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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

SPRINGFIELD DIVISION

SEXUAL MINORITIES UGANDA, : CIVIL ACTION

:Plaintiff, : 3:12-CV-30051-MAP

:

v. : JUDGE MICHAEL A. PONSOR

:

SCOTT LIVELY, : MAGISTRATE JUDGE

: KATHERINE A. ROBERTSON

Defendant. :

DEFENDANT SCOTT LIVELY’S MEMORANDUM IN OPPOSITION

TO PLAINTIFF’S MOTION TO AMEND THE ORDER REGARDINGCONFIDENTIALITY OF CERTAIN DISCOVERY MATERIAL

Defendant, Scott Lively (“Lively”), pursuant to Local Rule 7.1(b)(2), files this

memorandum in opposition to the Motion to Amend the Order Regarding Confidentiality of

Certain Discovery Material (Dkt. No. 149) filed by Plaintiff, Sexual Minorities Uganda

(“SMUG”). For the reasons stated herein, the motion should be denied.

PRELIMINARY STATEMENT

SMUG’s motion asks the Court to change its mind on an issue the Court already decided

against SMUG in the Court’s Order Regarding Confidentiality of Certain Discovery Material (Dkt.

No. 106) (the “Confidentiality Order”). The sole issue for the Court’s decision is whether to create

a new category of Confidential Discovery Material (as defined in the Confidentiality Order)

designated “Attorneys’ Eyes Only” (or “AEO”), which SMUG wants to prevent Lively from

seeing. But there has been no material change in circumstances justifying the Court’s departure

from its prior ruling against an AEO restriction. And, like before, SMUG fails to make a sufficient

showing of compelling need to justify blocking Lively’s access to cr itical discovery, thereby

profoundly hindering Lively’s ability to participate and assist his counsel in his own defense.

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As before, SMUG offers no evidence to justify an AEO restriction, but is travelling on the

mere allegations of wrongdoing by Lively in its Complaint, which SMUG has made little attempt

to prove in the more than three years since its filing. To be sure, SMUG does not care whether it

ever proves its allegations against Lively. In March of this year, Frank Mugisha, SMUG's

Executive Director, boasted to an American publication, “Our goal is not actually about the

outcome of the case; our goal is the advocacy we’ve been able to do around the case. ”1 In

other words, the process is the punishment. In light of this admission that proving its case is not

the goal, every SMUG claim of injury caused by Lively is suspect; every security measure SMUG

claims to have taken in response to Lively's alleged conduct demands scrutiny; and the person on

whose name SMUG is flippantly trading for influence, Scott Lively, has the right to see and

evaluate all evidence SMUG may use to further its cause at Lively’s expense . It is disingenuous

for SMUG to feign the desire for secrecy and obscurity behind an AEO restriction, while

promoting internationally its political “human rights” case against Lively for the admitted purpose

of increasing SMUG's profile. SMUG’s failure to meet the standards for an AEO restriction, shown

below, and admitted ulterior motives, shown above, require denial of SMUG’s motion to amend

the existing Confidentiality Order. Any other outcome would further hamstring Lively’s ability to

rebut SMUG’s baseless claims.

1 James McDonald, 3 Questions on The Battle for Uganda: Frank Mugisha brings the fight against

oppression to America (May 11, 2015 6:00 AM), http://www.advocate.com/

world/2015/05/11/3-questions-battle-uganda.


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THE EXISTING CONFIDENTIALITY ORDER

SMUG’s latest entreatment for an AEO restriction that would eject Lively from his own

defense is nothing new. The existing Confidentiality Order (Dkt. No. 106) represents the Court’s

resolution of a contentious and thoroughly briefed dispute regarding the appropriate scope of

confidentiality protections for discovery materials in this case.2 Importantly, Lively did not object

to the entry of an appropriate protective order shielding certain genuinely confidential information

from disclosure. (Dkt. No. 90 at 1.) Lively by no means, however, conceded that the actual

situation in Uganda bore any resemblance to the gross exaggerations and misrepresentations set

forth in SMUG’s motion for protective order , or in the Amended Complaint, and unequivocally

denied (and denies) that he has engaged in any wrongdoing whatsoever. ( Id.) Nevertheless, Lively

was amenable to entry of a protective order to be used in those rare instances where the evidence

establishes a reasonable probability that public disclosure may cause legitimate harm. ( Id.)

The proposed protective order submitted by SMUG, however, went much too far, and

would have profoundly prejudiced Lively’s ability to assist in his own defense, and the ability of

his counsel to effectively defend him. ( Id.) Included in SMUG’s proposed protective order was an

“attorneys’ eyes only” designation for certain “limited” discovery, which would have prevented

2 The filings reflecting the disputed issues are Plaintiff’s Motion for Protective Order (Dkt. No.

85); Plaintiff’s Memorandum of Law in Support of Its Motion for Protective Order (Dkt. No. 86);

Defendant Scott Lively’s Response to Plaintiff’s Motion for Protective Order (Dkt. No. 90);Electronic Order denying without prejudice Plaintiff's Motion for Protective Order (Neiman, M.J.)

(Dkt. No. 93); Joint Submission Regarding Proposed Protective Order (Dkt. No. 96); Defendant

Scott Lively’s Response to the Parties’ “Joint” Submission Regarding Protective Order (Dkt. No.98); Plaintiff’s Proposed Reply to Defedant’s Response to the Parties’ Joint Submission Regarding

Protective Order (Dkt. No. 99-1) (allowed by Dkt. No. 100); and Memorandum and Order with

Regard to the Parties’ Countervailing Submissions Regarding A Proposed Protective Order (Dkt.

No. 102).


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Lively from considering and discussing with his own counsel admittedly relevant evidence.3 But,

as determined by the Court, SMUG provided insufficient justification for imposing such handicaps

on Lively’s defense.

In the Court’s Electronic Order initially denying SMUG’s motion for protective order (Dkt.

No. 93), Judge Neiman held,

the court is not inclined to adopt the attorney's eyes only provision . . . for many of

the reasons raised by Defendant in his opposition; given that Defendant, as the

sole defendant in this action and as uniquely positioned to assist in his defense

with regard to the events at issue, his counsel will no doubt need to

communicate with him without the strictures proposed by Plaintiff .

(Emphasis added.) In the Court’s subsequent Memorandum and Order addressing additional issues

involving the scope of confidentiality protection sought by SMUG (Dkt. No. 102), Judge Neiman

reiterated that he “was not inclined to accept an attorney’s eyes -only provision given that

Defendant’s counsel would no doubt need to communicate with him as a sole defendant uniquely

positioned to assist in his defense,” and stated he “was also concerned about shackling

Defendant’s investigation of facts and witnesses in Uganda.” (Dkt. No. 102 at 3 (emphasis

added).) Judge Neiman further concluded that Lively, “ to mount his defense, does need to

investigate highly sensitive matters without undue trammels.” ( Id. (emphasis added).)

Thus, the Court made clear its antipathy towards AEO restrictions in this case, (Dkt. No.

93; Dkt. No. 102 at 3), and ultimately entered the existing Confidentiality Order with no AEO

restriction. While the Court did not foreclose completely the possibility of a future AEO restriction

upon a proper application, the Court conditioned any such restriction on a showing of

“particularized and compelling need.” (Conf. Order, ¶ 17.) This high bar set by the Court reflects

3 The AEO restriction in SMUG’s first proposed protective order was for materials designated

“HIGHLY CONFIDENTIAL,” disclosure of which was limited to counsel and specified non-party

persons. (Dkt. No. 86-3, ¶ 8.)


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the near universal aversion of courts to AEO restrictions except in very limited contexts not

applicable here. SMUG’s current motion to amend the Confidentiality Order fails to satisfy this

high standard.

To be sure, the Court did rule in SMUG’s favor on numerous other contested issues in the

fashioning of the Confidentiality Order, which Lively respectfully contends has already adversely

impacted his ability to test and rebut SMUG’s outrageous claims. (See Defendant Scott Lively’s

Objection to Protective Order, Dkt. No. 118.) To the extent the Court’s rejection of an AEO

provision ref lected an attempt to compromise and strike a balance between the parties’ competing

interests, SMUG now wishes to deprive Lively even of that hard fought concession, while retaining

all of the other, numerous benefits it obtained. The unfairness of SMUG’s requested relief is

evident.

LAW AND ARGUMENT

I. SMUG’S MOTION TO AMEND THE CONFIDENTIALITY ORDER SHOULD BE

DENIED BECAUSE SMUG AGAIN FAILS TO JUSTIFY THE DRASTIC

“ATTORNEYS EYES ONLY” RESTRICTION EXCLUDING LIVELY FROM HIS

OWN DEFENSE.

A. Imposing an AEO restriction on relevant discovery is a drastic measure

which is highly disfavored.

The Court’s preclusion of any AEO restriction except upon a showing of “particularized

and compelling need” (Conf. Order, ¶ 17) reflects the highly disfavored nature of such restrictions.

“The common law presumes a right of public access to judicial records.” Siedle v. Putnam

Investments, Inc., 147 F.3d 7, 9 (1st Cir. 1998). Although this right is not absolute, and courts may

fashion protective orders prohibiting public disclosure in limited circumstances, id . at 9-10,

“attorneys eyes only” provisions are “the most restrictive possible protective order,” and “pose a

significant handicap on the restricted litigant” by making it “difficult, and perhaps impossible, for

an attorney to counsel a client . . . on the basis of information kept secret from the client.” Arvco


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Container Corp. v. Weyerhaeuser Co., 1:08-CV-548, 2009 WL 311125, *5-6 (W.D. Mich. Feb. 9,

2009) (denying request for “attorneys eyes only” protection). As such, an “attorneys eyes only”

restriction is highly disfavored because,

it is a drastic remedy given its impact on the party entitled to theinformation. For one thing, it limits the ability of the receiving party

to view the relevant evidence, fully discuss it with counsel, and

make intelligent litigation decisions. Also, in many cases, it limitsthe ability of a party to provide needed assistance to counsel.

Ragland v. Blue Cross Blue Shield of N. Dakota, 1:12-CV-080, 2013 WL 3776495 , *1-2 (D.N.D.

June 25, 2013) (emphasis added) (collecting cases where restriction was denied). For this reason,

“attorneys eyes only” restrictions will only be justified in “those rare instances” where, unlike here,

“there is no other effective alternative.” Id . at *2 (denying “attorneys eyes only” restriction).

B. SMUG’s motion is wholly insufficient to justify the drastic and highly

disfavored AEO restriction.

1. SMUG fai ls to put forth evidence of a compell ing need for

an AEO restri ction.

SMUG’s purported justifications for imposing an AEO restriction on documents relevant

to Lively’s defense are protecting the safety of SMUG’s constituents and preventing Lively’s

“campaign of discrimination and persecution.” (Dkt. No. 150 at 8-9.) SMUG has presented

absolutely no evidence that such a drastic measure is warranted here. The only evidence before

this Court is that Lively has never “outed” a homosexual, lesbian or transgender person by publicly

revealing their sexuality or sexual preferences or whereabouts without their consent. (Declaration

of Scott Lively in Opposition to Plaintiff’s Motion to Amend Protective Order (“Lively

Declaration,” attached hereto as Exhibit A), ¶ 2; Declaration of Scott Lively in Response to

Plaintiff’s Motion for Protective Order (Dkt. No. 90-1, “Lively Declaration 90-1,” attached hereto

as Exhibit B), ¶ 2.) Lively has never assisted anyone in perpetrating such “outings,” nor has he

encouraged or condoned such “outings.” (Lively Decl., ¶ 2; Lively Decl. 90-1, ¶¶ 3-4). On the


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contrary, Lively has unequivocally condemned others in Uganda who have engaged in such

“outings,” and has praised the Ugandan courts for punishing them. (Lively Decl., ¶ 2; Lively Decl.

90-1, ¶ 4.) Lively has no intention to publicly disclose the identity, sexuality, sexual preferences

or practices, whereabouts or associational activities of any homosexual, lesbian or transgender

person in Uganda or anywhere else. (Lively Decl., ¶ 2; Lively Decl. 90-1, ¶ 5.)

SMUG has failed to rebut this evidence with anything that contradicts it. Notably,

SMUG’s motion comes after more than one year and a half of extensive, full-fledged discovery

in which literally tens of thousands of documents have been exchanged by the parties. Still, the

only justification that SMUG can muster now for excluding Lively from his own defense is

SMUG’s unproven allegations which “‘provide a background to the instant dispute over a

protective order.’” (Dkt. No. 150 at 4 (quoting Dkt. No. 102 at 2).) These background allegations

include a “coordinated and sustained campaign [by an unnamed person] to target and demonize

the LGBTI community in Uganda,” “a leaked document [by an unnamed person] that discussed

the strategies of Plaintiff,” and Lively’s mere alleged association with four Ugandan individuals

who allegedly cons pired to “out” “LGBTI advocates.” (Dkt. No. 150 at 4-5.) However, SMUG

does not present a shred of evidence that Lively was himself involved in such alleged conduct, or

that he encouraged it, or that he even knew about it. There is nothing in SMUG’s motion that even

comes close to rebutting Lively’s sworn declarations that he has, in fact, condemned such conduct

and that his “association with individuals in Uganda, including Stephen Langa, Martin Ssempa

and James Buturo, has always been and remains strictly for lawful and constitutionally-protected


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purposes, that is, to lawfully speak and to engage in public and political advocacy on civil and

political matters of public importance.” (Lively Decl., ¶ 2; Lively Decl. 90-1, ¶ 9.) 4

Punishing Lively for his lawful association with other individuals without any, much less

strict, proof that he was himself responsible for any unlawful conduct allegedly committed by

those individuals, would be an unconstitutional violation of Lively’s First Amendment rights. See

N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982) (“Civil liability may not be

imposed merely because an individual belonged to a group, some members of which committed

acts of violence”). SMUG has brought forth no evidence that Lively has “personally agreed to

employ the illegal means contemplated” by his associates – in this case the alleged forced “outing”

of homosexuals – which is the minimum threshold requirement for punishing speech and

association “within the shadow of the First Amendment.” United States v. Spock , 416 F.2d 165,

172, 176 (1st Cir. 1969). Indeed, SMUG has not even alleged that Lively has “personally agreed

to employ” the forced “outing” of homosexuals, much less proven it. Yet SMUG invites the Court

to impose a debilitating litigation handicap upon Lively, based solely upon his lawful association

with others. This is nothing short of an invitation to violate the associational rights of a United

4 In the nearly three years since filing the Amended Complaint, the only evidence adduced by

SMUG relevant to what Lively actually did in Uganda disproves SMUG’s allegations. On May12, 2105, SMUG took the deposition of Caleb Brundidge, who spoke along with Lively at the

March 2009 “Seminar on Exposing the Homosexual Agenda” in Uganda. (Dkt. No. 27, ¶ 36;

Transcript of Deposition of Caleb Brundidge on May 12, 2015 (“Brundidge Deposition,” excerpts

of which are attached hereto as Exhibit C.) (The attached excerpts are from the preliminary “rough” copy of the Brundidge Deposition transcript provided to Lively’s counsel by SMUG’s counsel;

the parties await the final transcript.) Brundidge testified that Lively did not advocate “violence

against homosexuals,” “that the death penalty be imposed for homosexual behavior or againsthomosexuals,” “that life sentences be imposed against homosexuals,” “that the media publish the

names and/or pictures and/or addresses of homosexuals,” “that landlords should evict . . .

homosexuals,” “that police should raid either the homes or the meetings of homosexuals,” or “that

police should arrest homosexuals or homosexual advocates.” (Brundidge Dep. at 109:20-111:21.)


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States citizen, even while invoking those very same rights on behalf of a foreigner and stranger to

the U.S. Constitution and U.S. courts.

SMUG’s evidentiary failures are fatal to its request for an “attorneys eyes only” litigation

burden. See, e.g., Ragland , 2013 WL 3776495 at *2 (“attorneys eyes only” provision “should not

be authorized simply because one of the parties would prefer that certain information not be

disclosed to an opposing party”); Arvco Container Corp., 2009 WL 311125 at * 8 (“A litigant's

vague feeling of discomfort or its desire to hobble its opponent in litigation do not establish good

cause”); Dorchen/Martin Assoc., Inc. v. Brook of Cheboygan, 11-10561, 2012 WL 1936415, *1

(E.D. Mich. May 29, 2012) (“Defendants submit good cause exists but they make no specific

allegations, let alone demonstrations of fact, indicating why good cause exists to impose the most

restrictive order regarding the requested information”) (denying “attorneys eyes only” restriction);

EQ Oklahoma, Inc. v. A Clean Env't Co., 11-CV-510-GKF-PJC, 2012 WL 5429869, *1 (N.D.

Okla. Nov. 7, 2012) (“ACE set forth various factual assertions in opposition to EQ's proposed

order, but provided no evidentiary support to this Court”) (denying “attorneys eyes only”

restriction) (emphasis in original).

Moreover, SMUG has presented no authority for its pro position that “attorneys eyes only”

provisions are even suitable outside of the trade secrets context, where they have been traditionally

employed. See, e.g., Ragland , 2013 WL 3776495 at *1 (“limiting disclosure on an ‘attorneys' eyes

only’ basis is recognized as an appropriate method of protecting information in very limited

situations, e.g., cases involving trade secrets”) (emphasis added); Multi-Core, Inc. v. S. Water

Treatment Co., 139 F.R.D. 262 (D. Mass. 1991) (cited by SMUG) (ordering disclosure of

defendant’s secret formula to only plaintiff’s counsel and experts). It is one thing to preclude a

litigant from knowing the secret formula of his competitor’s product, and another thing entirely to


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preclude that litigant from even knowing who is suing him, who is pointing the finger at him, and

what their damages claims are, and to prevent him from assisting in his own defense against them.

SMUG has presented no case in which this type of litigation handicap has ever been imposed.

Indeed, SMUG unconvincingly cites two other commercial trade secret cases to attempt to

justify an AEO restriction in this case, Voice Domain Technologies, LLC v. Apple, Inc., No.

CIV.A. 13-40138-TSH, 2014 WL 5106413 (D. Mass. 2014); Westside-Marrero Jeep Eagle, Inc.

v. Chrysler Corp., Inc., No. CIV. A. 97-3012, 1998 WL 186728 (E.D. La. 1998). Both, of course,

are distinguishable.

In Voice Domain Technologies and Westside-Marrero Jeep Eagle, a finding of risk of

subconscious or inadvertent disclosure was necessitated by the indisputable position of the parties

seeking disclosure as competitors of the parties seeking the restriction. See 2014 WL 5106413 at

*5; 1998 WL 186728 at *2. In neither, however, was the requesting party’s position as a

competitor the ultimate issue in the case. By contrast, in the instant case, SMUG’s argument that

Lively’s mere possession of confidential information creates a risk of disclosure endangering

SMUG presumes the ultimate fact in the case on which SMUG bears the burden of proof at trial —

that Lively is persecuting SMUG. Lively unequivocally denies this ultimate fact of persecution,

and SMUG has yet to even attempt to prove it. It would be improper and unfair for this Court to

presume that SMUG has already prevailed on its claims, which the Court must do to accept

SMUG’s arguments, with the result being a substantial restriction on Lively’s ability to participate

in his own defense against those very claims.

The only non-commercial case cited by SMUG, In re The City of New York , 607 F.3d 923

(2d Cir. 2010), strays even farther from relevance to the instant dispute. In City of New York , the

court held that the confidential intelligence files of the New York City Police Department were


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protected from any disclosure by the law enforcement privilege, which shifted the burden to the

plaintiffs seeking disclosure to show a compelling need for the files. 607 F.3d at 929. Furthermore,

the primary interest at stake in restricting disclosure was the safety of not only NYPD officers, but

also the entire general public of New York City. Id. at 936. In the instant case, SMUG can point

to no similarly applicable privilege shifting the burden to Lively to justify disclosure, nor can

SMUG claim that it is seeking to protect the safety of the entire general public of Uganda (or any

of its cities).

Having no evidence to prop up its motion, SMUG turns to bald innuendo.5 In between

recitations of its unproved allegations against Lively of “a coordinated and sustained campaign to

target and demonize the LGBTI community in Uganda,” and more unproved allegations of

Lively’s “work with Ugandan-based co-conspirators,” SMUG indelicately interposes an account

of a confidential document “leaked” in Uganda “that discussed the strategies of Plaintiff . . . .”

(Dkt. No. 150 at 4-5.) But SMUG fails, as usual, to cite a single fact connecting Lively to the

“leak.” The alleged “leak” supposedly took place in 2012. (Dkt. No. 150 at 4-5.) Since this was

well before discovery in this case began, and before SMUG produced any documents to Lively,

Lively could not possibly have been the source of the alleged leak. Tellingly, SMUG does not

5 This is not the first time SMUG has turned to innuendo in the absence of evidence. For example,

in its original Complaint, SMUG alleged that David Kato, SMUG’s Advocacy Officer, “was

bludgeoned to death in his home,” “four months” after he was “outed” by a “tabloid newspaper”

“under the headline, HANG THEM,” thereby implying that Kato was killed by a homophobe presumably enraged by Lively’s speeches and writings. (Dkt. No. 1, ¶¶ 8, 126-130.) As reported

in leading homosexual publications and respected international media, however, Kato was killed

not by an enraged homophobe but by a homosexual prostitute whom Kato hired for sexual servicesand refused to pay. (Dkt. No. 22 at 5 & n.5, 6; Dkt. No. 33 at 7-8 & nn.6-7.) SMUG ignored these

rebuttals outright, and continued to make the same insinuations in its Amended Complaint, albeit

in a somewhat more nuanced fashion. (Dkt. No. 5, ¶¶ 10, 219-222.)


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90-1, ¶¶ 8, 10.). Lively is uniquely aware of his speech and conduct in Uganda, his interaction with

various individuals in the context of the allegations raised by SMUG (some of whom may be

shown in the video of the workshop allegedly “raided” in 2012), and many of the facts and

circumstances surrounding the events giving rise to this action. As such, Lively’s counsel— none

of whom have been to Uganda — must rely heavily on him for this knowledge. Lively plans to

continue to play an integral part in his own defense, by assisting with the rebuttal of the claims

asserted by Plaintiff and its witnesses. (Lively Decl., ¶ 2; Lively Decl. 90-1, ¶ 10.) But SMUG’s

proposed “attorneys eyes only” restriction would effectively shut Lively out of his own defense,

by keeping him in the dark about the identity of the secret SMUG members and constituents who

are accusing him, and hiding the extent of damages SMUG intends to recover from him.

For example, SMUG alleges in its Amended Complaint that it suffered harm from having

to retain security personnel and take additional security measures, and prays for compensatory

damages, as well as punitive and exemplary damages, as a result of the alleged harm. (Dkt. No.

27, ¶¶ 223-24, at 59.) Thus, the nature and scope of security measures implemented by SMUG are

critically relevant to its damages claim (which SMUG has yet to quantify), and therefore critically

important to Lively’s defense.7 Lively has a right to test, verify, and rebut each SMUG claim that

any particular security measure was taken in response to his conduct. Given that SMUG has made

the extent of its security “response” a damages issue, SMUG’s self -serving statement that “Lively

does not himself need to know the details of how SMUG, its member organizations and the health

7 Nor can the relatively small number of documents SMUG (currently) seeks to designate AEO,

approximately 220, justify the drastic restriction. Given the critical relevance of the documents

demonstrated herein, restricting Lively from even one page is not justified.


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clinic are working to protect themselves from the persecution” defies logic. (Dkt. No. 150 at 10 -

11.)

Also illogical is SMUG’s stance that the danger of Lively, an individual, seeing SMUG’s

“particularly sensitive” information is greater than multiple “representatives of foreign

governments” having access to the same information. (Dkt. No. 150 at 6, 11.) SMUG does not

even attempt to explain how widespread distribution of its “particularly sensitive” information to

multiple, presumably sovereign foreign governments is more secure than disclosure to Lively who

is subject to this Court’s Confidentiality Order (and has strictly complied therewith).

CONCLUSION

At the end of the day, the Court has already and correctly denied the drastic relief prayed

for by SMUG. The existing Confidentiality Order has proven more than adequate to protect the

confidentiality of thousands upon thousands of documents produced thus far in discovery. SMUG

does not and cannot allege that Lively has disregarded the strict confidentiality obligations

imposed by the Court, nor that Lively intends to disregard them in the future. The only evidence

before the Court is to the contrary. As such, there is no good reason to impose now the “shackles”

and “trammels” that this Court has previously considered and rightfully rejected. For these reasons,

the Court should deny SMUG’s motion.


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Respectfully submitted,

Philip D. Moran(MA Bar # 353920)

265 Essex Street, Suite 202

Salem, Massachusetts 01970

Tel: (978) 745-6085 Fax: (978) 741-2572

Email: [email protected]

s/ Roger K. GannamMathew D. Staver

Admitted Pro Hac Vice

Horatio G. MihetAdmitted Pro Hac ViceRoger K. Gannam

Admitted Pro Hac Vice

LIBERTY COUNSELP.O. Box 540774

Orlando, FL 32854-0774

800-671-1776 Telephone

407-875-0770 [email protected]

Attorneys for Defendant Scott Lively

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically

with the Court on May 22, 2015. Service will be effectuated by the Court’s electronic notification

system upon all counsel or parties of record.

s/ Roger K. Gannam________________

Roger K. Gannam

Attorney for Defendant Scott Lively


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SEXUAL MINORITIES UGANDA, : CIVIL ACTION:

Plaintiff, : 3:12-CV-30051-MAP

:


:

SCOTT LIVELY, individually and as :

president of Abiding Truth Ministries, :

:

Defendant. :

DECLARATION OF SCOTT LIVELY IN OPPOSITION

TO PLAINTIFF’S MOTION TO AMEND PROTECTIVE ORDER

I, SCOTT LIVELY, declare under oath as follows:

1) I am over the age of 18 years, and have personal knowledge of the matters

below. The statements made in this Declaration are true and correct, and if called upon to

testify to them I would and could do so competently.

2) All averments in the Declaration of Scott Lively in Response to Plaintiff’s

Motion for Protective Order filed December 9, 2013 (Dkt. No. 90-1) were true when I first

made them, remain true today, and are incorporated into this Declaration, in their entirety,

as if fully set forth herein.

3) I have strictly complied with the Order Regarding Confidentiality of Certain

Discovery Material entered March 3, 2014 (Dkt. No. 106) (the “Confidentiality Order”).

Specifically, I have not disclosed any Confidential Discovery Material (as defined in the

Confidentiality Order) produced by SMUG to any person in Uganda or otherwise in

violation of the Confidentiality Order.

Case 3:12-cv-30051-MAP Document 159-1 Filed 05/22/15 Page 1 of 2

EXHIBIT A

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SEXUAL MINORITIES UGANDA, : CIVIL ACTION:

Plaintiff, : 3:12-CV-30051-MAP

:


:

SCOTT LIVELY, individually and as : MAGISTRATE JUDGE NEIMAN

president of Abiding Truth Ministries, :

:

Defendant. :

DECLARATION OF SCOTT LIVELY IN RESPONSE

TO PLAINTIFF’S MOTION FOR PROTECTIVE ORDER

I, SCOTT LIVELY, declare under oath as follows:

1) I am over the age of 18 years, and have personal knowledge of the matters

below. The statements made in this Declaration are true and correct, and if called upon to

testify to them I would and could do so competently.

2) I have never “outed” a homosexual, lesbian or transgender person by

publicly revealing their sexuality or sexual preferences, or whereabouts, without their

consent.

3) I have never assisted anyone to “out” a homosexual, lesbian or transgender

person by publicly revealing their sexuality or sexual preferences, or whereabouts, without

their consent.

4) I have never encouraged or condoned the “outing” of any homosexual,

lesbian or transgender person by publicly revealing their sexuality or sexual preferences, or

whereabouts, without their consent. On the contrary, I have unequivocally condemned such

Case 3:12-cv-30051-MAP Document 90-1 Filed 12/09/13 Page 1 of 4Case 3:12-cv-30051-MAP Document 159-2 Filed 05/22/15 Page 1 of 4

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practices. For example, when a Ugandan tabloid published the names of individuals

allegedly involved in homosexuality under a banner that said “Hang Them,” I condemned

that action and I praised the Ugandan courts for punishing it. I wrote publicly:

The Ugandan newspaper which "outed" the Ugandan homosexual activistsunder a banner saying "Hang Them," clearly WAS an incitement to

violence and I join the rest of the civilized world in condemning it. The

Ugandan court was right in declaring it illegal.

Dr. Lively Comments on Uganda Murder , Defend the Family International, January

28, 2011 (available at

http://www.defendthefamily.com/pfrc/newsarchives.php?id=5842336).

5) I have no intention to publicly disclose the identity, sexuality, sexual

preferences or practices, whereabouts or associational activities of any homosexual, lesbian

or transgender person in Uganda (or anywhere else for that matter).

6) If this Court were to enter a Protective Order prohibiting the public

disclosure of the identity, sexuality, sexual preferences or practices, whereabouts or

associational activities of any homosexual, lesbian or transgender person in Uganda, I

would strictly comply with it, for two reasons.

7) First, as stated above, I have no interest or intention in making such

disclosures, and I believe them to be wrong.

8) Second, as an attorney (licensed by the State of California, but currently on

inactive status due to may residence in Massachusetts), I have the utmost respect for the law

and court orders. I also understand that violating a court order is a crime that carries serious

consequences and penalties. During the time I practiced law in California, I was routinely

entrusted with confidential information about clients and others, and I have never even been


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3

accused, much less adjudicated guilty, of breaching confidentiality, making improper

disclosures or disregarding court orders.

9)

My association and communications with individuals in Uganda, including

Stephen Langa, Martin Ssempa and James Buturo, has always been and remains strictly for

lawful and constitutionally-protected purposes, that is, to lawfully speak and to engage in

public and political advocacy on civil and political matters of public importance. I have no

knowledge that these individuals have ever themselves “outed,” or assisted others to “out,”

any homosexual, lesbian or transgender person by publicly revealing their sexuality or

sexual preferences, or whereabouts, without their consent. I have no intention or interest in

ever engaging in such activity with these or any other individuals. I would not disclose any

information protected by court order to these individuals, or to anyone else who is not

authorized to receive such information.

10) Throughout this litigation, I have been actively involved in assisting my

attorneys as they defend me against Plaintiff’s baseless and frivolous allegations. I intend to

continue to play an integral part in my own defense, until Plaintiff’s charges are exposed for

the sham that they are, and the lawsuit is dismissed. Knowing my accusers and the

“witnesses” gathered by Plaintiff against me, and being able to test, verify and rebut their

allegations, is a critical aspect of my defense that requires my participation, without which

neither I nor my attorneys can effectively defend this suit.


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22/27877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com

[Page 1]


DISTRICT OF MASSACHUSETTS


-----------------------------------x

SEXUAL MINORITIES UGANDA,

Plaintiff,

Civil Action No.

-against-

3-12-CV-30061-MAP

SCOTT LIVELY,

Defendant.

-----------------------------------x

May 12, 2015

10:10 a.m.

Deposition of CALEB BRUNDIDGE, taken by

Plaintiff, pursuant to Notice, at the

offices of Dorsey & Whitnety, 51 West 52nd

Street, New York, New York, before Joelle

Falsetta, a certified Shorthand Reporter

and Notary Public within and for the State

of New York.


EXHIBIT C

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[Page 2]

1

2 A P P E A R A N C E S:

3

4

5

DORSEY & WHITNEY, LLP

6 Attorneys for Plaintiffs

51 West 52nd Street

7 New York, New York ^ ZIP ^

8 BY: VIKRAM KUMAR, ESQ.

KALEB MCMEELY, ESQ

9

10 LIBERTY COUNSEL

Attorneys for Defendant

11 P.O. Box 540774

Orlando, Florida 540774

12

BY: HORATIO G. MIHET ESQ.

13 VP of LegaL Affairs and Chief Litigation

Counsel

14

15

16 JOHN P. MARGAND

17 Attorneys for witness

670 white plains

18

19

ALSO PRESENT:

20

juan Torres, Videographer21 Pam Spees,

Azure Wheeler

22

23

24

25


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[Page 109]

1 CALEB BRUNDIDGE

2 there was nothing I could really do to

3 help because I am over here and they

4 are over there. And yes, so it was

5 kind of just sympathizing with them

6 because there was nothing I could do to

7 help.

8 Q. Do you remember how many

9 additional communications you may have

10 had with that person?

11 A. That was it.

12 Q. You responded back?

13 A. Yes.

14 Q. Did he ever -- did he or she

15 ever respond back to you?

16 A. Not to my --

17 Q. Recollection?

18 A. -- recollection.

19 Q. Okay.

20 During your visit to Uganda, did

21 you at any time advocate violence

22 against homosexuals?

23 A. No.

24 Q. Did Mr. Lively?

25 A. No.


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[Page 110]

1 CALEB BRUNDIDGE

2 Q. During your time in Uganda,

3 or at any time other time, did you

4 advocate that the death penalty be

5 imposed for homosexual behavior or

6 against homosexuals?

7 A. No.


9 A. Not to my knowledge.

10 Q. Did you ever advocate in

11 Uganda that life sentences be imposed

12 against homosexuals or homosexual

13 behavior?

14 A. No.




18 Uganda that the media publish the names

19 and/or pictures and/or addresses of

20 homosexuals?

21 A. Did I?

22 Q. Yes.

23 A. No.




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[Page 111]

1 CALEB BRUNDIDGE


3 Uganda that landlords should evict

4 tenants who might be homosexuals or who

5 might engage in homosexual behavior?

6 A. No.




10 Uganda that police should raid either

11 the homes or the meetings of

12 homosexuals?

13 A. No.




17 Uganda that police should arrest

18 homosexuals or homosexual advocates?

19 A. No.



22 Q. These things that we talked

23 about just now, the violence, the death

24 penalty, life sentences, forced

25 outings, evictions, police arrests and


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[Page 112]

1 CALEB BRUNDIDGE

2 police brutality, did you hear any of

3 those things discussed while you were

4 in Uganda?

5 A. No.

6 MR. MIHET: Thank you,

7 Mr. Brundidge. Those are all the

8 questions that I had for you.

9 THE WITNESS: Thank you.

10 MR. KUMAR: We have a brief

11 redirect based on the questions

12 you just asked.

13 EXAMINATION BY MR. KUMAR:

14 Q. Mr. Brundidge I would like

15 to refer you back to the IHF summer

16 2009 newsletter?

17 A. Yes.

18 Q. To page eight?

19 A. Yes.

20 Q. And to the last sentence of

21 the second paragraph?

22 MR. MARGAND: Which

23 column?

24 MR. KUMAR: Until the left

25 column.


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