Cave v. Thurston
Opinion
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION
DONNA CAVE, et al., PLAINTIFFS
EUGENE LEVY, et al., CONSOLIDATED PLAINTIFFS
THE SATANIC TEMPLE, et al., INTERVENORS
v. Case No. 4:18-cv-00342-KGB
JOHN THURSTON, Arkansas Secretary of State, in his official capacity DEFENDANT
ORDER
Before the Court is a motion to quash and for protective order filed by non-party witness Senator Jason Rapert (Dkt. No. 74). Plaintiffs Anne Orsi, Eugene Levy, Gale Stewart, Teresa Grider, the Arkansas Society of Freethinkers, American Humanist Association, and the Freedom from Religion Foundation (the “Orsi Plaintiffs”) filed a response in opposition to the motion (Dkt. No. 75). The Satanic Temple, Lucien Greaves, and Erika Robbins (the “Satanic Temple Intervenors”) have also filed a response in opposition to the motion (Dkt. No. 76). Arkansas State Senator Rapert informs the Court that his deposition has been subpoenaed for Thursday, September 12, 2019, at 9:30 a.m. (Dkt. No. 74, at 1). On August 2, 2019, plaintiffs Donna Cave, Judith Lansky, Pat Piazza, and Susan Russell (the “Cave Plaintiffs”) served a subpoena for his deposition but did not request video or documents with the deposition (Dkt. No. 74-1). On August 14, 2019, the Orsi Plaintiffs caused to issue a deposition subpoena and subpoena duces tecum commanding the videotaped testimony of Arkansas State Senator Rapert (Dkt. No. 74-2). Arkansas State Senator Rapert represents that he was served with the subpoena on August 20, 2019 (Dkt. No. 74, at 1). He moves to “(1) quash the subpoena commanding Senator Rapert’s attendance at a videotaped deposition noticed for 9:30 a.m. September 12, 2019, and (2) enter a protective order limiting the possession and use of any subsequent videotaped deposition to his personal attorneys and counsel of record in this matter only.” (Id.).
The Court attempted to convene a telephone hearing among counsel on September 11, 2019, with respect to this matter to discuss the status of the matter with all counsel (See Court’s Exhibit No. 1, at 3). Although lawyers for the Cave Plaintiffs, the Orsi Plaintiffs, the Satanic Temple Intervenors, and Arkansas State Senator Jason Rapert agreed to make themselves available for such a hearing (Id., at 4-5, 7-8, 13), counsel for Mr. Thurston stated that there were prior engagements during that time and “request[ed] that the Court not hold a conference,” on that date (Id., at 10). Counsel for Mr. Thurston represented that they would “work to reshuffle . . . prior commitments” if ordered to do so by the Court (Id.). The Court has reviewed controlling and persuasive authorities, including but not limited to Jones v. William Jefferson Clinton, et al., Case No. LR-C-94-290 (Dkt. No. 166), and United States v. McDougal, 940 F.Supp. 224 (E.D. Ark.), aff’d 103 F.3d 651 (8th Cir. 1996). For good cause
shown, the Court orders as follows: (1) Arkansas State Senator Rapert’s deposition will proceed as subpoenaed by the Cave Plaintiffs and Orsi Plaintiffs; (2) That deposition may be videotaped in accordance with the Orsi Plaintiffs’ subpoena; (3) Immediately upon the conclusion of Arkansas State Senator Rapert’s deposition the original video recording shall be labeled, dated, and initialed by the individual responsible for operating the recording equipment and handed to counsel for the Orsi Plaintiffs. Counsel for the Orsi Plaintiffs shall be responsible for maintaining the confidentiality of the video recording of Arkansas State Senator Rapert’s deposition pursuant to this Order. (4) No copies shall be made of the video recording of Arkansas State Senator Rapert’s deposition except as provided by Order of the Court after reasonable notice to all parties, including counsel for Arkansas State Senator Rapert. This provision includes but is not limited to no copies of the video recording being made or distributed to any other counsel, parties, or third-parties in this litigation except as provided by Order of the Court. (5) This Order grants a temporary protective order, consistent with its terms. The Court has under advisement Arkansas State Senator Rapert’s motion (Dkt. No. 74). The disposition of the video recording of Arkansas State Senator Rapert’s deposition shall remain subject to further orders of this Court, and this Order is without prejudice to Arkansas State Senator Rapert’s right to petition this Court for further protection. The parties have not fully briefed this issue, and the Court will grant all parties the opportunity to do so before ruling on the motion. It is so ordered, this the 11th day of September 2019. Ye sh A- Palisa istine G. Baker United States District Judge
| oN 4:18-cv-00342-KGB Cave et al v. Thurston io = 2 aschultz, jburnett, josh, mstambaugh, dniose, el Jared Lax to: gerrysch, mmiller, patrick, dylan.jacobs, 09/10/2019 05:08 PM gary.sullivan, nicholas.bronni, hsasser, Counsel: Good afternoon. My name is Jared Lax, and | am a new law clerk in Judge Baker's chambers. Based on telephone inquiries from counsel for multiple parties received this afternoon, the Court opts to respond to these inquiries by email to all counsel. The Court has been made aware of a scheduled, subpoenaed deposition of Senator Rapert set for Thursday and the possibility of a forthcoming motion to quash regarding that deposition. The Court is also aware that counsel for multiple parties are scheduled to travel from out-of-state to attend and conduct this deposition, hence part of the concern about the possibility of a forthcoming motion to quash. The Court is in chambers this week, with a few matters set on the docket for hearings in the next few days. If a motion to quash is filed, the Court will take it under advisement and provide all parties the opportunity to respond, if they choose to do so. Generally, the Court also makes itself available to conduct a telephone conference with counsel and the parties to sort out discovery matters. The Court will continue to monitor the docket. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared_lax@ared.uscourts.gov (501) 604-5423
Exhibit □□□
Re: 4:18-cv-00342-KGB Cave et al v. Thurston og Matthew A. Kezhaya_ to: Jared_Lax 09/11/2019 09:47 AM = “John L. Burnett", “Andrew G. Schultz", “Joshua D. Gillispie", Cc: "Melanie B. Stambaugh", "David A. Niose", "James \"Gerry\" enna ChUlZe”, Monica Miller, “Patrick C. Elliot", Dylan Jacobs, "Gary L. se □□ History: This message has been replied to. Thanks, Jared. Rapert filed his motion and I anticipate having a response out shortly. In the meantime, I'd like to get a conference call arranged with the Court. When is a good time for the Court, preferably today? On Tue, Sep 10, 2019, 5:08 PM
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION
DONNA CAVE, et al., PLAINTIFFS
EUGENE LEVY, et al., CONSOLIDATED PLAINTIFFS
THE SATANIC TEMPLE, et al., INTERVENORS
v. Case No. 4:18-cv-00342-KGB
JOHN THURSTON, Arkansas Secretary of State, in his official capacity DEFENDANT
ORDER
Before the Court is a motion to quash and for protective order filed by non-party witness Senator Jason Rapert (Dkt. No. 74). Plaintiffs Anne Orsi, Eugene Levy, Gale Stewart, Teresa Grider, the Arkansas Society of Freethinkers, American Humanist Association, and the Freedom from Religion Foundation (the “Orsi Plaintiffs”) filed a response in opposition to the motion (Dkt. No. 75). The Satanic Temple, Lucien Greaves, and Erika Robbins (the “Satanic Temple Intervenors”) have also filed a response in opposition to the motion (Dkt. No. 76). Arkansas State Senator Rapert informs the Court that his deposition has been subpoenaed for Thursday, September 12, 2019, at 9:30 a.m. (Dkt. No. 74, at 1). On August 2, 2019, plaintiffs Donna Cave, Judith Lansky, Pat Piazza, and Susan Russell (the “Cave Plaintiffs”) served a subpoena for his deposition but did not request video or documents with the deposition (Dkt. No. 74-1). On August 14, 2019, the Orsi Plaintiffs caused to issue a deposition subpoena and subpoena duces tecum commanding the videotaped testimony of Arkansas State Senator Rapert (Dkt. No. 74-2). Arkansas State Senator Rapert represents that he was served with the subpoena on August 20, 2019 (Dkt. No. 74, at 1). He moves to “(1) quash the subpoena commanding Senator Rapert’s attendance at a videotaped deposition noticed for 9:30 a.m. September 12, 2019, and (2) enter a protective order limiting the possession and use of any subsequent videotaped deposition to his personal attorneys and counsel of record in this matter only.” (Id.).
The Court attempted to convene a telephone hearing among counsel on September 11, 2019, with respect to this matter to discuss the status of the matter with all counsel (See Court’s Exhibit No. 1, at 3). Although lawyers for the Cave Plaintiffs, the Orsi Plaintiffs, the Satanic Temple Intervenors, and Arkansas State Senator Jason Rapert agreed to make themselves available for such a hearing (Id., at 4-5, 7-8, 13), counsel for Mr. Thurston stated that there were prior engagements during that time and “request[ed] that the Court not hold a conference,” on that date (Id., at 10). Counsel for Mr. Thurston represented that they would “work to reshuffle . . . prior commitments” if ordered to do so by the Court (Id.). The Court has reviewed controlling and persuasive authorities, including but not limited to Jones v. William Jefferson Clinton, et al., Case No. LR-C-94-290 (Dkt. No. 166), and United States v. McDougal, 940 F.Supp. 224 (E.D. Ark.), aff’d 103 F.3d 651 (8th Cir. 1996). For good cause
shown, the Court orders as follows: (1) Arkansas State Senator Rapert’s deposition will proceed as subpoenaed by the Cave Plaintiffs and Orsi Plaintiffs; (2) That deposition may be videotaped in accordance with the Orsi Plaintiffs’ subpoena; (3) Immediately upon the conclusion of Arkansas State Senator Rapert’s deposition the original video recording shall be labeled, dated, and initialed by the individual responsible for operating the recording equipment and handed to counsel for the Orsi Plaintiffs. Counsel for the Orsi Plaintiffs shall be responsible for maintaining the confidentiality of the video recording of Arkansas State Senator Rapert’s deposition pursuant to this Order. (4) No copies shall be made of the video recording of Arkansas State Senator Rapert’s deposition except as provided by Order of the Court after reasonable notice to all parties, including counsel for Arkansas State Senator Rapert. This provision includes but is not limited to no copies of the video recording being made or distributed to any other counsel, parties, or third-parties in this litigation except as provided by Order of the Court. (5) This Order grants a temporary protective order, consistent with its terms. The Court has under advisement Arkansas State Senator Rapert’s motion (Dkt. No. 74). The disposition of the video recording of Arkansas State Senator Rapert’s deposition shall remain subject to further orders of this Court, and this Order is without prejudice to Arkansas State Senator Rapert’s right to petition this Court for further protection. The parties have not fully briefed this issue, and the Court will grant all parties the opportunity to do so before ruling on the motion. It is so ordered, this the 11th day of September 2019. Ye sh A- Palisa istine G. Baker United States District Judge
| oN 4:18-cv-00342-KGB Cave et al v. Thurston io = 2 aschultz, jburnett, josh, mstambaugh, dniose, el Jared Lax to: gerrysch, mmiller, patrick, dylan.jacobs, 09/10/2019 05:08 PM gary.sullivan, nicholas.bronni, hsasser, Counsel: Good afternoon. My name is Jared Lax, and | am a new law clerk in Judge Baker's chambers. Based on telephone inquiries from counsel for multiple parties received this afternoon, the Court opts to respond to these inquiries by email to all counsel. The Court has been made aware of a scheduled, subpoenaed deposition of Senator Rapert set for Thursday and the possibility of a forthcoming motion to quash regarding that deposition. The Court is also aware that counsel for multiple parties are scheduled to travel from out-of-state to attend and conduct this deposition, hence part of the concern about the possibility of a forthcoming motion to quash. The Court is in chambers this week, with a few matters set on the docket for hearings in the next few days. If a motion to quash is filed, the Court will take it under advisement and provide all parties the opportunity to respond, if they choose to do so. Generally, the Court also makes itself available to conduct a telephone conference with counsel and the parties to sort out discovery matters. The Court will continue to monitor the docket. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared_lax@ared.uscourts.gov (501) 604-5423
Exhibit □□□
Re: 4:18-cv-00342-KGB Cave et al v. Thurston og Matthew A. Kezhaya_ to: Jared_Lax 09/11/2019 09:47 AM = “John L. Burnett", “Andrew G. Schultz", “Joshua D. Gillispie", Cc: "Melanie B. Stambaugh", "David A. Niose", "James \"Gerry\" enna ChUlZe”, Monica Miller, “Patrick C. Elliot", Dylan Jacobs, "Gary L. se □□ History: This message has been replied to. Thanks, Jared. Rapert filed his motion and I anticipate having a response out shortly. In the meantime, I'd like to get a conference call arranged with the Court. When is a good time for the Court, preferably today? On Tue, Sep 10, 2019, 5:08 PM
a | a 4:18-cv-00342-KGB Cave et al v. Thurston ed aschultz, jburnett, josh, mstambaugh, dniose, Jared Lax to: gerrysch, mmiller, patrick, dylan.jacobs, 09/11/2019 10:04 AM gary.sullivan, nicholas.bronni, hsasser, Cc: Tracy Washington Counsel: Before the Court is non-party witness Senator Jason Rapert's motion to quash and for protective order (Dkt. No. 74), which was filed this morning. The Court is available to conduct a telephone conference with counsel, the parties, and pertinent non-parties to discuss the matter at 11:00 a.m. or 2:30 p.m. today. All counsel, including counsel for the parties and counsel for Senator Rapert, are directed to respond to this email and to provide the Court with information regarding their availability for a telephone conference at 11:00 a.m. and 2:30 p.m. today. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared_lax@ared.uscourts.gov (501) 604-5423
ie Re: 4:18-cv-00342-KGB Cave et al v. Thurston "\.gf Matthew A. Kezhaya_ to: Jared_Lax 09/11/2019 10:10 AM "Andrew G. Schultz", "John L. Burnett", "Joshua D. Gillispie", Cc: “Melanie B. Stambaugh", "David A. Niose", "James \"Gerry\" Schulze", Monica Miller, "Patrick C. Elliot", Dylan Jacobs, "Gary L. I'm available at both times. On Wed, Sep 11, 2019, 10:04 AM
fo, faa Re: 4:18-cv-00342-KGB Cave et al v. Thurston Jared_Lax@ared.uscourts.gov, io John Burnett to: aschultz@rodey.com, 09/11/2019 10:10 AM josh@greenandgillispie.com, Cc: "Tracy_Washington@ared.uscourts.gov" Jared, Cave Plaintiffs are available either time. Thanks. John L. Burnett Lavey and Burnett 904 W.2d St. Little Rock, AR 72201 (501) 376-2269 Fax: (501) 372-1134
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared_Lax@ared.uscourts.gov
to
Before the Court is non-party witness Senator Jason Rapert's motion to quash and for protective order (Dkt. No. 74), which was filed this morning. The Court is available to conduct a telephone conference with counsel, the parties, and pertinent non-parties to discuss the matter at 11:00 a.m. or 2:30 p.m. today. All counsel, including counsel for the parties and counsel for Senator Rapert, are directed to respond to this email and to provide the Court with information regarding their availability for a telephone conference at 11:00 a.m. and 2:30 p.m. today. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared_lax@ared.uscourts.gov (501) 604-5423
Loe Re: 4:18-cv-00342-KGB Cave et al v. Thurston — Monica Miller to: Jared_Lax 09/11/2019 10:47 AM I am busy all afternoon but assuming Gerry Schulze is free, he has our full authority to represent the Orsi plaintiffs on the call. On Wed, Sep 11, 2019 at 11:04 AM
Monica L. Miller Legal Director and Senior Counsel American Humanist Association 1821 Jefferson Place NW, Washington, DC 20036 (202) 238-9088 ext 120 www.americanhumanist.org Member of the CA Bar and DC Bar
i Re: 4:18-cv-00342-KGB Cave et al v. Thurston cs 9 Paul Byrd to: John Burnett 09/11/2019 10:52 AM ee "Jared_Lax@ared.uscourts.gov", "aschultz@rodey.com", Ce: "josh@greenandgillispie.com", "mstambaugh@rodey.com", "dniose@americanhumanist.org", "gerrysch@b-s-m-law.com", Jared, I had two long meetings this morning and am just catching up. 2:30pm is best for me. Paul Byrd On Sep 11, 2019, at 10:10 AM, John Burnett
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared _Lax@ared.uscourts.gov
fe
mberry@firstliberty.org
vy
co kon RE: 4:18-cv-00342-KGB Cave et al v. Thurston - Dylan Jacobs to: ‘Paul Byrd’, John Burnett 09/11/2019 11:01 AM "Jared_Lax@ared.uscourts.gov", “aschultz@rodey.com", — Ce: "josh@greenandgillispie.com" _, "*mstambaugh@rodey.com", enna AioSe@americanhumanist.org”, “gerrysch@b-s-m-law.com", sean History: This message has been forwarded. Mr. Lax, Thank you for the email. Given the short notice, counsel for Defendant have prior engagements during both of those times and request that the Court not hold a conference today. Given the short notice, it’s unlikely that Defendant will have an adequate opportunity to review that motion, Mr. Kezhaya’s response he has indicated he plans to file, and respond before the hearing. If the Court directs otherwise, Defendant will work to reshuffle those prior commitments. Defendant also believes that written briefing on this matter would be more beneficial and intends to respond within the time allowed by the rules, unless the Court directs otherwise. Indeed, Defendant doesn’t understand the rush. The motion was filed this morning—apparently due to the Orsi Plaintiffs’ failure to respond to inquiries concerning a protective order until yesterday. Additionally, there are no discovery deadlines that would seem to justify short-circuiting Defendant’s opportunity to respond to the motion. Nor does Defendant understand the Satanic Temple Intervenor-Plaintiffs’ basis for requesting a teleconference since they did not subpoena Senator Rapert. Respectfully, Dylan L. Jacobs Assistant Solicitor General Office of Arkansas Attorney General Leslie Rutledge 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Office: 501.682.3661 | Fax: 501.682.2591 | dylan.jacobs@arkansasag. gov | ArkansasAG.gov
From: Paul Byrd [mailto:paul@paulbyrdlawfirm.com] Sent: Wednesday, September 11, 2019 10:52 AM To: John Burnett Cc: Jared_Lax@ared.uscourts.gov; aschultz@rodey.com; josh@greenandgillispie.com; mstambaugh@rodey.com; dniose@americanhumanist.org; gerrysch@b-s-m-law.com; mmiller@americanhumanist.org; patrick@ffrf.org; Dylan Jacobs; gary.sullivan@sos.arkansas.gov; Nicholas Bronni; hsasser@firstliberty.org; lepatterson@firstliberty.org; mberry@firstliberty.org; Michae! Cantrell; Vincent Wagner; William C. Bird TIT; matt@kezhaya.law; stu.dehaan@gmail.com; Tracy_Washington@ared.uscourts.gov Subject: Re: 4:18-cv-00342-KGB Cave et al v. Thurston Jared,
I had two long meetings this morning and am just catching up. 2:30pm is best for me. Paul Byrd On Sep 11, 2019, at 10:10 AM, John Burnett
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared □□□□□□□□□□□□□□□□□□□□□□
Cc: Tracy_Washington@ared.uscourts.gov
+40
ee: Re: 4:18-cv-00342-KGB Cave et al v. Thurston _ ag Gerry Schulze to: Jared_Lax 09/11/2019 11:04 AM "Andrew G. Schultz", John Burnett, Josh Gillispie, Melanie Cc: Stambaugh, David Niose, Monica Miller, Patrick Elliott, Dylan Jacobs, gary.sullivan, Nicholas Bronni, "Hiram S. Sasser III", Lea I was in a hearing in Batesville this morning. I'm currently in a McDonalds checking my email. I hope to be back by 2:30. Gerry J.G. "Gerry" Schulze Attorney at Law Baker Schulze & Murphy 2311 Biscayne Drive Little Rock, AR 72227 Telephone (501) 537-1000 Fax (501) 537-1001 gschulze@b-s-m-law.com gschulze@bsmp.law www.bsmp.law
On Wed, Sep 11, 2019 at 10:04 AM
{a
oe: Re: 4:18-cv-00342-KGB Cave et al v. Thurston □□□ John Burnett to: Dylan Jacobs, 'Paul Byrd' 09/11/2019 11:14 AM ee "Jared_Lax@ared.uscourts.gov", "aschultz@rodey.com", Ce: "josh@greenandgillispie.com” , "mstambaugh@rodey.com", “dniose@americanhumanist.org”, "gerrysch@b-s-m-law.com”, Jared, The Cave plaintiffs are uncertain whether the Secretary of State's position amounts to a plea that this long-noticed deposition not go forward. If it is, the Cave plaintiffs strenuously object, as the matter at hand is not complicated, but even so, if the Court were to decide that more time is needed to address the issue, then the simple solution is to direct the parties not to use the video deposition in any way until the Court decides the motion. In no event should this motion present any grounds to continue the deposition. Thanks. John L. Burnett Lavey and Burnett 904 W.2d St. Little Rock, AR 72201 (501) 376-2269 Fax: (501) 372-1134
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Dylan Jacobs
□
From: Paul Byrd [mailto:paul@paulbyrdlawfirm.com] Sent: Wednesday, September 11, 2019 10:52 AM To: John Burnett Cc: Jared_Lax@ared.uscourts.gov; aschultz@rodey.com; josh@greenandgillispie.com; mstambaugh@rodey.com; dniose@americanhumanist.org; gerrysch@b-s-m-law.com; mmiller@americanhumanist.org; patrick@ffrf.org; Dylan Jacobs; gary.sullivan@sos.arkansas.gov; Nicholas Bronni; hsasser@firstliberty.org; lepatterson@firstliberty.org; mberry@firstliberty.org; Michael Cantrell; Vincent Wagner; William C. Bird III; matt@kezhaya.law; stu.dehaan@gmail.com; Tracy_Washington@ared.uscourts.gov Subject: Re: 4:18-cv-00342-KGB Cave et al v. Thurston Jared,
pe
I had two long meetings this morning and am just catching up. 2:30pm is best for me. Paul Byrd On Sep 11, 2019, at 10:10 AM, John Burnett
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared _Lax@ared.uscourts.gov
If,
Subject: 4:18-cv-00342-KGB Cave et al v. Thurston Counsel: Before the Court is non-party witness Senator Jason Rapert's motion to quash and for protective order (Dkt. No. 74), which was filed this morning. The Court is available to conduct a telephone conference with counsel, the parties, and pertinent non-parties to discuss the matter at 11:00 a.m. or 2:30 p.m. today. All counsel, including counsel for the parties and counsel for Senator Rapert, are directed to respond to this email and to provide the Court with information regarding their availability for a telephone conference at 11:00 a.m. and 2:30 p.m. today. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared_lax@ared.uscourts.gov (501) 604-5423
We. Re: 4:18-cv-00342-KGB Cave et al v. Thurston (hg Matthew A. Kezhaya to: John Burnett 09/11/2019 11:20 AM oe Dylan Jacobs, Paul Byrd, “Jared_Lax@ared.uscourts.gov", Ge: "aschultz@rodey.com", "josh@greenandgillispie.com", “mstambaugh@rodey.com”, "dniose@americanhumanist.org", TST agrees with Cave plaintiffs. Matthew A. Kezhaya Kezhaya Law PLC 1202 NE McClain Rd Bentonville, AR 72712 p: (479) 431-6112 f: (479) 282-2892 e: matt@kezhaya.law This message may contain confidential or privileged information and was intended for a particular recipient. If it appears that I sent this to you in error, please inform me and delete this message. On Wed, Sep 11, 2019 at 11:14 AM John Burnett
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
LP
From: Dylan Jacobs
Mr. Lax,
Thank you for the email. Given the short notice, counsel for Defendant have prior engagements during both of those times and request that the Court not hold a conference today. Given the short notice, it’s unlikely that Defendant will have an adequate opportunity to review that motion, Mr. Kezhaya’s response he has indicated he plans to file, and respond before the hearing. If the Court directs otherwise, Defendant will work to reshuffle those prior commitments.
Defendant also believes that written briefing on this matter would be more beneficial and intends to respond within the time allowed by the rules, unless the Court directs otherwise. Indeed, Defendant doesn’t understand the rush. The motion was filed this morning— apparently due to the Orsi Plaintiffs’ failure to respond to inquiries concerning a protective order until yesterday. Additionally, there are no discovery deadlines that would seem to justify short-circuiting Defendant’s opportunity to respond to the motion. Nor does Defendant understand the Satanic Temple Intervenor-Plaintiffs’ basis for requesting a teleconference since they did not subpoena Senator Rapert.
1A
Respectfully,
Dylan L. Jacobs Assistant Solicitor General Office of Arkansas Attorney General Leslie Rutledge
323 Center Street, Suite 200 Little Rock, Arkansas 72201 Office: 501.682.3661 | Fax: 501.682.2591 | dylan.jacobs@arkansasag.gov | ArkansasAG.gov
From: Paul Byrd [mailto:paul@paulbyrdlawfirm.com] Sent: Wednesday, September 11, 2019 10:52 AM To: John Burnett Cc: Jared □□□□□□□□□□□□□□□□□□□□□□□ aschultz@rodey.com; josh@greenandgillispie.com; mstambaugh@rodey.com; dniose@americanhumanist.org; gerrysch@b-s-m-law.com; mmiller@americanhumanist.org; patrick@ffrf.org; Dylan Jacobs; gary.sullivan@sos.arkansas.gov; Nicholas Bronni; hsasser@firstliberty.org; lepatterson@firstliberty.org; mberry@firstliberty.org; Michael Cantrell; Vincent Wagner; William C. Bird III; matt@kezhaya.law; stu.dehaan@gmail.com; Tracy Washington@ared.uscourts.gov Subject: Re: 4:18-cv-00342-KGB Cave et al v. Thurston
Jared,
I had two long meetings this morning and am just catching up.
2:30pm is best for me.
SL) IN
Paul Byrd
On Sep 11, 2019, at 10:10 AM, John Burnett
Cave Plaintiffs are available either time. Thanks.
John L. Burnett Lavey and Burnett 904 W.2d St. Little Rock, AR 72201 (501) 376-2269 Fax: (501) 372-1134
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared _Lax@ared.uscourts.gov
vincent.wagner@arkansasag.gov>; william.bird@arkansasag.gov < william.bird@arkansasag.gov>; matt@kezhaya.law
Counsel: Before the Court is non-party witness Senator Jason Rapert's motion to quash and for protective order (Dkt. No. 74), which was filed this morning. The Court is available to conduct a telephone conference with counsel, the parties, and pertinent non-parties to discuss the matter at 11:00 a.m. or 2:30 p.m. today. All counsel, including counsel for the parties and counsel for Senator Rapert, are directed to respond to this email and to provide the Court with information regarding their availability for a telephone conference at 11:00 a.m. and 2:30 p.m. today. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared_lax@ared.uscourts.gov (501) 604-5423
etm Re: 4:18-cv-00342-KGB Cave et al v. Thurston Gerry Schulze to: Matthew A. Kezhaya 09/11/2019 02:02 PM ee John Burnett, Dylan Jacobs, Paul Byrd, Ce: "Jared_Lax@ared.uscourts.gov", "aschultz@rodey.com", ennrnnnnnnnnennn ere LOSH@Greenandgillispie.com”, "mstambaugh@rodey Com een History: This message has been forwarded. We all know from years of experience that once an Order is entered, the psychological, if not the legal, burden is on the party seeking a change. The cancellation of this deposition would work an undue and unwarranted hardship on all of us. However, if you'll agree to allow me to show the video to my clients [not give, but show them in my office] in addition to the other uses I have previously requested, I'll agree to the relief suggested by the Cave Plaintiffs in order to get this deposition going. If not I hereby request that the 2:30 hearing be held. The Attorney General is not the movant, and has five lawyers and three outside counsel who have appeared in this case. It is simply not reasonable that not one of eight lawyers can be present. I was in Batesville this morning. Nevertheless, with the help of my co-counsel, I filed a response to this motion. This issue is no surprise to any of the litigants. It is my position that the witness is demanding relief to which he is not entitled under the law. Further, it is my position that in the absence of a ruling by the Court, this deposition should go forward as noticed. See Stephen L. LaFrance Holdings, Inc. v. Sorensen , 278 F.R.D, 420 (E.D. Ark. 2011). Gerry Schulze J.G. "Gerry" Schulze Attorney at Law Baker Schulze & Murphy 2311 Biscayne Drive Little Rock, AR 72227 Telephone (501) 537-1000 Fax (501) 537-1001 gschulze@b-s-m-law.com gschulze@bsmp.law www.bsmp.law
On Wed, Sep 11, 2019 at 11:20 AM Matthew A. Kezhaya
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intended for a particular recipient. If it appears that I sent this to you in error, please inform me and delete this message. On Wed, Sep 11, 2019 at 11:14 AM John Burnett
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Dylan Jacobs
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matt @kezhaya.law
Thank you for the email. Given the short notice, counsel for Defendant have prior engagements during both of those times and request that the Court not hold a conference today. Given the short notice, it’s unlikely that Defendant will have an adequate opportunity to review that motion, Mr. Kezhaya’s response he has indicated he plans to file, and respond before the hearing. If the Court directs otherwise, Defendant will work to reshuffle those prior commitments.
Defendant also believes that written briefing on this matter would be more beneficial and intends to respond within the time allowed by the rules, unless the Court directs otherwise. Indeed, Defendant doesn’t understand the rush. The motion was filed this morning— apparently due to the Orsi Plaintiffs’ failure to respond to inquiries concerning a protective order until yesterday. Additionally, there are no discovery deadlines that would seem to justify short-circuiting Defendant’s opportunity to respond to the motion. Nor does Defendant understand the Satanic Temple Intervenor-Plaintiffs’ basis for requesting a teleconference since they did not subpoena Senator Rapert.
Dylan L. Jacobs Assistant Solicitor General Office of Arkansas Attorney General Leslie Rutledge
323 Center Street, Suite 200 Little Rock, Arkansas 72201
Office: 501.682.3661 | Fax: 501.682.2591 | dylan.jacobs@arkansasag.gov | ArkansasAG.gov
From: Paul Byrd [mailto:paul@paulbyrdlawfirm.com] Sent: Wednesday, September 11, 2019 10:52 AM To: John Burnett Cc: Jared_Lax@ared.uscourts.gov; aschultz@rodey.com; josh@greenandgillispie.com; mstambaugh@rodey.com; dniose@americanhumanist.org; gerrysch@b-s-m-law.com; mmiller@americanhumanist.org; patrick@ffrf.org; Dylan Jacobs; gary.sullivan@sos.arkansas.gov; Nicholas Bronni; hsasser@firstliberty.org; lepatterson@firstliberty.org; mberry@firstliberty.org; Michael Cantrell; Vincent Wagner; William C. Bird III; matt@kezhaya.law; stu.dehaan@gmail.com; Tracy Washington@ared.uscourts.gov Subject: Re: 4:18-cv-00342-KGB Cave et al v. Thurston
I had two long meetings this morning and am just catching up.
John L. Burnett Lavey and Burnett
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904 W.2d St. Little Rock, AR 72201 (501) 376-2269 Fax: (501) 372-1134
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared Lax@ared.uscourts.gov
Counsel: Before the Court is non-party witness Senator Jason Rapert’'s motion to quash and for protective order (Dkt. No. 74), which was filed this morning. The Court is available to conduct a telephone conference with counsel, the parties, and pertinent non-parties to discuss the matter at 11:00 a.m. or 2:30 p.m. today.
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All counsel, including counsel for the parties and counsel for Senator Rapert, are directed to respond to this email and to provide the Court with information regarding their availability for a telephone conference at 11:00 a.m. and 2:30 p.m. today. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared _lax@ared.uscourts.gov (501) 604-5423
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£22 Re: 4:18-cv-00342-KGB Cave et al v. Thurston Eg __ Matthew A. Kezhaya_to: Jared_Lax . 09/11/2019 02:33 PM Fistor This mescage has boon fopled tor Thanks, Jared. I left you a voicemail a few minutes ago which is resolved by this email. Matthew A. Kezhaya Kezhaya Law PLC 1202 NE McClain Rd Bentonville, AR 72712 p: (479) 431-6112 f: (479) 282-2892 e: matt@kezhaya.law This message may contain confidential or privileged information and was intended for a particular recipient. If it appears that I sent this to you in error, please inform me and delete this message. On Wed, Sep 11, 2019 at 2:30 PM
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Se, Re: 4:18-cv-00342-KGB Cave et al v. Thurston <9 Jared_Lax@ared.uscourts.gov, ee John Burnett to: aschultz@rodey.com, 09/11/2019 02:56 PM josh@greenandgillispie.com, Cc: "Tracy_Washington@ared.uscourts.gov" Jared, In the motion to quash, on page 2, 3rd full paragraph, it should read that the counsel for the Orsi plaintiffs, rather than the Cave _ plaintiffs, will not agree. . . . Although this alignment should be clear from the context and other documents in the case, | want the information to the Court to be clear here. Thanks. John L. Burnett Lavey and Burnett 904 W.2d St. Little Rock, AR 72201 (501) 376-2269 Fax: (501) 372-1134
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared_Lax@ared.uscourts.gov
DAY
Subject: 4:18-cv-00342-KGB Cave et al v. Thurston Counsel: The Court is emailing to inform all parties that there will not be a telephone conference today at 2:30 p.m. The Court will file a separate Order regarding the underlying motion to quash and for protective order (Dkt. No. 74) this afternoon. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared_lax@ared.uscourts.gov (501) 604-5423
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(—S>-\. Re: 4:18-cv-00342-KGB Cave et al v. Thurston |} Qty Jared □□□ to: John Burnett 09/11/2019 02:57 PM Mr. Burnett, Noted. Thank you for the clarification. Jared Lax Law Clerk to the Honorable Kristine G. Baker U.S. District Court, Eastern District of Arkansas 500 West Capitol Avenue, Room D444 Little Rock, Arkansas 72201 jared_lax@ared.uscourts.gov (501) 604-5423
John Burnett dared, inthe motion ta quash, on page 2, 3rdf... «09/11/2019 02:56:09 PM From: John Burnett
Jared, In the motion to quash, on page 2, 3rd full paragraph, it should read that the counsel for the Orsi plaintiffs, rather than the Cave plaintiffs, will not agree. .. . Although this alignment should be clear from the context and other documents in the case, | want the information to the Court to be clear here. Thanks. John L. Burnett Lavey and Burnett 904 W.2d St. Little Rock, AR 72201 (501) 376-2269 Fax: (501) 372-1134
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NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared_Lax@ared.uscourts.gov
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fas Re: 4:18-cv-00342-KGB Cave et al v. Thurston Sy Paul Byrd to: John Burnett 09/11/2019 02:58 PM ae "Jared_Lax@ared.uscourts.gov", "aschultz@rodey.com", Ce: "josh@greenandgillispie.com", "mstambaugh@rodey.com", “dniose@americanhumanist.org", "gerrysch@b-s-m-law.com", John is correct. My mistake. Paul Byrd On Sep 11, 2019, at 2:56 PM, John Burnett
NOTICE: This e-mail and any attachments is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, or any attachments hereto, is strictly prohibited. If you receive this e-mail in error, please immediately notify me at (501) 376-2269 and permanently delete the original version and any copy of the email and destroy any printout of it. Thank you for your cooperation.
From: Jared Lax@ared.uscourts.gov
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nicholas.bronni@arkansasag.gov
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~~ RE: 4:18-cv-00342-KGB Cave et al v. Thurston ae ‘Jared_Lax@ared.uscourts.gov', ae Dylan Jacobs to: aschultz@rodey.com, 09/11/2019 02:59 PM jburnett@laveyandburnett.com, Cc: "Tracy_Washington@ared.uscourts.gov" Mr. Lax— Just to clarify since the Defendant hasn’t had an opportunity to respond to the motion, is the Court requiring us to file a response this afternoon? Dylan L. Jacobs Assistant Solicitor General Office of Arkansas Attorney General Leslie Rutledge 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Office: 501.682.3661 | Fax: 501.682.2591 |dylan.jacobs@arkansasag.gov | ArkansasAG.gov From: Jared_Lax@ared.uscourts.gov [mailto-Jared_Lax@ared.uscourts.gov] Sent: Wednesday, September 11, 2019 2:30 PM To: aschultz@rodey.com; jburnett@laveyandburnett.com; josh@greenandgillispie.com; mstambaugh @rodey.com; dniose@americanhumanist.org; gerrysch@b-s-m-law.com; mmiller@americanhumanist.org; patrick@ffrf.org; Dylan Jacobs
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