Berg Files Response to Defense Motion for Protective Order
This morning, Philadelphia attorney Philip Berg filed a response in opposition to the motion for protective order, a measure intended to stay discovery until after the judge rules on a defense motion to dismiss, filed by Barack Obama and the DNC on Monday.
In the response Berg insists, among other things, that he is not seeking the documents specified in his motion for expedited discovery for any improper purpose, that the information requested through discovery is of extreme importance and a matter of public safety, and argues that Barack Obama and the DNC
- have not pointed to any “legitimate privacy concerns.”
- have not pointed out any “substantiated specific examples” showing that disclosure of the information requested through discovery would “cause a defined and serious injury.”
- have not effectively demonstrated “any risk that particularly serious embarrassment will result” from turning over the requested documents.
- have failed to show “good cause” and are not entitled to a protective order.
On the latter, Berg cites a 1994 decision by the Third Circuit Court of Appeals–the appellate court sitting here in Philadelphia and the natural next step in this case should the losing party in District Court choose to appeal–in which the court held that “good cause” exists when the moving party can specifically demonstrate “that disclosure will cause a clearly defined and serious injury” based upon a seven-factor test:
- Whether disclosure will violate any privacy interests;
- Whether the information is sought for a legitimate purpose or for an improper purpose;
- Whether disclosure of the information will cause a party embarrassment;
- Whether confidentiality is sought over information important to public health and safety;
- Whether sharing information among the litigants will promote fairness and efficiency;
- Whether a party who would benefit from the order of confidentiality is a public entity or official; and
- Whether the case involves issues important to the public.
He is requesting that the court order Barack Obama and the DNC to answer ten admissions apiece, all dealing with Obama’s citizenship, constitutional requirements for the presidency, and donations made to Obama’s presidential campaign.
The filed materials also include–and read this carefully–a pair of PROPOSED ORDERS, a procedural fill-in-the-blank measure filed by attorneys to “assume the sale” and make the judge’s job easier, theoretically allowing him or her to simply sign off on a previously crafted document should he or she come down on the side of the filing party. It is important to know this, as Internet rumors have been mistakenly swirling that Judge Surrick has ordered this or ordered that, when in fact people are simply misinterpreting what is a proposed order.
In the case of this responsorial pleading, Berg has filed two separate proposed orders — the first a ready denial of the motion for protective order filed by Obama and the DNC, the second a ready order granting in part and denying in part, a measure which would essentially commence limited discovery.
Looking at this from the perspective of defense counsel, there are a few areas where today’s filing is open for counterattack. One is the distinction between questions of law and questions of fact, another is the “automatic” nature by which a court will stay discovery. First, in this case as it stands now, the question of law is whether or not Phil Berg has standing to sue Barack Obama, the DNC and the FEC while the question of fact has to do with the veracity of the claims against Obama and the other defendants. In some of the cases relied upon to support his opposition to the defense motion for protective order, the question was in regards to the sufficiency of the allegations, whereas the motion for protective order was a question of law. Second, Berg relies upon Keystone Coke Co. v. Pasquale, a 1999 case which held that a court “should not automatically stay discovery when there is a pending motion to dismiss,” when Obama and the DNC cited cases supporting not an “automatic” stay but a stay in situations when deemed proper.
All in all, however, Berg’s pleadings are getting tighter and are better supported each time. With the possible exception of the Keystone Coke case cited above, most of his cases are on point and his arguments fairly proper, especially given the way similar suits against John McCain have come to fruition in the past. It should be said as well that none of the measures taken by either side should be all that surprising–with possible exception of Berg’s request for a special master in his motion for expedited discovery, undoubtedly a decent maneuver–given the potentially high-profile of this action.
This now makes a total of six pending pleadings in the court, not including the two intervening motions — Berg’s motion for expedited discovery, Obama and the DNC’s motion to dismiss, Berg’s opposition to the motion to dismiss, Berg’s motion for leave to file amended complaint, Obama and the DNC’s motion for protective order, and today’s response. Judge Surrick could address each one at once, or he could address all on one order. Either way, he could do it essentially at any time. That could mean today, tomorrow, next week, or beyond.
I’m still waiting on comment from Philip Berg on some specific legal questions he wanted to ponder before answering. Understandable, because they weren’t easy questions. As soon as I receive his answer, I will include it here.