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

Filing 363

Memorandum in Opposition re 362 MOTION to Amend/Correct 355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence MOTION to Amend/Correct 355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence, 355 MOTION Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence filed byUnited States of America. (Attachments: # 1 Affidavit Coppolino Declaration & Exhibits Thereto)(Haas, Alexander) (Filed on 10/25/2007)

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PETER D. KEISLER Assistant Attorney General, Civil Division CARL J. NICHOLS Deputy Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Special Litigation Counsel [e-mail] ALEXANDER K. HAAS (SBN 220932) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20001 Phone: [phone] Fax: [phone] Attorneys for the United States

10 IN THE UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 15 16 17 18 19 20 I, ANTHONY J. COPPOLINO, do hereby state and declare as follows: 21 1. 22 Division, Federal Programs Branch, and one of the counsel of record for the United States in this 23 action. I make this declaration in support of the United States' Response to the Plaintiffs' 24 Motion for an Order to Preserve Evidence. The statements made herein are based on my 25 personal knowledge and information provided to me in the course of my official duties. I set 26 forth herein a summary of the conferrals that took place between the parties and the United States 27 28
C o p p o lin o Declaration re: Opposition of United States to Plaintiffs' M o t io n for an Order to Preserve Evidence M D L No. 06-1791-VRW 1

) ) ) ) ) This Document Relates To: ) ) ALL CASES except Al-Haramain v. Bush (07- ) 109); CCR v. Bush (07-1115); United States v. ) Farber (07-1324); United States v. Adams ) (07-1323); United States v. Palermino ) (07-1326); United States v. Volz (07-1396) ) _______________________________________) IN RE NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION

No. M:06-cv-01791-VRW DECLARATION OF ANTHONY J. COPPOLINO SUBMITTED WITH UNITED STATES' OPPOSITION TO PLAINTIFFS' MOTION FOR AN ORDER TO PRESERVE EVIDENCE Judge: Hon. Vaughn R. Walker Date: Time: Courtroom: November 15, 2007 2 p.m. 6 - 17th Floor

I am Special Litigation Counsel for the United States Department of Justice, Civil

in connection with the preservation of any relevant evidence in these proceedings, including true 1 and correct copies of electronic mail communications referred to below. 2 2. 3 November 17, 2006. See Exhibit 1, Transcript at 99-102 (11/7/06). Counsel for AT&T and the 4 Government advised that the parties had not yet conferred on the matter and could not discuss it 5 further without considering the impact of the state secrets privilege. See id. at 100, 101. The 6 Plaintiffs agreed to confer on the matter. See id. at 102. 7 3. 8 their counsel (Mr. Haefele) conferred with me and counsel for AT&T (Mr. Ericson). In this 9 conversation, I advised Plaintiffs of the Government's concern that, because the allegations in the 10 cases concern alleged intelligence activities that have not been confirmed or denied, including 11 any alleged role of carrier Defendants, the parties would be unable to discuss specific facts set 12 forth in the Manual for Complex Litigation required to develop a preservation order. 13 Nonetheless, the parties agreed to continue conferring and Plaintiffs' counsel agreed to circulate 14 a proposed preservation order. 15 4. 16 Government and the counsel for the carriers, a copy of a proposed preservation order. See 17 Exhibit 2. 18 5. 19 order. See Exhibit 3. In this email, I again expressed the Government's concern that the factual 20 discussion needed to develop a preservation order, as outlined in the Manual for Complex 21 Litigation, was not possible in light of the Government's state secrets privilege assertion in this 22 case. I made clear that the Government was not suggesting that any relevant evidence in this case 23 need not be preserved, but, because of the information protected by the Government's state 24 secrets privilege assertion, the parties are unable to discuss "whether and to what extent 25 information that may be relevant exists, where any such information may reside, how it may be 26 preserved, and whether there are any practical burdens arising from Plaintiffs' proposed 27 28
C o p p o lin o Declaration re: Opposition of United States to Plaintiffs' M o t io n for an Order to Preserve Evidence M D L No. 06-1791-VRW 2

Plaintiffs' counsel first raised the issue of a preservation order at hearing on

I next heard from Plaintiffs on the matter on December 19, 2006, when one of

By electronic mail dated January 8, 2007, Plaintiffs' counsel transmitted to the

By electronic mail dated February 8, 2007, I responded to the Plaintiff's proposed

preservation steps--all of which should be undertaken before a preservation order is entered." 1 See id. I also indicated that if the Plaintiffs sought a preservation order, the prudent course 2 would be for the Government to address the matter with the Court through an in camera, ex parte 3 submission. See id. 4 6. 5 further email to the Government again seeking confirmation of the Government's and Carrier 6 Defendants' preservation obligations. See Exhibit 4. 7 7. 8 I reiterated the Government's concern at attempting to reach an understanding on this matter in a 9 vacuum since the parties could not discuss with Plaintiffs the existence, nature, or scope of any 10 information that might be at issue and preservation steps that might be applicable. I again also 11 noted the Government's understanding that parties to litigation have obligations to take steps to 12 preserve their relevant evidence and indicated a willingness to discuss the issue further. See id. 13 8. 14 to my email of June 29, 2007, see Exhibit 5, directing renewed questions at both the Government 15 and carrier defendants concerning their preservation obligations. 16 9. 17 questions, see Exhibit 6. In this communication, I proposed that, without the need for any 18 motion by the Plaintiffs, and without confirming or denying any allegation or whether relevant 19 documents even exist, the Government would file with the Court for its in camera, ex parte 20 review facts concerning the preservation of information (if any) that may be relevant in these 21 lawsuits. I proposed that Plaintiffs would then file their position on document preservation 22 issues with the Court and suggested further that the parties develop a scheduling stipulation for 23 these submissions. See id. 24 25 26 27 28 The timing of the parties' communications on this issue resulted from the fact that extensive briefing was occurring in several cases, including in the CCR, Shubert, Verizon and State PUC cases before this Court, and the Hepting and Al-Haramain cases before the Court of Appeals.
Coppolino Declaration re: Opposition of United States to Plaintiffs' M o t io n for an Order to Preserve Evidence M D L No. 06-1791-VRW
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By electronic mail dated April 30, 2007, Plaintiffs' counsel (Ms. Cohn) sent a

I responded to Ms. Cohn by electronic mail dated June 29, 2007.1/ See Exhibit 4.

By electronic mail dated July 13, 2007, Plaintiffs' counsel (Ms. Cohn) responded

By electronic mail dated August 2, 2007, I again responded to Plaintiffs' renewed

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10. 1 2 11. 3 4

By electronic mail dated August 6, 2007, Plaintiffs counsel appeared to agree to

this proposal. See Exhibit 7. In subsequent conversations and emails (dated August 24, 2007 and September 6,

2007), Plaintiffs' counsel indicated they would file a motion seeking a preservation order and to notice a hearing on the issue. See Exhibits 8 and 9 (indicating that Plaintiffs would file a motion 5 on the issue). 6 12. 7 setting forth the background of the issue and proposing a schedule for briefing the Plaintiffs' 8 motion, but leaving the question of whether a hearing on the matter was necessary to the Court. 9 See Exhibit 10. 10 13. 11 stipulation, see Exhibit 11, and on that same date filed their Motion for an Order to Preserve 12 evidence. 13 I declare under penalty of perjury that the foregoing is true and correct to the best of my 14 knowledge, information, and belief, this 25th day of October, in the City of Washington, District 15 of Columbia. 16 17 18 19 20 21 22 23 24 25 26 27 28
C o p p o lin o Declaration re: Opposition of United States to Plaintiffs' M o t io n for an Order to Preserve Evidence M D L No. 06-1791-VRW 4

By electronic mail dated September 10, 2007, I proposed to Plaintiffs a stipulation

By electronic mail dated September 10, 2007, Plaintiffs declined to enter into this

/s/ Anthony J. Coppolino ANTHONY J. COPPOLINO Special Litigation Counsel U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20001 Phone: [phone] Fax: [phone]