Judge Emmet Sullivan issued an order today related to dueling motions filed by Judicial Watch, Bryan Pagliano, and the DOJ.
Pagliano's attorneys asked that his deposition not be videotaped, and also asked that the letter granting him immunity by the DOJ be kept under seal. Judicial Watch not only wanted to videotape the deposition, but also wanted Sullivan to compel Pagliano's testimony, and publish the immunity letter.
The DOJ and Pagliano's lawyers correctly replied that Pagliano's right to assert the Fifth can't be denied, his testimony can't be compelled before it's even heard, and that there's an ongoing investigation that could be harmed if the immunity agreement was made public.
Judge Sullivan agreed:
MINUTE ORDER. Upon consideration of the parties' and non-party Bryan Pagliano's pleadings addressing the legal authority upon which Mr. Pagliano relies to assert his Fifth Amendment rights in this civil proceeding with respect to any deposition questions regarding "the creation and operation of clintonemail.com for State Department business", see ECF No. 73, the Court HEREBY ORDERS: (1) Mr. Pagliano's 85 Motion for a Protective Order is DENIED. Consistent with the Court's May 26, 2016 Minute Order and the treatment of all other deponents, Mr. Pagliano's deposition shall be videotaped and the audiovisual of his deposition shall be sealed until further order of the Court; (2) Mr. Pagliano's 88 Motion for Leave to File Under Seal is GRANTED; Mr. Pagliano's immunity agreement with the Department of Justice shall be sealed consistent with U.S. v. Hubbard in which the D.C. Circuit identified six factors to consider when determining whether the strong presumption in favor of public access to judicial proceedings may be overcome. 650 F.2d 293 at 31722 (D.C. Cir. 1980). Those factors include: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings. Id; see also E.E.O.C. v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996). In the Court's opinion, the need for public access to Mr. Pagliano's agreement with the government is minimal. Mr. Pagliano's immunity agreement has not previously been disclosed. Mr. Pagliano and the government object to disclosure of the immunity agreement. Indeed, the privacy interests at stake are high because the government's criminal investigation through which Mr. Pagliano received limited immunity is ongoing and confidential. Mr. Pagliano's immunity agreement with the government was filed with the Court by Mr. Pagliano solely to enable the Court to assess the legitimacy of his intent to assert his Fifth Amendment rights in this civil proceeding. The parties shall meet and confer to find a date and time for Mr. Pagliano's deposition prior to the close of discovery. Signed by Judge Emmet G. Sullivan on June 14, 2016. (lcegs4) (Entered: 06/14/2016)
None of this is a surprise. Since the videotapes are being kept confidential, there's no compelling need to prevent their recording. However, since the DOJ investigation of the Clinton emails is still ongoing, there's a real need to keep the immunity letter under seal.
As for Judicial Watch's attempt to deny Pagliano his right to plead the Fifth, in effect, compelling him to answer whatever Judicial Watch wants, well, that's hogwash. Judge Sullivan rightfully ignored it, because that was never one of the requests made of the Judge.
Now the lawyers will need to arrange a time for the deposition.
The fun continues.