Coomer v. Lindell et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-01129-NYW-SKC
ERIC COOMER, PH.D.,
Plaintiff,
v.
MICHAEL J. LINDELL,
FRANKSPEECH LLC, and
MY PILLOW, INC.,
Defendants.
MINUTE ORDER
Entered by Judge Nina Y. Wang
This matter is before the Court on Plaintiff Dr. Eric Coomer’s Objection to Third-Party CD
Solutions Inc.’s Confidentiality Designations (“Objection to CD Solutions’ Designations” or
“Objection”) [Doc. 113, filed February 24, 2023]. 	Third-Party CD Solutions, Inc. (“CD
Solutions”) filed a Response [Doc. 118] and Dr. Coomer filed a Reply [Doc. 121; Doc. 122].
Originally, Plaintiff’s Objection to CD Solution’s Designations [Doc. 113], his Reply
[Doc. 121], and their respective exhibits were all filed under Level 1 restriction. By Order dated
June 2, 2023, this Court directed Plaintiff to file redacted versions of his Objection and Reply. In
addition, upon its review of the exhibits to Plaintiff’s Objection and Reply that were filed under
restriction, this Court finds that the majority of these filings should be unrestricted because they
simply do not satisfy the requirements for restriction.
As previously discussed in detail, see [Doc. 148], there is a common law right of access to
judicial records. JetAway Aviation, LLC v. Bd. of Cnty. Comm’rs of Cnty. of Montrose, 754 F.3d
824, 826 (10th Cir. 2014). Although the right is not absolute, there is a “strong presumption in
favor of public access,” and it can only be overcome where countervailing interests heavily
outweigh the public interests in access—which are “presumptively paramount.” United States v.
Bacon, 950 F.3d 1286, 1293 (10th Cir. 2020) (quotations omitted).
Presumably, Dr. Coomer filed his Objection, Reply, and exhibits under restriction out of
an abundance of caution1 under a broad reading of the Protective Order that stated, at the time:
1 While this Court appreciates the Parties’ caution with respect to hewing to the Protective Order,
this Court notes that the over-filing of documents as restricted causes the Court to expend limited
resources that would be better utilized in other ways.
Case No. 1:22-cv-01129-NYW-SBP Document 156 filed 06/06/23 USDC Colorado
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“Any pleading, brief, memorandum, motion, letter, affidavit, declaration, or other document filed
with the Court that discloses, summarizes, describes, characterizes, or otherwise communicates
Confidential or Attorneys’ Eyes Only Discovery Materials (a “Confidential Filing”) must be filed
with the Court under seal in accordance with the Court’s Local Rules and Electronic Case Filing
Procedures.” [Doc. 77 at ¶ 14]. But some of the filings clearly do not meet that standard. 	For
instance, Exhibit 2 to the Objection is the subpoena to Max McGuire issued from this Court [Doc.
113-2] and Exhibit 4 to the Objection and Exhibit 15 to the Reply are public orders from the Denver
District Court [Doc. 113-4; Doc. 121-15]. Exhibit 19 to the Reply is a public filing made by Joseph
Oltmann in Denver District Court in Coomer v. Donald J. Trump for President, Inc., Case No.
2020CV034319. [Doc. 121-19]. Public records of the Colorado Secretary of State [Doc. 121-11;
Doc. 121-12; Doc. 121-17; Doc. 121-18]; and public records from the Delaware Division of
Corporations [Doc. 121-16] that are accessible online also do not meet this definition. Not only
are these documents public court documents, they do not appear to disclose, summarize, describe,
characterize, or otherwise communication Confidential or Attorney’s Eyes Only Discovery
Materials.
In addition, certain restricted filings were previously publicly available and thus, cannot
now be restricted. The Non-Disclosure Agreement between PIN and Mr. McGuire [Doc. 113-17]
was previously filed publicly by CD Solutions as an exhibit to CD Solutions’s Motion for
Protective Order and is filed publicly as part of its Response to the Objection. 	See [Doc. 75-1;
Doc. 118-2]. Mr. McGuire’s prior statements made publicly, through social media or otherwise,
are not confidential. 	[Doc. 113-20]. 	Similarly, public statements by Mr. Oltmann viewed by
thousands [Doc. 121-2]; public tweets by Mr. Oltmann or others [Doc. 121-1; Doc. 121-3]; and
public social media posts by third parties [Doc. 121-9] are not properly restricted.
Furthermore, communications between opposing counsel [Doc. 113-3] that discuss
respective legal positions and do not disclose any specific Confidential or Attorney’s Eyes Only
information are neither private nor privileged, and do not merit public restriction (or any
designation under the Protective Order).
Accordingly, IT IS ORDERED that:
(1) 	The Clerk of the Court will UNRESTRICT the following documents immediately:
Doc. 113-2; Doc. 113-3; Doc. 113-4; Doc. 113-17; Doc. 113-20; Doc. 121-1; Doc. 121-2; Doc.
121-3; Doc. 121-9; Doc. 121-11; Doc. 121-12; Doc. 121-15; Doc. 121-16; Doc. 121-17; Doc. 121-
18; and Doc. 121-19;
(2) 	With respect to the remaining documents, Dr. Coomer SHALL MEET AND
CONFER with Third-Party CD Solutions and JOINTLY FILE a completed table no later than
June 9, 2023:
ECF
No.
Document 	Party Seeking
Restriction/Opposed?
Moving Party’s
Position
Opposing
Party’s Position
[113-1] 	Transcript
(McGuire
deposition)
Case No. 1:22-cv-01129-NYW-SBP Document 156 filed 06/06/23 USDC Colorado
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ECF
No.
Document 	Party Seeking
Restriction/Opposed?
Moving Party’s
Position
Opposing
Party’s Position
[113-5] 	Screenshot
(Oltmann texts)
[113-6] 	Messages
[113-7] 	Messages
[113-8] 	Messages
[113-9] 	Messages
[113-10] 	Messages
[113-11] 	Messages
[113-12] 	Messages
[113-13] 	Messages
[113-14] 	Messages
[113-15] 	Messages
[113-16] 	Notes (McGuire
deposition)
[113-18] 	Contract
(Consulting
Agreement)
[113-19] 	Correspondence
and 	Notes
(McGuire
deposition)
[113-21] 	Transcript
(Oltmann
deposition)
[121-4] 	Messages
[121-5] 	Messages
[121-6] 	Transcript
(McGuire
deposition)
[121-7] 	Transcript
(Oltmann
deposition)
[121-8] 	Screenshot
(Camp texts)
[121-10] 	Property
Records
[121-13] 	Messages
[121-14] 	Property
Records
DATED: June 6, 2023
Case No. 1:22-cv-01129-NYW-SBP Document 156 filed 06/06/23 USDC Colorado
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