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Case 5:09-cv-02103-TS-MLH Document 97 Filed 02/23/11 Page 1 of 10 PageID #: 2990

IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

GREGORY WILLIS, CIVIL ACTION NO.:09 CV 02103


EDDIE CULBERT §
RONALD SMITH, SR. § JURY DEMAND
ROY HUDSON, §
JENNIFER HILL, §
ISAAC JORDAN, §
JOHN MURCHISON, §
THOMAS JONES JR. §
CALDWELL BURGESS §
KELSOW WILLIAMS, JR. §
STAFFORD WILLIAMS and §
VANDA WILLIS §
§
Plaintiffs, §
versus §
§
§
CLECO CORPORATION §
§
Defendant. §
§
§
§
§

MEMORANDUM IN OPPOSITON TO DEFENDANTS’ MOTION FOR


PROTECTIVE ORDER

I. INTRODUCTION

LAW AND ARGUMENTS

A. Protective Order Standard

Whether judicial records and other case-related information should be sealed or

otherwise withheld from the public is a matter left to the sound discretion of the district

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court. Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d

570 (1978) . Courts have long recognized a common-law right of access to judicial

records. Nixon, 435 U.S. at 597, 98 S.Ct. 1306; Lanphere & Urbaniak v. Colorado, 21

F.3d 1508, 1511 (10th Cir.1994). This right, however, is not absolute. The "presumption

of access ... can be rebutted if countervailing interests heavily outweigh the public

interests in access." Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th

Cir.1988). However, FED. R. CIV. P. 26(c)(5) requires a showing of good cause to

support the issuance of a protective order and the "[t]he burden is upon the movant to

show the necessity of its issuance, which contemplates a particular and specific

demonstration of fact as distinguished from stereotyped and conclusory statements."

United States v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir.1978). In the case at bar

Defendant has failed to state with any specificity how the dissemination of pre-trial

depositions to the public was a violation of the existing protective order issued in this

case. Defendant does not state what specific testimony given by Jeff Hall or identify any

other part of any other pre-trial deposition that “clearly implicates privacy concerns,

threatens embarrassment and harassment of the deponents”. Defendant has simply made

conclusory statements not supported by the affidavit attached to its motion. 1

B. The Court Should Not Limit The Public Dissemination of Discovery Depositions
Taken In This Case.

Defendant relies on the Declaration of Julia Callis as support for its position.

However, this Declaration has been sealed and Plaintiffs must not be forced to defend

1
Defendant filed under seal an Affidavit from Julia Callis, Senior Attorney For Cleo Support Services
LLC. However, Plaintiffs have no idea what was filed and therefore, the court should not consider it
absent an opportunity for Plaintiffs to read it and to respond to it.

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against a secret document that they have not reviewed. Plaintiffs hereby oppose the

request to file the affidavit under seal. Plaintiffs hereby demand to see the affidavit of

Ms. Callis so as to avoid a trial by ambush and segregation of material evidence.

Defendant’s allegations that a protective order should be issued because information

pertaining to non-party CLECO employees will be disclosed is hypocritical , self serving,

and calculated to arm twist Plaintiffs into a barrel of confinement where their First

Amendment rights would evaporate into Cleco’s world of privacy. Interestingly, the

Defendant itself filed into public records Declarations from non-party employees that

specifically dealt with work performance, disciplinary matters, performance issues ,

confidential ethics investigations, and other revelations of alleged incompetence

calculated to embarrass the Plaintiffs in its efforts to provide support for its Motions For

Summary Judgments. 2

The goal of Plaintiffs in taking pre-trial depositions of non-party employees was

to attack the veracity of those Declarations and gather information relevant to prosecution

of Plaintiffs’ case. What the Defendant is concerned about is that many of those non-
3
party employees’ deposition testimonies did not match their Declarations. And it calls

into question the credibility of CLECO defense of its treatment of Plaintiffs specifically,

and African-American employees generally. Accordingly, Defendant’s Motion To

Amend Protective Order must be denied.

(1) The Deponents’ and CLECO’s Privacy Concerns.

Defendant raising allegations of Deponents' and CLECO privacy concerns are a

ruse. Merely making conclusory and stereotypical statements is not a sufficient basis to

2
See Declarations of non party employees filed by CLECO :
3
Jeff Hall too filed a public Declaration in this case.

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allow issuance of a protective order . Terra International, Inc., In re, 134 F. 3d. 302

(C.A. 5th Cir. 1998). Defendant fails to state one instance in which a privacy concern is

raised in pre-trial depositions taken in this case. When privacy issue was a concern

during deposition the defendant raised the matter and Plaintiff respected those concerns.

See pages 25 thru 27 of Michael Madison’s deposition. If the Defendant sat through

deposition and raised no objections to questions and did not request protective order at

the conclusion of deposition , the court must not allow it to smuggle in through fanciful

motions shields that would protect it from the mere embarrassment of a discriminatory

policy it condoned and encouraged for decades. The fact that news of Mr. Hall’s video

deposition was “spreading like wild fire” and that a “stockholder” was concerned as to

whether Mr. Hall’s deposition would affect “shareholder exposure” are not sufficient

grounds to invoke privacy concerns that would justify a protective order and a very broad

prior restraint on speech. Defendants did not even put forth a rational reason why its

concern to protect pre-trial depositions from public view outweighs the public interest in

this case. If the court were to grant Defendant’s request every corporate defendant in

court in the United States will be entitled to broad protective orders on their

depositions. 4

( 2 ) Jeff Hall Embarrassment Does Not Warrant The Protection Of A


Protective Order.

Jeff Hall sworn testimony was solely addressing the question as to whether CLECO had
actively discriminated against Plaintiffs specifically and African-American employees
generally. Merely making conclusory, stereotypical statements that it has been harmed is
not sufficient to warrant the court to issue a protective order. Terra Interational, Inc., In

4
Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988).

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re, 134 F. 3d. 302 (C.A. 5th Cir. 1998). The fact that Defendant is embarrassed or publicly
humiliated because the highest-ranking African-American in the company was not
credible in a deposition is not a reasonable reason for the court to grant a protective order.
Jeff Hall is Cleco’s Chief Diversity Officer. His conduct and opinions as Chief Diversity
Officer goes to the heart of Plaintiffs’ case. His answers to questions on his role as Chief
Diversity Officer do not warrant a protective order simply because they were littered with
contradictions and half truths that could expose stakeholders to liabilities. Although
Cleco prides itself as a beacon of corporate diversity and constantly seeks positive light
and visibility in Central Louisiana in its public presentations, internally its policy is
hostile to racial minorities and it is the exposure of this political dichotomy that motivates
the instant motion. See Michael Madison’s deposition at pages 103-104 where he
confirmed that Jeff Hall is a Chief Diversity Officer with no executive powers. See also
Madison’s deposition at pages 110-125 where he could not explain or justify the way
minority employees were denied promotions in a manner contrary to his professed
diversity and equal opportunity goals. The public’s First Amendment right to view
judicial documents, while not absolute certainly, outweigh Mr. Hall’s mere
embarrassment. Public interest in this case is obvious from the filing of the case.

The story appeared in every major media market in Louisiana including KLAX TV -
Alexandria, LA (ABC), KALB TV - Alexandria, LA (NBC), KATC TV - Lafayette,
LA (CBS), Shreveport Times, Alexandria Town Talk, New Orleans Time Picayune,
Opelousas Daily Journal, and Baton Rouge Advocate. See copies of news article
attached. CLECO is the largest employer in Central Louisiana and one of several
Fortune 1000 companies located in Louisiana.

Moreover, Defendant has not presented one scintilla of evidence that Jeff Hall has

been harassed as a result of his deposition being posted on a local blog. In fact Jeff Hall

has been held out by CLECO publicly as a living testimony that it does not discriminate

against African-American employees. Defendant is now embarrassed that the sworn

deposition testimony of Mr. Hall does not match the cultivated public image that CLECO

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has presented to its customer base and the people of Louisiana over the years. . 5 Every

aspect of this case including discovery is of concern to the ratepayers, stockholders and

citizens of Central Louisiana. Jeff Hall has regularly acted as spokesperson and as the

voice of Cleco to the outside world on matters of discrimination. See statements

attributed to Hall in the attached portion of TownTalk, amongst others. . As recently as

February 23, 2011 Jeff Hall was quoted in the Alexandria Town Talk as stating:

“We are confident that when all the facts are known,
it will be clear that CLECO in no way discriminated
against these employees.” 6

(3) Discovery In This Case Is A Matter Of Public Concern.

CLECO is the largest employer in Central Louisiana. It is a public utility, which is

publicly traded. It has recently settled a high profile case with the City of Alexandria in

which it was accused of defrauding rates payers out of millions of dollars. The Public

Service Commission regulates it. It has tens of thousands of ratepayers who are African-

American. The filing of this lawsuit garnered statewide media attention. CLECO is

presently negotiating a power agreement in Opelousas, Louisiana, a majority African-

American city. In the city of Alexandria CLECO is in the center of the city’s economic,

political and social life. Every aspect of this case including discovery is of concern to the

ratepayers, stockholders and citizens of Central Louisiana. See attachments in exhibits

showing some of the coverage of this case in the Media.

The Defendant with no facts or legal basis argues that a protective order should be

amended to include pre-trial depositions because “sound bites” could be misinterpreted

5
Alexandria is a majority African-American city and its residents surely have an interest in how the
company treats African-American employees.
6
See “Cleco suit continues; two judges withdraw” Alexandria Town Talk attached .

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by the public”. Assuming argumendo that Defendant is correct, that is not a basis for the

court to take the extraordinary step of limiting the first amendment right of the public to

know about litigation involving a company that plays such a dominant role in their lives.

The court has no traditional business with worries over how different members of the

public would perceive sound bites.

Defendant in its arguments relies on several cases to support its position.

However, the facts of those cases are substantially different from the case at bar. In

Seattle Times Co. vs. Rhinehart et al, v. 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed 17 (1984),

the issue was whether a protective order was necessary to protect sensitive membership

information such as “all persons who made donation over a 5-year period”. Id. In the case

at bar, Defendant has not stated clearly any information that is in the pre-trial depositions

that would raise a privacy concern that outweighs the public right to have access to

judicial documents. See affidavit of NAACP. See also the affidavit of Blogger, Attorney

Greg Aymond , arguing that prior restraint of speech is unjustifiable and requesting the

court not to issue a blanket restraint on speech. The issues covered in Jeff Hall’s

deposition are already in public domain because a companion case , The Guienze matter,

is before the EEOC and the Defendant was found liable for racial harassment by the

EEOC. See conciliation agreement proposed by the EEOC and included in Plaintiffs’

responsive papers in Summary Judgment.

Furthermore in Seattle Justice Brennan and Marshall in concurring opinion stated

As the Court acknowledges, before approving such protective orders, "it is


necessary to consider whether the 'practice in question [furthers] an important or
substantial governmental interest unrelated to the suppression of expression' and

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whether 'the limitation of First Amendment freedoms [is] no greater than is


necessary or essential to the protection of the particular governmental.

The fact that Defendant may be embarrass by it employment practices toward African-

Americans is not a substantial interest that would warrant infringing very broadly on the

First Amendment rights of the Plaintiffs, their attorneys and the people of Central

Louisiana. It is dispositive that Plaintiffs voluntarily signed a protective order, as they

were sensitive to the fact that financial and other proprietary information need not be

needlessly disseminated. CLECO is a public corporation, granted unique public benefits

as a public utility and as such cannot hide from the public the fact that it has engaged in

specious conduct toward its African-American employees.

(4) Jury Pool Will Not Be Prejudice

Defendant offers no support or case law that viewing a pre-trial deposition will

prejudice the jury pool. In any event Defendant has the voi dire process at trial to

determine if jurors were prejudiced. This allegation is without merit.

(5) The Court Should Not Act To Limit Public Dissemination of The
Discovery Depositions In This Case.

Again the Defendant alleges that it did not agree to the dissemination “of matters

which are private and confidential. However, it fails to state exactly what issues it

believes are “private and confidential.” Merely making conclusory allegation does not

create a privacy concern that will outweigh the presumption that judicial documents are

of public interest. Therefore, Defendant Motion To Amend Protective Order must be

denied. Additionally the defendant did not make a good faith effort to resolve the

discovery dispute with the Plaintiffs because it only rigidly requested a blanket

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prohibition of publication of all depositions taken by Plaintiffs or nothing. The court,

therefore, must deny Defendant’s motion

CONCLUSION

For the foregoing reasons, the Plaintiffs request this court to deny Defendant’s motion.

February 23, 2011.

Respectfully submitted,

/s/ Larry English

LARRY ENGLISH
ENGLISH & ASSOCIATES, LLC
Louisiana Bar Roll #: 22772
415 Texas Street, Suite 320
Shreveport, Louisiana 71101
Telephone: (318) 222-1900
Facsimile: (318) 226-1660

/s/ Albert Van-Lare,


80 Wall Street, 3rd Fl.
New York, NY 10005
Tel.: (212) 608-1400
Fax.: (212) 608-9347
vanlareesq@aol.com

Attorneys For Plaintiffs.

CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of February 2011, Plaintiffs electronically

filed the foregoing Memorandum In Opposition To Defendant Motion To Amend

Protective Order with the Clerk of Court by using the CM/ECF system, which will send

a notice of electronic filing to the following:

Charles H. Hollis (La. #06961)

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The Kullman Firm


A Professional Law Corporation
1100 Poydras Street
1600 Energy Centre
Post Office Box 60118
New Orleans, Louisiana 70160
Telephone: 504-596-4189
chh@kullmanlaw.com

John T. Kalmbach (La. #24484)


333 Texas Street, Suite 1700
P.O. Box 22260
Shreveport, LA 71120-2260
Tel.: (318) 221-6277
Fax.: (318) 227-7850

By:___s/ Larry English

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