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Fish v. Kobach

United States District Court, D. Kansas

October 25, 2018




         This voting-rights case proceeded to trial earlier this year and is now pending appeal on the merits. Before the Court are the following motions collateral to the Judgment: (1) Defendant Kris Kobach's Motion to Enforce Protective Order (Doc. 560); (2) Plaintiffs' Motion to Clarify, or in the Alternative, for Modification of Trial Order (Doc. 564); and (3) Defendant's Motion for Stay of Execution of Ruling on Defendant's Motion to Enforce Protective Order (Doc. 569). The first two motions are fully briefed and the Court has reviewed the parties' filings.

         For the reasons explained more fully below, the Court grants in part both parties' motions seeking clarification and enforcement of the Court's prior orders relating to the videotape of Defendant's August 3, 2017 deposition. The Court finds that the videotape is not part of the judicial record, and that the public's interest in viewing the deposition was satisfied by its publication at trial and by unsealing the transcript. Moreover, because this deposition was never made part of the judicial record, it retains its status as a matter of nonpublic pretrial discovery under the protective order. For both reasons, the Court finds that the video may not be copied and used outside this litigation. Defendant's motion for stay of execution is therefore moot.

         I. Background

         On March 29, 2016, soon after this case was filed, Magistrate Judge James P. O'Hara issued a protective order that was jointly proposed by the parties.[1] The protective order defines the term “confidential information, ” and provides protections for materials designated as such. Material designated as confidential may only be viewed by those outside this litigation “upon consent of the producing parties and on such conditions as the parties may agree.”[2] As to confidential information used at trial:

Nothing in this Order will be construed to affect the use of any document, material, or information at any trial or hearing. A party that intends to present or that anticipates that another party may present Confidential Information at a hearing or trial must bring that issue to the attention of the court and the other parties without disclosing the Confidential Information. The court may thereafter make such orders as are necessary to govern the use of such documents or information at the hearing or trial.[3]

         The protective order “remain[s] in effect and continue[s] to be binding after conclusion of the litigation.”[4]

         On June 23, 2017, Judge O'Hara granted Plaintiffs' request to reopen discovery for a limited deposition of Secretary Kobach. The deposition was limited in scope to

non-privileged information and evidence pertaining to the draft amendment and the photographed document. The deposition will be held . . . in Room 211 of the United States Court House, 500 State Avenue, Kansas City, Kansas. The undersigned will preside over the deposition and contemporaneously resolve any disputes that arise. The deposition is limited to sixty minutes of testimony on direct examination. As agreed to by plaintiffs, all testimony at the deposition will be subject to the confidentiality provisions of the protective order (i.e., the deposition will not be open to the public).[5]

         Defendant filed a motion for this Court to review Judge O'Hara's decision to allow his deposition, arguing that Tenth Circuit precedent foreclosed the deposition of opposing counsel, and that the deposition was sought solely to embarrass, annoy, or harass him. This Court denied the motion to review.[6] As to Defendant's second ground for review, that under Rule 26 the deposition was sought merely to embarrass, annoy, or harass him, this Court found that to the extent Defendant did not waive that argument by not raising it before Judge O'Hara, the safeguards placed on the deposition

belie any contention that it is being sought to annoy, embarrass or harass. Judge O'Hara ordered that the deposition will be limited in scope to questions concerning the draft amendment and the photographed document. He limited the deposition to one hour, and he ruled that the deposition would be subject to the confidentiality provisions of the protective order-it will not be open to the public.[7]

         On August 3, 2017, the deposition proceeded in Judge O'Hara's sealed courtroom. Before the deposition began, Defendant objected to Plaintiffs' use of a videographer, arguing that he had not been provided with prior notice of this method of recording. Counsel for Defendant argued that excerpts from a prior witness's videotaped deposition had been published on the internet, and they were concerned about the same thing happening with this video. Judge O'Hara overruled the objection, stating:

I've not heard any persuasive argument of prejudice here. I think Secretary Kobach here, as I mentioned, is well dressed. It's acknowledged that he's a good looking individual. He's comfortable with speaking in public. And it just strikes me as a bit odd to think that this particular sort of individual would be harmed by a videotape deposition, which to be clear just like the transcript is subject to the protective order.
Now, moving down field at some point where somebody tries to attach that to a deposition-or excuse me, to a motion or other filing and seek to have it under seal, that's a separate analysis for Judge Robinson to make. If somebody wants to file a motion to lift the designation of confidentiality under the protective order, then that's for Judge Robinson unless she kicks it back to me. But it seems to me at-despite the lack of advance notice by the plaintiffs, which to be-to be frank could be regarded as discourteous, I don't see it as-as improper under the rules and I don't think it prejudicial to the defendant. So the deposition will proceed by both videography and stenographic means.[8]

         At the summary judgment stage that followed this deposition, Plaintiffs attached to their filings the entire transcript of Defendant's deposition, [9] and litigated before the undersigned whether the documents about which Defendant testified in this deposition should be sealed. The Court granted Plaintiffs' motion to unseal those underlying documents, [10] but the motion to unseal did not address the deposition; the parties brought that issue to the Court's attention in a subsequent “Notice, ” informing the Court of the parties' intent to try to negotiate unsealing certain excerpts.[11]

         Unsurprisingly, the parties were unable to reach agreement on the sealed status of the deposition transcript excerpts, so on October 25, 2017, the Court conducted a telephonic hearing on this issue, and orally ruled that the full transcript attached to Plaintiffs' summary judgment filing should remain sealed. The Court permitted Plaintiffs to file as unsealed attachments those excerpts cited in their briefs, plus content that provided necessary context.[12]

         The case proceeded to trial and Plaintiffs designated portions of Defendant's deposition testimony under Fed.R.Civ.P. 32(a)(3); he did not testify live. Defendant objected to the deposition designations, and any other evidence about the NVRA amendment documents discussed during his deposition, on the basis of relevance under Fed.R.Evid. 401. Defendant counter-designated a robust amount of that deposition in the event the Court denied his relevance objections, resulting in approximately forty minutes worth of testimony designated in total. The Court denied Defendant's relevance objections.

         On March 7, 2018, defense counsel objected to the videotaped deposition being played in Court, and asked instead to “have the line-page designations read into the record or read by counsel as opposed to having the video played.”[13] Alternatively, counsel suggested the Court review the transcript in chambers. The Court declined to review deposition designations in camera, explaining a preference for having “the depositions presented live or, you know, read or played or whatever that might be during the trial rather than me taking it under advisement and try to go through” the many objections raised to the deposition testimony.[14] As to Secretary Kobach's video deposition, the Court ruled that it would come in by video, after Plaintiffs permitted Defendant a period of time to review the version of the video edited by Plaintiffs to include only the designated portions thereof. The Court explained:

It's a video deposition. Video depositions are played, they're not read. And there's a reason people take video depositions, it's because it allows the trier of fact the opportunity to see the person testify live which is better than reading from the pages of a deposition. That's the choice the plaintiffs made and that's the medium through which they've-they chose to take Mr. Kobach's testimony. So that's the medium I'm going to allow them to play it, through a video.[15]

         On March 9, before Plaintiff introduced the video of Secretary Kobach's deposition, Defendant's counsel asked that the video not be made publicly available and that it not be made part of the record, given the Court's local rule prohibiting broadcasting of witness testimony in the courtroom, [16] and the Eighth Circuit's holding in United States v. McDougal.[17] The Court agreed:

I tend to agree because, as you know, there's a rule against broadcasting and-outside of the courthouse testimony. So I agree that this particular testimony that's being presented by video is- while it should be marked as an exhibit, it's not actually made a part of the-the record.
And it-well, in fact, exhibits in general are returned to the parties at the close of the trial, so I don't know that it's an issue anyway. But I agree with you, it shouldn't be a public record for purposes of our docket.[18]

         Counsel for Defendant next confirmed with the Court that “the videotape itself is not available to be publicly disseminated, whereas the trial transcript that may contain the testimony is the judicial record. Is that my understanding as well?”[19] The Court responded, “That's correct.”[20]

         Next, Defendant's counsel asked if the deposition designations that included excerpts beyond those that were unsealed at summary judgment were still sealed. The Court explained that because it overruled Defendant's relevance objections to the designated portions of the deposition, the seal was lifted as to those designations and Defendant's counter-designations: “I'm unsealing those parts that I've ruled upon as designations and counter-designations. And you are not waiving your objection to this being played by countering-by counter-designating. I mean, you're not waiving. Your objection is preserved for the record.”[21]

         After the tape was played in open court, Plaintiffs' counsel moved for admission of the tape, which was marked as Exhibit 148, “pursuant to the-the Court's prior recommendation.”[22] The Court ruled:

Exhibit 148, the video deposition is admitted, but it can be-it will be withdrawn at the close of the trial. And for purposes of the record, the written transcript of this will be part-just like the deposition transcripts are part-you know, the oral deposition transcripts are part of the trial transcript but not the actual tape itself.[23]

         In addition to his status as the Kansas Secretary of State, Defendant is currently the Republican gubernatorial candidate in Kansas in the upcoming election on November 6, 2018. Since the close of trial, Plaintiffs' counsel have understandably received multiple requests from journalists and media entities for copies of the videotape. Some members of the media could not attend trial at the time when the video was played, and while others viewed the video, they seek a copy of the videotape based on the strong public interest in publishing and reporting on the video testimony as opposed to the transcript of the proceedings.

         On September 10, 2018, Plaintiffs sent a letter to Defendant stating their position that they had a legally protected right to distribute the videotape in response to media requests, and requesting that Defendant respond with any objections. The parties met and conferred on September 14 and could not reach agreement about the legal status of the videotape. Neither Plaintiffs nor Plaintiffs' counsel have distributed or disclosed the videotape, with the exceptions of submitting it to the Court and playing it during the trial in this case.

         II. Discussion

         There is no issue in this case about whether the transcript of Secretary Kobach's designated deposition testimony at trial is available to the public. As described above, the transcript of that deposition was deemed confidential under the protective order. But excerpts of the deposition transcript became part of the judicial record upon attachment to the summary judgment briefs. And at trial, these more extensive deposition designations and counter-designations were admitted as part of the public ...

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