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 ORDER This matter comes before the Court upon consideration of Plaintiff’s Motion for Redactions, filed on August 8, 2016. I. PROCEDURAL HISTORY On August 3, 2015, Plaintiff filed the Complaint. Plaintiff, the landlord, alleges that Defendant CZ-National, the tenant (hereafter referred to as “Tenant”), breached obligations under a sublease (the “Sublease”) to use certain restaurant space at the Trump International Hotel, The Old Post Office, Washington, D.C. (Compl. at 1.) Defendant BVS Acquisition Co. allegedly entered into an agreement with Plaintiff to guarantee all obligations (the “Guarantee”) assumed by Tenant under the Sublease. (Compl. at ¶ 9.) Tenant is a corporate entity affiliated with renowned chef Geoffrey Zakarian. (Id. at ¶ 8.) Plaintiff alleges that Tenant defaulted and abandoned its obligations under the Sublease “allegedly based on personal offense to statements by Mr. Trump with respect to illegal immigration during his June 16, 2015 presidential campaign announcement speech.” Mr. Trump’s statements at issue are as follows: When Mexico (meaning the Mexican Government) sends its people, they’re not sending their best. They’re not sending you (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. (Defendants’ Mot. for Partial Summary Judgment Ex. 161 at 1-2.) Plaintiff asserts a claim for breach of the Sublease against Defendant CZ-National, breach of the Guarantee against Defendant BVS Acquisition, and claims for attorneys’ fees against all Defendants. (Compl. at 911.) On September 16, 2015, Defendants filed the Answer and Counterclaims. Defendants assert that the Sublease “includes, as a matter of law, an implied obligation of good faith and fair dealing” and that Mr. Trump’s remarks during his speech on June 16, 2015 were “inflammatory” and “made it impossible for Tenant to move forward with opening a restaurant [at the Old Post Office site].” (Ans. and Counterclaims at ¶ 60-64.) Defendants allege that the Tenant provided Plaintiff with a letter of credit in the amount of $461,000 (the “Letter of Credit”) and cash security in the amount of $29,167.00 as collateral for Tenant’s performance under the Sublease. (Id. at ¶ 66.) Defendants assert that as a result of Tenant’s cessation of performance under the Sublease, Plaintiff withdrew both the Letter of Credit and cash security in violation of the terms of the Sublease that permitted Plaintiff “to draw down on all or part of the Letter of Credit or the cash security[.]” (Id. at ¶ 68.) Defendants assert counterclaims for the breach of covenant of good faith and fair dealing and breach of the letter of credit provisions of the Sublease. (Id. at ¶ 71-77.) On January 21, 2016, the parties filed the proposed Stipulated Protective Order. On February 10, 2016, the Court entered the Protective Order in the instant action. The Protective 2 Order protects “any document, testimony, information, or material produced” solely concerning “trade secrets or other confidential research, development, or commercial information[.]” (Protective Order Feb. 10, 2016 at 1.) Meanwhile, on January 15, 2016, Plaintiff filed the Motion for Protective Order. Plaintiff’s Motion for Protective Order, separate and distinct from the parties’ request for a Protective Order covering trade secret and other proprietary information, requests that the Court quash the depositions of Donald J. Trump, the President of the corporate Plaintiff.1 On February 11, 2016, the Court entered the Order denying Plaintiff’s Motion for Protective Order and ruled that Plaintiff “SHALL PRODUCE Donald J. Trump, Donald Trump, Jr., and Ivanka Trump for deposition, subject to mutual agreement between the parties as to the order of witnesses and scheduling.” (Order Feb. 11, 2016 at 8 (emphasis in original).) On May 13, 2016, the parties filed the Joint Motion for Amended Stipulated Protective Order, which was granted on May 30, 2016. The Amended Protective Order only protects trade secret and other proprietary information, i.e. “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.) On July 14, 2016, the parties filed the Consent Motion for Leave to Lengthen Page Limit and to File Under Seal, which was denied on July 15, 2016. That Consent Motion requests, inter alia, that the Court permit the parties to file their respective dispositive motions and accompanying exhibits under seal. (Cons. Mot. July 14, 2016 at 1.) The Court ruled, inter alia, that the parties’ request to file under seal is denied on grounds of the First Amendment of the Constitution, finding that “[t]he blanket sealing of all motions for summary judgment and 1 At the time of filing of Plaintiff’s Motion for Protective Order, Mr. Trump had not yet secured the nomination of the Republican Party for President of the United States. 3 accompanying memoranda of points and authorities filed in a civil action is unprecedented and impermissible[.]” (Order July 15, 2016 at 3 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 15 (1986) (“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].”) (citation omitted).) On July 19, 2016, Plaintiff filed the Motion for Partial Summary Judgment. On that same day, Defendants filed the Motion for Partial Summary Judgment. On July 26, 2016, the Court entered the Order denying, without prejudice, all pending Motions for Partial Summary Judgment on grounds of undue withholding and substantially incomplete presentation of evidence: 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, 4 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)2 (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). 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 2 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). (Footnote in original.) 5 by Paula Corbin Jones, a private citizen, against then-President 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 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 6 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 (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 7 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 2-3.) 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 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[.]”) 8 Notably absent from the foregoing statutory language is any mention of “publicity,” “celebrity,” or “public notoriety.”3 See id.; (see also Am. Protective Order at 1.) The mere fact that wellknown 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. (Order July 26, 2016 at 1-6 (emphasis in original).) This Court ruled as follows: 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 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[.] (Id. at 6-7 (emphasis in original).) II. ANALYSIS Plaintiff requests redactions of certain portions of the deposition transcript of Roger Cline, Ray Flores, and Mr. Trump. (Mot. at 1-2.) Plaintiff represents that “it seeks no redactions of any portions of the depositions of Donald Trump, Jr. and Ivanka Trump[.]” (Id. at 1.) In addition, Plaintiff presents its (1) “objection” to the Order of July 26, 2016, (2) request for a 3 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. 9 protective order sealing the video recording of the deposition of Mr. Trump and Mr. Trump, Jr., and (3) request for an extension of time to submit proposed redactions for expert reports. (Mot. at 2-8.) Notably, the required certification under the Superior Court Rules of Civil Procedure, Rule 12-I(a) indicates that Defendants do not consent to the relief sought yet “they do not intend to file a formal opposition.” (Id. at 8.) A. Filing the Stenographic Deposition Transcripts into the Record Under the Order of July 26, 2016, any party requesting redaction of any portion of any deposition transcript “shall submit the complete and unredacted portions of the transcript at issue to Chambers for in camera review[.]” (Order July 26, 2016 at 7 (emphasis in original).) Plaintiff has failed to comply with that Order, instead submitting selective portions of the deposition transcript of Mr. Flores and Mr. Cline and not submitting any portion of the deposition transcript of Mr. Trump for in camera review. (See id.; see generally Mot. (totaling thirty-eight (38) pages despite referring to deposition transcripts that contain several hundreds of pages of testimony).) In the instant Motion, Plaintiff asserts that the Order of July 26, 2016 is erroneous as a matter of law, unsupported by the Rules and other authority, is “a departure from common practice and procedure by the D.C. Bar,” and imposes an undue logistical burden. (Mot. at 2-6.) This Court infers that Plaintiff presents these arguments in lieu of compliance with the Order of July 26, 2016. 1. Whether the Rulings Articulated in the Order of July 26, 2016 are Clearly Erroneous Under Rule 5(d), “[d]iscovery papers and deposition transcripts may be filed, without leave of court, if they are appended to a motion or opposition to which they are relevant and may otherwise by filed if so ordered by the Court sua sponte or pursuant to a motion.” (Emphasis 10 added.) Here, the parties each attached deposition transcripts, albeit in a heavily truncated form, to dispositive motions and the Court ordered that the parties file complete deposition transcripts. (See Order July 26, 2016 at 1-7.) Contrary to Plaintiff’s assertion, the requirements of the Order of July 26, 2016 are expressly authorized by the Rules. See Super. Ct. R. Civ. P. R. 5(d). The remaining issue is application of case authority. Plaintiff cites two cases from the Supreme Court, Nixon v. Warner Communications, 435 U.S. 589 (1978) and Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). (Mot. at 4.) These cases, however, are inapposite to the discrete issue presented, i.e. the filing of complete stenographic deposition transcripts into the record. In Nixon, the Supreme Court considered “whether the District Court for the District of Columbia should release to respondents certain tapes admitted into evidence at the trial of petitioner’s [President Richard Nixon’s] former advisers.” Nixon, 435 U.S. at 591 (emphasis added). The Supreme Court articulated that “this case [presents] an additional, unique element that was neither advanced by the parties nor given appropriate consideration by the courts below[:] the Presidential Recordings Act[.]” Id. at 603. The Supreme Court explained the requirements of the Presidential Recordings Act: Congress directed the Administrator of General Services to take custody of petitioner's Presidential tapes and documents. The materials are to be screened by Government archivists so that those private in nature may be returned to petitioner, while those of historical value may be preserved and made available for use in judicial proceedings and, eventually, made accessible to the public. Thus, Congress has created an administrative procedure for processing and releasing to the public, on terms meeting with congressional approval, all of petitioner's Presidential materials of historical interest, including recordings of the conversations at issue here. Id. (footnote omitted). Here, the Presidential Recordings Act does not apply to Mr. Trump or 11 any other witness; a presidential candidate is not the President of the United States. Further, Nixon does not discuss the stenographic deposition transcript of any witness. Cf. id. at 591. In Rhinehart, the Supreme Court considered the validity of the trial court’s entry of a protective order “covering all information obtained through the discovery process that pertained to ‘the financial affairs of the various plaintiffs, the name and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, or donors to any of the various plaintiffs.’” Rhinehart, 467 U.S. at 27 (internal citation omitted). The Supreme Court articulated that “pretrial depositions and interrogatories are not public components of a civil trial,” and therefore “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” Id. at 33. Here, unlike Rhinehart, the deposition testimony of witnesses is being admitted into the record for the purpose of adjudicating dispositive motions. (See generally Plaintiff’s Mot. for Partial Summary Judgment; Defendants Mot. for Partial Summary Judgment; Order July 26, 2016 at 1-6.) Consequently, the pertinent discovery is at issue and in the record. The Supreme Court noted that “to the extent that courthouse records could serve as a source of public information, access to that source customarily is subject to the control of the trial court.” Rhinehart, 467 U.S. at 33 n.19. The issue remains whether the Court can require that a party produce complete transcripts of all referenced witness testimony in order to adjudicate a dispositive motion. The heavy burden of obtaining summary judgment, a “show[ing] that there is no genuine dispute as to any material fact,” requires that the moving party present extensive evidence. Super. Ct. R. Civ. P. R. 56(c). Despite this evidentiary requirement, each party only made a piecemeal presentation of 12 evidence, omitting significant portions of testimony and preventing this Court from reviewing such testimony in full context. (See, e.g., P’s Mot. for Partial Summary Judgment 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).) Arguably, it is in the interests of each party to submit complete deposition transcripts to ensure that a sufficient record is presented to the Court to facilitate any dispositive ruling, and to ensure the submission of a complete record for any appeal. See Super. Ct. R. Civ. P. R. 56(c). This Court’s Order of July 26, 2016 does not compel any party to file the complete transcript of any deposition into the record as a routine matter. Significantly, the requirements of the Order of July 26, 2016 only attach once “any party [cites] any deposition transcript in support or in opposition to any motion or other filing[.]” (Mot. at 6 (emphasis added).) Consequently, the rulings articulated in the Order of July 26, 2016 are not arbitrary or unduly prejudicial as Plaintiff suggests. Instead, these requirements are specifically tailored to the requirements of dispositive motions practice, and well within this Trial Court’s broad discretion under Rule 5(d) and common law. See Rhinehart, 467 U.S. at 33 n.19. Persuasive authority from the lower federal courts is instructive. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (stating as of February 1, 1971, “[the] highest court of the District of Columbia is the District of Columbia Court of Appeals” and the courts of this jurisdiction are “not bound by the decisions of the United States Court of Appeals rendered after that date” nor decisions rendered by the United States District Court). In Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943 (7th Cir. 1999), Circuit Judge and then-Chief Judge Richard A. Posner of the United States Circuit Court for the Seventh Circuit analyzed the trial court’s 13 issuance of a “blanket” protective order sealing all materials produced in discovery. Judge Posner articulated the following: There is a deeper issue of confidentiality in this case than the currency of the protective order, and we must address it in order to make clear the judge’s duty on remand. That issue is the judge’s failure to make a determination, as the law requires, . . . , of good cause to seal any part of the record of a case. Instead of doing that he granted a virtual carte blanche to either party to seal whatever portions of the record the party wanted to seal. This delegation was improper. The parties to a lawsuit are not the only people who have a legitimate interest in the record compiled in a legal proceeding. It is true that pretrial discovery, unlike the trial itself, is usually conducted in private. Seattle Times Co. v. Rhinehart, supra, 467 U.S. at 33. But in the first place the protective order that was entered in this case is not limited to the pretrial stage of the litigation, and in the second place the public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding. (Internal citations omitted.) That interest does not always trump the property and privacy interests of the litigants, but it can be overridden only if the latter interests predominate in the particular case, that is, only if there is good cause for sealing a part or the whole of the record in that case. (Internal citations omitted.) The determination of good cause cannot be elided by allowing the parties to seal whatever they want, for then the interest in publicity will go unprotected unless the media are interested in the case and move to unseal. The judge is the primary representative of the public interest and is dutybound therefore to review any request to seal the record (or part of it). (Internal citation omitted.) He may not rubber stamp a stipulation to seal the record. (Internal citation omitted.) The order that the district judge issued in this case is not quite so broad as ‘seal whatever you want,’ but it is far too broad to demarcate a set of documents clearly entitled without further inquiry to confidential status. The order is not limited to trade secrets, or even to documents ‘believed to contain trade secrets,’ which anyway is too broad both because ‘believed’ is a fudge and because a document that contains trade secrets may also contain material that is not a trade secret, in which case all that would be required to protect a party’s interest in trade secrecy would be redaction of portions of the document. . . . 14 The order is so loose that it amounts, as we suggested in the outset, to giving each party carte blanche to decide what portions of the record shall be kept secret. Such an order is invalid. E.g., Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996); Pepsico, Inc. v. Redmond, supra, 46 F.3d at 31; City of Hartford v. Chase, 942 F.2d 130, 135-36 (2d Cir. 1991). . . . We are mindful of the school of thought that blanket protective orders (“umbrella orders”), entered by stipulation of the parties without judicial review and allowing each litigant to seal all documents that it produces in pretrial discovery, are unproblematic aids to the expeditious processing of complex commercial litigation because there is no tradition of public access to discovery materials. (Internal citations omitted.) The weight of authority, however, is to the contrary. Most cases endorse a presumption of public access to discovery materials [citing precedent from the Second, Third, Sixth, and Ninth Circuit Court of Appeals] and therefore require the district court to make a determination of good cause before [the court] may enter the order. E.g., EEOC v. National Children's Center, Inc., 321 U.S. App. D.C. 243, 98 F.3d 1406, 1411 (D.C. Cir. 1996); Glenmede Trust Co. v. Thompson, 56 F.3d 476, 484-85 (3d Cir. 1995); Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 165-67 (3d Cir. 1993); In re Remington Arms Co., 952 F.2d 1029, 1032 (8th Cir. 1991); City of Hartford v. Chase, supra, 942 F.2d at 135-37; Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). [Federal Rules of Civil Procedure] Rule 26(c) would appear to require no less. And we note that both the First and Third Circuits, which used to endorse broad umbrella orders, have moved away from that position. (Internal citations omitted.) . . . There is no objection to an order that allows the parties to keep their trade secrets (or some other properly demarcated category of legitimately confidential information) out of the public record, provided the judge (1) satisfies himself that the parties know what a trade secret is and are acting in good faith in deciding which parts of the record are trade secrets and (2) makes explicit that either party and any interested member of the public can challenge the secreting of particular documents. 178 F.3d at 944-46 (emphasis added). The foregoing opinion is apposite to the instant matter before this Court. Here, Plaintiff, with the tacit consent of Defendants, sought to broadly apply the Protective Order to all 15 deposition testimony, while by its clear language it is only applicable to trade secret and other proprietary information. (See generally P’s Mot. for Partial Summary Judgment.) The parties even sought to file the underlying dispositive motions, which only containing legal arguments, under seal. (See Cons. Mot. July 14, 2016 at 1.) This Court, bearing the duties and responsibilities imposed under the Constitution, will not abdicate its duties by “grant[ing] a virtual carte blanche to either party to seal whatever portions of the record the party wanted to seal” in violation of the First Amendment. See Citizens First Nat’l Bank, 178 F.3d at 944; PressEnterprise Co., 478 U.S. at 15; Jones v. Ferguson, et al., 12 F. Supp. 2d 931, 933-34 (E.D. Ark. 1998); (see generally Order July 26, 2016.) Notably, Plaintiff acknowledges that most of the deposition testimony at issue does not contain trade secrets or other proprietary information; Plaintiff does not request any redactions of the testimony of Mr. Trump, Jr. or Ms. Trump, and only requests “a single redaction from the deposition of Donald Trump.” (See Mot. at 1 (footnote omitted).) The foregoing establishes that the rulings articulated in the Order of July 26, 2016 remain as the law of the case.4 See Tompkins v. Washington Hosp. Ctr., 433 A.2d 1093, 1098 (D.C. 1981) (barring the trial court from reconsidering the same question of law unless, inter alia, the prior decision was “clearly erroneous”). 2. “Common Practice” and Logistics Plaintiff’s assertions regarding “common practice” and logistical burdens are not supported by any controlling authority and instead amount to a generalized assertion of undue 4 Plaintiff cites Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009), another case from the Seventh Circuit. (Mot. at 4-5.) Bond, however, is inapposite to the instant action: the Seventh Circuit acknowledged that the facts in Bond were “different” because the moving party was “seeking access to discovery materials that have never been filed with the court and have never influenced the outcome of a judicial proceeding.” Bond, 585 F.3d at 1074 (emphasis added). Here, the materials at issue, deposition transcripts, were filed with the Court, albeit in incomplete form. The testimony contained therein has been explicitly provided to influence the outcome of the instant action through dispositive motions practice. (See generally P’s Mot. for Partial Summary Judgment; Defendants’ Mot. for Partial Summary Judgment.) 16 prejudice. (See Mot. at 2, 6.) It is well known that Mr. Trump and his corporate entities have been involved in numerous instances of complex commercial and real estate litigation over the course of several decades. Consequently, it strains credulity that Plaintiff, a company owned by Mr. Trump, would be unprepared or financially unable to bear the costs of litigation, especially in light of the fact that Trump Old Post Office, LLC initiated the instant litigation. B. Plaintiff’s Request for a Protective Order Sealing Video Recordings of Depositions In anticipation of the filing of video recordings of the depositions of Mr. Trump and Mr. Trump, Jr. in support of dispositive motions, Plaintiff requests that the Court enter a Protective Order sealing these video recordings. (Mot. at 6-7.) Plaintiff cites a recent opinion issued by the United States District Court for the Southern District of California in the Trump University litigation, Low, et al. v. Trump University, et al., 3:10-cv-0940 (S.D. Cal. 2016). In Low, the court denied requests made by the media to unseal the video recording of the deposition of Mr. Trump, a named Defendant. Low, 3:10-cv-0940 at 17. The court found good cause to keep these video recordings under seal, finding (1) specific prejudice to defendants if the recordings were released, (2) the public interest in these recordings did not outweigh defendants’ private interests, and (3) “a realistic appraisal of the context of the case necessitates the conclusion that releasing the deposition videos would impair judicial efficiency by increasing the likelihood that prospective jurors would be exposed to information about the case, as well as to evidence that could be introduced at trial to impeach [Mr. Trump’s] testimony.” Id. at 8-17. A review of the case authority cited in Low and other applicable authority indicates that, as described by the United States District Court for the Southern District of New York, “the case law is muddled” and “it [is] challenging to harmonize the case law in this area.” Condit v. Dunne, 225 F.R.D. 113, 116 (S.D.N.Y. 2004). The general consensus amongst the lower federal 17 courts is that the discrete question presented, whether to seal video recordings of a deposition, is a discretionary discovery matter under the Federal Rules of Civil Procedure, Rule 26(c). Under Federal Rule 26(c), the movant must show “good cause” for sealing or otherwise barring the public dissemination of discovery materials. E.g., id.; Citizens First Nat’l Bank, 178 F.3d at 944; Vasquez v. City of New York, 2014 U.S. Dist. LEXIS 61451 (S.D.N.Y. 2014); Barket v. Clark, 2013 U.S. Dist. LEXIS 24365 (D. Nev. 2013); City of Fairview Heights v. Orbitz, Inc., 2007 U.S. Dist. LEXIS 26737 (S.D. Ill. 2007); Stern v. Cosby, 529 F. Supp. 2d 417 (S.D.N.Y. 2007); New York v. Microsoft Corp., 206 F.R.D. 19 (D.D.C. 2002); Felling v. Knight, 2001 U.S. Dist. LEXIS 22827 (S.D. Ill. 2001). In determining whether the moving party has shown good cause, the trial court considers numerous factors such as whether the moving party has alleged specific harm if the requested relief were not granted, the potential prejudice to any prospective jury panel and other risks of pretrial publicity, the public interest in the discovery material at issue, and judicial efficiency. E.g., Vasquez, 2014 U.S. Dist. 61451 at 2-4; Stern, 529 F. Supp. 2d at 421-422; Jones v. Clinton, 12 F. Supp. 2d 931, 938 (E.D. Ark. 1998). Notably, this jurisdiction has adopted a substantially similar version of Rule 26(c) and the concomitant standard of “good cause.” Mampe v. Ayerst Laboratories, 548 A.2d 798, 803-04 (D.C. 1988); see also Super. Ct. R. Civ. P. R. 26(c). The District of Columbia Court of Appeals states that the trial court “has substantial discretion in deciding to grant a protective order [under Rule 26(c)], and its decision to do so will not ordinarily be disturbed on appeal unless that discretion has been abused.” Id. (citations omitted). The burden of proof is on the moving party to “make a showing of good cause, stating with some specificity how it may be harmed by the [requested discovery].” Id. (Citation omitted.) 18 Plaintiff suggests that this Court should follow Jones, a case previously cited by this Court. (Mot. at 7.) In Jones, the district court maintained the videotapes of all depositions under seal. Jones, 12 F. Supp. 2d at 938. However, in addition to the fact that Jones involved a sitting President and not a private citizen, there is a crucial distinguishing fact: the court ordered that the stenographic transcript, the written transcript, be filed into the record. See id. (“[w]ith respect to transcripts of the depositions of the parties, however, the Court will permit these transcripts to be released in their entirety[.]”). Here, Plaintiff has failed to comply with the Order of this Court requiring that the party seeking relief submit the entire transcript to this Court for in camera review or else file the entire transcript without seal and without redactions. (Order July 26, 2016 at 6-7.) Consequently, Plaintiff has failed to show good cause for the requested relief. In granting a request to seal video recordings, the courts have relied upon the availability of the written transcript. For example, in litigation involving celebrity William (“Bill”) Henry Cosby, Jr., the court noted that “[i]t may be that the transcript of Cosby’s deposition will be brought to [the court’s] attention on a motion to compel, when [the court] will be called upon to exercise my judicial authority to resolve the discovery dispute[,]” and in that scenario “[the court] would not need to see the videotape, as [the court’s] usual practice in considering such a dispute is to rely only on the transcripts.” Stern, 529 F. Supp. 2d at 421 (emphasis added). Here, the continued withholding of complete deposition transcripts substantially impairs this Court’s adjudication of the instant Motion and any dispositive motion. Plaintiff also broadly asserts undue prejudice arising from media scrutiny and that “videotapes are subject to abuse[.]” (Mot. at 6-7.) At the same time, however, Plaintiff requests redactions in various transcripts, including that of Mr. Trump, without providing this Court the 19 support materials required to adjudicate Plaintiff’s requested relief. (See Order July 26, 2016 at 6-7.) Plaintiff apparently expects this Court to “rubber stamp” its requested relief even in the absence of required support materials. See Citizens First Nat’l Bank, 178 F.3d at 945 (citation omitted). This effort is unavailing. In Vasquez, the court found that the defendants failed to show good cause to seal the video recording of the deposition of police officers. The court noted that the moving party “do[es] not even attempt to make a particularized showing of good cause except with respect to the videotape of Detective Donnelly’s deposition,” a videotape “already in the hands of the media.” Vasquez, 2014 U.S. Dist. LEXIS 61451 at 3-4. Even then, the court had the “full transcript of the deposition” at issue. Id. (emphasis added). The court found that the “mere ‘fact that the media may edit [the] tape . . . does not warrant a protective order barring all public dissemination[.]’” Id. (citing Condit, 225 F.R.D. at 118). Vasquez is apposite to the instant action. Without the full transcript of the deposition of Mr. Trump or Mr. Trump, Jr., this Court is unable to assess whether Plaintiff corporation or the individual deponents would be prejudiced in permitting the public dissemination of the video recordings of the subject depositions. The allegation that the media may edit the recordings is no different than a speculative or otherwise unspecified allegation of prejudice insufficient to demonstrate good cause for the requested relief. See id. Finally, this case is distinguishable from Low, Stern, and many other cases where video recordings were sealed: this case is set for a bench trial, not a jury trial. Consequently, neither the parties nor this Court need to consider difficulties that may arise in jury selection as a result of pretrial publicity. Cf. Low, 3:10-cv-0940 at 16 (finding that judicial efficiency would be impaired because “prospective jurors would be exposed to information about the case[.]”); 20 Condit, 225 F.R.D. at 118 (discussing the assertion that release of the “videotaped deposition will taint the jury pool”); United States v. Poindexter, 732 F. Supp. 170, 171 (D.D.C. 1990) (releasing the stenographic transcript and permitting dissemination of any original videotape of the deposition of former President Ronald Reagan despite an imminent jury trial). C. Sealing Expert Reports Plaintiff requests that the Court redact certain portions of expert reports on grounds that these reports contain trade secret and proprietary information. (Mot. at 8.) Plaintiff must submit to this Court for in camera review both the unredacted expert reports and proposed redacted versions, “as they are not in page/line format[.]”5 (See id.) III. CONCLUSION The procedural history of the instant action indicates that the parties, particularly Plaintiff, have undertaken great efforts to prevent the public from accessing records normally made available to the public. See supra Part I at 3-9; see also Mokhiber v. Davis, 537 A.2d 1100, 1112 (D.C. 1988) (“the presumptive right of access to pleadings attaches at the time documents are filed with the court.”) (citations omitted). This is remarkable, given that the instant action arises from a business dispute and does not implicate separation of powers, national security or indiscreet personal misconduct. Plaintiff, in requesting relief, on the one hand acknowledges that this action and witness testimony “pertain [] to the operations and business decisions involved in hotel and restaurant operations,” a matter “involv[ing] nothing of public import.” (Mot. at 6.) On the other hand, Plaintiff has initiated and pursued the instant 5 Remarkably, in requesting redactions in expert reports, Plaintiff acknowledges the requirements of this Court’s Order of July 26, 2016: “Landlord needs . . . permission to submit to this Court for in camera review a proposed redacted copy of the expert reports[.]” (Mot. at 8.) Inherent to the process described by Plaintiff is the submission of full and complete expert reports for comparison with the proposed redacted versions. Plaintiff appears entrenched in an irresolvable conflict, demonstrating a willingness to submit full expert reports to obtain relief while concurrently withholding submission of full deposition transcripts for the same requested relief. (See id; Order July 26, 2016 at 6-7.) 21 action, and requested from the Court the extraordinary protection of sealing those public materials. See supra Part I at 3-9. This latter fact distinguishes the instant action from Low and the vast majority of the applicable case authority. The courts have recognized that a plaintiff, as the party filing suit, is prohibited from utilizing judicial processes as a sword to seek monetary damages while at the same time using judicial processes as a shield to bar the defense from using those same processes to defend against that claim. For example, in an action for medical malpractice, the plaintiff is unable to rely upon healthcare privacy laws to bar the defense from inquiring into the plaintiff’s own physical and mental condition; a party that brings forth a claim for medical negligence “[places his] physical condition in issue through the filing of this lawsuit [and] has waived [his] privilege against disclosure of relevant medical evidence.” Street v. Hedgepath, 607 A.2d 1238, 1246 (citations omitted). In a tort action arising from a slip-and-fall, the Court of Appeals has held that the trial court “abused his discretion in sustaining objections to many interrogatories which were clearly relevant to the matters in issue, thereby prejudicing [plaintiff] in the trial of his suit.” Dunn v. Evening Star Newspaper Co., 232 A.2d 293, 297 (D.C. 1967). Here, Plaintiff filed suit against Defendants seeking ten million dollars ($10,000,000.00) in damages. (See generally Compl.) Nevertheless, Plaintiff repeatedly seeks to prevent inquiry into or disclosure of available and relevant evidence, including the testimony of Mr. Trump, an active participant in the business transactions at issue. (See Order Feb. 11, 2016 at 6.) This testimony has been placed at issue by Plaintiff’s initiation of the instant action. (See generally Compl.; Ans. and Counterclaims.); see supra Part I at 1-9. “The parties to a lawsuit are not the only people who have a legitimate interest in the record compiled in a legal proceeding.” Citizens First Nat’l Bank, 178 F.3d at 944; see also 22 Mokhiber, 537 A.2d at 1112 (“The public’s interest in such documents may, nonetheless, remain strong.”). The public’s interest is heightened in an action involving a candidate seeking public office: The public’s interest in this matter [] is potentially compelling. Like all elections for public office, responsible citizens seek to learn what they can about the candidates in order to make informed decisions for whom to cast their vote. Although the public may or may not have any interest in learning the details of [the candidate’s] involvement in the instant lawsuit, it nonetheless is an interest not to be lightly regarded, regardless of the subjective motivations of the Defendants in bringing [the video recordings] to the Court’s attention. While the potential harm to the public, if any, is also uncertain, the Court gives greater weight to [the public’s] right to consider this information, even if it has little impact on a citizen voter’s selection for [public office]. City of Fairview Heights, 2007 U.S. Dist. LEXIS 26736 at 12-13. Plaintiff is not entitled to the requested relief. WHEREFORE, it is this 11th day of August 2016, hereby ORDERED, that Plaintiff’s Motion for Redactions is DENIED; and it is further ORDERED, that Plaintiff’s request for a protective order sealing the video recordings of the depositions of Donald J. Trump and Donald J. Trump, Jr. is DENIED; and it is further ORDERED, that each party shall submit any request for redactions in any expert report by motion on or before August 26, 2016. The full and complete report of any expert report at issue SHALL BE CONTEMPORANEOUSLY SUBMITTED to the Court for in camera review or result in summary denial of the requested relief. _______________________________ BRIAN F. HOLEMAN JUDGE 23 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 24