Case 1:13-cv-01363-EGS Document 87 Filed 06/03/16 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action No. 13-CV-1363 (EGS)

v.
U.S. DEPARTMENT OF STATE,
Defendant.

NONPARTY DEPONENT BRYAN PAGLIANO’S
REPLY IN SUPPORT OF MOTION FOR ENTRY OF A PROTECTIVE ORDER
Judicial Watch’s purported justifications for creating an audiovisual recording of Mr.
Pagliano’s deposition are without merit. As set forth below, the narrow scope of permissible
discovery allows Mr. Pagliano to unequivocally represent to the Court that he will decline to
answer every question asked of him in reliance on his right under the Fifth Amendment. In
addition, any advantages associated with an audiovisual recording in a typical deposition are
inapplicable here. Judicial Watch has failed to provide any assurances regarding the future use of
a video recording and has expressly acknowledged the prospects of a motion to lift the Sealing
Order, confirming the need for a protective order. Judicial Watch cannot articulate a legitimate,
case-oriented purpose to video record the deposition. The Court should eliminate the burden on
Mr. Pagliano’s constitutional rights and the risk that a video recording may later be used for
political purposes entirely unrelated to this matter.
I.

THERE IS NO PROPER PURPOSE FOR VIDEOTAPING MR. PAGLIANO
REPEATEDLY INVOKING HIS FIFTH AMENDMENT RIGHT
As a threshold matter, given that Judicial Watch has been repeatedly notified that Mr.

Pagliano will not testify, a persistent effort to videotape Mr. Pagliano invoking the Fifth
Amendment would appear to violate the principles set forth in D.C. Legal Ethics Opinion 358

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(2011). Nevertheless, Mr. Pagliano has not objected to being deposed, has cooperated in the
scheduling of the deposition, and has not sought to limit the public’s access to his responses
under oath. He has merely requested that the Court limit the manner in which the deposition is
recorded in light of well-founded constitutional concerns.
Judicial Watch incorrectly “presumes” that Mr. Pagliano “will answer certain questions
that do not present any risk of prosecution.” Opp’n 2. Here, the Court has authorized limited
discovery1 to clarify discrete factual matters and resolve what the Court described as the “narrow
legal question” presented. Given the limited scope of permissible inquiry, Mr. Pagliano’s
counsel represents to the Court, as we have repeatedly represented to Judicial Watch, that Mr.
Pagliano will assert the Fifth Amendment and will decline to answer each and every question
after he identifies himself for the record. Under the highly speculative scenario suggested by
Judicial Watch—in which Mr. Pagliano spontaneously decides to testify contrary to advice of
counsel—Judicial Watch is free to suspend the deposition and seek relief from the Court. That
will not be necessary here.
Judicial Watch summarizes the virtues of an audiovisual recording in a typical case, but
those advantages are not present here. While “[f]acial expressions, voice inflections, intonation,
gestures, and body language” certainly go directly to a deponent’s credibility in the usual case,
Judicial Watch does not explain why the Court would need to weigh the credibility of a deponent
plainly invoking his Fifth Amendment right and declining to testify. Nor does Judicial Watch
acknowledge, much less demonstrate, why a nonparty’s demeanor while invoking the Fifth

1

“The scope of permissible discovery shall be as follows: the creation and operation of clintonemail.com
for State Department business, as well as the State Department’s approach and practice for processing FOIA
requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State processing of the
FOIA request that is the subject of this action.” Memorandum and Order at 12, May 4, 2016, ECF No. 73 (the
“Discovery Order”).

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Amendment would shed light on whether the U.S. Department of State conducted a reasonable
search for documents in response to Judicial Watch’s FOIA request.
Judicial Watch fails to cite a single case addressing a witness who declines to answer on
constitutional grounds,2 let alone a case authorizing the use of an audiovisual recording over the
objection of a deponent, who has provided notice that he will invoke the Fifth Amendment.
After citing Riley v. Murdock, 156 F.R.D. 130, 131 (E.D.N.C. 1994), where the court permitted a
video recording to “allow[] a trial jury to consider the demeanor of a witness while testifying,”
Judicial Watch acknowledges that “no jury will be impaneled in this case.” Opp’n 2. Judicial
Watch claims “this case is about the public’s ‘right to know details related to the creation,
purpose and use of the clintonemail.com system.’” Id. at 3. It does not follow that an
audiovisual recording of a nonparty witness, invoking his constitutional rights, is required to
achieve this purpose. Judicial Watch does not identify any legitimate benefit of a video
recording that would not be achieved by a traditional deposition transcript.
II.

AN AUDIOVISUAL RECORDING WOULD BURDEN MR. PAGLIANO’S
CONSTITUTIONAL RIGHTS
Judicial Watch does not dispute the prospects of a forthcoming motion to lift the Sealing

Order, but recommends that the Court address Mr. Pagliano’s constitutional concerns “if and
when a motion is made to lift the existing protective order.” Id. at 2. However, the risk to Mr.
Pagliano will be created as soon as the video is recorded. If, as Judicial Watch contemplates, the
recording were unsealed, there would be, as one court put it, “an endless succession of attempts,
not necessarily by [the news organization] alone, to obtain access to [the video] for purposes

2

While the deponent in Fanelli v. Centenary College, 211 F.R.D. 268, 269 (D.N.J. 2002) initially
“expected to invoke the Fifth Amendment or spousal immunity privileges in answer to certain questions,” the basis
for her objection to video recording was “her discomfort at being videotaped,” “aggravation of certain psychiatric
symptoms,” and “stress, which would in turn result in her giving less than her best testimony.” The court did not
address the propriety of an audiovisual recording where a deponent intends to invoke the Fifth Amendment.

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unrelated to the . . . case and an attendant drain on [the deponent’s] own vigilance, resolve, and
resources in fending them off.” Westmoreland v. CBS, Inc., 584 F. Supp. 1206, 1213 (D.D.C.
1984).
The very existence of an audiovisual recording presents a risk that the video will
eventually be exploited to create a widely broadcast public inference of guilt. See Hobley v.
Burge, 225 F.R.D. 221, 225 (N.D. Ill. 2004) (barring dissemination of police officer deposition
videos where the officers repeatedly invoked their Fifth Amendment rights and where the
dissemination of the videos was designed to create an inference of guilt). Judicial Watch argues,
“[N]o jury will be impaneled in this case. Hence, no harm can result from a video being
created.” Opp’n 2. However, the danger from a constitutional perspective is not the effect of the
video on the trier of fact in this civil case, but the potential tainting effect on the jury pool in a
potential government enforcement action. See, e.g., Hobley, 225 F.R.D. at 226.
While Judicial Watch fails to cite a single analogous case involving an assertion of the
Fifth Amendment or the narrow discovery authorized by the Court, there is ample precedent for
prohibiting the use of an audiovisual recording in similar circumstances.3 See Lobb v. United Air
Lines, No. 92-15846, 1993 U.S. App. LEXIS 17495, at *3 (9th Cir. July 8, 1993) (concluding
that the district court did not abuse its discretion in deciding that “the added presentation value of
the videotape format did not outweigh the additional burden to the defendants”); see Int’l Union,
United Auto., Aerospace and Agric. Implement Workers of Am. v. Nat’l Caucus of Labor Comm.,
525 F.2d 323, 326 (2d Cir. 1975) (upholding a district court’s order allowing a party to record a
deposition solely by stenographic means); see Citizens for Responsibility and Ethics in

3

Two of the cases in this string cite predate the 1993 amendment of Federal Rule of Civil Procedure 30.
However, the rationales for the decisions remain applicable here. While Rule 30(b) has been expanded to more
liberally permit video recordings, the Rule expressly contemplates that the court may “order[] otherwise.” See FED.
R. CIV. P. 30(b)(3)(A).

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Washington v. Cheney, 580 F. Supp. 2d 168, 183-84 (D.D.C. 2008) (granting protective order
prohibiting an audiovisual recording because the normal advantages of a videotaped deposition
were not implicated in light of the narrow permissible discovery); see Posr v. Roadarmel, 466 F.
Supp. 2d 527, 529 (N.D.N.Y. 2006) (issuing a protective order to prevent a videotaped
deposition because of the “significant risk that plaintiff would misuse the videotape”); see
Westmoreland, 584 F. Supp. at 1213 (denying permission to a news organization to videotape the
deposition of a public figure where CBS would not agree unequivocally never to broadcast the
tape and the deponent had a well-founded fear that CBS would use the videotape as broadcast
material).
Citizens for Responsibility and Ethics in Washington is particularly instructive. There,
the plaintiff “watchdog” organization alleged that the Office of Vice President, among other
government agencies, inadequately preserved records under the Presidential Records Act
(“PRA”)—a claim that, like Judicial Watch’s claim, would not typically involve discovery. 580
F. Supp. 2d at 183. This Court granted the plaintiff’s request to depose the Vice President’s
Chief of Staff and the Director of the Presidential Materials Staff in the Office of Presidential
Libraries. Id. at 176. The defendants moved for a protective order prohibiting the plaintiff from
videotaping the depositions. Id. at 182. Granting the motion, this Court held:
The normal advantages of videotaping depositions are not, however,
implicated in this case. Rather, the Court granted limited discovery to
resolve the factual and legal predicates for Defendants’ narrow definitions
associated with application of the PRA. Resolution of these issues does
not involve the presentation of deposition testimony to a jury or require a
fact-finder to weigh the credibility of competing witnesses, i.e., the
situations in which videotaped depositions are typically helpful . . . . Put
simply, being able to watch videotaped depositions will not assist the
Court in resolving the discrete legal issues before it . . . . Although Rule
30(b) contemplates that, as a matter of ordinary course, parties may
videotape depositions, the limited discovery at issue here is not a matter of
ordinary course. The Court finds in its discretion that permitting Plaintiffs
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to videotape the deposition testimony . . . will not assist the Court in
resolution of the discrete legal questions at hand, and the Court therefore
orders that these two depositions shall not be videotaped.
Id. at 183-84. In light of Mr. Pagliano’s clear intention to assert the Fifth Amendment, these
considerations apply with even greater force to his prospective deposition.
CONCLUSION
For the reasons set forth above and in Mr. Pagliano’s opening brief, the Court should
issue an Order precluding Judicial Watch from recording Mr. Pagliano’s deposition by
audiovisual means.

Dated: June 3, 2016

Respectfully submitted,

By: /s/ Mark J. MacDougall
Mark J. MacDougall (DC Bar No. 398118)
Sean D’Arcy (DC Bar No. 440693)
Constance O’Connor (DC Bar No. 490885)
Connor Mullin (DC Bar No. 981715)
AKIN GUMP STRAUSS HAUER & FELD LLP
1333 New Hampshire Avenue, NW
Washington, DC 20036
(202) 887-4000
(202) 887-4288 (fax)
Counsel for Bryan Pagliano

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CERTIFICATE OF SERVICE
The undersigned certifies that on this 3rd day of June 2016, a true and correct copy of the
foregoing document was served upon the parties in this case via the Court’s electronic filing
system and is available for viewing and downloading from the ECF system.

/s/ Mark J. MacDougall
Mark J. MacDougall
DC Bar No. 398118