FOR THE DISTRICT OF NEW JERSEY DEMOCRATIC NATIONAL ...

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

DEMOCRATIC NATIONAL COMMITTEE, et al.

Plaintiffs,

v. REPUBLICAN NATIONAL COMMITTEE, et al.

Defendants.

Civil Action No.: 81-3876 (JMV) (JBC)

NOTICE OF REPUBLICAN NATIONAL COMMITTEE’S UNOPPOSED MOTION TO SEAL

PLEASE TAKE NOTICE of Defendant Republican National Committee’s motion

requesting the entry of an Order, pursuant to Local Civil Rule 5.3(c), to seal an exhibit to

Plaintiff Democratic National Committee’s September 13, 2017 discovery motion (Dkt. No. 176,

Ex. 5).

PLEASE TAKE FURTHER NOTICE that, in support of its motion, the RNC relies on

the brief submitted with this Notice of Motion, the Declaration of Mark Sheridan, the

Declaration of RNC Chief Counsel John R. Phillippe Jr., and upon all pleadings and proceedings

on file herein.

PLEASE TAKE FURTHER NOTICE that a Proposed Order granting this motion is

attached.

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September 6, 2018 /s/ Mark D. Sheridan

Bobby R. Burchfield Matthew M. Leland KING & SPALDING LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 Email: [email protected] Mark D. Sheridan SQUIRE PATTON BOGGS (US) LLP The Legal Center One Riverfront Plaza 1037 Raymond Boulevard Newark, New Jersey 07102 Telephone: (973) 848-5681 Email: [email protected] Attorneys for Defendant Republican National Committee


CERTIFICATE OF SERVICE

I hereby certify that I caused the RNC’s Notice of Motion to Seal, Motion to Seal,

Declaration of Mark Sheridan with Exhibit A and B (Declaration of John R. Philippe), and a

Proposed Order to be filed through the ECF system and notice will be sent electronically to the

registered participants as identified on the Notice of Electronic Filing (NEF). Paper copies will

be sent by United States Mail to those indicated as non-registered participants, on September 6,

2018.

/s/ Mark D. Sheridan Mark D. Sheridan




Plaintiffs,


Defendants.


BRIEF IN SUPPORT OF REPUBLICAN NATIONAL COMMITTEE’S UNOPPOSED MOTION TO SEAL

Pursuant to the Order of the U.S. Court of Appeals for the Third Circuit dated August 24,

2018 and Local Civil Rule 5.3(c)(2), Defendant Republican National Committee requests that the

Court seal one exhibit to Plaintiff Democratic National Committee’s September 13, 2017

discovery motion (Dkt. No. 176, Ex. 5). The RNC requests protection of the document under

seal only until after the conclusion of the next presidential election on November 3, 2020. The

DNC does not oppose this motion.

PROCEDURAL HISTORY

For years during litigation concerning the Consent Decree, the Court has protected the

parties’ sensitive election and campaign related documents from public disclosure. On October

29, 20104, the Court entered a protective order ensuring that “all documents produced or

exchanged in the course of discovery in this litigation . . . shall be used solely for the purpose of

this case.” Order, Oct. 29, 2004 (Dkt. No. 16). On July 7, 2017, the Court further protected

against public disclosure of any information the RNC considered “competitively sensitive.”

Order, July 7, 2017 (Dkt. No. 167). To prevent the harm that may be suffered by the RNC if its

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election related documents were disclosed to the DNC’s political operatives, the Court also

limited the documents to “attorneys’ eyes only” and also barred the DNC’s counsel, Marc Elias,

from accessing the material because of his political roles in the DNC and in other candidate

campaigns. See id. Finally, the Court provided a procedure for disputing “competitively

sensitive” designations of documents. Id.

This motion to seal concerns a presidential campaign strategy memorandum used in one

of several discovery motions filed by the DNC since the 2016 election. On September 13, 2017,

the DNC filed a letter motion under seal requesting supplemental discovery in support of its

motion to extend the Consent Decree. See Letter from Angelo Genova (Sept. 13, 2018) (Dkt.

No. 176). The RNC produced the memorandum during discovery and designated it

“Confidential-Subject to Protective Order [and] Attorney’s Eyes Only.” See id. at Ex. 5.

Although neither party filed a motion to seal the DNC’s letter motion and exhibits, the document

has remained under seal since the filing.

On January 8, 2018, after several discovery rulings, the Court ruled that the DNC did not

prove by a preponderance of the evidence that the RNC violated the Consent Decree before

December 1, 2017, and, further, that the Consent Decree had expired. See Order (Jan. 8, 2018)

(Dkt. No. 213). The DNC appealed several of the Court’s discovery orders. Both the DNC and

RNC filed motions requesting that the Third Circuit seal certain portions of the record within the

Joint Appendix, including the strategic memorandum used as part of the DNC’s September 25,

2017 letter motion. The Third Circuit denied the motions without prejudice because no motion

to seal had been filed in district court, and ordered the parties to file a motion to seal in the

district court within 14 days if either party still sought protection of specific documents. See

Order (Aug. 24, 2018) attached as Exhibit A.


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ARGUMENT

Local Civil Rule 5.3(c) requires a showing of: (1) the nature of the document at issue; (2)

the legitimate interest that warrants the relief sought; (3) the clearly defined injury resulting from

disclosure; and (4) that a less restrictive alternative is not available. See Local Civil Rule 5.3(c).

There is good cause to seal portions of briefs and records when it is necessary to protect a

party’s confidential proprietary business and competitive interests. See Mylan Inc. v. Smithkline

Beecham Corp., 723 F.3d 413, 415 n.3 (3d Cir. 2013) (granting motion to seal briefs and

portions of the record containing competitively sensitive information from the underlying

contract dispute). Given the election related issues that are pervasive in this case, the RNC’s

competitive interests will be vulnerable if the strategic memorandum does not remain under seal.

First, the nature and content of the confidential strategy document requires protection

from public disclosure. See Goldenberg v. Indel, Inc., 2012 WL 15909, at *3 (D.N.J. 2012)

(holding there is a legitimate interest in preventing disclosure of trade secrets and competitive

information). The strategic memorandum is a confidential document written for campaign

personnel and volunteers. See Declaration of RNC Chief Counsel John Phillippe ¶ 4, attached as

Exhibit B. It explains several strategies and activities for election day and a potential recount.

See id. The memorandum was circulated during the 2016 election, but contains several plans

that are likely to be used in or may bear upon future elections. See id. This includes the election

for President of the United States in 2020. See id.

Second, the RNC has a strong interest in maintaining confidentiality of the document, and

risks irreparable harm to its campaign programs in the event the document is disclosed. See

Goldenberg v. Indel, Inc., 2012 WL 15909, at *4 (sealing because disclosure would allow

competitors to use information to gain advantage in the marketplace). The RNC and DNC


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compete vigorously for votes by registered voters in federal, state, and local elections. To secure

those votes, the parties expend financial resources and engage staff, volunteers, independent

contractors, and vendors in GOTV activities that are the product of confidential strategic

decisions by RNC and campaign officers and personnel. See Phillippe Decl. ¶ 3. These

strategies are still relevant and likely to be implemented again during the 2020 general election.

See id. at ¶ 5. Therefore, the RNC will suffer a competitive disadvantage by the disclosure of

Republican campaign strategic priorities, election activities, and allocation of resources. DNC

operatives (and others) will be able to reallocate resources to address Republican strategic

decisions, which is a key reason the RNC guards them closely. See id. at ¶¶ 3, 5.

Third, there is no less restrictive alternative to sealing the strategic memorandum in its

entirety. The document provides step-by-step procedures throughout each of its pages that are to

be carried out by staff and volunteers in the days before, on, and after election day. See id. at ¶ 4.

The DNC also has never objected to the RNC’s designation of the entire document as

confidential. Finally, there would be only a minimal effect on the public’s right to access the

information litigated in this case because the RNC requests protection for only one of the several

documents used in the DNC’s discovery motions during 2017 and 2018.


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CONCLUSION

The RNC urges the Court to grant the DNC’s motion to seal and protect the strategic

document from disclosure until after November 3, 2020, which is the date of the next general

election in the race for the Office of the President of the United States.

September 6, 2018 /s/ Mark D. Sheridan Bobby R. Burchfield Matthew M. Leland KING & SPALDING LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 Telephone: (202) 626-5524 Email: [email protected] Mark D. Sheridan SQUIRE PATTON BOGGS (US) LLP The Legal Center One Riverfront Plaza 1037 Raymond Boulevard Newark, New Jersey 07102 Telephone: (973) 848-5681 Email: [email protected] Attorneys for Defendant Republican National Committee




Plaintiffs,


Defendants.


DECLARATION OF MARK SHERIDAN IN SUPPORT OF REPUBLICAN NATIONAL COMMITTEE’S UNOPPOSED MOTION TO SEAL

I, MARK D. SHERIDAN, declare as follows:

1. I am an attorney in the State of New Jersey, a member in good standing of the Bar

of this Court, and a Partner in the law firm of Squire Patton Boggs (US) LLP, attorneys for the

Republican National Committee. I have personal knowledge of the facts recited herein and

respectfully submit this Declaration in Support of the Republican National Committee’s

Unopposed Motion to Seal.

2. Attached as Exhibit A is a true and correct copy of an Order from the United States

Court of Appeals for the Third Circuit, dated July 6, 2018 in the matter of Democratic National

Committee, et al. v. Republican National Committee, et al., Docket No. 18-1215.

3. Attached as Exhibit B is a true and correct copy of the Declaration of John R. Philippe Jr.,

dated September 6, 2018.

4. I declare under penalty of perjury that the foregoing is true and correct.


Executed this 6th day of September 2018 in Newark, New Jersey

/s Mark Sheridan Mark D. Sheridan


EXHIBIT A


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

July 6, 2018

No. 18-1215

DEMOCRATIC NATIONAL COMMITTEE;

NEW JERSEY DEMOCRATIC STATE COMMITTEE;

VIRGINIA L. FEGGINS;

LYNETTE MONROE

v.

REPUBLICAN NATIONAL COMMITTEE;

NEW JERSEY REPUBLICAN STATE COMMITTEE;

ALEX HURTADO;

RONALD C. KAUFMAN;

JOHN KELLY

Democratic National Committee,

Appellant

(D.N.J. No. 2-81-cv-03876)

TO: CLERK

1) Motion by Appellant to Seal Portions of Appellant’s Brief and the Joint

Appendix

2) Supplement to Motion to Seal by Appellee

Respectfully,

Clerk/eaf

_________________________________ORDER________________________________

The foregoing motion to seal is resolved as follows:

1. The motion to seal the identified portions of the Appellant’s brief is denied as

the information for which sealing is sought was discussed in open court.

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2. The motion to seal the identified portions of the transcript of the September 29,

2017 telephone conference is denied as the entire transcript has been and

continues to be available on the District Court docket.

3. The motion to seal JA 1485-88, 1501, 1511, 1513-25 is denied without

prejudice. Although those pages remain sealed on the District Court docket, the parties

did not file a motion to seal as directed by the District Court. If the parties seek to seal

these items, then they shall file the appropriate motion with the District Court no later

than fourteen days from the date of this order. The temporary sealing of those pages shall

remain in place until the earlier of the date on which the District Court rules on the

motion to seal (if such a motion is filed) or the deadline to file expires. If the District

Court grants the motion to seal these pages, then the parties shall renew their motion to

seal with this Court within fourteen days of the District Court’s order and the temporary

seal shall remain in place until the renewed motion before our Court is resolved. If no

motion is filed by that date, then the motion filed with this Court shall be denied, the

temporary seals shall be lifted, and the documents shall be deemed filed on the public

docket. If the District Court denies the motion to seal, then those documents shall be

deemed filed on the public docket absent an order reversing that ruling.

For the Court,

s/ Patricia Dodszuweit

Clerk

Dated: August 24, 2018

EAF/cc: All Counsel of Record

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EXHIBIT B


UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY


Plaintiffs,

v.

REPUBLICAN NATIONAL COMMITTEE, et al.

Defendants.


DECLARATION OF JOHN R. PHILIPPE JR.

I, John R. Phillippe Jr., state the following based on my personal knowledge:

1. I am over 18 years of age and competent to make this Declaration.

2. I am the Chief Counsel of the Republican National Committee (“RNC”), and have

served in this position since July 2009. I am responsible for managing the RNC Counsel’s

Office and all of the RNC’s day-to-day legal affairs, including protecting the confidentiality of

sensitive RNC documents.

3. One of the primary purposes of the RNC is to support Republican candidates in

campaigns against opponents from other political parties, most notably the Democratic Party.

The RNC raises contributions and spends funds to organize and engage staff, volunteers,

independent contractors, and vendors in GOTV activities that are the product of confidential

strategic decisions by RNC members, officers, and personnel. Therefore, the RNC vigorously

protects the strategic documents and election day plans of its candidates in its possession to

ensure they are able to compete effectively against those opponents.

4. I have reviewed, and am familiar with, the strategic memorandum that is the

subject of the RNC’s motion to seal. It is a confidential memorandum to presidential campaign


`

personnel and volunteers. It explains several step-by-step strategies and activities for election

day and a potential recount. The memorandum was circulated during the 2016 election, but

contains several plans that are likely to be used in or may bear upon future elections. This

includes the election for President of the United States in 2020.

5. If political operatives from other parties and campaigns gain access to information

about the strategic memorandum and vendor priorities, they are likely to steer financial

resources in response to that information. This will put the RNC and Republican candidates at a

disadvantage in their competition with the DNC and Democratic candidates.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true.

Executed on September 6, 2018.

John R. Phillippe Jr.




Plaintiffs,


Defendants.


[PROPOSED] ORDER

Upon consideration of the unopposed motion of Defendant Republican National

Committee for the entry of an Order to seal, pursuant to Local Civil Rule 5.3(c), an exhibit to

Plaintiff Democratic National Committee’s letter motion exhibit (Dkt. No. 176, Ex. 5); the Court

hereby finds:

1. The DNC has filed confidential information, the public disclosure of which could

affect legitimate strategic interests of the RNC in upcoming election cycles.

2. In the Protective Order entered in this action on October 29, 2004 (Dkt. No. 16)

and in the Court’s Order date July 7, 2017 (Dkt. No. 167), the parties could protect confidential

and competitively sensitive information disclosed to an opposing party in this litigation by

designating it as “Confidential.”

3. On September 13, 2017, the DNC filed under seal a letter motion containing a

copy of a strategic memorandum concerning certain election related activities. The RNC

designated the document as “Confidential-Subject to Protective Order [and] Attorney’s Eyes

Only.”


4. The information in the document designated “Confidential” satisfies the standards

set forth in Local Civil Rule 5.3. The public release of this material, which includes confidential,

sensitive, and strategic information would harm the RNC’s competitive interests.

5. There is no less restrictive alternative to sealing the strategic memorandum.

THEREFORE, it is this _________ day of ________________________, 2018 IT IS ORDERED that the RNC’s motion to seal pursuant to Local Rule 5.3 is hereby

granted; and IT IS FURTHER ORDERED that the Clerk is hereby directed to seal the strategic

memorandum. ____________________________________ Honorable John Michael Vazquez United States District Court Judge


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