JUDGE DENIES JUSTICE DEPT. MOTION TO KEEP VIDEOTAPED DEPOSITION SEALED IN CREW FOIA SUIT

11 Oct 2006 // On October 5, 2006, Judge Emmet Sullivan denied the motion of the Department of Justice to keep sealed the videotaped deposition of Robert McCallum, the former Associate Attorney General, as well as the government’s motion for return of certain emails it claimed were stolen government property. These motions were filed as part of the discovery afforded Citizens for Responsibility and Ethics in Washington in CREW v. Dept. of Justice, a Freedom of Information Act suit in which CREW is seeking documents related to the government’s dramatic and last-minute change in its proposed remedy in the tobacco litigation it brought against the major tobacco companies.

Judge Sullivan had granted CREW’s request for discovery based on the questions the government’s conduct raised about whether DOJ was complying in good faith with its obligations under the FOIA. When CREW noticed the videotaped deposition of Mr. McCallum, DOJ sought and obtained from a magistrate judge an order sealing the videotape based on DOJ’s concern that the media would distort his testimony and cause Mr. McCallum person embarrassment.

Judge Sullivan ruled that any possibility of embarrassment or discomfort to Mr. McCallum was outweighed by the public interest in the conduct of public officials. DOJ had also sought the return of certain emails that contradicted Mr. McCallum’s testimony that the White House had had no role in an editorial Mr. McCallum sent to USA Today justifying his decision to reduce the proposed penalty as well as his testimony that he had no contact with the head of DOJ’s Office of Professional Responsibility, which was investigating Mr. McCallum. The court found no basis to compel the documents’ return and order the documents and any testimony related to the documents unsealed.