Motion To Intervene
Motion To Intervene
MISSISSIPPI DEPARTMENT
OF HUMAN SERVICES,
Plaintiff,
MISSISSIPPI COMMUNITY
EDUCATION CENTER, INC., et al.
Defendants.
The Northeast Mississippi Daily Journal,1 the Mississippi Free Press, and Mississippi
Today (collectively “Mississippi News Organizations”) hereby move for an order under
Mississippi Rule of Civil Procedure 24 to intervene in this case for the limited purpose of opposing
former Mississippi Governor Phil Bryant’s request for a protective order sealing from public view
any records he must produce in response to a subpoena from Defendant Mississippi Community
Education Center (MCEC) for records relating to a USM volleyball facility that was built while
Governor Bryant was in office using millions of dollars in welfare funds from the Temporary
1
The Northeast Mississippi Daily Journal is published by, and is also known as, Journal, Inc.
1
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Since their founding, the Mississippi News Organizations have served Mississippians’
crucial right to access information about their public systems of government.3 From coverage of
the growing healthcare accessibility crisis4 and government operations in Mississippi5 to the water
crisis in the state capitol,6 these organizations are at the forefront of reporting Mississippi news
This mission extends to the scandal at issue in this case, on which each of the organizations
has extensively reported.7 As indicated by their coverage, this lawsuit is of serious public import.
But as even former Governor Bryant’s own evidence submitted in this case makes clear, Doc. 140
at 9-10, Exs. 3-7, numerous communications among former Governor Bryant and others, including
certain Defendants about the misuse of the TANF program8 funds, were not previously known to
the news media or the public. Some of those communications have now been uncovered.9 The
subpoena at issue in this case seeks additional records and communications that may facilitate the
public’s understanding of how the state misspent millions of dollars of public funds meant for
2
The relevant procedural history is set forth in Defendant Mississippi Community Education Center’s Motion to
Compel. Doc. 131.
3
N.E. MISS. DAILY JOURNAL, About Us, www.djournal.com/site/about.html (last visited Mar. 14, 2023); MISS. FREE
PRESS, About Mississippi Free Press, www.mississippifreepress.org/about (last visited Mar. 14, 2023); MISS. TODAY,
About Us, mississippitoday.org/about-us/ (last visited Mar. 14, 2023);.
4
See, e.g., MISS. FREE PRESS, www.mississippifreepress.org/tag/abortion (last visited Mar. 14, 2023) (select
“abortion” in top banner); MISS. TODAY, Mississippi Healthcare Crisis, mississippitoday.org/mississippi-health-crisis/
(last accessed Mar. 14, 2023).
5
N.E. MISS. DAILY JOURNAL, State Government, www.djournal.com/news/state-news/ (last visited Mar. 14, 2023);
MISS. FREE PRESS, www.mississippifreepress.org (last visited Mar. 14, 2023) (select “2022 elections” in top banner).
6
Emily Wagster Pettus, Black Mississippi capital distrusts plans by white officials, N.E. MISS. DAILY JOURNAL (Feb.
26, 2023), www.djournal.com/news/state-news/black-mississippi-capital-distrusts-plans-by-white-
officials/article_3c8f2568-9ba4-53ae-84ac-055d116243c1.html; MISS. FREE PRESS, “ackson Water Crisis Coverage,
www.mississippifreepress.org/jackson-water-crisis-investigation (last visited Mar. 14, 2023); MISS. TODAY, Jackson
Water Crisis, mississippitoday.org/jackson-water-crisis/ (last visited Mar. 23, 2023).
7
Ashton Pittman & William Pittman, Texts: Gov. Reeves Talked To Brett Favre About Using State Funds For
Volleyball Facilities, MISS. FREE PRESS (DEC. 8, 2022), https://www.mississippifreepress.org/29628/texts-gov-reeves-
talked-to-brett-favre-about-using-state-funds-for-volleyball-facilities.
8
“TANF” is also known as the welfare program.
9
Anna Wolfe, Favre secure welfare funding for USM volleyball stadium, texts reveal, MISS. TODAY (Sept. 13, 2022),
mississippitoday.org/2022/09/13/phil-bryant-brett-favre-welfare/.
2
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needy Mississippi families. Although these records relate to one of the largest governmental abuses
in this state’s recent memory,10 Bryant seeks to keep them hidden from the public through his
The public in Mississippi has an interest in these records and what they may disclose about
the scandal and who is, or is not, responsible for it. It is this interest that the Mississippi News
Organizations seek to vindicate by intervening in this case. Courts have long recognized the right
of news media to intervene to protect against the concealment of records and proceedings. See
generally Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 944 (Miss. 1990) ( “[I]t is well
settled that representatives of the news media have the standing to contest a court order restricting
public access to legal proceedings.” (citation and internal quotation marks omitted)); Ford v. City
of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001) (“This court has held that a news agency has a
legal interest in challenging a confidentiality order . . .”); Globe Newspaper Co. v. Super. Ct., 457
U.S. 596, 609 n.25 (1982) ( “[T]epresentatives of the press and general public ‘must be given an
opportunity to be heard on the question of their. exclusion.’” (citation omitted)). Here, too,
intervention should be granted so the media and the public have an opportunity to be heard.
ARGUMENT
M.R.C.P. 24 allows a non-party to intervene in an ongoing case in two ways: intervention
as of right and permissive intervention. M.R.C.P. 24(a)-(b). A court shall grant intervention as of
right when a non-party shows: (1) a timely request; (2) an interest in the subject matter of the
action; (3) a practical impairment of their ability to protect that interest if the action is determined
in their absence; and (4) an inadequate representation of their interest by existing parties. Id. at
24(a)(2); see also Hood ex rel. State Tobacco Litig., 958 So. 2d 790, 805 (Miss. 2007). A court
10
See, e.g., Doc. 148 (MCEC’s reply ISO Mot. to Compel) at 10, n.35 (citing Ex. 8, a WLBT news article with video
re: the State Auditor characterizing the scandal as one of the largest public embezzlement cases in state history).
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may grant permissive intervention if a non-party makes a “timely” motion to intervene based on a
“claim or defense” that shares a “question of law or fact in common” with the main action.
M.R.C.P. 24(b). Under either analysis, the would-be intervenor “should receive the benefit of the
doubt.” Kinney v. S. Miss. Plan. & Dev. Dist., Inc., 202 So. 3d 187, 196 (Miss. 2016) (citing Guar.
Nat'l Ins. Co. v. Pittman, 501 So. 2d 377, 385 (Miss. 1987)).11 Here, the putative intervenors meet
both standards.
I. The Mississippi News Organizations Satisfy the Standard for Intervention as of Right
Under M.R.C.P. 24(a): Their Timely Request is to Protect a Well-Established Interest
That is Inadequately Represented By Existing Parties, and Denying Intervention Will
Practically Disadvantage Them.
The Mississippi News Organizations satisfy all requirements for intervention as of right.
(1) the length of time during which the would-be intervenor actually knew or should have
known of his interest in the case before he petitioned for leave to intervene; (2)
the extent of the prejudice that the existing parties to the litigation may suffer as a result of
the would-be intervenor’s failure to apply for intervention as soon as he actually knew or
reasonably should have known of his interest in the case; (3) the extent of the prejudice
that the would-be intervenor may suffer if his petition for leave to intervene is denied; and
(4) the existence of unusual circumstances mitigating either for or against a determination
that application is timely.
M.R.C.P. 24 Adv. Comm. Notes (citation omitted); see also Stallworth v. Monsanto Co., 558
F.2d 257, 26466 (5th Cir. 1977)).12 These factors are not a test; a court should determine
11
Note that the “likelihood of success on the merits of the claim in intervention is not a factor which should be
considered in determining whether [the motion] is timely or should otherwise be granted. . . .” Guar. Nat'l Ins. Co. at
382.
12
Because the language in M.R.C.P. 24 is “virtually identical” to its Rule 24 counterpart in the Federal Rules of Civil
Procedure (“F.R.C.P.”), “federal judicial decisions offer guidance.” Hood, 958 So. 2d at 803 & n.13; id. at at 806 &
n.16 (providing that M.R.C.P. 24 and F.R.C.P. 24 both “use virtually the same language to describe the requirements
for intervention of right and permissive intervention” and “require the same intervention procedure,” thus making , it
“useful . . . to look to the federal judiciary for guidance in construing [state court] rules” and “appropriate to look at
federal law interpreting the federal rules,” (quoting Owens v. Thomae, 759 So. 2d 1117, 1121 n. 2 (Miss. 1999) &
4
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timeliness “from all the circumstances.” Edwards v. City of Houston, 78 F.3d 983, 1000 (5th Cir.
1996) (quoting Corley v. Jackson Police Dep’t, 755 F.2d 1207, 1209 (5th Cir. 1985)). “A motion
to intervene may still be timely even if all the factors do not weigh in favor of a finding of
timeliness.” State Farm Fire & Cas. Co. v. Hood, 266 F.R.D. 135, 139 (2010) (citations
omitted).
1. Knowledge of Interest in the Case. Requesting to intervene prior to the Court issuing a
judgement “favors [a finding of] timeliness.” Edwards, 78 F.3d at 1001. Here, the Mississippi
News Organizations have moved to intervene prior to any court action to address Governor
request for intervention should be considered timely. See id. (explaning that filing motions to
intervene “prior to entry of judgment favors timeliness, as most of our case law rejecting petitions
for intervention as untimely concern motions filed after judgment was entered in the litigation”
Moreover, Governor Bryant requested a protective order on September 23, 2022—just six
months ago. Intervention is often granted to news media after much longer delays, including after
entry of judgment.13 In State Farm, for example, leave to intervene to challenge an order sealing
documents was granted 15 months after the documents were sealed, with the court recognizing
that “delays measured in years have been tolerated where an intervenor is pressing the public’s
right of access to judicial records.” 266 F.R.D. at 143 (quoting San Jose Mercury News, Inc. v.
U.S. Dist. Ct., 187 F.3d 1096, 1101 (9th Cir. 1999); see also Hood, 958 So. 2d at 808 (upholding
Federated Mut. Ins. Co. v. McNeal, 943 So. 2d 658, 662 n. 6 (Miss. 2006)) (citing Bourn v. Tomlinson Interest, Inc.,
456 So. 2d 747, 749 (Miss. 1984))); see also Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1215 (Miss.
2001) (treating federal interpretations of the F.R.C.P. as persuasive authority when interpreting the M.R.C.P.).
13
See, e.g., Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992) (collecting cases in which the Fifth Circuit
has allowed post-judgment intervention in cases).
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intervention despite applicants’ knowledge for over four years of the order that they sought to have
vacated).
prejudice to be considered . . . is that created by the intervenor’s delay in seeking to intervene after
it has learned of its interest in the action, not prejudice to existing parties if intervention is
allowed.” Ceres Gulf, 957 F.2d at 1203 (finding no prejudice to an existing party who would would
incur additional expenses if intervention were granted because the putative intervenor was not
dilatory in seeking to intervene); Ford, 242 F.3d at 240. In this case, Mississippi News
Organizations moved to intervene following Governor Bryant’s request for a protective order and
prior to any action by the court, procedural or otherwise, to address his request. The Mississippi
News Organizations have not been dilatory in seeking to intervene. Moroever, putative intervenors
seek “only to litigate the issue of [a] confidentiality order,” and not the merits of the underlying
case. Id. Because existing parties are not prejudiced by any delay, the Mississippi News
Circuit has repeatedly found that a news agency has a legal interest in challenging a confidentiality
order, and that denying a news agency’s request to intervene for the purpose of protecting that
interest inflicts legally cognizable harm. See, e.g., Ford, 242 F.3d at 240 (providing generally that
a news agency has a legal interest in challenging a confidentiality order); State Farm, 266 F.R.D.
at 142 (finding that denial of intervention to oppose the sealing of records “present[ed] an obstacle
to their attempt to obtain access” and therefore “caused injury to a legally protected interest” that
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The Mississippi News Organizations seek to intervene in this litigation to oppose former
Governor Bryant’s request to seal from public view any records—including emails and text
claims that Governor Bryant directed MCEC to provide TANF money to Brett Favre to fund
construction of the volleyball facility.14 The Mississippi News Organizations wish to review those
records as part of their critical reporting on the lawsuit and one of the largest public fraud scandals
in this State’s history. If they are denied the opportunity to intervene to protect their legally
cognizable interest in reporting on these proceedings, they will suffer prejudice and legally
cognizable harm. As noted earlier, the documents at issue relate to a matter of great public
importance in Mississippi. The former Governor has requested a protective order that would shield
these documents from public view, perhaps forever. The media and the public have an interest in
these documents and will be greatly prejudiced if their interest is not considered by this Court.
militating either for or against a determination that the application is timely.” Stallworth, 558 F.2d
at 266. For example, under this fourth factor, a tardy putative intervenor could “advance a
convincing justification for his tardiness . . . [that] would militate in favor of a finding that his
petition was timely.” Id. Here, the proposed interventors were not tardy: The Mississippi News
Organizations filed this pre-judgement motion to intervene before this Court has takien any
procedural or substantive action to schedule, hear, or consider Governor Bryant’s request. Thus,
14
See, e.g., Doc 148 (MCEC’s reply ISO Mot. To Compel) at 2-3; see also Doc. 140 (Bryant’s Opp’n to MCEC’s
Mot. to Compel) at 12-15 at 56, 65-66.
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no unusual circumstances militate against a determinatio;n that the Mississipi News Organizations’
request is timely.
Indeed, there are unusual circumstances in this case that support a finding of timeliness.
This case involves what has been referred to as “the largest public fraud case in the history of the
state.”15 Yet former Governor Bryant is seeking to hide records concerning this matter that he sent
and received while in office that were public records under state law at the time he created,
reviewed, and used them. See generally, Hood, 958 So. 2d at 808 ( noting the important issues in
the case that qualified as unusual circumstances and that supported a finding of timeliness). The
Mississippi News Organizations’ motion to intervene is timely and satisfies the first condition for
To intervene as of right under M.R.C.P. 24(a), the applicant must “claim[] an interest
relating to the property or transaction which is the subject of the action.” M.R.C.P. 24(a). In
determining if an applicant’s interest satisfies the standard, the Mississippi Supreme Court has
held: “All that is necessary is that [the applicant] establish an interest in the rights that are at issue
in the litigation.” Guar. Nat’l Ins. Co., 501 So. 2d at 384 (explaining that “[l]egalistic formalism
and mechanical jurisprudence simply do not fit the language or philosophy of [M.R.C.P. 24]”);
see also State Farm, 266 F.R.D. at 142 (finding that a Mississippi media organization seeking to
attempt to obtain access,” and therefore “caused injury to a legally protected interest” that was
15
See supra n.10.
8
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The Fifth Circuit has likewise “warned against” too narrowly defining what type of
interests satisfy this standard. Ford, 242 F.3d at 240; see also Ceres Gulf, 957 F.2d at 1203.
Critically, the Fifth Circuit “has held that a news agency has a legal interest in challenging a
confidentiality order,” explaining that, “‘members of the news media, although not parties to
litigation,” have standing to “appeal court closure orders or confidentiality orders . . . . ” Ford,
242 F.3d at 240 (citation omitted). Furthermore, the court in Ford recognized that a news
organization seeking to intervene to oppose a confidentiality order need not establish that it would
“ultimately obtain access” to the record sought; it was sufficient that the confidentiality order
“present[ed] an obstacle to [the applicant’s] attempt to obtain” it. Id. (citation omitted).
The Mississippi News Organizations are media entities with an interest in accessing the
records that Governor Bryant produces in response to MCEC’s subpoena. Governor Bryant seeks
a protective order that would present an obstacle to obtaining them. Consequently, the Mississippi
News Organizations have an interest relating to the underlying action and satisfy the second
not allowed. See M.R.C.P. 24(a)(2); Guar. Nat'l Ins. Co., 501 So. 2d at 384. “The central purpose
of this requisite is to allow intervention by those who might, in a practical sense, be disadvantaged
by the disposition of the action”; this prong “is satisfied whenever disposition of the present action
would put the would be intervenor at a practical disadvantage in protecting his interest.”
Id.
If Mississippi News Organizations are denied intervention, they will not be able to obtain
records produced by the Governor in response to MCEC’s subpoena; the applicants have a legally
9
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cognizable interest in reporting on the content of those records, including on what they do or do
not reveal about the diversion of public TANF funds to build a volleyball stadium. Therefore, the
To intervene as of right, an applicant must establish that its interest is “not ‘adequately
represented by existing parties.’” Id. at 381 (quoting M.R.C.P. 24(a)(2)). In Ford, the Fifth Circuit
found that when existing parties in that case jointly moved for a confidentiality order, they were
“advocating a position contrary to the interest” of the putative newspaper intervenor; this alone
satisfied this fourth intervention requirement for the newspaper in that case. 242 F.3d at 241. And
in Stallworth, the court concluded this condition was satisfied because neither of the existing
parties “[had] either voiced the appellants' concerns or expressed a desire to.” Stallworth, 558 F.2d
at 268.
In this case, the Mississippi News Organizations’ interest is in reporting on the content of
any records that Governor Bryant must produce in response to MCEC’s subpoena, for the benefit
of the public, regardless of whether such reporting would be legally beneficial to any person or
entity—whether party or non-party. On the other hand, DHS’s interest is in prosecuting its case,
and it has been silent regarding Governor Bryant’s request. While MCEC weighed in on Governor
Bryant’s request for a protective order and argues against it, its interest is in avoiding civil liability.
Moreover, any of the existing parties could, in furtherance of their interests, enter into private
treatment of all or some of Governor Bryant’s subpoenaed records. They do not, and cannot,
represent the Mississippi News Organizations’ interests in this litigation. The Mississippi News
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Organizations’ interest is inadequately represented by existing parties, and they satisfy the fourth
II. Alternatively, Mississippi News Organizations Satisfy the Standard for Permissive
Intervention Under M.R.C.P. 24(b).
The Mississippi News Organizations’ application also satisfy the standard for permissive
intervention. A court must determine if the application was timely; whether the applicant’s claim
or defense and the main action have a question of law or fact in common; and in its discretion,
whether the intervention will unduly delay or prejudice the adjudication of the rights of the original
parties. See Fed.R.Civ.P. 24(b)(2); see generally Stallworth, 558 F.2d at 269 (“Determining
whether an individual should be permitted to intervene is a two-stage process. First, the [court]
must decide whether the applicant’s claim or defense and the main action have a question of law
or fact in common. If this threshold requirement is met, then the [court] must exercise its discretion
in deciding whether intervention should be allowed.” (citations omitted)). Here, the Mississippi
A. Whether the application was timely. As with intervention of right, an application for
permissive intervention must be “timely,” M.R.C.P. 24(b), which the Mississippi News
Organizations meet based on their previous arguments regarding timeliness, incorporated here.
B. Whether the applicant’s claim or defense has a question of law or fact in common
with the main action. In this case, the Mississippi News Organzations claim that former Governor
Bryant’s request for a protective order should not be granted, which is also question at issue in the
main action. Courts have interpreted this factor broadly. In Stallworth, for example, the court
dispensed with its analysis of this condition in one sentence: “In light of the liberal construction
that the ‘interest’ requirement of section (b)(2) has received, . . . the appellants plainly meet the
first test Id. at 269-270 (citing SEC v. United States Realty & Improvement Co., 310 U.S. 434,
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459 (1940); In re Estelle, 516 F.2d at 485 (opinion of Tuttle, J.); Textile Workers Union of America,
CIO v. Allendale Co., 226 F.2d 765, 769 (1955); Shapiro, Some Thoughts on Intervention Before
Courts Agencies and Arbitrators, 81 Harv.L.Rev. 721, 726 (1958)). Because the news
organizations’s claim shares a question of law or fact in common with the main action, they satisfy
C. Whether, in the court’s discretion, intervention should be allowed, and whether the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
In this case, the original parties are DHS and the individuals and entities which DHS is suing to
recoup public funds. None will be harmed if the Mississippi News Organizations’ application to
intervene is granted. DHS’s interest is in prosecuting this case and recouping stolen TANF welfare
funds. Defendants’ interests are to defend themselves. If the motion is granted, there will be no
interference with the Court’s orderly processes because the Mississippi News Organizations have
filed their application to intervene before the Court has scheduled a hearing on Governor Bryant’s
request.
These facts are sufficient to establish that the Mississippi News Organizations qualify for
permissive intervention. In McDonald v. E. J. Lavino Corp., the Fifth Circuit reversed the order of
a district court that had denied a worker’s compensation carrier’s request to intervene post-
judgment in a third-party action because the intervention would not have harmed other parties or
interfered with the court’s orderly processes. 430 F.2d 1065, 1074. The Court explained:
[T]he record makes it abundantly clear that the district judge studied the issue of
intervention with great care and patience. . . . Our reversal simply means that this court,
after studying the entire record in the light of all the relevant considerations,
concludes that the reasons militating in favor of granting the motion to intervene
substantially outweighed the reasons militating against it. . . . With little strain on the
court's time and no prejudice to the litigants, the controversy can be stilled and justice
completely done.
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McDonald, (emphasis added); see also Stallworth, 558 F.2d at 269-70 (quoting McDonald, 430
F.2d at 1074, when advising how the lower court could exercise its discretion when reconsidering
Because intervention would not cause undue delay in the litigation, and because the
original parties in the case will not suffer prejudice if it is granted, the Mississippi News
The Mississippi News Organizations satisfy the standard for permissive intervention under
CONCLUSION
The Mississippi News Organizations should be granted leave to intervene in this case for
the limited purpose of opposing former Governor Bryant’s request for a protective order. The
Mississippi News Organizations satisfy the standard for—and are therefore entitled to—
intervention as of right under M.S.R.P. Rule 24(a). Alteratively, they also satisfy the standard for
permissive intervention under under M.S.R.P. Rule 24(b). Attached to this motion is the proposed
response in opposition to Governor Bryant’s request that the Mississippi News Organizations will
13
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CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the foregoing were filed on the MEC
system on this 30th day of March, 2023, which electronically served copies on all counsel of
Robert B. McDuff
Counsel for Proposed Intervenors
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MISSISSIPPI DEPARTMENT
OF HUMAN SERVICES,
Plaintiff,
MISSISSIPPI COMMUNITY
EDUCATION CENTER, INC., et al.
Defendants.
Intervenors the Northeast Mississippi Daily Journal, the Mississippi Free Press, and
Mississippi Today (collectively “Mississippi News Organizations”) hereby file this Response in
Opposition to Former Governor Phil Bryant’s request for entry of a protective order in connection
INTRODUCTION
Former Governor Phil Bryant (“Bryant”) has asked this Court for a protective order that
MCEC’s subpoena for records, including communications, concerning the Volleyball Center at
the University of Southern Mississippi. Doc. 140 at 57; Doc. 93. Bryant argues that a protective
order is necessary to: (1) uphold the suppression order limiting pretrial publicity in a related
1
The relevant procedural history is set forth in Defendant MCEC’s Motion to Compel. Doc. 131.
1
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criminal case; (2) preserve the “chief executive communications privilege” and “deliberative
process privilege” that he claims apply to the documents, though neither is recognized in
Mississippi; and (3) “preserve the integrity of these proceedings” from a “media frenzy” that he
As explained below, a protective order is not warranted on these or any other applicable
grounds. The subpoena seeks records and communications of a public official about important
public business. Those records, and the scandal to which they pertain, were unknown to the public
at the time and therefore the news media did not request them under the Mississippi Public Records
Act. But they were covered under the Act and pertain to public business. That public business is
still public business today. The fact that Bryant is no longer Governor does not give him a license
to obtain a protective order from this Court to keep them hidden from public view. To the contrary,
granting the blanket confidentiality order that Bryant requests would run directly counter to the
purpose of Mississippi’s Public Records Act and would undermine fundamental principles of
transparency and openness that are inherent in Mississippi law and the United States Constitution.
ARGUMENT
inspection will be subject to the provisions of Rule 26(d).” Under Rule 26(d)(1), a court may enter
a protective order “for good cause shown . . . to protect a party or person [from whom discovery
Mississippi Supreme Court has repeatedly held that protective orders that do not articulate and
hew closely to the standards described by Rule 26 constitute an abuse of the trial court’s discretion.
See, e.g., Blossom v. Blossom, 66 So. 3d 124, 127 (Miss. 2011) (holding that the lower court “erred
by granting the protective orders without meeting the requirements set out in Rule 26(d),” and that
2
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“further explanation regarding the issues and requirements set out in the rules” was necessary);
Cole v. Wiggins, 487 So. 2d 203, 206 (Miss. 1986). The Court has also reversed protective orders
that are contrary to state law in favor of disclosure and public access. See, e.g., Cellular South, Inc.
v. BellSouth Telecommuns., LLC, 214 So. 3d 208, 216 (Miss. 2017) (reversing protective order
concealing records that were later made public through amendment to Mississippi’s Public
Records Act based on the Mississippi legislature’s “clear pronouncement [of] the right of the
I. A Protective Order Would Contravene the Spirit and Purpose of The Mississippi
Public Records Act to Guarantee Public Access to Public Records That Address
Public Business.
The Mississippi Public Records Act (the “MPRA” or “Act”), Miss. Code §§ 25–61–1 et
seq., “focuses on the right of the public to have access [to public records],” and it “expressly makes
public records the property of the public.” Cellular S., Inc., 214 So. 3d at 215 (citing Miss. Code
Ann. § 25–61–5(1)(a). The Act applies to all public bodies in the State. See Miss. Code. Ann. §
25–61–2 (“[P]roviding access to public records is a duty of each public body . . .”); Miss. Code.
Ann. § 25–61–3 (defining “Public body” to include “any department, bureau, division, council,
commission . . . agency and any other entity of the state or a political subdivision thereof, . . . and
any other entity created by the Constitution or by law, executive order, ordinance or resolution.”)..
It applies to records, “regardless of physical form or characteristics,”2 that are “in use” or which
“have[] been used . . . or prepared, possessed, or retained for use in the conduct, transaction or
performance of any business, transaction, work, duty or function of any public body, or [are]
required to be maintained by any public body,” unless specifically exempt from disclosure. Miss.
2
“‘Public records’ shall mean all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes,
recordings or reproductions thereof, and any other documentary materials, regardless of physical form or
characteristics.” Miss. Code Ann. § 25–61–3(b).
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Code Ann. § 25–61–3(b). Thus, communications made by government officials of public bodies
regarding their official duties and responsibilities are public records, including emails and text
messages on a public official’s personal cell phone. See, e.g., Miss. Ethics Comm’n, Public
Records Op. No. R-13-023 (Apr. 11, 2014) (“The fact that text messages reside on the mayor’s
personal cell phone is not determinative as to whether text messages must be produced…. Any
text message used by a city official ‘in the conduct, transaction or performance of any business,
transaction, work, duty or function of [the city] . . . ’ is a public record subject to the Act, regardless
of where the record is stored.”); see also generally Public Records Op. No. R-13-022 (Dec. 6, 2013
(discussing emails).
Records that are subject to public disclosure under the Act, are not generally the proper
subject of a protective order. Indeed, in Cellular South, the Mississippi Supreme Court held that a
trial court committed reversible error when it rejected a petition to revoke a protective order that
improperly limited the disclosure of documents that fell within the Act’s amended definition of
public records. Cellular South, 214 So. 3d at 216. As the Court explained in Cellular South, the
PRA is not “subservient to” a protective order—even when the order has already been granted by
the court. Cellular S., Inc., 214 So. 3d at 211. To the contrary, the rights encapsulated in the Act
Here, the documents sought from Bryant—including communications during his time in
office regarding the expenditure of state funds and the construction of a facility at a state
university—fall squarely within the PRA’s definition of public records at the time they were
created. The PRA must be interpreted broadly “in favor of disclosure,” Mississippi Dep’t of
Wildlife, Fisheries & Parks v. Mississippi Wildlife Enf’t Officers’ Ass’n, Inc., 740 So. 2d 925, 936
(Miss.1999), and there is no question that these are the type of records the public has a right to see.
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Had the news media been aware at the time of the theft of the TANF funds by state officials and
by then-Governor Bryant’s communications about the use of those funds, these intervenors and
others would have requested and been entitled to these records under the PRA. Just as there would
have no grounds for Bryant to withhold them from the public then, he should not be able to
withhold them from the public now by way of a request to this Court for a protective order.
II. A Protective Order Is Not Needed or Proper Here to Preserve the Integrity of
These Proceedings.
Bryant also argues that a protective order is needed to “preserve the integrity of these
proceedings.” Doc. 140 at 58. But he has it backwards. Far from undermining the integrity of these
proceedings, declining to grant Bryant the special protections he requests will uphold the integrity
of these proceedings and the spirit of openness and transparency that are exemplified not only by
the Mississippi Public Records Act but by the state and federal constitutions. While Bryant is
asking this Court to become an agent of secrecy by issuing a protective order to bar the public
from viewing these records of public business, the state and federal constitutions highlight the
importance of a judicial branch that is transparent and that protects the right of the public to know
Open courts and a free press are among the pillars of our democratic society. As the United
States Supreme Court has noted, “the courts of this country recognize a general right to inspect
and copy public records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589,
597 (1978). Members of the news media, in addition to enjoying their own First Amendment
protections, play a critical intermediary role in effectuating the public’s right of access. Assoc.
Press v. Bost, 656 So.2d 113, 117 (Miss. 1995) (“Freedom of the press and speech are fundamental
rights guaranteed by the First Amendment. Under the First Amendment, the press and the public
are guaranteed a right of access to public trials in order to gather information, and report what they
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see and hear.” (citing Richmond Newspapers v. Commonwealth of Va., 448 U.S. 555, 575 (1980)).
These principles are protected by the First Amendment and also by Article 3, Section 13 (“[t[he
freedom of speech and of the press shall be held sacred”) and Section 24 (“[a]ll courts shall be
open”) of the Mississippi Constitution. Given these principles of openness and transparency, the
integrity of these proceedings requires that the Court deny the former Governor’s request that it
ban, on his behalf, the press and the public from seeing these documents about important public
business.
III. Bryant’s Dubious Claims of Executive Privilege Do Not Trump the Public’s
Interest or Entitle Him to a Protective Order Banning the Public from Seeing
These Documents.
acknowledges, the pair of purported executive privileges he raises to justify his request for a
privilege”—have never been recognized by the Mississippi Supreme Court. Doc. 140 at 5 (citing
written Objections to the subpoena that Bryant provided to MCEC on August 26, 2022). With no
controlling or even persuasive Mississippi case law to anchor it, Bryant’s discussion of these
uncited law review article that references a variety of authorities from other jurisdictions. Compare
id. at 48–60, with Matthew W. Warnock, Stifling Gubernatorial Secrecy: Application of Executive
But tis argument is largely based on a lengthy disposition on the unsettled federal doctrine
of presidential privilege that Bryant attempts to refashion into a broad cloak of secrecy for
Mississippi governors. Bryant’s baseless contentions about exceedingly broad and unrecognized
privileges are not nearly enough to overcome the public’s interest in access to the public records
he seeks to shield. See, e.g., Cellular South, 214 So. 3d at 215 (“[T]he statutory framework of the
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[Mississippi] Public Records Act belies any contention that the Legislature intended to create
BellSouth.”).
Accordingly, Bryant’s request for a protective order shrouding the entirety of these
communications from disclosure to the public do not meet Rule 26(d)(1)’s requirements. Bryant
does not claim, for example, that the subpoena seeks to discover a “trade secret or other
“unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome or less expensive.” Miss. R. Civ. P. 26(d)(1)(G) and (d)(2). Instead,
he pleads his case for secrecy by invoking these two unrecognized and staggeringly expansive
privileges, painting a portrait of America’s free press that does not reflect its foundational role in
our democracy. According to Bryant, these documents should be “shielded [from] the press”
because they “sometimes carry biases and unfounded and unfair opinions” and do not always
Of course, this criticism of the media has always existed, even at the time of the Bill of
Rights; yet the First Amendment guarantees the freedom of the press, so people will know about
the operations of their government. When Bryant seeks to hide his communications about public
business from the press, he is trying to hide them from the public. Contrary to Bryant’s contention,
it is not the press that “threatens the integrity of this court’s proceedings,” id.; it is his effort to use
this Court to prevent the public from learning how millions of dollars were stolen from the state
treasury.
Governor Bryant’s cynicism regarding our free press is not the sort of “embarrassment”
against which Rule 26 is intended to protect—especially when invoked by a former public official
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called to address matters of great public import that occurred while at the helm of the State’s
highest office. Bryant’s discomfort with public and media scrutiny of his communications during
his time as governor is not a valid ground under Rule 26 to overcome the public’s right to see
IV. A Protective Order Is Not Needed or Proper Here to Effectuate the Criminal
Court’s Suppression Order.
Finally, Bryant’s argument that a protective order is somehow necessary to effectuate the
suppression order issued in a criminal matter involving some of the same parties and factual
underpinnings as this case. See Doc. 140 at 6–7, 57. But that order exists on its own terms: it binds
those parties that are subject to it (which do not include Bryant); and any request to enforce,
expand, or modify that order must be taken up with the judge presiding over the criminal
proceedings—not with this Court. Moreover, the concerns that justify a gag order limiting pretrial
inapplicable into the civil context. Neither logic nor legal authority commands that existence of
the criminal gag order in a related case mandates, or even counsels in favor of, a protective order
in this case.
CONCLUSION
Based on the foregoing, this Court should deny former Governor Bryant’s request that it
enter a protective order banning the public from viewing the documents that he will be required to
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