Deponents’ and Cleco’s Interest in Limiting the Public Dissemination

of the Discovery Depositions in This Case Outweighs the Plaintiffs’
Purported Interest in Allowing It.
The public’s right of access to the discovery depositions in this case is minimal,
and Cleco has shown good cause for the amendment of the protective order to preclude
the further public dissemination of the same. Under Rule 26(c), the trial court has
“broad discretion . . . to decide when a protective order is appropriate and what degree
of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct.
2199, 2209 (1984); Dove v. Atl. Capital Corp., 963 F.2d 15, 20 (2d Cir.1992)(“[T]he
grant or denial of a protective order lies within the sound discretion of the district court”);
Galella v. Onassis, 487 F.2d 986, 997 (2d Cir.1973)(same). Again, the court’s
reasoning in Word of Faith World Outreach Center Church, Inc. v. Morales, 143 F.R.D.
109, 113 (W.D. Tex. 1992), is particularly apropos:
Under the law of procedure, parties and related

persons often have no choice but to divulge information they
would not otherwise freely share. To allow a party to use
that information for purposes unrelated to the litigation
and in a manner which harms the giver of that
information is abusive, and courts have a significant
interest in preventing such usage. See generally Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 33-36, 104 S.Ct. 2199,
2208-09, 81 L.Ed.2d 17 (1984).
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Id. (emphasis added).
III. CONCLUSION
Based on the foregoing, the court can and should act to limit the further public
dissemination of the discovery depositions in this case by amending its September 17,
2010 protective order to provide:
(i) that the pre-trial discovery depositions taken in this

matter, including video depositions, may only be used
for the purposes of this litigation and
(ii) that, from this date forward, the public dissemination

of any pre-trial discovery depositions taken in this
matter, including video depositions, by any person is
prohibited.
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Charles H. Hollis #06961

A. Nicole Seale #31317
Claire H. McDaniel #31864
The Kullman Firm
A Professional Law Corporation
1100 Poydras Street
1600 Energy Centre
Post Office Box 60118
New Orleans, Louisiana 70160
Telephone: (504) 596-4189
Facsimile: (504) 596-4114
and
COOK, YANCEY, KING & GALLOWAY

A Professional Law Corporation
By: s/ John T. Kalmbach

John T. Kalmbach #24484
333 Texas Street, Suite 1700 (71101)

P.O. Box 22260
Shreveport, LA 71120-2260
Telephone: (318) 221-6277
Facsimile: (318) 227-7850
john.kalmbach@cookyancey.com
ATTORNEYS FOR CLECO

CORPORATION
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CERTIFICATE
I HEREBY CERTIFY that a copy of the above and foregoing was filed with the
United States District Court for the Western District of Louisiana by electronic case
filing/case management and that a copy of the same was either served on all counsel of
record by electronic notification or by U.S. Mail, postage pre-paid.
Shreveport, Louisiana, this 25th day of February, 2011.
s/ John T. Kalmbach
OF COUNSEL
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Case 5:09-cv-02103-TS-MLH Document 98 Filed 02/25/11 Page 1 of 9 PageID #: 3153

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

GREGORY WILLIS, EDDIE CULBERT, NO. 09-2103

VERSUS JUDGE STAGG

CLECO CORPORATION MAGISTRATE JUDGE HORNSBY

REPLY TO THE PLAINTIFFS’ MEMORANDUM IN OPPOSITION

MAY IT PLEASE THE COURT:

taken up on an expedited basis, Gregory R. Aymond (“Aymond”) – who states in his

Vice President-Governmental Affairs and Chief Diversity Officer. The attached,

concerns. See Second Affidavit of John T. Kalmbach (attached). Presumably, these

submitted in ostensible opposition to Cleco’s well-founded motion). See Seattle Times

A. The Court Should Control the Dissemination of Discovery Materials in This

Despite the regrettable level of discourse on the referenced website/blog – e.g.,

restriction on a traditionally public source of information”). The United States Supreme

and defendants to have to defend themselves in a public forum against serious

discovery depositions in this case constitutes “oppression” and an “undue burden” on

Despite the plaintiffs’ suggestion to the contrary, it is well-established that pre-

trial discovery materials, in particular video depositions, have a higher degree of

deponent to annoyance, embarrassment, oppression, or undue expense or burden).

Uptown Productions, 54 F. Supp. 2d 347 (S.D.N.Y. 1999), observed:

Rule 30(b)(2) was amended to permit videotaped

‘sound-bites’ on the evening news or sports shows”).

accompanied by patently offensive and inflammatory comments and images.

the discovery depositions. One commenter makes an offensive comment concerning

depositions (and, at least, the implied threat of the dissemination of others) is

under Rule 26(c) “furthers a substantial governmental interest unrelated to the

process, and is well within the court’s discretion to prohibit it.

C. The Deponents’ and Cleco’s Interest in Limiting the Public Dissemination

109, 113 (W.D. Tex. 1992), is particularly apropos:

Under the law of procedure, parties and related

Id. (emphasis added).

2010 protective order to provide:

(i) that the pre-trial discovery depositions taken in this

(ii) that, from this date forward, the public dissemination

Charles H. Hollis #06961

COOK, YANCEY, KING & GALLOWAY

By: s/ John T. Kalmbach

333 Texas Street, Suite 1700 (71101)

ATTORNEYS FOR CLECO

record by electronic notification or by U.S. Mail, postage pre-paid.

Shreveport, Louisiana, this 25th day of February, 2011.

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