UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. No. 08-248 (JR) 

 v. ) 

 ) REPLY

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEC’S REPLY IN SUPPORT OF 

ITS MOTION FOR ENTRY OF PROTECTIVE ORDERS 

Plaintiffs’ opposition to the entry of the protective orders sought by the Commission is 

premised on hyperbolic claims that the proposed orders are unprecedented in their breadth, 

burdensome in practice, and arrive too late in the day. None of these descriptions is accurate. 

The protective orders the Commission has moved this Court to enter are characteristic of others 

entered in these types of First Amendment cases, and are no more burdensome than necessary to 

balance the parties’ interests in preparing a full factual record in this important case, and the 

interests of the third parties whose documents have been subpoenaed. The Commission’s 

Motion for Entry of Protective Orders, moreover, is not untimely given the accelerated timing of 

this case pursuant to 2 U.S.C. § 437h, the manner in which both parties conducted discovery, and 

the lack of cooperation from plaintiffs, despite the First Amendment privacy interests at stake. 

Case 1:08-cv-00248-JR Document 50 Filed 11/21/2008 Page 1 of 16
I. BACKGROUND 

 This case involves a constitutional challenge to important, longstanding limits on 

contributions that can be accepted by political committees under the Federal Election Campaign 

Act (“FECA” or “Act”), 2 U.S.C. §§ 431-55. Since Buckley v. Valeo, 424 U.S. 1 (1976), the 

Supreme Court has repeatedly upheld the Act’s contribution restrictions, finding that they serve 

the important governmental purposes of preventing corruption and the appearance of corruption. 

See, e.g., Buckley, 424 U.S. at 26-28, 46-47; FEC v. Colo. Republican Fed. Campaign Comm. 

(“Colorado II”), 533 U.S. 431 (2001); FEC v. Beaumont, 539 U.S. 146, 160 (2003); McConnell 

v. FEC, 540 U.S. 93, 143-45 (2003). The Court has explained that corruption, properly 

understood, includes undue influence on an officeholder’s judgment, and the appearance of such 

influence. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 388 (2000) (“In 

speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo

arrangements,’ we recognized a concern not confined to bribery of public officials, but extending 

to the broader threat from politicians too compliant with the wishes of large contributors.”). In 

McConnell v. FEC, 540 U.S. 93, 146-154 (2003), the Court further explained that the 

appearance of such undue influence had arisen from large “soft money” contributors gaining 

preferential access and influence over government officials. 

In this line of cases, the Supreme Court has repeatedly relied on information obtained 

from third parties in deciding challenges to campaign finance laws. See, e.g., McConnell, 540 

U.S. at 146-51 (quoting and explaining third party declarations and documents). Accordingly, as 

part of the Commission’s efforts to compile a factual record in this case, the Commission sent 

subpoenas to eight of the largest individual contributors over the last few election cycles to 

Section 527 organizations that have engaged in candidate-related independent spending but did 

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not register with the Commission as political committees under the Act. The Commission’s 

subpoenas sought documents that might shed light on whether very large donations to these types 

of groups can lead to disproportionate access to or influence over elected officials, or create an 

appearance of corruption. 

As the Commission explained (FEC’s Motion for Entry of Protective Orders and 

Memorandum of Points and Authorities in Support Thereof (“Mem.”) at 1-3, [Doc. No. 46]), all 

of the subpoenas asked for the same categories of documents, variously related to 

communications with, and contributions to, 527 groups. Three of the eight contributors, Linda 

Pritzker, Herbert M. Sandler, and A. Jerrold Perenchio, agreed to provide responsive documents, 

but only if covered by protective orders; the three individuals have concerns regarding the public 

disclosure of documents regarding their private political communications, financial information, 

giving strategies, and campaign tactics. The Commission negotiated protective orders with all 

three and moved this court on October 31, 2008, to enter the orders. The proposed orders 

provide that the third parties can designate as confidential information that is “non-public” 

and/or “sensitive,” limit the disclosure of “Confidential” documents to the parties, counsel, and 

other individuals with a connection to the litigation, and, with the exception of Mr. Perenchio’s 

production, require that the documents and other papers that discuss the substance of confidential 

information be filed under seal. On November 11, 2008, SpeechNow.org and the other plaintiffs 

(“plaintiffs”) asked this Court (Plaintiffs’ Response to the FEC’s Motion for Entry of Protective 

Orders (“Resp.”)) [Doc. No. 49] to deny the Commission’s Motion. 

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II. THE COURT SHOULD ENTER THE PROPOSED PROTECTIVE ORDERS 

A. GOOD CAUSE EXISTS FOR THE COURT TO ENTER THESE 

PROTECTIVE ORDERS THAT ARE TYPICAL OF PROTECTIVE 

ORDERS ENTERED IN PREVIOUS CHALLENGES TO THE ACT 

As the Commission explained (Mem. at 6), the third parties’ concerns regarding the 

confidentiality of their First Amendment activities is sufficient justification for the entry of the 

protective orders. The identical subpoenas sent to Ms. Pritzker, Mr. Sandler, and Mr. Perenchio1

(See Declaration of Graham M. Wilson in Support of Reply (“Wilson Reply Decl.”) Exh. 1) 

requested documents involving communications between these individuals and candidates for 

public office, members of Congress, executive branch officials, political parties, and 527 groups 

regarding political advertising, solicitations for funds, and opportunities to meet.2

 The 

 

1

 As the Commission explained (Mem. at 4), Mr. Perenchio was not formally served with a 

subpoena, but his counsel has agreed to produce documents that would be responsive to such a 

subpoena, subject to a protective order. 

2

 The subpoenas served by the Commission on all eight major donors to 527 groups, copies 

of which were sent to plaintiffs’ counsel, consisted of the following six Document Requests: 

1. Produce all Communications to or from any Candidate, Member, Executive 

Branch Official, or Political Party relating to: (a) any Independent Candidate Public 

Communications paid for or run by any 527 Organization; or (b) any Donation or potential 

Donation to any 527 Organization that has paid for or run any Independent Candidate Public 

Communications. 

 2. Produce all Documents that Relate to any requests from, offers to, or 

opportunities for you to meet or speak with any Candidate, Member, or Executive Branch 

Official. 

 3. Produce all Documents that Relate to any Solicitation referencing access to any 

Candidate, Member or Executive Branch Official or any legislation or potential legislation that 

you received from any 527 Organization that has made any Independent Candidate Public 

Communications. 

 4. Produce all Documents Related to your purpose, goal, or reason for making any 

Donation to any 527 Organization that has made any Independent Candidate Public 

Communications. 

 5. Produce all Documents Related to deliberations or strategies to use Donations to 

any 527 Organization to affect legislation or gain access to any Candidate, Member, or Executive 

Branch Official. 

4

Case 1:08-cv-00248-JR Document 50 Filed 11/21/2008 Page 4 of 16
subpoenas also sought, inter alia, documents relating to these individuals’ reasons for donating 

to 527 organizations and their strategies to use such donations to influence legislation or gain 

access to candidates and high-ranking officials. The subpoenas sent by the Commission to the 

527 donors thus specifically sought materials relevant to this case, but which these individuals 

could validly claim reflect sensitive First Amendment activities. 

In AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003), the D.C. Circuit explained that 

strategic documents and other materials reflecting “political expression and association 

concerning federal elections and officeholding” were of a “delicate nature” that implicated First 

Amendment rights. Mindful of the concerns expressed by these three individuals, the 

Commission has moved for protective orders that allow them to designate as confidential 

information that is “non-public” and/or “sensitive”; limit the disclosure of confidential 

information to the parties, counsel, and other individuals with a connection to the litigation; and, 

with the exception of Mr. Perenchio’s production, require the documents and other papers that 

reflect confidential information be filed under seal.3

 Because materials responsive to the 

Commission’s subpoenas would implicate these First Amendment concerns, good cause plainly 

exists for the Court to enter these orders. 

 

6. Produce all Documents Relating to the uses made or to be made of any Donation 

you made to any 527 Organization that has made any Independent Candidate Public 

Communication. 

3

 The proposed protective orders for Ms. Pritzker and Mr. Sandler allow Plaintiffs and the 

Commission to challenge the designation of information as confidential. The proposed 

protective order for Mr. Perenchio (Mem. Exh. 3) erroneously provides that only the 

Commission may do so. The Commission has contacted counsel for Mr. Perenchio who has 

agreed to a change in the protective order allowing the Plaintiffs to challenge a designation of 

“Confidential” as well. A new Protective Order reflecting this change is attached hereto as 

Attachment A. 

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Although plaintiffs claim otherwise (Resp. at 2-3), specific facts demonstrate that the 

responsive documents identified by the three individuals are the proper subject of a protective 

order. The Commission’s subpoenas plainly seek documents reflecting “political expression and 

association concerning federal elections and officeholding.” AFL-CIO, 333 F.3d at 170. As 

explained in a declaration, FEC counsel has reviewed the documents identified by Ms. Pritzker 

and the documents “generally consist of memoranda from an advisor of Ms. Pritzker’s 

suggesting a proposed political giving strategy.” (Wilson Decl. ¶ 3). Mr. Perenchio’s 

documents were previously produced to the Commission in an administrative enforcement action 

and are responsive to the subpoena. (Id. ¶ 5.) The Commission has made clear to plaintiffs “on 

numerous occasions” that they may view Mr. Perenchio’s documents before a protective order is 

entered subject to their agreement to abide by its terms, but they have chosen not to do so. (Id.) 

Counsel for Mr. Sandler has also represented that Mr. Sandler has responsive documents but will 

not produce them without a protective order. (Id. ¶ 4.) These specific facts, set forth in the 

sworn declaration of Commission counsel, demonstrate that the Commission’s case for entry of 

the orders is hardly speculative.4

Nothing more is required. Affidavits from the third parties whose documents are sought 

by the Commission are not necessary for the Court to enter these protective orders. Plaintiffs 

 

4

 Nonetheless, plaintiffs claim (Resp. at 9, 14) that the protective orders should not be 

entered because neither the FEC nor the third parties have proved to the plaintiffs’ satisfaction 

that the responsive documents should be confidential. (See also Resp. at 4 n.3 (“Plaintiffs state 

that they have no objections ‘in principle’ because they have not been able to review the 

documents and have no idea what they say or whether the third parties’ claims of confidentiality 

are legally legitimate, or merely matters of personal preference.”).) 

 Plaintiffs have it backwards to the extent they are suggesting that the content of the 

documents should first be revealed to them without the benefit of a protective order so that 

plaintiffs can independently evaluate the third parties’ confidentiality claims. Producing parties 

are understandably reluctant to disseminate information they believe should remain confidential 

until after a protective order has been entered. 

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Case 1:08-cv-00248-JR Document 50 Filed 11/21/2008 Page 6 of 16
cite no decision holding that producing parties must submit affidavits in support of their claims 

to confidentiality. Plaintiffs assert (Resp. at 7; emphasis added), “Typically, those claims must 

be presented by affidavits from the party making claims of confidentiality.” Plaintiffs, however, 

cite only to cases involving parties who resisted discovery and claimed it would be burdensome. 

(See Resp. at 7-8 (citing cases).) The third parties here are not resisting discovery; they are 

merely seeking to keep information confidential they believe is sensitive. 

The proposed protective orders are by no means, as argued by plaintiffs (Resp. at 2, 14), 

“unprecedented” or otherwise atypical. Courts have routinely entered protective orders in cases 

involving challenges to the Act that allow litigants and third parties to designate sensitive 

information as confidential, that require documents that reflect such information to be filed under 

seal, and that do not limit the parties’ discretion to rely on covered information. One notable 

example is the protective order entered in McConnell v. FEC, No 02-0582 (D.D.C 2003) (Doc. 

No. 121) (Wilson Reply Decl., Exh. 2), a wide-ranging constitutional challenge brought against 

the Act by more than 80 individuals and groups. In that case, all of the parties — represented by 

seventeen different teams of lawyers — agreed to a protective order entered by a three-judge 

court in this district that contained the same provisions that plaintiffs object to in this case, 

allowing producing parties to designate as “confidential” “sensitive non-public information” (Id. 

at ¶ 2) and providing that any papers filed with the Court that disclosed confidential information 

were to be filed under seal (Id. at ¶ 11). The Order contained no provision limiting the parties’ 

discretion to rely on confidential information. 

In FEC v. Club for Growth, Civ. No. 05-1851 (D.D.C.) (filed Sept. 19, 2005) (Doc. 

No. 35), the Court entered a Protective Order (Wilson Reply Decl. Ex. 3) that allowed the 

defendant to designate as “confidential” “sensitive non-public information” (id. at ¶ 4), that 

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Case 1:08-cv-00248-JR Document 50 Filed 11/21/2008 Page 7 of 16
required papers disclosing such information to be filed under seal (id. at ¶ 4), and that did not 

limit the parties’ discretion to rely on confidential information. Club for Growth’s thenExecutive Director, David Keating, is also the President and Treasurer of SpeechNow.org and a 

plaintiff in this case, although he now complains that the proposed protective orders are 

unprecedented, he agreed to a protective order with nearly identical terms only three years ago. 

Similarly, in FEC v. Colorado Republican Federal Campaign Committee, Civ. Act. No. 89-1159 

(D.Colo.) (filed July 6, 1989), the district court entered five materially similar protective orders 

(Wilson Reply Decl. Exh. 4) that allowed third parties to designate as “protected” all the 

documents they had produced that were not otherwise public (id. at ¶ 1), that required court 

filings containing protected information to be filed under seal (id. at ¶ 4), and that in no way 

limited the parties’ discretion to rely on protected information. In that matter, the Commission 

had subpoenaed documents from several corporations and their connected political committees. 

In neither McConnell, Club for Growth, nor Colorado Republican, did the courts require any 

person or entity claiming confidentiality to submit an affidavit supporting its claim. 

Plaintiffs assert (Resp. at 5) that the Commission should spare the plaintiffs the onus of 

complying with the proposed protective orders by instead moving to compel production from the 

third parties. The third parties and the Commission, however, have avoided unnecessary 

litigation by cooperatively and mutually agreeing to a procedure to handle documents for which 

the third parties have asserted legitimate confidentiality concerns. Plaintiffs again have it 

backwards: There is no reason why third parties and courts in three separate federal districts 

should be burdened with contested motions in order to spare plaintiffs the trouble of complying 

with the reasonable terms of a protective order. 

8

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B. THE PROTECTIVE ORDERS ARE NO MORE BURDENSOME THAN 

NECESSARY TO PROTECT THE FIRST AMENDMENT INTERESTS OF 

THE THIRD PARTIES WHOSE DOCUMENTS HAVE BEEN 

SUBPOENAED 

As the Commission has explained (see supra pp. 2-3; Mem. at 1-2), the third party 

documents subpoenaed by the Commission may provide the Court with critical information 

regarding the weighty constitutional issues in this case. Because the documents sought involve 

First Amendment concerns (see supra 4-6), the Court should enter the protective orders, which 

provide that papers filed with the Court that contain or reflect confidential information be filed 

under seal. 

The authority afforded the third parties to designate information as confidential is hardly, 

as claimed by plaintiffs (Resp. at 11), “complete.” The proposed Pritzker and Perenchio 

protective orders only allow them to designate “sensitive non-public information” as 

confidential. (See Mem. Attach. 1. at ¶ 2; Mem. Attach. 3 at ¶ 2.) While the proposed Sandler 

protective order allows him to designate “non-public information” as confidential, the proposed 

order also provides that he cannot designate “mass fundraising solicitations, press releases, or 

mass public communications” as confidential. (See Mem. Attach. 2 at ¶¶ 2-3.) Consequently, 

the limited discretion given to the third parties strikes a necessary balance between the 

government’s interest in gaining access to evidence that may prove critical to defending the Act 

and the legitimate concerns of the third parties. 

In addition to filing briefs that contain confidential information under seal, the 

Commission will file publicly redacted versions of papers filed with the Court. As the 

Commission has explained (Mem. at 6-7), such procedures are within the Court’s discretion and 

common in other cases. Plaintiffs do not dispute this. They argue instead (Resp. at 4-5) that the 

length of the Commission’s proposed findings of fact suggests that the Commission is unlikely to 

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exercise restraint in its use of confidential information. But the length of the Commission’s 

publicly-filed proposed findings of fact, and their accompanying exhibits, suggest no proclivity 

on the part of the Commission for sealed filings. Like the plaintiffs, the Commission will be 

burdened by the process of filing documents under seal, so it has no incentive to undertake that 

effort unnecessarily. Moreover, as the Commission has explained (Mot. at 4 & Wilson Decl. 

¶ 3), counsel for Mrs. Pritzker has identified only five responsive documents, so the volume of 

materials that will likely be subject to the protective orders is very small compared with the 

public evidentiary record. Yet, without justification, plaintiffs argue (Resp. at 2, 14) that the 

Commission and the third parties will indiscriminately designate information as confidential and 

disproportionately rely on it. 

In any event, the number of covered documents the Commission chooses to rely upon 

will have only a marginal effect on plaintiffs’ obligations. Whether the Commission or plaintiffs 

rely upon one or multiple confidential documents, the parties will be required to file two briefs, 

one under seal and one in public, redacted form. And since both parties have expressed an 

interest in having as much of the record publicly disclosed as possible, there is no reason to 

believe a specific judicial mandate is necessary to ensure that as little information is redacted as 

possible. 

All three proposed protective orders limit the disclosure of confidential information to the 

parties, counsel, and other individuals with a connection to the litigation, including paralegals 

and clerical assistants. Additionally, the proposed protective orders allow confidential 

information to be disclosed to those “who have a clear need therefore in connection with this 

action” (see Mem. Attach. 2 at ¶ 5(a); Mem. Attach. 3 at ¶ 4(a)) or those who are working on this 

litigation (see Mem. Attach. 1 at ¶ 4(a)). These provisions, necessary to protect the 

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Case 1:08-cv-00248-JR Document 50 Filed 11/21/2008 Page 10 of 16
confidentiality of the information, hardly create the burdens imagined by plaintiffs (Resp. at 12). 

For example, attorneys in counsel’s office that participate in moot courts or are needed for 

consultation on the case are manifestly “working on” the case, and have a “clear need” for the 

information. 

SpeechNow also claims that it would not be opposed to entering some kind of protective 

order and that an order suiting their preferences would have been agreed to if the parties started 

negotiating earlier. (Resp. at 16-17). This is simply not the case. As stated in their Response, 

SpeechNow wanted to find a way to protect the documents without requiring briefs to be filed 

under seal. (Resp. at 16). This was that the position that SpeechNow took in several discussions 

regarding potential protective orders, and a position on which they would not compromise. See 

Declaration of Steven M. Simpson in Support of Plaintiffs’ Response to FEC’s Motion for Entry 

of Protective Orders (“Simpson Resp. Decl.”) Exhs. 1 and 6). This proposal was rejected by two 

of the third parties, who would not agree to have the substance of their documents concerning 

political strategies and affiliations filed in open court. Similarly, the third parties would not 

agree to produce the documents without some protective order already being in place. Given 

plaintiffs’ unwillingness to compromise, the Commission contacted SpeechNow to state that it 

was going to file a motion to enter the protective orders on October 14, 2008. At that point, it 

was the plaintiffs who proposed an extension to the briefing schedule in the hopes that an 

agreement regarding the Protective Orders could be reached. Simpson Resp. Decl. ¶ 6. The 

Commission agreed, and made another attempt at securing the agreement of the third parties but 

was unsuccessful. Plaintiffs did not relent on their insistence that no redaction of briefs occur, 

and the Commission was unfortunately forced to file this contested motion. 

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Finally, plaintiffs’ burdensomeness objections are belied by their own elaborate 

counterproposals to the Court. Plaintiffs contend (Resp. at 16-17) that the parties could have 

agreed to a limited protective order to allow review of the documents, after which the parties 

could negotiate another agreement — presumably a second protective order, governing the 

remainder of the case. This second protective order, plaintiffs suggest, could have obviated the 

need to file briefs under seal. In their view, the parties could have referred to confidential 

documents only by exhibit numbers or by generic descriptions without divulging confidential 

information. But plaintiffs fail to explain how either of these methods is less onerous than 

redacting confidential information, or, more important, how either party could meaningfully 

discuss the substance of the documents with a generic or numerical label.5

 Plaintiffs’ proposals 

contemplate additional negotiations between the parties, an additional protective order, and no 

less austere compliance measures than the proposed protective orders. Their burdensomeness 

objections to the proposed orders thus ring hollow. Even if plaintiffs have “no desire to use 

those [third party] documents even in the context of this lawsuit” (Resp. at 8), the Commission, 

in its defense of longstanding, important provisions of the Act, should be able to rely on the 

materials that it believes may assist the Court, even if that requires a protective order that 

recognizes the First Amendment interests of third parties. 

 

5

 Plaintiffs also contend (Resp. at 17) that a second protective order could have strictly 

limited the amount of information that could be redacted from briefs. As the Commission 

explained above (see supra pp. 7-8, 10), however, courts routinely enter protective orders that do 

not include such limits, which in any event would save little in the way of effort: whether a party 

relies on one or more pieces of confidential information, that party will still file two briefs, one 

under seal and one redacted. 

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C. THE SUBPOENAS WERE TIMELY SERVED 

SpeechNow also asserts that the Court should not enter the Protective Orders because the 

motion was filed too late in the case. In fact, the subpoenas were served in time to be completed 

before the close of discovery. Serving the subpoenas towards the end of the discovery period 

was an understandable consequence of the compressed schedule dictated by 2 U.S.C. § 437h, and 

was consistent with the timing of the Rule 45 subpoenas served by Plaintiffs. The timing of this 

motion was dictated, in part, by SpeechNow’s unwillingness to cooperate in addressing the First 

Amendment privacy concerns of third parties. 

The discovery schedule in this case has been compressed to comply with the requirement 

of 2 U.S.C. § 437h that the Court “immediately” certify the “questions of constitutionality” to the 

en banc court of appeals. The result is that both parties served subpoenas duces tecum and 

noticed depositions at the end of the discovery period. The original deadline for the close of 

discovery was on September 26, 2008. On September 8, 2008 SpeechNow served subpoenas 

seeking documents and deposition testimony on Clyde Wilcox, the Commission’s expert 

witness. Wilson Reply Decl. Exh. 5. On the same date, SpeechNow noticed a Fed.R.Civ.P 

30(b)(6) deposition of the Commission. Wilson Reply Decl. Exh. 6. On September 18, 2008, 

SpeechNow then served subpoenas seeking documents and deposition testimony on West 

Virginia Supreme Court Justice Larry Starcher. Wilson Reply Decl. Exh. 7. Finally, Plaintiffs 

sent a series of different subpoenas seeking documents and deposition testimony on the 

California Fair Political Practices Commission on September 8, September 19, and September 

26, 2008. Wilson Decl. Exh. 8. 

As part of its effort to create a record on the important question of whether unlimited 

contributions to political committees have the potential to corrupt elected officials or lead to 

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undue or disproportionate access and influence, the Commission also served subpoenas seeking 

documents late into the discovery schedule. The Commission sent subpoenas to eight of the 

largest contributors to section 527 organizations, including contributors to both Democratic- and 

Republican-leaning 527 groups. See Wilson Decl. ¶ 2. Theses subpoenas were all sent out 

between August 29 and September 9, 2008. Id. 

Accordingly, SpeechNow’s accusations that the Commission should have served its 

subpoenas earlier or that it served subpoenas after a deadline cannot be squared with plaintiffs’ 

own actions. The Commission acted during the exact same time frame that SpeechNow was 

serving its third-party subpoenas. SpeechNow’s claim about the “deadline” is apparently in 

reference to the provision in the Joint Scheduling Order that “all documents requests, 

interrogatories, and requests for production to be served by August 26, 2008.” (Joint Scheduling 

Report, Doc. No. 27). However, this provision does not refer to “subpoenas,” the third party 

discovery device.6

 The Joint Scheduling Report asked that the discovery schedule include the 

provision: “All discovery to be completed by September 26, 2008.” Consistent with that 

deadline, the Joint Report called for party discovery — which allows for 30 days response time 

— to be served by August 26, 2008. See Jt. Sched. Rept. at 4; Fed. R. Civ. P. 33, 34, 36. Rule 

45 subpoenas, on the other hand, must only allow “a reasonable time to comply,” Fed. R. Civ. P. 

45(c)(3)(A)(i), and ten days notice is customary and generally considered reasonable. In re 

Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 327 (N.D. Ill. 2005). The mention of August 26 

was not intended to create any special discovery deadlines, but simply to clarify that requests 

under the Fed. R. Civ. P. 33, 34, 36 must be served 30 days prior to the close of discovery, 

September 26, 2008. Both parties conducted discovery as if August 26, 2008 was the deadline to 

 

6

 The Joint Scheduling Report erroneously referred to “requests for production” rather than “requests for 

admission.” 

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Case 1:08-cv-00248-JR Document 50 Filed 11/21/2008 Page 14 of 16
serve discovery requests on each other, but sent numerous subpoenas to third parties after that 

date. Tellingly, rebuttal experts did not even have to be disclosed under the Joint Scheduling 

Order until September 15, 2008. (Joint Scheduling Report, Doc. No. 27). Under SpeechNow’s 

new interpretation it would have been impossible for the parties to serve a document request on a 

new rebuttal expert witness. Ultimately, under Rule 45(b)(1), plaintiffs were provided notice of 

the subpoenas and they did not object. They thus waived any objections to timeliness and cannot 

belatedly raise such an objection now. SpeechNow’s arguments about the timing of the 

Commission’s third-party subpoenas mischaracterize a rushed calendar that saw both parties 

attempting to maximize the final weeks of discovery.7

 

The timing of the Motion for Entry of Protective Orders is an unfortunate by-product of 

an expedited court calendar and an unwillingness by plaintiffs to agree to a commonplace 

measure to protect legitimate privacy interests. However, plaintiffs have offered no reason to 

preclude relevant evidence, sought at the appropriate time, from coming before the Court. 

III. CONCLUSION 

Plaintiffs are unable to offer a legitimate reason why the protective orders proposed by 

the Commission should not be entered. The proposed orders are a standard measure to protect 

legitimate privacy concerns, and are not untimely or unduly burdensome. Accordingly, the 

Commission respectfully requests that this Court enter the proposed protective orders regarding 

documents to be produced by third parties Herbert Sandler, Linda Pritzker, and A. Jerrold 

Perenchio. 

 

7

 SpeechNow also criticizes the Commission for having discussed the option of making a 

declaration in lieu of producing documents with a few of the individuals on whom it served 

subpoenas. In fact, the Commission’s flexibility on this point demonstrates its interest in 

streamlining fact development and lessening burdens on third parties if possible. Given the time 

constraints, the Commission simply mentioned the possibility of providing testimony to the third 

parties if it would be less time consuming than finding and producing documents. 

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16

Respectfully submitted, 

Thomasenia P. Duncan 

(D.C. Bar No. 424222) 

General Counsel 

David Kolker 

(D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Robert Bonham 

(D.C. Bar No. 397859) 

Senior Attorney 

/s/ Graham M. Wilson

Steve Hajjar 

Graham M. Wilson 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: November 21, 2008 (202) 694-1650 

 

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