Case 3:12-cv-30051-MAP Document 201 Filed 07/25/15 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION

SEXUAL MINORITIES , : CIVIL ACTION : Plaintiff, : 3:12-CV-30051-MAP : v. : JUDGE MICHAEL A. PONSOR : SCOTT LIVELY, individually and as : MAGISTRATE JUDGE president of , : KATHERINE A. ROBERTSON : Defendant. :

REQUEST FOR ORAL ARGUMENT ON DEFENDANT SCOTT LIVELY’S MOTION TO COMPEL PLAINTIFF TO PRODUCE UNREDACTED DOCUMENTS AND FOR EXPEDITED CONSIDERATION

Defendant, Scott Lively (“Lively”), requests oral argument on his Motion to Compel

Plaintiff to Produce Unredacted Documents (Dkt. No. 173, “Motion to Compel”). The Court now has before it Lively’s Memorandum in Support of his Motion to Compel (Dkt. No. 174, Lively’s

“Memorandum”), and Plaintiff’s Opposition to the Motion to Compel (Dkt. No. 198, Plaintiff’s

“Opposition”). Lively believes that oral argument may assist the Court, and wishes to be heard, on the following issues, inter alia:

1. All three of the primary cases cited by Plaintiff (“SMUG”) in its Opposition (pp.

10-11) to defend its thousands of unilateral redactions on the basis relevance and responsiveness, against the substantial authority cited in Lively’s Memorandum (pp. 2-5) showing such redactions to be improper, have been specifically considered, distinguished, and rejected by other courts. See, e.g., U.S. ex rel. Simms v. Austin Radiological Ass'n, 292 F.R.D. 378, 385-86 (W.D.

Tex. 2013); Beverage Distributors, Inc. v. Miller Brewing Co., No. 2:08-CV-1112, 2010 WL

1727640, at *5 (S.D. Ohio Apr. 28, 2010) (“In those cases cited by defendants where redactions Case 3:12-cv-30051-MAP Document 201 Filed 07/25/15 Page 2 of 3

were approved, the number of redacted documents appeared to be small, and the content of the redactions was readily apparent.”). The cases from this Court cited in SMUG’s Opposition (p.

11) are readily distinguishable. See Zurich American Ins. Co. v. Watts Regulator Co., No.

CIV.A. 10-11190-NMG, 2013 WL 1207412, *2 (D. Mass. Mar. 21, 2013) (denying motion to compel as untimely because filed months after fact discovery deadline, additionally commenting on relevance of redacted material and applicability of privilege); v. Bulger,

No. 99–10371–DJC, 2013 WL 2146202, at *2-3 (D. Mass. May 14, 2013) (denying motion seeking unredaction by government of information subject to specific criminal procedure standards relating to exculpatory evidence and confidential informant identities).

2. SMUG tacitly admits in its Opposition (p. 3) that it has violated this Court’s

Order Regarding Confidentiality of Certain Discovery Material (Dkt. No. 106, the

“Confidentiality Order”) by unilaterally withholding from production information it deems confidential or “highly confidential.”

3. SMUG admits in its Opposition (p. 8) that injury to its “advocacy and its very existence” as a result of alleged persecution by Lively1 is the critical issue in this case, but continues to argue not only that documents specifically relating to its advocacy and existence are irrelevant, but also that seeking such documents is not even reasonably calculated to lead to the discovery of admissible evidence (pp. 11-12).

4. SMUG fails to demonstrate that any First Amendment associational privilege is available to SMUG, a foreign person, or that any other associational privilege is available.

1 Although Plaintiff has now received Lively’s production and taken Lively’s deposition, for two days, Plaintiff still cites primarily to the unproven allegations of its Amended Complaint (Dkt. 27) as “evidence” of Lively’s alleged persecution and “significant support” for the “Anti- Homosexuality Bill.” (Pl. Opposition at 8.)

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Respectfully submitted,

Philip D. Moran /s/ Roger K. Gannam (MA Bar # 353920) Mathew D. Staver 265 Essex Street, Suite 202 Admitted Pro Hac Vice Salem, Massachusetts 01970 Horatio G. Mihet Tel: (978) 745-6085 Admitted Pro Hac Vice Fax: (978) 741-2572 Roger K. Gannam Email: [email protected] Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile [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 July 25, 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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