Case 8:19-cv-00475-WFJ-SPF Document 78 Filed 07/10/19 Page 1 of 4 PageID 1941

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALVA JOHNSON, individually and on
behalf of all others similarly situated,
Plaintiff,
v.

Case No. 8:19-cv-00475-T-02SPF

DONALD J. TRUMP,
in his individual capacity and
DONALD J. TRUMP FOR
PRESIDENT, INC.,
Defendants.
__________________________________/
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL ENTRY OF COURTORDERED ESI PROTOCOL AND SCHEDULE FOR AGREEING TO SEARCH
TERMS
Defendants argue that no ESI protocol is warranted in this case, but recent conduct of
Defendants’ counsel makes clear precisely why an ESI protocol is appropriate and necessary.
Indeed, it now appears that counsel purposefully avoided entering into an ESI protocol so that
counsel could alter a video of Defendant Trump kissing Ms. Johnson, hide the video within eight
hours of unrelated video footage, and sandbag Ms. Johnson with the video at her deposition.
Notwithstanding Defendants’ efforts to mischaracterize the video to the Court, the video shows
exactly what Ms. Johnson alleged happened to her: an unwanted kiss from Defendant Trump. The
video also calls into question statements by Defendants’ counsel to this Court. E.g., Transcript of
June 5, 2019 Hearing at 11:10-15, 13:8-13, 15:10-20 (stating that seven people will testify that the
kiss never happened). In short, the circumstances surrounding the production of the video alone
warrant an ESI protocol. But if that were not enough, Defendants’ remaining arguments, such as
their objections to Plaintiff’s proposed search terms, are also meritless and should be rejected. The
Motion should be granted.

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I.

Defendants’ Recent Conduct Makes Clear Why An ESI Protocol is Warranted.
On the afternoon of July 5, 2019—over a holiday weekend and three days before Ms.

Johnson’s deposition—Defendants served Ms. Johnson with a flash drive containing a document
identified as DJTFPI_00000493.mp4. That document contains eight hours, thirty-eight minutes, and
thirty-three seconds of video footage. Most of the video footage is media coverage of the Trump
Campaign rally that occurred on August 24, 2016, in Tampa, Florida. For example, approximately
00:15:53 to 00:47:56 shows footage from the rally with the logo for the news station ABC 15
Arizona in the right-hand corner. Beginning at approximately 00:47:15, additional footage of the
rally without the ABC logo lasts until 00:50:59, at which point the video displays lower-quality
footage of the rally that appears to have been taken with a cell phone. The eight and a half hours of
video also appear to include footage of the rally from Fox 10 Phoenix, Channel 90, a Youtube
channel called FRN Now, ABC 7 Suncoast News from Tampa, and others.
Buried deep in this compilation, at 07:39:44 (i.e., over seven hours into the compilation) is a
brief video, taken on a cell phone, showing Mr. Trump kissing Ms. Johnson inside a Campaign RV
on August 24, 2016—just as Ms. Johnson alleged. While Ms. Johnson remembered some of the
minor details incorrectly (for example, Mr. Trump grabbed her by both shoulders before kissing her,
and only took her hand after the kiss) it is now undisputable that Mr. Trump in fact kissed Ms.
Johnson.
Defendants have stripped this important video of its metadata and hidden it within the eight
hours of other videos, apparently for the purpose of hiding it from Ms. Johnson prior to her
deposition. Without the appropriate metadata for the video, Ms. Johnson is unable to determine
who created the video, when it was created, and other important information about its origins. The
declaration of Brian Hayes filed concurrent with Defendants’ motion for a protective order does not
cure these deficiencies. The only metadata available in the eight hour video that was produced shows
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that it was last modified on June 13, 2019—meaning that even though Defendants have had the
video of the kiss since at least that date, they intentionally waited until July 5 to produce it (hiding it
inside eight hours of other unrelated footage).
With a proper ESI protocol in place, this type of deceitful gamesmanship could not occur.
An appropriate ESI protocol will preclude Defendants from altering ESI by stripping it of metadata
and merging it into other, unrelated ESI. Without a Court Order in place, Defendants have no
incentive not to continue with this bad faith conduct.
II.

Defendants’ Arguments With Respect to Ms. Johnson’s Proposed Search
Terms Lack Merit.
Defendants also raise a bevy of arguments with regard to Ms. Johnson’s proposed search

terms, in particular a number of offensive racial slurs. To be clear, Ms. Johnson and her counsel take
no glee in proposing these search terms—but this is a race discrimination case under § 1981.
Documents showing that Campaign staff (including Defendant Trump and other high-level staffers
in charge of deciding personnel issues and compensation) used racial slurs are relevant to and
probative of Ms. Johnson’s claim for wage discrimination on the basis of race. See, e.g., Lester v.
BING The Best, Inc., No. 09-81525-CIV, 2010 WL 4942835, at *3 (S.D. Fla. Nov. 30, 2010) (holding
that evidence that defendant’s employee used n-word racial slur “constitutes direct evidence of
discriminatory intent”); see also Ardoin v. Louisiana through Dep’t of Pub. Safety & Corr., No. CV 08-593JJB-DLD, 2012 WL 12986190, at *3 (M.D. La. Apr. 23, 2012) (granting motion to compel evidence
that “may be relevant to the issue of motivation or racial animus”). These search terms are
appropriate for the subject matter of this case.
III.

Conclusion
For these reasons and those stated in the Motion, Ms. Johnson requests that the Court grant

the Motion.

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DATED: July 10, 2019

Respectfully submitted,
/s/ Hassan A. Zavareei
Hassan A. Zavareei (pro hac vice)
Trial Counsel
Katherine M. Aizpuru (pro hac vice)
TYCKO & ZAVAREEI LLP
1828 L Street NW, Suite 1000
Washington, D.C. 20036
P: (202) 417-3667
F: (202) 973-0950
hzavareei@tzlegal.com
kaizpuru@tzlegal.com
Janet Varnell (Fla. Bar No. 71072)
Brian W. Warwick, (Fla. Bar No. 0605573)
VARNELL & WARWICK, PA
P.O. Box 1870
Lady Lake, FL 32158-1870
P: 352-753-8600
F: 352-503-3301
jvarnell@varnellandwarwick.com
bwarwick@varnellandwarwick.com
F. Paul Bland (pro hac vice)
Karla Gilbride (pro hac vice)
PUBLIC JUSTICE, P.C.
1620 L Street NW, Suite 630
Washington, DC 20036
(202) 797-8600
Jennifer Bennett (pro hac vice)
PUBLIC JUSTICE, P.C.
475 14th Street, Suite 610
Oakland, CA 94612
(510) 622-8150

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