305 Reply Memo of Law in Support of Lively’s Motion for SJ (as filed) (1)
Read Introduction and Especially p. 73-90
Below is a short excerpt, with legal citations removed for ease of reading.
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The upshot of SMUG’s conspiracy theory is this: Beginning in 2002, Lively bewitched the nation of Uganda by implanting in the Ugandan psyche the previously unknown concepts of homosexual “recruitment of children,” criminalizing the “promotion of homosexuality,” and equating homosexuality with pedophilic rape. So powerful were Lively’s incantations, the story goes—even “compelling” the persecution of LGBTI Ugandans—that “his reliant co-conspirators” dutifully carried out his “script” and “program” of persecution through the fourteen persecutory acts allegedly perpetrated by the office of the Ministry of Ethics and Integrity. …
SMUG’s conspiracy theory, such as it is, was fraudulent ab initio. SMUG’s Opposition dogmatically doubles down on SMUG’s supposition that every Ugandan who utters the concepts
of “recruitment” or “promotion of homosexuality” in Uganda since 2002 is necessarily “parroting” Lively and proving Lively’s “significant impact and ‘success’” in “the persecution of the LGBTI community.” This is so, SMUG claims, even though every single one of its witnesses, including its 30(b)(6) designee could not name one connection between Lively and numerous alleged injustices and persecution happening in Uganda between 2002 and 2007…
Be that as it may, SMUG has been sitting on a little black box, containing a historical record which lays waste to the Lively origin story.
In 2007, SMUG published its own book on the homosexuality debate in Uganda, titled Homosexuality: Perspectives from Uganda (hereinafter, “Perspectives”).
The editor of Perspectives was SMUG’s co-founder, advisor and summary judgment declarant, Dr. Sylvia Tamale, a Professor of Law and former dean of Makerere University School of Law in
Kampala, Uganda. Tamale described Perspectives as “a historical record of the debate” regarding homosexuality in Uganda for the period 1997 to 2007, from the “two biggest English dailies.” (Perspectives at ix-x.) In addition to the full text articles curated by Tamale for the book… Perspectives includes a “compendium of all newspaper titles printed on this subject over the said period,” and promises to “give readers a fair sense and flavour of the contemporary debate.” (Id. at x, back cover.)
…
Thus, according to SMUG’s own “fair” publication of the “historical record,” Ugandan society was already debating the topics of homosexual recruitment of youth, banning promotion
of homosexuality, adult-child homosexual rape, and the jailing of homosexuals, well before Lively first stepped foot in Uganda, as reported and featured by Uganda’s leading daily papers. These facts, though published in a book by SMUG, are omitted from SMUG’s narrative that Lively planted the ideas in the Ugandan consciousness beginning in 2002. The reason, of course, is obvious: The foundation of SMUG’s conspiracy theory crumbles under the weight of the truth.
SMUG Should Be Severely Sanctioned, Up To And Including
Dismissal, For Willfully Withholding Critical Evidence From Lively.
Because it is so devastating to its causation theory, SMUG withheld its out-of-print Perspectives book from Lively in discovery, hoping that Lively would not find it. SMUG was obviously aware of the book, since it was edited by its co-founder and published by SMUG itself.
(Perspectives at inside cover and ii). SMUG’s 30(b)(6) designee confirmed at SMUG’s deposition that he had a copy of the book within his custody possession and control. SMUG’s counsel confirmed that the book had not been produced, and proffered the untenable excuse that the book was not in SMUG’s custody, possession or control, even though it was admittedly in the custody, possession or control of one of SMUG’s chief officers and 30(b)(6) designee. This kind of discovery gamesmanship finds no support in the law, and has been repeatedly rejected in this district.22 Even after SMUG’s deposition, SMUG never produced its book, to this day, notwithstanding SMUG’s clear duty to supplement its discovery responses and document production under Rule 26(e)(1)(A).
That SMUG’s improper and deliberate withholding of this critical piece of evidence prejudiced Lively is self-evident. Lively was unable to question any of SMUG’s witnesses about the book and its findings that so completely dismantle SMUG’s theory. Lively was also unable to seek authenticated copies of the hundreds of referenced articles. Nor was Lively apprised of the importance of deposing Tamale, SMUG’s co-founder, and thus Lively did not seek to depose her.
Finally, Lively did not have SMUG’s book available to him when drafting his dispositive motion.
He was only able to obtain a copy recently, after the damage calculated by SMUG had been done. The Court should not countenance SMUG’s discovery games. SMUG’s deliberate
withholding of this critical evidence deserves severe sanctions, up to and including dismissal.
…Not aware that Lively has been able to obtain SMUG’s out-of-print book, and perhaps gambling that the book would not make it into evidence, SMUG tries to paint a deceptively calm picture of pre-2002 Uganda, to support its narrative that Lively’s 2002 visit turned the country upside down in previously unknown anti-gay furor.
SMUG tells the Court [that] Prior to 2002 … Apart from a statement by the Ugandan President in 1999 that LGBTI people should be sent to prison, LGBTI Ugandans primarily suffered discrimination during private interactions such as with family members, colleagues, and health care professionals when seeking medical assistance tailored to their needs as sexual minorities. LGBTI Ugandans gathered together without intrusion by public institutions, such as government agencies, the police, and the media.
Since Lively had already identified President Museveni’s 1999 statement, SMUG attempts to cast it aside as a one-off happenstance (“apart from a statement …”) in an otherwise calm atmosphere, where homosexuals might have encountered occasional “discrimination during private interactions,” but certainly not the “intrusion” and constant bombardment by the “police” and “public institutions” and the “media” that became prevalent after Lively’s visit. (Id.) But the headlines in SMUG’s own book reveal SMUG’s deception, because President Museveni had not made “a statement” against homosexuals, but rather numerous statements over multiple years (pre-2002), each more incendiary than the next. (E.g., Museveni charges police “to look for homosexuals, lock them up and charge them”; “Museveni warns off homosexuals”; “Museveni opens war on gay men”; “Arrest homos, says Museveni”; “Museveni gets real on homosexuals”; “Museveni’s anti-homo talk angers Swedish parliament”; “Museveni attack on homos worries US”; “Museveni still tough on homos”) (See pp. 77-80, supra).
SMUG’s book is also replete with headline after headline showing that, prior to 2002, “public institutions,” “police” and “the media” – all of the entities which SMUG now claims left homosexuals alone – in fact routinely called for the investigation, arrest, prosecution and
punishment of homosexuals, and acted on those calls with actual arrests and criminal penalties. (E.g., Museveni told parliamentarians, to deafening applause, that he instructed police to “look for homosexuals [and] lock them up”; the Ugandan Minister of State for Security likened gays to “beasts” and “warned that security will promptly arrest homosexuals”; “Minister warns of homosexuals”; “Man arrested posing as a woman”; “Brazilian homosexual suspect held”; “Expresident gets 10 years for homo-sex”; “Police quiz suspected homosexuals”; “MP [Member of Parliament] warns on homosexuality”; “Uganda should notify visiting homos about impending arrest”; “Yes, homosexuals deserve no living here”; “Homo held”; “Gay war must go on”; and “If you are gay in Uganda, the law will catch up with you”). (See pp. 77-80, supra).
None of this is new or unknown to SMUG, because SMUG literally wrote the book on it, and SMUG’s counsel are aware of that book. In light of this, SMUG’s deceptive portrayal of pre-2002 Uganda casts a long shadow of doubt over everything else SMUG says to support its claims.
But the deception does not end there, unfortunately. SMUG needs record facts to support its exceptionally rosy picture (compared to reality) of Uganda “Prior to 2002,” and, lacking such facts altogether, SMUG resorts to creating them out of whole cloth. Not a single one of the deposition citations in SMUG’s PSOF ¶ 22 (block quoted on the previous page) actually refers to pre-2002 Uganda, even though SMUG expressly advances them as descriptive of
Uganda “Prior to 2002.” For example:
“Sullivan Decl. Ex. 34 at pp. 18:19-23:9” – refers to the deposition of Samuel Ganafa, SMUG’s Chairman of the Board. SMUG did not actually include the cited pages in its Sullivan Exhibit 34, for reasons that will become obvious shortly. The Court can find them, however, at dkt. 250-1 (filed by Lively). In the cited pages, Ganafa is talking about the situation in Uganda between 2002 and 2004, not “Prior
to 2002,” as SMUG misrepresents.
“Sullivan Decl. Ex. 28 at pp. 40:8-41:3” – refers to the deposition of Frank Mugisha, SMUG’s Executive Director. In the cited portion, Mugisha’s description of Uganda appears to match SMUG’s “Prior to 2002” picture. (E.g., Mugisha relates that homosexuals attending Ice Breakers group meetings were not reporting being persecuted or harassed, and were mostly concerned with “rejection” by
friends and family) (Mugisha 40:8-41:3). So far so good. However, the preceding page, in a portion not cited by SMUG, plainly reveals that Mugisha is describing Uganda in 2005 (three years after Lively supposedly turned it upside down against homosexuals), and not “Prior to 2002,” as SMUG grossly misrepresents:
…Thus, Mugisha’s account directly contradicts SMUG’s pre-2002 vs. post-2002 narrative, and stands for the exact opposite of what SMUG purports.
“Sullivan Decl. Ex. 28 at pp. 51:6-21” – this is another Mugisha deposition excerpt advanced by SMUG to prove its assertion that homosexuals were largely left alone in Uganda “Prior to 2002.” In the cited testimony, Mugisha indeed says that, when he joined SMUG, it was not being prevented at all from accomplishing its mission and objectives. The problem for SMUG, again, is that Mugisha is talking about 2006, four years after Lively supposedly bewitched Ugandans:
…SMUG’s reliance on testimony about 2006 Uganda to prove its false narrative about pre-2002 Uganda eviscerates that narrative and impugns SMUG’s credibility.
“Sullivan Decl. Ex. 34 at pp. 24:20-22; 28:9-18” – the last of SMUG’s citations is also from the Ganafa deposition, and also refers to a portion of that deposition which SMUG does not actually include in Sullivan Exhibit 34, for equally obvious reasons. Examining the cited testimony in the full transcript filed by Lively reveals that SMUG saved its biggest whopper for last. Ganafa does indeed testify that “we’re able to run smoothly without interference until these outings started coming.”
The problem is, however, that Ganafa is once again talking about Uganda between 2002 to 2004, after Lively’s visit, and not “Prior to 2002” as SMUG misrepresents. The Court can easily determine this by looking at the previous and subsequent questions asked of Ganafa, which refer to 2002 and 2004, respectively.
Ganafa also says in the very same response (of which SMUG cites only two lines), that the reason his advocacy group was “run[ning] smoothly without interference” was because it was purposefully concealing its work with homosexuals, and not because pre-Lively
Uganda was leaving gays alone, as SMUG claims. (Ganafa 24:10-22).
Perhaps one or two flatly false citations could be written off as sloppiness, and could be forgiven in a gigantic brief. But when every single citation for a critical proposition is false, and actually demonstrates exactly the opposite of what SMUG claims, the Court can have no confidence in anything SMUG says. Will SMUG at least withdraw its PSOF, and the entire fraudulent theory it has built upon it, now that its deception has been laid bare?
Lastly, without any support in the record for its “Prior to 2002” narrative of Uganda, SMUG resorts to the rank hearsay of Onziema, who says, in a self-serving declaration, that, based on his “conversations with LGBTI community members” he believes that the pre-2002 “discrimination suffered by LGBTI Ugandans was largely limited to private interactions, such as among family members and colleagues.”
Rank hearsay aside, this is the same witness who admitted that he has SMUG’s Perspectives book in his possession. (Onziema 221:10-20). Perhaps he has never read it. Perhaps he has. Either way, his inadmissible hearsay statement does nothing to contradict the overwhelming evidence collected by SMUG in its own book, and cannot resuscitate SMUG’s fraudulent causation theory.”
