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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Miami Division

PRESIDENT DONALD J. TRUMP, Case No.: 23-cv-21377-DPG

Plaintiff,

v.

MICHAEL D. COHEN,

Defendant.

PLAINTIFF’S BRIEF ON ISSUE OF PROTECTIVE ORDER

Plaintiff Donald J. Trump (“Plaintiff”), by and through undersigned counsel and pursuant

to the Court’s oral ruling at the hearing held on July 20, 2023, hereby files his brief on the propriety

and scope of a protective order in this matter.

I. INTRODUCTION

Plaintiff requests the entry of a confidentiality order given this matter’s inherent

susceptibility to public scrutiny and media coverage due to the parties involved. Defendant

Michael D. Cohen (“Defendant”) has been unwilling to agree to the entry of a confidentiality order

and, as such, the parties requested a hearing before this Court to resolve this dispute. At this hearing

conducted by this Court on July 20, 2023, the Court ordered that the parties submit written briefs

to further explain their positions. In his Brief, Defendant takes the position that “good cause” does

not exist sufficient to warrant the entry of a confidentiality order because “embarrassment” is

insufficient to establish good cause. As stated below, however, there are additional reasons that

establish the basis for the entry of a confidentiality order in this case. Further, Defendant argues

that if this Court were to enter a confidentiality order, the categories of documents that are to be
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protected are limited and has attached a proposed confidentiality order (“Defendant’s Proposed

Order”). Defendant’s Proposed Order, however, runs contrary to long-standing law because it

would require this Court to intervene each and every time a party seeks to mark a document as

confidential. Therefore, for the reasons stated herein, Plaintiff respectfully requests that the Court

enter the Confidentiality Order attached hereto as Exhibit “A” (“Plaintiff’s Proposed Order”).

II. MEMORANDUM OF LAW

A. Legal Standard

“The trial court . . . [has] wide discretion in setting the limits of discovery.” Farnsworth v.

Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). “A district court may in its

discretion enter a protective order shielding discovery materials from public disclosure upon a

showing of good cause and when the balance of interests favor entering the order.” In re Alexander

Grant & Co. Litig., 820 F.2d 352, 355 (11th Cir. 1987); Emes Capital, LLC v. Rothstein, 841

F.Supp.3d 1251, 1254-55 (S.D. Fla. 2012); Chi. Tribune Co. v. Birdgestone/Firestone, Inc., 263

F.3d 1304, 1313 (11th Cir. 2001); Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th

Cir. 1985). Because trial courts are “in the best position to weigh fairly the competing needs and

interests of parties affected by discovery and because of [t]he unique character of the discovery

process, trial courts have substantial latitude to determine when a protective order is appropriate

and what degree of protection is required.” Rothstein, 841 F. Supp. 2d at 1255 (internal quotations

omitted).

In In re Alexander Grant & Co. Litigation, the Eleventh Circuit expressly approved the use

of umbrella protective orders:

We conclude that in complex litigation where document-by-document review of

discovery materials would be unpractical, and when the parties consent to an
umbrella order restricting access to sensitive information in order to encourage
maximum participation in the discovery process, conserve judicial resources, and

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prevent the abuses of annoyance, oppression and embarrassment, a district court

may find good cause and issue a protective order pursuant to Rule 26(c).

Id. at 357. Although there is no set definition of “good cause,” courts consider “[1] the severity

and the likelihood of the perceived harm; [2] the precision with which the order is drawn; [3] the

availability of a less onerous alternative; and [4] the duration of the order.” Id. at 356. In addition,

courts also balance the interest in allowing the public free access to the documents with a party's

interest in confidentiality. Id. Under these guidelines, courts have found that a protective order

may properly issue in a complex litigation, where a document-by-document review would be

impractical, to facilitate the prompt resolution of disputes over confidentiality and to protect

against the disclosure of confidential materials. Id. at 357; McCarthy v. Barnett Bank of Polk

County, 876 F.2d 89, 92 (11th Cir. 1989); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d

1424, 1427 (10th Cir. 1990) (“stipulated blanket protective orders are becoming standard practice

in complex cases”), cert denied, 498 U.S. 1073, (1991); Rywkin v. New York Blood Center, 1999

WL 435242, *3 (S.D. N.Y. 1999) (“[p]rotective orders that limit access to certain documents to

counsel and experts are commonly entered in litigation involving trade secrets and other

confidential research, development, or commercial information”); Arthur Miller, Confidentiality,

Protective Orders, and Public Access to the Courts, 105 Harv.L.Rev. 427, 475 (Dec. 1991)

(“courts traditionally and justifiably have issued protective orders to prevent outsiders from

gaining gratuitous access to private or proprietary information to the detriment of a litigant”).

B. The Entry of a Confidentiality Order is Warranted.

The Eleventh Circuit has found that private documents collected during discovery are not

judicial records and that the general public should not be entitled to review such documents:

First, appellants [intervenors] have no common-law right to examine the discovery

materials at issue. There is no question that the press and the public jointly possess
a common-law right to inspect and copy judicial records and public documents.

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Nevertheless, this court has observed that private documents collected during
discovery are not judicial records. Thus, while appellants may enjoy the right of
access to pleadings, docket entries, orders, affidavits or depositions duly filed,
appellants' common-law right of access does not extend to information collected
through discovery which is not a matter of public record.

See In re Alexander Grant & Co. Litigation, 820 F.2d at 355. Defendant’s argument against the

entry of a confidentiality order fails because it is almost entirely premised on the contention that

mere embarrassment is not sufficient to constitute “good cause” to warrant the entry of a

confidentiality order. There is no question that Plaintiff’s request for the issuance of a

confidentiality order partially stems from his status as a public figure. While Defendant argues that

Plaintiff cannot establish good cause because his reputational interests are insufficient for the entry

of a confidentiality order, as shown below, Plaintiff’s reputational interests and his statute as a

public figure are not the only reasons why a confidentiality order is warranted. Defendant cites

Garcia v. Chapman, 2013 WL 12061867, at *9 (S.D. Fla. Oct. 22, 2013) to support his argument

that “mere embarrassment . . . is not enough to demonstrate good cause for a protective order.”

The decision in Garcia, however, is distinguishable from the instant case for multiple reasons. In

Garcia, the defendant, who was a professional athlete, sought sanctions after the plaintiff gave an

interview to Univision regarding defendant’s deposition and also provided Univision with a copy

of the videotaped deposition. Id. at *1. Univision then aired portions of the deposition. Id.

Importantly, the Garcia defendant did not request that any information obtained by the

parties in discovery be kept confidential until after the dissemination of the deposition. Id. In

addition, the Garcia defendant “sought extremely broad relief by requesting that [p]laintiffs and

their [c]ounsel be prohibited from making any further statements to the media about the[]

proceedings without receiving prior approval from the [c]ourt.” Id. That is not the case here.

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Plaintiff has proposed a streamlined confidentiality order that will dictate the discovery process

and the manner in which the parties can designate documents as confidential.

Separately, Defendant claims that a confidentiality order is not warranted because he has

waived any privilege by virtue of filing this lawsuit and due to the media coverage surrounding

the parties’ attorney/client relationship. See Defendant’s Brief, p. 4. Even assuming, arguendo,

that this is the case, there is a distinction between a privileged document and a confidential

document. The fact that a document may not be privileged does not automatically refute a parties’

ability to designate a document as confidential due to certain sensitive information contained

therein.

1. Good Cause Exists to Warrant the Entry of a Confidentiality Order.

There are several reasons why “good cause” exists to substantiate the entry of the requested

Confidentiality Order. Specifically, as further stated below, a confidentiality order is necessary

and warranted in this case due to the fact that Defendant has sought private financial and

confidential business records belonging to the Trump Organization, as opposed to the Plaintiff.

Further, as Defendant is well aware, there are currently ongoing criminal proceedings involving

the Plaintiff. As explained further below, courts have found the entry of a confidentiality order to

be appropriate in scenarios such as these.

i. Defendant Seeks Corporate Records from Trump Organization.

Fed. R. Civ. P. 26(c)(1)(G) expressly states that the court may “issue an order to protect a

party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .

requiring that . . . commercial information not be revealed only in a specified way.” “[M]aintaining

the privacy of confidential business information constitutes good cause for keeping the documents

from the public view.” Camilli v. Chief, Immigrant Inv'r Program, U.S. Citizenship & Immigration

Services, 2023 WL 2571013 (M.D. Fla. Mar. 20, 2023). Numerous federal courts have found that

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protective orders are appropriate when the parties’ financial information is subject to production

or disclosure during the discovery process. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35

(1984) (recognizing that protective orders are necessary because discovery “may seriously

implicate privacy interests of litigants and third parties” and that “publicly releas[ing such

information] could be damaging to reputation and privacy”); McCarthy, 876 F.2d at 90, 92

(affirming order protecting the parties' “confidential commercial or financial information”);

Pfeiffer v. K-Mart Corp., 106 F.R.D. 235 (S.D. Fla. 1985) (access to proprietary or commercially

sensitive information restricted to defined persons and use restricted to the litigation, with

provisions to protect against such information becoming part of public record of the case).

Here, the proposed Order is necessary and appropriate because a sizable quantity of

material potentially subject to discovery is sensitive, confidential business information of the

Trump Organization. Indeed, Defendant has sought numerous financial documents from the

Trump Organization in his First Request for Production. While Plaintiff has objected to the

production of these documents given that they are not relevant to this litigation, if the Court finds

that the information sought by Defendant is discoverable, the broad scope of Defendant’s

document requests will lead to the production of documents from a non-party that are confidential

in nature and are entitled to protection from public disclosure. The Trump Organization’s private

financial documents should not be subject to public disclosure due to the mere fact that this lawsuit

is ongoing. While the Plaintiff and the Defendant may be public figures, the Trump Organization

is a private entity that is operated separately from the Plaintiff and is not a party to this action.

ii. Plaintiff’s Ongoing Criminal Proceedings Establish a Legitimate Basis for

the Entry of a Confidentiality Order.

The Fifth Amendment privilege against self-incrimination shields one asserting that

privilege from being incriminated by his or her compelled testimonial communications. United

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States v. Smith, 157 F. App'x 215, 217 (11th Cir. 2005). That protection applies equally to

witnesses in civil and criminal proceedings alike. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)

(citing McCarthy v. Arndstein, 266 U.S. 34, 40 (1924)). Thus, a party “protected by the privilege

may rightfully refuse to answer unless and until he is protected at least against the use of his

compelled answers and evidence derived therefrom in any subsequent criminal case in which he

is a defendant.” Id. at 78 (citing Kastigar v. United States, 406 U.S. 441 (1972)). “Information

protected by the privilege against self-incrimination may not be discoverable in a civil

proceeding.” Obukwelu v. Tallahassee Mem'l HealthCare, Inc., 2017 WL 11672908 (N.D. Fla.

Jan. 24, 2017) (citing Fed. R. Civ. P. 26(b)). Indeed, it is inappropriate to allow a party to “avoid

the limitations on criminal discovery through the use of civil discovery procedures.” See e.g.,

United States v. Stewart, 872 F.2d 957, 962 (10th Cir. 1989); Securities & Exchange Commission

v. Dresser Industries, 628 F.2d 1368, 1373 (D.C.Cir.1980); Campbell v. Eastland, 307 F.2d 478

(5th Cir.1962) cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963); United States v.

Tison, 780 F.2d 1569 (11th Cir.1986).

As Defendant is aware, Plaintiff is currently a defendant in multiple criminal proceedings.

Indeed, Defendant argues in his Brief that “[Plaintiff] is currently a criminal defendant in two

separate indictments and will likely be indicted in two additional cases shortly.” See Defendant’s

Brief. Defendant has already requested documents that interfere with and/or relate to the pending

criminal proceedings and the underlying facts that form the basis of such criminal proceedings.

Standing alone, the existence of the criminal proceedings currently ongoing against the Plaintiff

establishes “good cause” for the entry of the confidentiality order due to the risk of self-

incrimination.

2. Plaintiff’s Interests in Seeking the Protective Order Prevail Over

Defendant’s Interest and the Public Interest.

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Defendant argues that Plaintiff’s “interest in confidentiality in this case is minimal as

compared to [Defendant’s] interest in defending himself from [Plaintiff’s] very public

accusations.” See Defendant’s Brief, p. 5. However, Plaintiff’s interest in maintaining

confidentiality and Defendant’s ability to defend himself in these proceedings have no relation to

one another. Defendant’s ability to defend himself will not be hindered in any way by the entry of

a confidentiality order. Rather, the purpose of the confidentiality order is to avoid the public

disclosure of sensitive information that has been requested in discovery, as stated above.

Notably, other than Defendant’s alleged difficulties in “defending himself,” Defendant has

failed to express any additional interests that he has in opposition to the entry of a confidentiality

order. Contrary to Defendant’s assertions, the entry of the confidentiality order will not only

protect Plaintiff from public disclosure of certain information, but it will also protect Defendant

from public disclosure of certain information that he may not want disseminated. The

confidentiality order is not one-sided but is intended to protect all parties involved.

Defendant argues that Plaintiff “unquestionably knew—and surely intended—that this

lawsuit would take place in the public eye.” See Defendant’s Brief, p. 6. Despite Defendant’s

contention, this matter is not being litigated in the press and the curiosities associated with the case

do not remove rights that the parties have in keeping the information exchanged during this

proceeding private, especially discovery materials. Plaintiff’s celebrity status makes this

proceeding vulnerable to media coverage and it is not fair or reasonable to assume that the public

has the right to learn of every intricate detail that may surface in this litigation. As stated in In re

Alexander Grant & Co. Litig., “[t]here is no question that the press and the public jointly possess

a common-law right to inspect and copy judicial records and public documents” but “private

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documents collected during discovery are not judicial records.” 820 F.2d at 355. Plaintiff has a

right to privacy as does any other individual.

C. Defendant’s Proposed Order Is Improper.

1. Defendant’s Proposed Order Improperly Seeks Judicial Intervention for

Approval of Confidential Designations.

Defendant’s Proposed Order seeks a document-by-document review which would be

impractical and which would inhibit and frustrate the prompt resolution of disputes over

confidentiality. Specifically, Defendant’s Proposed Order is improper because: (a) it requires this

Court to determine “good cause” each and every time a party seeks to make a specific designation

thereby complicating the exchange of documents; and (b) improperly limits confidentiality

designations to two categories, to wit: “certain financial information that Mr. Trump must produce

in support of his damages claims, and … attorney-client communications for which the privilege

has not already been waived.” See Defendant’s Brief, p. 7.

Defendant’s Proposed Order provides, in relevant part, that following any party’s

designation of any financial information as “Confidential,” the designating party shall file the

following within five (5) calendar days of producing such designated information:

[A] motion to designate as “Confidential” any specific private financial information

the party seeks to protect against disclosure, identifying the discovery with
particularity and stating the specific grounds on which the disclosing party believes
it is entitled to protection. Any materials produced not subject to the motion and
not separately designated as “Confidential – Attorney-Client Privilege,” as
described below, would be treated as non-confidential and not subject to the
protective order.

See Defendant’s Proposed Order [DE 42-1], pp. 6-7.

Defendant’s proposition flies in the face of a preceding Eleventh Circuit opinion making

clear that “[b]usy courts are simply unable to hold hearings every time someone wants to obtain

judicial review concerning the nature of a particular document” and that protective orders should

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be “designed to encourage and simplify the exchanging of large numbers of documents, volumes

of records and extensive files without concern of improper disclosure.” In re Alexander Grant &

Co. Litig., 820 F.2d 352 at 356.

Plaintiff’s Proposed Order offers an approach that is more practical and in line with the

Court’s ruling in In re Alexander Grant & Co. Litig. given that it requires the parties to resolve

any disputes informally in good faith before the Court steps in and limits the number of hearings

required on each particular designation. See Ex. A, § 14. In addition, Plaintiff’s Proposed Order

limits judicial review to materials relevant to the legal issues raised by allowing the parties to file

Objections to Designations as Confidential Information, after certain documents are designated as

confidential. Plaintiff’s Proposed Order specifically states, in relevant part: “[i]f the Parties cannot

informally resolve the dispute within ten (10) calendar days of the objection, then it shall be the

obligation of the objecting party to seek a determination from the Court whether the disputed

information may be treated Confidential under the terms of [Plaintiff’s] Order[,]” thus limiting

judicial review to objections to confidential designations after the parties have attempted to

informally resolve the dispute(s) as opposed to obtaining judicial review by filing motions within

five (5) days of identifying designated material and filing motions when a party objects to any

designations. Compare Ex. A, § 14; with Defendant’s Proposed Order [DE 42-1], §§ 11, 12.

2. Cohen’s Limited Protective Order Does Not Account for Non-Party

Designations.
The Confidentiality Order entered by the Court should account for several essential

considerations, such as non-party designations and an acknowledgment confidentiality for

documents produced by non-parties. Non-parties may possess critical and confidential information

relevant to the subject-matter of the case, making it imperative to have a provision in the Order

that accommodates these designations, much like the provision included in Plaintiff’s Proposed

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Order. See Ex. A, §§ 1 and 7. By including provisions to account for non-party designations,

Plaintiff’s Order ensures the safeguarding of sensitive data held by non-parties, thereby promoting

the integrity of the legal proceedings.

“[P]rotective orders serve the purpose of protecting third-party privacy rights and/or

sensitive and proprietary type information.” Leber as Tr. of Steven E. Leber Charitable Remainder

Unitrust v. Konigsberg, 2010 WL 11603144, at *1 (S.D. Fla. May 12, 2010). To effectively

achieve this objective, the inclusion of a provision to enforce confidential designations made by

non-parties, which Defendants’ Proposed Order does not, is essential. This measure reduces the

risk of inadvertent disclosures or production of sensitive information, fostering an environment of

trust and cooperation among all entities involved. Additionally, recognizing the privacy concerns

of the parties and non-parties and the potential for unwarranted public exposure of sensitive

information, Plaintiff’s Proposed Order further enhances the protection of individuals' rights and

privacy interests throughout the litigation process. Accordingly, incorporating the aforementioned

provisions included in Plaintiff’s Proposed Order demonstrates a commitment to preserving

confidentiality, promoting fairness, and ensuring the integrity of the legal proceedings involving

non-parties and their confidential information.

3. Defendant’s Proposed Order Does Not Provide a Safeguard for Highly

Sensitive Information.
Incorporating "Attorneys Eyes Only" designations in the Protective Order, as outlined in

Sections 6 and Section 11 in Plaintiff’s Proposed Order, presents a practical and effective approach

to producing highly sensitive information in this legal proceeding. Defendant, however, has

removed the parties’ ability to designate information as “Attorneys Eyes Only” in his Proposed

Order. By including these provisions in Plaintiff’s Proposed Order, the Protective Order becomes

a valuable tool for safeguarding highly confidential data and ensuring privacy. The "Attorneys

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Eyes Only" designations serve to minimize the risk of unintentional disclosures of sensitive and

highly confidential information, which may include critical business details of the parties and non-

parties. Consequently, protecting these highly sensitive documents with "Attorneys Eyes Only"

designations under the proposed Protective Order is justifiable.

4. Cohen’s Limited Protective Order Does Not Account for Inadvertent Failures
to Designate.

Section 10 of Plaintiff's Proposed Order is a crucial provision that addresses the practical

challenges of handling sensitive documents. Section 10 of Plaintiff’s Proposed Order provides

that, if a document is not initially designated as “Confidential,” the producing party may retract

the unlabeled document and apply a confidentiality designation if necessary. This ensures a safety

net for parties to prevent inadvertent failures in designating information as confidential and

safeguarding against unintended disclosures of sensitive data. This provision also promotes an

efficient and transparent discovery process, allowing parties to exchange relevant information

while still having the option to correct any overlooked designations. In contrast, Defendant’s

omission of similar provisions could leave the parties vulnerable to inadvertent mistakes without

any recourse, potentially leading to disputes and delays in the legal process. The absence of these

safeguards may hinder the fairness and efficiency of the case by not adequately addressing the

protection of sensitive information and the need for adaptability.

III. CONCLUSION

WHEREFORE, Plaintiff Donald J. Trump, respectfully requests that this Court: (i) enter

the Confidentiality Order attached hereto as Exhibit “A,” and (b) grant such other and further relief

as this Court deems just and proper.

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Date: August 2, 2023 Respectfully submitted,

BRITO, PLLC
Counsel for Plaintiff
2121 Ponce de Leon Boulevard
Suite 650
Coral Gables, FL 33134
Office: 305-614-4071
Fax: 305-440-4385

By: /s/ Alejandro Brito

ALEJANDRO BRITO
Florida Bar No. 098442
Primary: [email protected]
Secondary: [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 2, 2023 the foregoing was served via the Court’s

CM/ECF System upon:

Benjamin H. Brodsky, Esq.

Max Eichenblatt, Esq.
Brodsky, Fotiu-Wojtowicz, PLLC
200 SE 1st Street, Suite 400
Miami, Florida 33131
[email protected]
[email protected]
[email protected]
Counsel for Defendant

E. Danya Perry, Esq. (Pro Hac Vice)

E. Danya Perry, PLLC
157 East 86th Street
4th Floor
New York, NY 10028
[email protected]
Counsel for Defendant

Lilian M. Timmermann, Esq.

Perry Law
700 S. Rosemary St.,
Suite 204
West Palm Beach, FL 33401
[email protected]
Counsel for Defendant By: /s/ Alejandro Brito

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