UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

SPRINGFIELD DIVISION

SEXUAL MINORITIES UGANDA, : CIVIL ACTION
:
Plaintiff, : 3:12-CV-30051-MAP
:
v. : JUDGE MICHAEL A. PONSOR
:
SCOTT LIVELY, individually and as : MAGISTRATE JUDGE NEIMAN
president of Abiding Truth Ministries, :
:
Defendant. :


DEFENDANT SCOTT LIVELYS RESPONSE TO THE

PARTIES JOINT SUBMISSION REGARDING PROTECTIVE ORDER
Defendant Scott Lively submits this brief additional response to bring to the attention of
the Court some matters that were included by Plaintiff Sexual Minorities Uganda (SMUG) in
the parties joint submission regarding a proposed protective order (dkt. 96), after Lively had
last seen and approved that document
1
1) SMUGs Initial Disclosures Demonstrate that its Proposed Protective Order
is Not Narrow but Exceedingly Broad.
:
To support its claim that the protective order it seeks is narrow and would cover only a
narrow category of information, SMUG makes reference to its Rule 26(a) Initial Disclosures.
(Dkt. 96 at 10). SMUG also uses its Initial Disclosures to quibble with Livelys assertion that
SMUG intends to designate as CONFIDENTIAL the identity of virtually all persecution
victims, save for a handful of SMUGs officers. (Id. at 10, 21).
Perhaps in its haste to meet the Courts filing deadline, SMUG forgot to attach the Initial
Disclosures to which it refers. As they are critical to the Courts consideration of this issue,

1
Specifically, having seen all of Livelys objections and counterproposals, SMUG altered some of the
arguments and justifications it proffers for its proposed protective order, without providing Lively an
opportunity to review and respond to those changes.
Case 3:12-cv-30051-MAP Document 98 Filed 01/09/14 Page 1 of 5
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Lively attaches them here as Exhibit A. On the subject of the widespread and systematic
persecution of homosexuals in Uganda, SMUG identifies only four witnesses in Uganda
(Mugisha, Onziema, Lusimba and Mukasa), all of whom are SMUGs officers, share SMUGs
address, and are represented and controlled by SMUGs counsel. (Ex. A at 1-2). If
Onziemas declaration submitted in support of SMUGs Motion for Protective Order is any
indication, the knowledge of these four individuals includes inadmissible hearsay about things
that may or may not have happened to undisclosed third parties, and rank speculation about the
alleged hardships that some of those third parties could face in Uganda. (Dkt. 86-1 at 3).
To prove its claims of widespread and systematic persecution in Uganda, SMUG will
need to produce admissible testimony of dozens upon dozens of witnesses alleging to have been
persecuted by Lively on grounds of their sexual orientation. Yet SMUG has refused to disclose
any of those witnesses in its Initial Disclosures, stating instead that it will supplement these
disclosures following the entry of a protective order in this litigation. (Ex. A at 1). It is therefore
evident that SMUGs proposed protective order is anything but narrow; that it could be used
by SMUG to shield the identity of each and every alleged victim of persecution in Uganda
(other than its officers, whose identity is already public); and that SMUG is already using the
guise of a protective order in this fashion, even before its entry, thereby precluding Lively from
meaningfully probing its allegations of persecution with Ugandan individuals having relevant
knowledge. SMUG tellingly admits that it has fashioned this protective order specifically to
prohibit Lively from discussing confidential information (that is, the specific claims of
persecution and the specific persons making those claims) with any disinterested fact witness in
Uganda. (Dkt. 96, pp. 12-13) (SMUG stating that, among the categories of individuals authorized
to receive confidential information under its proposed paragraph 4, none of [them] include
disinterested fact witnesses).
Case 3:12-cv-30051-MAP Document 98 Filed 01/09/14 Page 2 of 5
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If the protective order it seeks is really as narrow in scope as SMUG claims, then there is
no need to enter an omnibus protective order covering the entire discovery process in this action.
SMUG should instead be required to seek confidentiality protections on a case-by-case basis for
the one or two individuals it has in mind. The parties and the Court could fashion appropriate
relief for those truly limited situations based upon the specific facts attendant to them, without
shackling Livelys investigation of all of SMUGs claims of persecution in Uganda.
2) SMUGs Own Authority and Admission Demonstrate that its Attempts to
Preclude Lively from Investigating Persecution Claims with Potential
Witnesses in Uganda are Improper.
SMUG relies heavy on the protective order entered by the U.S. District Court for the
Eastern District of Virginia in In Re: Blackwater Alien Tort Claims Act Litigation, Case No.
1:09-cv-616 (J uly 27, 2009), but also does not attach that order for this Courts review. Lively
attaches it here as Exhibit B. Lively respectfully directs the Courts attention to paragraph 8(d)
of the Blackwater order, which allowed any attorney of record to disclose confidential
information to any non-party witness, whenever disclosure of such material is required in order
to assist such attorney in the preparation or the conduct of this litigation, without requiring
those persons being interviewed to read a court order, agree in writing to be bound by it,
and submit to the jurisdiction of any court, let alone a foreign court. (Ex. B, p. 4, 8(d)).
Other courts have thus recognized that disinterested non-party witnesses have no incentive or
interest to voluntarily agree to the investigation burdens advanced by SMUG, merely to confirm
basic (but critical) facts.
Elsewhere in its arguments, SMUG freely admits that this Court has no enforcement
power outside of the United States, and that, as such, the onerous requirement of forcing non-
party witnesses to read, understand and assent to the orders and jurisdiction of a foreign Court is
entirely symbolic. (Dkt. 96 at 13). That admission, by itself, ought to settle the issue of whether
Case 3:12-cv-30051-MAP Document 98 Filed 01/09/14 Page 3 of 5
4

this Court should shackle Livelys investigation of persecution claims with potential witnesses in
Uganda.
3) SMUG Presents No Workable Solution for its Proposed Sealed Filings in
Foreign Courts.
SMUG asks this Court to require Lively to file documents under seal in Uganda (and
other foreign courts), whenever Lively needs to commence ancillary proceedings to secure
discovery from third parties outside of this Courts subpoena power. (Dkt. 96 at 16). But SMUG
presents no evidence that sealed filings are even allowed in foreign courts, and Lively is aware of
no mechanism for sealed filings in Ugandan courts. Requiring Lively to employ a mechanism
which does not exist to accomplish a critical discovery task is the same as prohibiting him from
accomplishing that task. There is no question that ancillary proceedings will have to be
commenced, and this Court should not impose burdens on that already complex process which
are impossible to overcome.
4) SMUGs Proposal Regarding Pending Legislation is Unworkable.
Finally, SMUG claims that its proposal for dealing with the yet-to-be-enacted Anti-
Homosexuality Bill in Uganda would not unduly restrict Defendant in investigating the claims
in this Action, because only limited categories of persons in the bill (which neither party has
seen yet) might be required to disclose certain activities. (Dkt. 96 at 14). SMUG states, however,
that those categories might include persons with authority, which includes religious, political,
economic or social authority. (Id.) These are the very types of persons whom SMUG alleges
to have committed acts of persecution, and whom Lively will have to interview to
investigate those claims. For example, landlords who allegedly wrongfully evicted homosexuals
(dkt. 86-1, 9-10), or grocery store owners who allegedly refused to do business with
homosexuals (id. at 11), are persons with economic authority. Prohibiting Lively from
discussing with these persons the specific alleged incidents of persecution, and the persons
Case 3:12-cv-30051-MAP Document 98 Filed 01/09/14 Page 4 of 5
5

making those allegations, is the same as requiring Lively to accept those allegations as
conclusively established without proof. SMUG should bear the evidentiary burdens associated
with its confidentiality concerns, not Lively.
Lively respectfully requests that the Court consider these issues in fashioning any
protective order for this litigation.

Respectfully submitted,
Philip D. Moran
(MA Bar #353920)
265 Essex Street, Suite 202
Salem, Massachusetts 01970
Tel: (978) 745-6085
Fax: (978) 741-2572
Email: philipmoranesq@aol.com




/s/ Horatio G. Mihet
Mathew D. Staver
________________
Admitted Pro Hac Vice
Stephen M. Crampton
Admitted Pro Hac Vice
Horatio G. Mihet
Admitted Pro Hac Vice
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854-0774
800-671-1776 Telephone
407-875-0770 Facsimile
court@lc.org

Attorneys for Defendant Scott Lively


CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
electronically with the Court on J anuary 9, 2014. Service will be effectuated by the Courts
electronic notification system upon all counsel or parties of record.

/s/ Horatio G. Mihet
Horatio G. Mihet
________________
Attorney for Defendant Scott Lively
Case 3:12-cv-30051-MAP Document 98 Filed 01/09/14 Page 5 of 5
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SPRINGFIELD DIVISION

SEXUAL MINORITIES UGANDA,

Plaintiff,

v.

SCOTT LIVELY, individually and as
President of Abiding Truth
Ministries,

Defendant.


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Civil Action No.

3:12-CV-30051

PLAINTIFFS RULE 26(a)(1) INITIAL DISCLOSURES
Plaintiff, through its undersigned counsel, hereby provides the following initial
disclosures pursuant to Fed. R. Civ. P. 26(a)(1). These initial disclosures reflect the current
knowledge of Plaintiff and its counsel and are subject to, and made without waiving, Plaintiffs
right to assert any and all objections to relevancy, attorney-client privilege, attorney work
product privilege, associational privilege, use or admissibility of evidence of any of these initial
disclosures, or the subject matter of these initial disclosures, in this matter. Plaintiff reserves the
right to supplement, amend, or otherwise modify these initial disclosures as additional
investigation and discovery are conducted.
The names and contact information for certain witnesses may have been withheld from
these disclosures due to concerns regarding their personal security and freedom of association.
Plaintiff reserves the right to supplement these disclosures following the entry of a protective
order in this litigation.

Case 3:12-cv-30051-MAP Document 98-1 Filed 01/09/14 Page 1 of 6
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A. Identification of Individuals Pursuant to Rule 26(a)(1)(A)(i)

The parties themselves and the following individuals have discoverable information
regarding the widespread and systematic persecution suffered by Plaintiff, its members, and the
lesbian, gay, bisexual, transsexual, and intersex (LGBTI) community in Uganda, the conspiracy
to commit such persecution as alleged in Plaintiffs First Amended Complaint, and/or Defendant
Scott Livelys role in such conspiracy:
1. Frank Mugisha
Sexual Minorities Uganda SMUG
P. O. Box 70208, Clock Tower
Kampala, Uganda

Undersigned counsel are representing this witness for purposes of
this lawsuit, and any communications regarding this witness
should be made through undersigned counsel.

2. Pepe Onziema
Sexual Minorities Uganda SMUG
P. O. Box 70208, Clock Tower
Kampala, Uganda

Undersigned counsel are representing this witness for purposes of
this lawsuit, and any communications regarding this witness
should be made through undersigned counsel.

3. Richard Lusimbo
Sexual Minorities Uganda SMUG
P. O. Box 70208, Clock Tower
Kampala, Uganda

Undersigned counsel are representing this witness for purposes of
this lawsuit, and any communications regarding this witness
should be made through undersigned counsel.

4. Victor Mukasa
c/o Sexual Minorities Uganda SMUG
P. O. Box 70208, Clock Tower
Kampala, Uganda

Undersigned counsel are representing this witness for purposes of
Case 3:12-cv-30051-MAP Document 98-1 Filed 01/09/14 Page 2 of 6
3


this lawsuit, and any communications regarding this witness
should be made through undersigned counsel.

5. Kapya Kaoma
c/o Political Research Associates
1310 Broadway, Suite 201
Somerville, MA 02144-1837


The Defendant and the following individuals have discoverable information regarding
Defendant Scott Livelys plan to persecute LGBTI communities:
1. Alexy Ledyaev
c/o New Generation Church
Riga, Latvia

Plaintiff does not have contact information for this witness and
presumes he may be found through information in possession of
the Defendant.

2. Don Schmierer
Former Board Member, Exodus International

Plaintiff does not have contact information for this witness and
presumes he may be found through information in possession of
the Defendant.

3. Caleb Brundidge
c/o International Healing Foundation
P.O. Box 901
Bowie, MD 20718

4. Ken Hutcherson
c/o Antioch Bible Church
12316 134th Ct NE
Redmond, WA 98052

5. Vlad Kusakin
Sacramento, California

Plaintiff does not have contact information for this witness and
presumes he may be found through information in possession of
the Defendant.
Case 3:12-cv-30051-MAP Document 98-1 Filed 01/09/14 Page 3 of 6
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6. Martin Ssempa

Plaintiff does not have contact information for this witness and
presumes he may be found through information in possession of
the Defendant.

7. Stephen Langa

Plaintiff does not have contact information for this witness and
presumes he may be found through information in possession of
the Defendant.

8. James Nsaba Buturo

Plaintiff does not have contact information for this witness and
presumes he may be found through information in possession of
the Defendant.

9. Vadim Privedenyuk
Springfield, Mass.

Plaintiff does not have contact information for this witness and
presumes he may be found through information in possession of
the Defendant.

B. Identification of Documents, Electronically Stored Information and Tangible
Things Pursuant to Rule 26(a)(1)(A)(ii)

Documents in the possession, custody, or control of Plaintiff which may be used to
support its claims are listed below, unless subject to the attorney-client privilege and/or attorney
work product privilege, or any other applicable privilege, including the associational privilege.
Because of the volume of documents referenced below, this information will be made available
to Defendant in a format mutually agreed upon by the parties and after consultation with and as
requested by Defendant.
1. Electronic and hard copy documents reflecting the composition of
Plaintiffs membership, Plaintiffs organizational structure, and
Case 3:12-cv-30051-MAP Document 98-1 Filed 01/09/14 Page 4 of 6
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Plaintiffs attempts to register as a non-governmental organization
under Ugandan law;

2. Electronic and hard copy documents and communications
reflecting Plaintiffs advocacy on behalf of its members and the
LGBTI community in Uganda;

3. Electronic and hard copy documents and communications
reflecting instances of persecution against Plaintiff, its members,
and the LGBTI community in Uganda; and

4. Electronic and hard copy documents and communications
reflecting resources used for security for Plaintiff and services to
Plaintiffs members and the LGBTI community in Uganda in
response to the persecution.

C. Computation of Damages Pursuant to Rule 26(a)(1)(A)(iii)
Plaintiff has not yet finalized its computation of damages, but will provide this
information to Defendant as soon as expert reports are delivered and damages are computed.
D. Disclosure of Insurance Agreement Pursuant to Rule 26(a)(1)(A)(iv)
Plaintiff has no insurance agreement to produce pursuant to Federal Rule of Civil
Procedure 26(a)(1)(A)(iv).
Dated: December 10, 2013 Respectfully submitted,

Luke Ryan /s/ Pamela Spees
(Bar No. 664999) Pamela C. Spees, admitted pro hac vice
100 Main Street, Third Floor Baher Azmy, admitted pro hac vice
Northampton, MA 01060 Jeena Shah, admitted pro hac vice
Tel. (413) 586-4800 Center for Constitutional Rights
Fax (413) 582-6419 666 Broadway, 7th Floor
lryan@strhlaw.com New York, NY 10012
212-614-6431 - Phone
Attorneys for Plaintiff 212-614-6499 - Fax
pspees@ccrjustice.org
Case 3:12-cv-30051-MAP Document 98-1 Filed 01/09/14 Page 5 of 6



CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 10th of December 2013, I served Plaintiffs Rule
26(a)(1) Initial Disclosures by email to the following:

Mathew D. Staver
Stephen M. Crampton
Horatio G. Mihet
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854-0774
hmihet@liberty.edu


Attorneys for Defendant Scott Lively


/s/Pamela Spees
Pamela Spees



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