Filed
D.C. Superior Court
07/26/2016 16:53PM
Clerk of the Court

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
TRUMP OLD POST OFFICE LLC,
Plaintiff,
v.
CZ-NATIONAL, LLC, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

Case No. 2015 CA 5890 B
Calendar 12
Judge Brian F. Holeman

OMNIBUS ORDER
This matter comes before the Court upon consideration of (1) Plaintiff’s Motion for
Partial Summary Judgment, erroneously docketed in triplicate on July 19, 2016, and (2)
Defendants’ Motion for Partial Summary Judgment, filed on July 19, 2016.
Each party has filed dispositive motions that rely upon deposition testimony in support of
their respective requests for relief. However, each party presents woefully incomplete and
truncated versions of each deposition, which substantially impair this Court’s ability to
adjudicate any dispositive motion. (See, e.g., P’s Ex. 7 (transcript of the deposition of Geoffrey
Zakarian that skips from page 1 to page 251, omitting at least two-hundred and fifty (250) pages
of testimony).) Under the Superior Court Rules of Civil Procedure, Rule 56(c), the Court must
review a well-developed record that includes the contextual reading of prior testimony in order to
properly adjudicate a motion for summary judgment. Consequently, this Court is unable to
adjudicate the instant Motions as presented.
The remaining issue is the appropriate remedy. Defendants highlight the concerns
warranting judicial scrutiny:
[Plaintiff] has requested that aspects of the specific testimony []
remain confidential under the Protective Order [entered on May
30, 2016]. Without agreeing that the testimony is appropriately

 designated as confidential, some portions are redacted in the
attached exhibits per [Plaintiff’s] request. If the Court would like
to review the entire transcript portions without these minor
redactions, Defendants will submit unredacted copies under seal.
(Defendants’ Mem. of P&A at 20 n.3.) Contrary to Defendants’ assertions, the record indicates
that all proffered deposition transcripts contain more than “minor redactions.” (See id.) Each
deposition transcript is fraught with large omissions, broad swaths of redactions, and,
remarkably, “confidential” designations on all transcripts, even for testimony proffered by
independently retained expert witnesses. (See, e.g., Defendants’ Ex. J (designating as
confidential the testimony of Roger S. Cline, an expert retained to, inter alia, calculate
contractual damages).)
Not only does the foregoing impair this Court’s ability to adjudicate dispositive motions,
the parties’ conduct also implicates the First Amendment. The Supreme Court has emphasized
that “[i]t is clear that the courts of this country recognize a general right to inspect and copy
public records and documents, including judicial records and documents.” Nixon v. Warner
Communications, 435 U.S. 589, 597 (1978) (footnote omitted). This principle is predicated upon
the First Amendment of the Constitution, which “guarantees the press and the public a general
right of access to court proceedings and court documents unless there are compelling reasons
demonstrating why it cannot be observed.” Washington Post v. Robinson, 935 F.2d 282, 287
(D.C. Cir. 1991)1 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1985))
(citation omitted). The courts have repeatedly affirmed the First Amendment right to access
public records, such as in cases implicating matters of national security. See, e.g., Dhiab v.
Obama, 70 F. Supp. 3d 486, 491 (D.D.C. 2014) (requiring the Government to unseal videotapes
showing footage relating to the treatment of a prisoner detained in Guantánamo Bay).
1

Precedent from the United States District Court and United States Court of Appeals are persuasive, not
controlling, authority. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).

2

 The most notable witness is Donald J. Trump, nominee of the Republican Party for
President of the United States. (See generally Defendants’ Ex. A.) However, the discrete issue
of the public availability of deposition testimony of a person of this public stature is not foreign
to the courts. This Court need not look further than the judiciary’s treatment of deposition
testimony from a sitting President of the United States.
The United States District Court for the Eastern District of Arkansas, Western Division,
presided over a civil lawsuit brought by Paula Corbin Jones, a private citizen, against thenPresident of the United States William (“Bill”) Jefferson Clinton. Jones v. Ferguson, et al., 12 F.
Supp. 2d 931 (E.D. Ark. 1998). The district court determined that the transcript and video
recording of the deposition of President Clinton must be unsealed and made publicly available:
Plaintiff [Jones] essentially argues that the Confidentiality Order
should remain in effect for so long as there is a possibility that this
case will be tried to a jury as the parties’ rights to a fair trial are
paramount. The President [Clinton] likewise argues that so long as
any appeal is pending, the parties’ rights to a fair trial and a fair
and impartial jury remain an issue and the Confidentiality Order
should thus remain in place. The media entities, however, argue
that the two primary purposes of the Confidentiality Order -preserving the parties’ fair trial rights and protecting third party
witnesses from ‘the stigma of being associated with a case that
involves alleged sexual indiscretions and which is being played out
on a national stage’ -- has been mooted by virtue of this Court’s
grant of summary judgment to the defendants and by virtue of the
fact that the identities of many third party witnesses have been
made public in one manner or another. It is also argued that
possible embarrassment from the disclosure of discovery materials
does not in itself justify sealing such materials and that any privacy
interests implicated in this case are diminished due to the
compelling interest in the conduct of one of the most public
officials in the world, the President of the United States. . . .
While there is, of course, the possibility that the Eighth Circuit
[United States Court of Appeals] will determine that the grant of
summary judgment to defendants was erroneous (whether in part
or in whole), any such decision would not be handed down for
several months and any trial date would most likely not be set until

3

 sometime after the first of the year, a significant passage of time
from today’s date. That being so, and considering the substantial
information already in the public domain, the Court determines
that the primary basis for the Confidentiality Order -- the threat of
prejudicial pre-trial publicity -- is no longer sufficient justification
for its maintenance.
Jones, 12 F. Supp. 2d at 933-34 (emphasis added).
Here, although this Court has not yet ruled on dispositive motions, the underlying policy
considerations remain. The most likely explanation for parties’ respective unwillingness to make
deposition testimony publicly available is the threat of prejudicial pre-trial publicity. However,
similar to the circumstances in Jones, there (1) will be “a significant passage of time” until trial,
and (2) is “substantial information” already in the public domain. See Jones, 12 F. Supp. 2d at
933-34. No date for the Mediation Conference has been set, the Pretrial Conference has not yet
convened, and there is no date set for trial.
In addition, any suggestion that many of the underlying facts of the instant action have
not been disclosed to the public strains credulity. The statements made by Mr. Trump that lie at
the heart of the instant action have been thoroughly reviewed and discussed in various media
outlets, by the general public, and in this Court. (See Order Feb. 11, 2016 at 7-8 (requiring that
Mr. Trump be made available for deposition); see also Defendants’ Ex. 161 at 1-2 (article
published online discussing Mr. Trump’s statements at issue in the instant action).) Further, Mr.
Trump himself has issued numerous public statements concerning his own remarks:
Statement from Donald J. Trump:
I don’t see how there is any room for misunderstanding or
misinterpretation of the statement I made on June 16th during my
Presidential announcement speech. Here is what I said, and yet
this statement is deliberately distorted by the media:
‘When Mexico (meaning the Mexican Government) sends its
people, they’re not sending their best. They’re not sending you

4

 (pointing to the audience). They’re not sending you (pointing
again). They’re sending people that have lots of problems, and
they’re bringing those problems to us. They’re bringing drugs.
They’re bringing crime. They’re rapists. And some, I assume, are
good people! But I speak to border guards and they tell us what
we’re getting. And it only makes common sense. They’re sending
us not the right people. It’s coming from more than Mexico. It’s
coming from all over South and Latin America, and it’s coming
probably from the Middle East. But we don’t know. Because we
have no protection and we have no competence, we don’t know
what’s happening. And it’s got to stop and it’s got to stop fast.’
What can be simpler or more accurately stated? . . . The issues I
have addressed, and continue to address, are vital steps to Make
America Great Again!
(Id. at 2-3 (emphasis in original).) This public statement issued by Mr. Trump discusses the
exact same remarks – those made during his Presidential announcement speech on June 16th,
2015 – that are integral to the instant action. (See Compl. at 9-11; Ans. and Counterclaims at ¶¶
60-64.) This Court finds that there can be no credible claim of undue prejudice occasioned by
the basic requirement that the entire transcript of the deposition of Donald J. Trump be filed and
made a part of the public record without seal or any redactions. (See Defendants’ Ex. 161 at 23.)
The parties’ application of the Amended Protective Order, entered on May 30, 2016, is
overly broad and impermissible. This Court deemed the following as qualified for a
“confidential” designation and corresponding protective measures: “those things that are
competitively sensitive, including, but not limited to confidential or proprietary information
regarding the party’s business affairs, finances, technology, processes, plans or installations,
product information, or know-how.” (Am. Protective Order May 30, 2016 at 1.) This definition
of “competitively sensitive information,” i.e. proprietary information, is consistent with this
jurisdiction’s definition of proprietary and trade secret information. See, e.g., District of

5

 Columbia Code § 36-401(4) (defining “trade secret” as “information, including a formula,
pattern, compilation, program, device, method, technique, or process” that, “[d]erives actual or
potential independent economic value, from not being generally known to, and not being readily
ascertainable by, proper means by another who can obtain economic value from its disclosure or
use[.]”)
Notably absent from the foregoing statutory language is any mention of “publicity,”
“celebrity,” or “public notoriety.”2 See id.; (see also Am. Protective Order at 1.) The mere fact
that well-known public figures such as Donald J. Trump, Geoffrey Zakarian, Ivanka Trump, or
Donald Trump, Jr. gave testimony under oath at deposition does not automatically warrant a
finding of full confidentiality and summary sealing of their entire testimony from the record. See
Press-Enterprise Co., 478 U.S. at 15 (“The First Amendment right of access cannot be overcome
by the conclusory assertion that publicity might deprive the defendant of [the right to a fair
trial].”). Consequently, the default rule is that the entire transcript of any deposition must be
made publicly available; this Court may consider line-specific redactions of competitively
sensitive information on an individual basis.
WHEREFORE, it is this 26th day of July 2016, hereby
ORDERED, that Plaintiff’s Motion for Partial Summary Judgment, erroneously
docketed in triplicate, is DENIED WITHOUT PREJUDICE; and it is further
ORDERED, that Defendants’ Motion for Partial Summary Judgment is DENIED
WITHOUT PREJUDICE; and it is further
ORDERED, that any party citing any deposition transcript in support of or in opposition
to any motion or other filing SHALL FILE THE ENTIRE TRANSCRIPT into the official
2

The Amended Protective Order in the instant action does not seal any materials produced in discovery on
grounds of “publicity.” (See Am. Protective Order at 1.) The Confidentiality Order issued in Jones expressly sealed
all such materials on those grounds. See Jones, 12 F. Supp. 2d at 932.

6

 public record for this case, without seal and without any redactions. In addition, a full and
complete paper copy of any cited deposition transcript shall be mailed to Chambers; and it is
further
ORDERED, that in the event that any party requests any redactions of competitively
sensitive information, that party shall file a motion identifying by page and line the portions of
the transcript at issue. Any party requesting redactions shall submit the complete and unredacted
portions of the transcript at issue to Chambers for in camera review; and it is further
ORDERED, that the Scheduling Order is amended as follows:
Deadline for Filing Motions
Dispositive Motions Decided
ADR
Pretrial

08/12/2016
09/16/2016
12/05/2016 – 01/31/2017
To be set at ADR

_______________________________
BRIAN F. HOLEMAN
JUDGE
Copies e-served to:
Rebecca Woods, Esquire
SEYFARTH SHAW LLP
975 F Street, N.W.
Washington, D.C. 20004
Counsel for Plaintiff
Deborah B. Baum, Esquire
Alvin Dunn, Esquire
Adya S. Baker, Esquire
PILLSBURY WINTHROP SHAW PITTMAN LLP
1200 17th Street, N.W.
Washington, D.C. 20036
Counsel for Defendants

7