Hepting et al v. AT&T Corp. et al

Filing 297

MOTION for Leave to File Supplementary Material filed by Gregory Hicks, Erik Knutzen, Tash Hepting, Carolyn Jewel. Motion Hearing set for 6/23/2006 09:30 AM in Courtroom 6, 17th Floor, San Francisco. (DiMuzio, Elena) (Filed on 7/6/2006)

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Hepting et al v. AT&T Corp. et al Doc. 297 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) cindy@eff.org LEE TIEN (148216) tien@eff.org KURT OPSAHL (191303) kurt@eff.org KEVIN S. BANKSTON (217026) bankston@eff.org CORYNNE MCSHERRY (221504) corynne@eff.org JAMES S. TYRE (083117) jstyre@eff.org 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436-9333 415/436-9993 (fax) Attorneys for Plaintiffs [Additional counsel appear on signature page.] UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL and ERIK KNUTZEN, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. AT&T CORP., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C-06-0672-VRW CLASS ACTION PLAINTIFFS' NOTICE OF MOTION AND MOTION TO FILE SUPPLEMENTARY MATERIAL Courtroom: Judge: 6, 17th Floor The Hon. Vaughn R. Walker, Chief Judge No. C-06-0672-VRW MOTION TO FILE SUPPLEMENTARY MATERIAL WITH THE COURT Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that plaintiffs Tash Hepting, Gregory Hicks, Carolyn Jewel and Erik Knutzen will and hereby do move the Court, pursuant to Civil Local Rule 7-11, for an order allowing Plaintiffs to bring to the Court's attention relevant, supplementary material published after the June 23, 2006 hearing in this matter. Plaintiffs seek this administrative order based on this Notice of Motion and Motion, the Memorandum of Points and Authorities below, and the Supplementary Material submitted herewith. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs seek to submit an internet article published after the June 23, 2006 hearing, titled "Lawmakers: NSA Database Incomplete," for the Court's consideration. Susan Page et al., Lawmakers: NSA Database Incomplete, USA Today, June 30, 2006, http://www.usatoday.com/news/washington/2006-06-30-nsa_x.htm. This article contains important information relating to the Government's motion to dismiss, argued at the June 23 hearing, and would have been cited by the Plaintiffs had it been available before the hearing date. I. ARGUMENT At the June 23, 2006 hearing, the government argued, in support of its motion to dismiss on the basis of the state secrets privilege, that Plaintiffs' claims of warrantless, illegal wiretapping had no support outside of hearsay and other inadmissible or untrustworthy evidence. The government argued: The President has confirmed that the government seeks to intercept communications with one end abroad where one party is associated with al Qaeda. With respect to all of the other allegations in plaintiffs' complaint, there is a raft of speculation out there, much of it contradictory, much of it seemingly confused, all of it sourced either to anonymous, unnamed people who claim to be insiders or named people who say that they're outside experts and acknowledge that they're speculating based upon their expertise. That combination of anonymous assertions and speculations certainly gives rises to suspicions and may lead lots of people to assume various things. It doesn't establish reliable facts. Mot. to Dismiss Hr'g Tr. 47: 7-19, June 23, 2006. Plaintiffs respectfully submit that the article submitted herewith rebuts these assertions by -1- No. C-06-0672-VRW MOTION TO FILE SUPPLEMENTARY MATERIAL WITH THE COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the government, and provides additional support for certain facts plead upon information and belief in the First Amended Complaint. Specifically, the article establishes that "[n]ineteen lawmakers who had been briefed on the program verified that the NSA has built a database that includes records of Americans' domestic phone calls." Lawmakers: NSA Database Incomplete, USA Today, June 30, 2006, http://www.usatoday.com/news/washington/2006-06-30-nsa_x.htm. The article also states that "[f]ive members of the intelligence committees said they were told by senior intelligence officials that AT&T participated in the NSA domestic calls program." Id. Good cause exists to allow Plaintiffs to supplement the record with this information because it did not exist prior to the hearing, and it is not cumulative of the information before the Court. The article relies on members of Congress who have been briefed on the activities of the NSA and AT&T. Plaintiffs therefore seek to add this article to the record for the Court's consideration in connection with the government's motion to dismiss. II. CONCLUSION For the foregoing reasons, Plaintiffs request leave to file the referenced internet article with the Court for its consideration. DATED: July 6, 2006 Respectfully submitted, HELLER EHRMAN LLP By /s/Elena M. DiMuzio________________ ROBERT D. FRAM (SBN 126750) MICHAEL M. MARKMAN (SBN 191388) ETHAN C. GLASS (SBN 216159) SAMUEL F. ERNST (SBN 223963) NATHAN E. SHAFROTH (SBN 232505) ELENA M. DIMUZIO (SBN 239953) 333 Bush Street San Francisco, CA 94104 Telephone: 415/772-6000 415-772-6268 (fax) No. C-06-0672-VRW MOTION TO FILE SUPPLEMENTARY MATERIAL WITH THE COURT -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP REED R. KATHREIN JEFF D. FRIEDMAN SHANA E. SCARLETT MARIA V. MORRIS 100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: 415/288-4545 415/288-4534 (fax) LAW OFFICE OF RICHARD R. WIEBE RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: 415/433-3200 415/433-6382 (fax) TRABER & VOORHEES BERT VOORHEES (137623) bv@tvlegal.com THERESA M. TRABER (116305) tmt@tvlegal.com 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 Telephone: 626/585-9611 626/ 577-7079 (fax) LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP ERIC ALAN ISAACSON 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) No. C-06-0672-VRW MOTION TO FILE SUPPLEMENTARY MATERIAL WITH THE COURT -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. C-06-0672-VRW CERTIFICATE OF SERVICE I hereby certify that on July 6, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have mailed the foregoing document or paper via the United States Postal Service to the following nonCM/ECF participants: David W. Carpenter Sidley Austin Brown & Wood LLP Bank One Plaza 10 South Dearborn Street Chicago, IL 60600 David L. Lawson Sidley Austin Brown & Wood 172 Eye Street, N.W. Washington, DC 20006 By /s/ ________________ Elena M. DiMuzio (SBN 239953) Heller Ehrman LLP 333 Bush Street San Francisco, CA 94104 Telephone: (415) 772-6293 Facsimile: (415) 772-1753 elena.dimuzio@hellerehrman.com PROOF OF SERVICE

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