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

Filing 387

Transcript of Proceedings held on 9-12-2008, before Judge Vaughn R. Walker. Court Reporter/Transcriber Debra L. Pas, Telephone number [phone]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/2/2009. (Pas, Debra) (Filed on 11/6/2008)

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

Doc. 387

Pages 1 - 53 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE VAUGHN R. WALKER IN RE NATIONAL SECURITY AGENCY L TELECOMMUNICATIONS RECORDS ITIGATION )MDL 06-1791 VRW )Related Case C 07-0109 VRW )Related Case C 0672 VRW )Friday ___________________________________)September 12, 2008 TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiffs: EISENBERG & HANCOCK 1970 Broadway Suite 1200 Oakland, California 94612 JON B. EISENBERG, ESQ.

BY:

BY:

ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 CINDY COHN, ESQ. KURT OPSAHL, ESQ. MOTLEY RICE, LLP 28 Bridgeside Boulevard PO Box 1792 Mr. Pleasant, South Carolina 29464 VINCENT PARRETT, ESQ

BY:

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

Reported By: Reported

Debra L. Pas, CSR 11916, CRR, RMR, RPR 11916, CRR,
Official Reporter - US District Court Computerized Transcription By Eclipse

Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]
Dockets.Justia.com

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APPEARANCES:

(CONTINUED) AMERICAN CIVIL LIBERTIES UNION Foundation of Northern California, Inc. 39 Drumm Street San Francisco, California 94111 ANN BRICK, ESQ.

For Plaintiffs: 3 4 BY: 5 6 7 8 9 10 11 12 13 14 15 For Intervenor: 16 17 BY: 18 19 For Defendants: 20 21 22 23 24 25 BY: BY: BY:

STATE OF MISSOURI Public Service Commission 200 Madison Street PO Box 360 Jefferson City, Missouri 65102 PEGGY ANN WHIPPLE, ESQ.

LIEFF, CABRASER, HEIMANN & BERNSTEIN 275 Battery Street, 30th Floor San Francisco, California 94111 BARRY R. HIMMELSTEIN, ESQ.

THE FIRST AMENDMENT PROJECT 1736 Franklin Street 9th Floor Oakland, California 94612 JAMES R. WHEATON, ESQ.

UNITED STATES DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Room 6102 Washington, DC 20530 ANTHONY J. COPPOLINO, ESQ.

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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APPEARANCES:

(CONTINUED)

For Defendants:

BY:

PILLSBURY WINTHROP LLP 50 Fremont Street Post Office Box 7880 San Francisco, California BRUCE A. ERICSON, ESQ.

94120-7880

BY:

SIDLEY AUSTIN, LLP 1501 K Street, NW Washington, DC 20005 BRADFORD A. BERENSON, ESQ.

BY:

MUNGER, TOLLES & OLSON, LLP 355 S. Grand Avenue 35th Floor Los Angeles, California 90071 HENRY WEISSMANN, ESQ.

BY: 17 18 19 20 21 22 23 24 25 _ _ BY:

WILMER, CUTLER, PICKERING, HALE & DORR 1875 Pennsylvania Avenue, NW Washington, DC 20006 SAMIR JAIN, ESQ.

WILLIAMS & CONNOLLY 725 12th Street, NW Washington, DC 20005 JOHN G. KESTER, ESQ.

_

_

Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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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 life. THE CLERK: SEPTEMBER 12, 2008

PROCEEDINGS 11:12 a.m.

Calling MDL 06-1791, In Re NSA

Telecommunications Records Litigation, and this relates to Civil 07-109, Al Haramain versus George Bush. THE COURT: Never heard so many silent lawyers in my

You want to enter an appearance? MR. EISENBERG: Jon Eisenberg for Al Haramain, Belew

and Ghafoor. THE COURT: All right. That's how you do it.

MR. COPPOLINO:

Your Honor, Anthony Coppolino,

Department of Justice, for the United States. THE COURT: Welcome back. Thank you, your Honor.

MR. EISENBERG: THE COURT:

We are here basically to set a schedule

in Al Haramain and in the other cases. Let me tell you what I have in mind. I think it

would expedite matters in this case to have both the motions which the parties contemplate from Al Haramain, to have the government file its motion to dismiss or its summary judgment motion, however it wishes to characterize that motion, on or before September 30. The plaintiffs to file its motion for discovery under Section 1806(f) on the same date, September 30. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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Then the parties to file their respective opposition to the other party's motions on October 23. Reply memoranda on November 13. And we will set the matter down for hearing on December 2nd. We can do that either in the morning or

afternoon depending upon what your preference is. How does that schedule sound? MR. EISENBERG: THE COURT: Mr. Eisenberg?

That's fine with us, your Honor.

Mr. Coppolino? You say December the 2nd, your Honor?

MR. COPPOLINO: THE COURT:

Yes. That's a Tuesday, not your normal --

MR. COPPOLINO: THE COURT: a special setting. MR. EISENBERG: THE COURT:

For you, Mr. Coppolino and Mr. Eisenberg,

I thank you for that, your Honor.

What's that? I thank you for that, your Honor. And morning would be preferable, if

MR. EISENBERG: MR. COPPOLINO:

it please the Court, your Honor. THE COURT: Why don't we do it at 10:00 o'clock? I guess, your Honor, I would just

MR. COPPOLINO:

ask the -- obviously, we had set forth our views as to why their motion shouldn't be filed at this point, and I don't want to spend time on that since you appear to have decided -THE COURT: Well, I have read the statements and I

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understand your position, but I think in this case, that is the Al Haramain case, I think you both can present your respective positions and your oppositions. And, obviously, if you persuade me on the motion to dismiss or summary judgment, we may never reach the 1806 issues. but -MR. COPPOLINO: THE COURT: If I could just clarify one thing. That may be a complete disposition of the matter,

In the event that motion is denied, I

want to hear your position and what plaintiff's position is with respect to it. MR. COPPOLINO: Is your Honor expecting that in our

-- we could certainly set fourth our views in opposition to their views. That's not a problem.

But I would not contemplate actually commencing the 1806(f) proceedings in response to their motion, since in our view that requires resolution of a number of threshold issues and would require an Attorney General certification or affidavit to trigger 1806(f). If that's off the table, then we

would just be presenting our issues and arguments. THE COURT: You will have to respond to Mr.

Eisenberg's memorandum as it's -- and position as its filed. MR. COPPOLINO: THE COURT: Thank you, your Honor.

All right?

In terms of page limits, 30 pages on the opening Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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briefs, 30 pages on the oppositions, 15 pages on the reply. If we want more pages, I know that you are a position to furnish them. MR. EISENBERG: Your Honor, for our 1806 motion, the I anticipate needing about

page limits are more than adequate. 22 to 25 pages. THE COURT:

Oh, that's fine. I will give you less than you are

MR. EISENBERG: allowing us, if you wish.

I would like to just briefly raise the issue of classified filings by the government. We have seen a lot of

them in the past and I think we would benefit from some guidance by some -- benefit from guidance by the Court as to whether or not they would be appropriate now, because if there are classified filings in Mr. Coppolino's motion, we would like somehow the opportunity to respond to them in a secure manner. Now, I don't know if Mr. Coppolino has in mind further classified filings, so perhaps I need to turn -- turn it over to him. MR. COPPOLINO: Well, I suppose, your Honor, my short

answer would be, they can see what we file and respond to it in opposition to our motion, because I'm not prepared to in any way concede that we would not present the evidence we need, we think that the Court needs to see, including ex parte in camera, in order to decide the questions before it. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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And, certainly, for example, if an Attorney General authored certification is warranted, that, undoubtedly, would be classified ex parte in camera; but in addition to that, the purpose of their motion -- the purpose of the first question to be decided, to decide whether they are aggrieved, to decide whether that is established. If we have facts and information which is classified that can only be presented ex parte in camera, in order to demonstrate to you the actual facts may differ or for other reasons than what they aver in their complaint and we do that on summary judgment, I think we would have the right to do that. Otherwise, you would be asked to adjudicate a question

as to whether standing is established without access to the facts. We have to recognize, as I think the Court does, that this is a proceeding that involves allegations of classified foreign intelligence surveillance activities and this is not about -- the objective of establishing standing is whether, in fact, they have standing. And if they are going to aver something on the public record, as they have on their complaint, that they contend proves by inference that they have standing and the actual facts are clearly to the contrary, but remain classified, I think we would have the right and opportunity to present those. Now, whether you consider -- I don't think that Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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forecloses you from considering any argument they would make as a matter of law as to whether you ought to consider that. We

certainly would object at any point to their having access to that information. THE COURT: Well, let me tell you what has been my And that

reaction to the filings in these cases here before.

has been that the classified materials that I have viewed in connection with the state secrets issues that have been litigated here, frankly, have not been very helpful in resolving the issues that I have had to resolve. And, consequently, I have come to the conclusion that what I should do, if at all possible, is to address the issues that are raised without resort to any classified information, if I can. So I think it behooves you, Mr. Coppolino, to be sparing in your submission of such materials. Obviously,

sparing because of the sensitivity of those materials, but, also, because it may very well be that resort to that information is simply not necessary in order for you to present your position. And you might very well -- and I'm not telling

you how to litigate your position, but you might very well take the position that you don't think it's necessary to file anything that's classified for purposes of the motions that we are going to hear, but you reserve the right to do so at some later time if the case proceeds. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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So I don't want to stop you and I'm not going to direct that you cannot file those kinds of materials, but bear in mind I haven't been very helped by them in the past. MR. COPPOLINO: THE COURT: Thank you, your Honor.

Okay. If I can only add, your Honor, we

MR. EISENBERG:

believe the issue here is whether or not we made a sufficient showing based on unclassified information. THE COURT: That does seem to be the issue. That is the issue, and I don't see

MR. EISENBERG:

how classified information could possibly have anything to do with that determination. So with that, I will thank you. THE COURT: Very well.

Now, can we turn to the telecommunications cases. MS. COHN: Good morning, your Honor. Cindy Cohn on

behalf of the MDL plaintiffs in the Hepting case. THE COURT: Good morning, Miss Cohn. Good morning, your Honor. Vince

MR. PARRETT:

Parrett of Motley Rice for the Verizon customer plaintiffs. THE COURT: MR. OPSAHL: Good morning. Good morning. Kurt Opsahl, Electronic

Frontier Foundation, for the MDL plaintiffs. MS. BRICK: Good morning, your Honor. Ann Brick,

ACLU of Northern California on behalf of plaintiff. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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MS. WHIPPLE:

Good morning, your Honor.

Peggy

Whipple on behalf of only one of the two Missouri cases pending before you, Clayton versus AT&T Communications, in which I am plaintiff's counsel. THE COURT: Very well. Good morning, your Honor. Barry

MR. HIMMELSTEIN:

Himmelstein from Lief, Cabraser, Heimann and Bernstein for the MCI class plaintiffs. MR. WHEATON: Your Honor, James Wheaton for First

Amendment Project on behalf of the potential intervenor Media Alliance. I was asked this morning to appear and to discuss

procedures for that intervention. THE COURT: Very well, Mr. Wheaton, good morning. Thank you.

MR. WHEATON: THE COURT:

Just a moment please.

(Brief pause.) THE COURT: All right. Your Honor, Anthony Coppolino, again

MR. COPPOLINO: for the United States. MR. ERICSON: MR. BERENSON:

Bruce Ericson for the AT&T defendants. Brad Berenson, Sidley Austin LLP, for

the AT&T Cingular and Bell South defendants, your Honor. MR. WEISSMANN: Good morning, your Honor. Henry

Weissmann of the Munger Tolls firm for the Verizon defendants. MR. JAIN: Samir Jain at Wilmer Hale also for the

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Verizon and MCI defendants. MR. KESTER: Good morning, your Honor. John Kester,

Williams and Connolly, for Sprint Nextel.

And I would like to

introduce my partner, Gilbert Greenman, also representing Sprint Nextel. THE COURT: MS. COHN: Very well. Anybody else? I wanted to let you

Your Honor, if I may.

know right away that we have in preparing for the immunity issues to come up really come to the conclusion -- this is not reflected in the CMC statement, which is why I raise it now, that it would be useful and I think proprietary to combine the cases against AT&T into a consolidated complaint for those purposes. Otherwise, I worry that we are going to end up with some tag-along issues or some -- you know, the cases raise a variety of claims in a variety of different ways. And I think

if we pull them all together into one complaint, the fight about the immunity and its effect on the cases will be a lot cleaner and easier for everyone. I have a proposed schedule that adjusts things a little bit in order to give us the time to do that. There are

23 cases against the AT&T defendants that would need to be combined. Then it may make sense to also take Cingular and

Bell South in at that time, although I haven't finished my thinking on that now that they are all owned by AT&T, but I Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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thought I would present a slightly revised schedule to reflect that. (Whereupon, document was tendered to the Court.) MS. COHN: I'm sorry to interrupt, and I know that

you probably have some thoughts, but since this is different than what was in the case management statement, I wanted to bring it to your attention right away. MR. BERENSON: defendants. We believe that the preparation and filing of a consolidated complaint against AT&T is entirely unnecessary in order for the Court to evaluate the immunity issues and will just be a source of needless extra delay in a schedule that everyone seems to agree should move forward expeditiously. There are 23 complaints against the AT&T defendants. As I understand it, the government is ready to file certification and a motion with respect to those 23 complaints. And all of the normal purposes that would be served by having a consolidated complaint are utterly beside the point here, where we are ready, willing and able to deal with the 23 complaints individually. So I would ask that leave not be granted to -THE COURT: Let me ask you, Mr. Berenson, what role Your Honor, Brad Berenson for the AT&T

do you think you and your colleagues representing the other Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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telecommunications carriers have in this?

Isn't this really a

motion to be brought by the government and only by the government? MR. BERENSON: It absolutely is, your Honor. We do

not contemplate filing any motion of our own.

The Attorney

General will file a certification, if appropriate, presumably accompanied by some motion to dismiss. And our role will be that specified for the parties in the FISA Amendments Act itself, which is to brief whatever legal issues arise out of that filing in order to be of some assistance to the Court. THE COURT: That's really it. More briefs.

I see.

MR. BERENSON: your Honor. THE COURT:

That's what Congress has asked for,

Okay.

All right.

Mr. Coppolino? MR. COPPOLINO: The only point I would make on this

issue of the amended complaint, your Honor, without getting into the larger issues that we have to address today is that as Mr. Berenson pointed out, the Attorney General certification is going to cover all of the actions that have been brought against electronic communication service providers, including the individual actions, including all the AT&T actions that would be consolidated. And so there is no need to do that in order to make Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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the certification and -- nor, in our view, should we have to wait to do that to -- should we have to wait for another consolidated complaint reiterating the same allegations of assistance that are going to be at issue in the Attorney General's certification in order to make that -- in order to make that certification. So I think the request is unnecessary because the cases are already before the Court and they are cases as to which the certification will be directed, and we certainly would oppose it to the extent that it results in any delay. But we can talk about the larger issues in dispute between the parties as to how we proceed on that score when it pleases the Court. THE COURT: Well, it pleases the Court right now. Well, I think, your Honor, if you --

MR. COPPOLINO:

I know you have had an opportunity to study our case management proceedings and the fundamental issue I think that's in dispute is whether the government gets to file the motion that you just mentioned to Mr. Berenson; that we have, in our view, the right to file under the new FIZA Act amendments of 2008, along with the Attorney General certifications. the same. And our view -- when this statute was enacted or was getting near enactment, I called Ms. Cohn -- or, actually, her colleague Mr. Tien, who is on leave, I guess. I said, Congress And it is -- it is one in

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is about to pass this.

We are obviously going to seek to Let's talk about a schedule.

implement it at some point.

And at that point the plaintiffs came back and said, We don't want you to file your motion. your motion. We oppose your filing

And we are going to interpose a whole bunch of

objections to the act before you do so. And I responded in different ways, but I think the thrust of my response was, You can make any arguments you want in opposition to our motion. statute is unconstitutional. blogosphere about that. Arguing, for example, that the We have seen a lot in the

Arguing that there are questions of

law to be considered, as the Court considers our motion. But we will, of course, file our motion and you can then respond to it as the normal course is, as I think you just indicated, was the course we would follow in Al Haramain. All of plaintiffs' arguments that they foreshadowed in the case management statement, all of them are classic opposition arguments, or cross motion arguments, but there is nothing -THE COURT: that, Mr. Coppolino. MR. COPPOLINO: THE COURT: that. MR. COPPOLINO: No, but the point is, they are Excuse me, your Honor? You could hardly blame the plaintiffs for

You could hardly blame the plaintiffs for

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opposition arguments.

Nothing would require you to bar us from

filing our motion to begin with. And I would add further that I don't believe they can challenge any action that's taken until it is taken. a fundamental right -THE COURT: this point. After all, it does seem to me that on behalf of the government, you are entitled under the FISA amendments to proceed with the motion that you are contemplating. And it's Perhaps I should hear from Miss Cohn on There is

really Miss Cohn who has the uphill climb here and I should give her the floor to tell me why what she is proposing, that I must say does not appear to be in sync with the FISA amendments, is the appropriate way to proceed. MS. COHN: Sure, your Honor.

I think that, you know, the Court retains the plenary authority to decide how cases should proceed and which motions should come when. I have certainly been in many meetings with a Court where a judge has said, You know, it's too early for your summary judgment motion, counsel. Go off and do some discovery

and come back, or you can do this motion now. So I think under the rubric of your ability to kind of control the reasonable process of this case as it goes forward, you have the authority to decide which motions come Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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first, including the government's motion.

I don't think there

is anything in the Congressional action that requires you to set aside your ability to control the ordinarily -- ordinary process of the case in front of its Court. THE COURT: Well, that's certainly true. This

statute, however, is an unusual statute. MS. COHN: THE COURT: Absolutely. It appears to contemplate a procedure

more or less along the lines of that which the government has outlined in its portion of the case management conference. MS. COHN: Well, your Honor, I think that -- that

there are real important reasons why you should let the parties take a stab at presenting the constitutional and, almost as importantly, the statutory interpretation questions first. First of all, I think it's a matter of -- simply as a matter of judicial economy, if this statute is unconstitutional as a threshold matter, which is what we believe it is, then we don't need to reach a lot of complicated questions about how actually to apply it. THE COURT: Well, the problem I had with your

position is you don't ordinarily challenge the constitutionality of a statute until you know that the statute applies, and you might in your opposition be able to persuade me that the statute does not apply to one or some other aspect of this case, in which case we wouldn't have to reach the Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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constitutionality issue. MS. COHN: That's right, your Honor, but I think that

-- I don't think there is any question that the government is going to apply the statute. Mr. Coppolino has said as much

here and he said it in papers and he said it in correspondence with me. So if there was a question about whether the government was going to exercise its discretion to invoke the statute, then there may be something, but I don't think that there is any -THE COURT: Well, there is a substantial evidence

standard which the government has to meet -MS. COHN: THE COURT: That's right. -- under this statute.

You may be able to persuade me that that government has not met that substantial evidence threshold, in which case we wouldn't have to reach the constitutionality issue. MS. COHN: And that runs smack into the first, I

think, two real issues of statutory interpretation that we need to sort out before we get into the matter of applying the statute. They have a substantial evidence standard that they have to meet. of proof. So I think that under the basic rules, this is Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone] That's a burden of proof, an evidentiary burden

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essentially -- this is a summary judgment motion that they are going to be bringing. dismiss. The statute itself says the government is either going to bring a motion to dismiss or a motion for summary judgment, but I think under the settled rules this is an evidentiary motion. It's a motion for summary judgment. It doesn't qualify as a motion to

Well, ordinarily in the context of a motion for summary judgment the parties get to present evidence on both sides, and we get to present our evidence. The question about

the Klein evidence and the Marcus evidence that's already in the record in this case about the nature of the surveillance that we allege is going on in the AT&T facility on Folsom Street, the raft of Congressional admissions about the surveillance that has been going on now for seven years. The, actually, governmental admissions, many of which have happened in the last couple of years that we brought in front of the Ninth Circuit and can bring again in here. Those are all pieces of evidence that we would like to put forward that we already have to demonstrate that they haven't met their burden of substantial evidence to show that this was designed to stop a terrorist attacking of the United States, which is their burden. That dragnet surveillance of

millions of ordinary Americans is not designed to prevent terrorist attacks against the United States. So we want to put

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in the evidence that we already have. As far as I can tell from the papers, although the government has been a little cagey about this, they do not believe that you are entitled to look at this evidence and -and so we are going to have a fight about that. Secondarily, in the context of a motion for summary judgment situation or leading into one, the parties ordinarily get a chance to do discovery so that we can develop additional evidence in support of what we -- in addition to what we already have and put that in front of the Court to say they have not met their burden of substantial evidence. But the government is envisioning a situation that turns that on its head; that they get to move to get rid of our case before we get the opportunity to try to develop and present evidence about why it is they haven't met their burden. THE COURT: How can I read this statute and come to a

conclusion that if the government is able to meet the requirements of the statute, that Congress intended for this statute to bar all of the cases against the telecommunications carriers. And in light of that kind of statutory provision how

can I faithfully, with the provisions of the statute, do anything other than to address that issue first? MS. COHN: Well, your Honor, I think that the statute

doesn't say that without any evidence or any input from the plaintiffs you have to decide whether -- they would have to -Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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THE COURT: proceeding. MS. COHN:

We are not contemplating an ex parte

Well, I believe actually that the

government effectively is in terms of evidence, and this is the fight. I mean, this is what I want to sort out. We think that they are -- we should be allowed -- and there is nothing about this statute that prevents us, as far as we can tell, from presenting the evidence we already have or from gathering additional evidence using the ordinary Federal Rules of Civil Procedure Section 26. If Congress had wanted to prevent us from having any ability to gather additional information in order to demonstrate that the government hasn't met its evidentiary burden, they know how to turn off discovery. The Private Securities Litigation Reform Act of 1995, for instance, has limitations on discovery where Congress has clearly laid that out. Amendments Act. So unless Congress prevents us from having the ability and the normal tools in a normal to gather evidence in support of our position, we get those rights. There is nothing in the statute that says Federal Rule of Civil Procedure Section 26 doesn't apply or in any way limits our ability to conduct this like we'd conduct a normal case. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone] There is nothing like that in the FISA

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We have a burden here that's an evidentiary burden and I think it's -THE COURT: MS. COHN: THE COURT: This is a brand new statute. It is. Brand new. Hot off the government

printing office press. MS. COHN: THE COURT: I wouldn't argue. That is true.

And there are clearly legal issues

associated with that statute, and the full implications of it have certainly not been tested. And under those circumstances why isn't the sensible course of action to tee up what appear to be the dispositive provisions of that statute and see whether or not they apply to this case. MS. COHN: Well, your Honor, I think that it would be

pretty unfair to tie both our hands behind our back and make us go through that process, by not being able to present evidence and not being able to develop additional evidence and then see if we can fight their substantial evidence presentation. THE COURT: The provisions of the statute don't

contemplate an evidentiary hearing at this threshold stage. MS. COHN: Well, I think that they do, your Honor.

How else are we going to know whether they've made substantial evidence? They have got an evidentiary burden. Presumably, I think it's not crazy to think that our Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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burden is to present evidence to you showing that they haven't made their burden, and so -THE COURT: But there is nothing that prevents you

from trying to make that showing. MS. COHN: Well, if we don't get discovery, then I'm

stuck with just what I have so far, which I'm not saying is insubstantial, but I don't think it's fair to prevent us from trying to gather more. Basically to have to oppose their substantial evidence presentation without the opportunity to develop the evidence we need to counter it seems to be pretty unfair. There is another reason as well why I don't think we should run head-long into this, and that is -- those are some of the issues that you referenced earlier, which is the secrecy issues and the due process concerns with the secret evidence. This certification process and motion process is set up in a way where the Attorney General can trigger absolute secrecy if they want to. You have -- takes away any discretion It also actually requires you

that you have about the secrecy.

to issue a secret order, a largely secret order without -- you know, it's one thing for the Court to have discretion to decide to keep things secret. That's not what this statute does.

This statute gives to the Attorney General the right to demand that you have keep things secret, which, again, I think is a part of why we think the statute is Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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unconstitutional. And we'd certainly like the opportunity to present to you why we think that part of the statute at a minimum should not be enforced and that you should be empowered to decide whether there are pieces of what the government has told you under this provision that have no real basis for being kept secret from the plaintiffs. THE COURT: What I don't understand is why you can't

make all of these arguments in opposition to the motion? MS. COHN: Well, I can, your Honor, but we are going

to end up in a situation with an extremely complicated brief that I think will be hard for us and, certainly, I think will be hard for the Court. Because I'm going to have to say, Well,

your Honor, if you get to consider the Klein and Marcus evidence -- here is all the reasons you should consider the Klein and Marcus evidence and if you decide that you agree with me that you can consider the Klein and Marcus evidence, here is my arguments against it. Now, if you decide that you can't consider -- the government is going to take the position, I suspect, that you don't get to consider any evidence outside of what they give you. So then I'm going to have to also back up and say, Well,

actually, if you don't get to consider Klein and Marcus, here is all the reasons why we think that's a problem. way, that's another reason why the whole thing is Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone] And, by the

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unconstitutional because it sets up a system that really deprives us of due process here. I'm going to have to do the same thing about every piece of evidence and then I'm going to have to write you a section about all the other discovery that I would do if I had the opportunity to do so and what I think that might do. And

you are going to have, you know, a kind of big if-then brief, which is going to be a lot longer than if the parties all know what the rules are before we brief this. If I know I don't have to brief whether you get to look at Klein and Marcus and you don't have to sort that out, you can decide that first and then you will get clean briefs on just the issues that we -- you know, you had determined are relevant to the discussion. I think that's the right way to go. It has this

extra benefit that I think is tremendously important, which is that the Court doesn't have to look at the classified -- at the secret filings under our ruling until after it's decided that the statute actually is constitutional and should apply. I think your Honor has been careful throughout this litigation to try to limit the amount of secret evidence that is presented and in this instance a secret ruling that is going to be issued. If you go the way that we are doing it, we can have a bunch of threshold issues that can be completely on the record. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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There is no secret evidence needed for our arguments and I suspect not many for -- not for the government's responses either because it's about the legality of the statute, separation of powers questions and due process questions. And we can have this part of the fight in the open, as opposed to having to have a situation where there are a lot of classified information -- not classified, but information that the Attorney General has ordered to be kept secret from; the parties, that the Court has to weed through and base its decision on. So I think that the due process problems are worrisome here and that the course that we have charted is one that would really leave the secrecy questions for the second round and once we all have clarity on what the statute means and whether it survives constitutional muster. THE COURT: You think one round of motions like that

is going to provide clarity? MS. COHN: Well, your Honor, I think you have been Sometimes I agree

pretty good at giving us really clear rules. with them, sometimes I don't. help focus the questions. This is a new statute.

But I think that it will really

It has a lot of -- there is

room for multiple interpretations of many pieces of it. We have stated our position, our statutory interpretations in the CMC statement. The government has

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pretty clearly not, and so we don't know exactly which parts they disagree with. But I think it's fair to say they disagree

with us on discovery and I think it's fair to say that they disagree with us on their ability to look at the entire record in the case, including the evidence that the plaintiffs have presented. And I would just as soon get those questions sorted out so that I can then brief you on the actual application of the statute based on a clear understanding of what the statute let's you do and look at. This isn't a situation where there are kind of small questions of statutory interpretation. questions. These are very big

You know, do the plaintiffs -- are the plaintiffs

denied their Federal Rule of Civil Procedure rights? THE COURT: That's true, and it's important to bear

in mind that this is not the last stop on the railroad. MS. COHN: It's true, but then we will end up going

up on appeal on questions about whether the Court looked at everything it ought to look at, as opposed to whether the actual decision of the Court was right or not, which I think will result in much greater delay. I would just as soon go up

into the Ninth Circuit, where I suspect Mr. Coppolino will take us if you rule in my favor, and I will probably go if you don't, with an actual ruling about the statute itself as opposed to side fights about what's appropriate for the Court Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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to look at and whether our due process rights were violated as an application of this process, rather than the actual merits of the decision. So I think it behooves everybody to get some clarity on the threshold issues before we go into the actual application of the statute. THE COURT: All right. Thank you, Miss Cohn.

As persuasive as Miss Cohn has been this morning, and as she usually is, I am, however, not persuaded by her argument that we ought to proceed to address the constitutionality of the statute first. That does seem to me to put the cart before

the horse, as I read this statute. Although, certainly, I cannot say that I have great familiarity with the statute and, indeed, it's a new statute and an unusual one providing for an unusual procedure. . area. And we knew exactly what this statute contains and how it's applied and how it works and how it's intended to work and so forth, why, I think the plaintiff's arguments about scheduling would make a great deal more sense. But I do think we need first to see if the statute applies to these cases, to let the government make its presentation in that regard, and to decide that issue as fully as possible, and then decide how the cases are to proceed, if Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone] If the law were more highly developed in this

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at all, thereafter. So what I would contemplate is a motion by the government and, unless Mr. Coppolino persuades me otherwise or Miss Cohn, I would contemplate essentially the same timing that we have in the Al Haramain case, aiming toward a hearing in early December and I would also contemplate some real limitation on the briefs. Mr. Berenson mentioned the fact that the telecommunications providers want to weigh in with a lot of briefs. It's foolish for a judge to refuse to accept learning

from whatever source it comes, but there is a limit on what the Court can or is willing to read. And you can bear in mind that

I can always ask for more briefing if there is an issue that I particularly want to hear about. It's been known to happen.

So what I'd really contemplate and appreciate is a motion by the government, in the order of 30 pages, filed on September 30, with opposition by the plaintiffs in October, perhaps the same schedule as in Al Haramain, October 23 -- if the plaintiffs want some more time, that would be fine -- with any reply memorandum by the government on the 13th of November, and a hearing also on December 2nd. And, Mr. Berenson, can I persuade you to hold your fire and not file any briefing? MR. BERENSON: two to consult? Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone] Your Honor, may we have a minute or

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THE COURT:

Sure.

(Discussion held off the record.) MS. COHN: THE COURT: MS. COHN: THE COURT: We can wait or I definitely have some -You have some problem with that schedule? I do, your Honor. Okay. Well, let's hold off and see what

the caucus on the other side of the courtroom produces. MS. COHN: Can I ask a clarifying question? Or, I

guess, we should just wait? THE COURT: Why don't we wait?

(Brief pause.) MR. BERENSON: THE COURT: Your Honor?

Yes, Mr. Berenson. Your Honor, I think the defendants are

MR. BERENSON:

probably fine with the schedule that you've laid out, but we do need a bit of clarification on one point. Are you asking the telecom carriers to refrain from filing a brief of their own -THE COURT: Yes, yes. -- on whatever --

MR. BERENSON: THE COURT:

Yes. That I think we might have a problem

MR. BERENSON: with, your Honor.

Under Section 1802(d) of the statute, Congress specifically provides a role for the parties. It puts the

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defendants, the private defendants, on the same footing as the plaintiffs and says each are entitled to submit their views to the Court on any legal issues that arise. We would not need to file anything, I suspect, if the plaintiffs' group were not challenging the constitutionality of the statute, but to the extent they come before the Court and tell you that this statutory mechanism which was two years in the making by Congress is defective and cannot be applied, I think the carriers will have some views on that that may not be identical to the government's, but, in any event, would hopefully supplement and flesh them out and we would like an opportunity to make a submission. THE COURT: Well, under those circumstances, isn't

the appropriate course to wait to see what the opposition is that's filed by the plaintiffs? And if the plaintiffs raise

issues that are of concern to the telecommunications carriers, then they can file a memorandum and, obviously, the plaintiffs can respond to that memorandum. How does that sound? MR. BERENSON: That sounds all right, your Honor. If

the plaintiff's representations in the case management statement remain their intentions, I think it's fairly clear that they are going to respond to the government's motion by saying that for somewhere between one and four or five reasons, the FISA Amendments Act, Title II of it, which is the Carrier Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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Immunity Title, is unconstitutional. So I would expect that we will come before the Court and seek leave to make a filing of our own. We will ask you

for a number of pages commensurate with the number of pages that the plaintiffs have devoted to attacking the constitutionality of the statute and can file on that schedule and, certainly, have no objection to the plaintiffs responding to our arguments. THE COURT: Can I count on one brief from all of the

telecommunications carriers? MR. BERENSON: THE COURT: That you can, your Honor. All right.

Fine.

Miss Cohn has some concern or issue about the schedule. MR. COPPOLINO: that. Well, let me just make a point about

This may tie in to what Miss Cohn might have to say. We can do it sooner. I mean, I don't think I have

ever said that to a Court. 30th.

I can go sooner than September

If you want to get the process started sooner, there is

no particular reason we would have to take until September 30th. We are quite close to being ready to go.

So if your Honor was interested in having our motion in sooner and getting started with that, we could advance this. Otherwise, if not, we could go to with this schedule. So as I understood it, your Honor, it would be our Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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motion, plaintiff's opposition, our reply and hearing. the standard four track. Page limits, local rules.

Just

And, as I say, if you want us to file sooner than the 30th, I think we can -- if it's okay with you, we could do that, but you could also adjust the schedule. THE COURT: Well, in light of the conversation that I

just had with Mr. Berenson, perhaps it makes sense to proceed in that fashion, to accelerate the government's filing by some number of days. Let's see. Today is the 12th. When do you think you

could get your motion on file? MR. COPPOLINO: a week, if not sooner. acceptable to us. THE COURT: All right, the 19th. I think I could get it on file within

But a week, the 19th, would be

And then, Ms. Cohn, if we follow that schedule, when could you reasonably anticipate being able to file an opposition? MS. COHN: not that one. come in. THE COURT: Well, let's take it one step at a time Why don't you answer that Well, your Honor, I think -- my problem is

It's what happens once the U.S. and the carriers

and maybe we can work these out.

question that I just posed, and then we will see how that affects the other problems you have in mind? Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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MS. COHN:

If our first response is due on

October 23rd and they are going to file their motion by September 19th, I think that's probably sufficient time. MR. COPPOLINO: I think the whole schedule should

move up, your Honor, because we don't want to lose time in responding to theirs. Theirs is going to be the first brief we have seen with all their opposition arguments. So I would hope that we

would have, you know, some adequate time to address them. This schedule gives us 7, 13 -- 20 days. was to move the schedule up, have a sooner hearing. THE COURT: government's motion. opposition? MS. COHN: I think that's still doable. I guess the All right. September 19th for the So my idea

How is October 16th for the plaintiff's

question I have for you is, is that when we file our cross motion? THE COURT: MS. COHN: Your cross motion? Well, we had envisioned this as a cross

motion for declaring the statute unconstitutional. THE COURT: But isn't that really an opposition

MS. COHN: THE COURT: MS. COHN:

It could be framed either way, I think. Okay. Let's --

As long as there is sufficient pages, I

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don't care whether I file one brief or two. arguments are not short. THE COURT: pages. MS. COHN:

The constitutional

Just remember, I can always ask for more

I understand, your Honor, but,

unfortunately, Congress has made this statute problematic in not just one way, but a number of ways and we do want to have sufficient space to be able to address them in a reasonable manner. And that leads me to my other concern about this briefing schedule, which is, if I understand what Mr. Berenson is suggesting, he is suggesting that in the period that is a reply, not only does the government do a reply brief -- and in this particular instance, remember, their proposal is 50 pages for the government and 50 page for them. THE COURT: that. MS. COHN: And their proposal for what they are Well, we haven't -- I haven't agreed to

calling the sur reply -- and if we are going to do it that way, I guess that's the right way. You could think of it that way. I think

We thought of it as a reply brief on our cross motion.

it's a certain level, six of one, half dozen of another. You know, depending on the size of the briefing that we are going to have to respond to starting on November 13th, we are going to need -- we are going to need, you know, more Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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time and I think that's going to push the hearing date out as well. Because, you know, their proposal -- and, again, I don't

know if they are going to still stick with it -- is that they file 100 pages and then two weeks later we get 30 pages to respond to their 100 pages and that -- that -THE COURT: the pages. MS. COHN: THE COURT: Okay. Nobody is going to get the kind of pages Forget about these pages. Forget about

you are talking about. MS. COHN: Okay. Then, you know, again, you

understand these things are depending on the size of the briefing we have to respond to, the timing that we are going to need to do it -THE COURT: Hold your horses. Hold your horses. Try

this schedule on for size. MS. COHN: THE COURT: September 19th. Okay. Government files its motion on The

Plaintiffs' opposition, October 16th.

government's reply and any telecommunications carrier response to the plaintiffs' opposition on November 5th. And then the

plaintiffs' response to the telecommunication carriers arguments, November 20. MS. COHN: And a hearing December 2nd.

Your Honor, I just want to make sure that

I'm following a couple things that I'm clarifying; that you are Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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taking the position that plaintiffs are not entitled to discovery at this particular point? THE COURT: MS. COHN: That's correct. Is there a decision about whether we are

entitled to rely on the other evidence in the record in this case, the Klein evidence and the Marcus evidence, or is that -THE COURT: can rely upon it. MS. COHN: Okay. And we won't be filing a It's in the record. It seems to me you

consolidated complaint for AT&T plaintiffs? THE COURT: No. I don't think that's necessary, any

more than I think it's necessary to wait for the mandate from the Court of Appeals. matter. MR. COPPOLINO: I'm sorry, your Honor. Miss Cohn is Is that I think that's just a ministerial

going to file the Klein material in her opposition? what was just -MS. COHN:

Well, it's in the record, so I was

assuming I would reference it rather than file it, but I certainly want to have it included as part of what the Court considers here. MR. COPPOLINO: So I think we are set on the

schedule, your Honor, and I think -THE COURT: All right. Page limitations. The plaintiff's

Government's motion will not exceed 30 pages.

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opposition will not exceed 30 pages. memorandum will not exceed 15.

The government's reply

Telecommunication carrier And the opposition to the

brief, if any, will not exceed 30.

telecommunication carrier's briefing by the plaintiffs will not exceed 20 pages. MS. COHN: THE COURT: MS. COHN: THE COURT: MS. COHN: Your Honor -All right? Can I ask one more question? You may. I hope it's the last one.

In the sur reply papers that you have given us 20 pages for, I was hoping two things. One is that we could address any issues raised by the government in their reply, as well as issues being raised by the carriers. THE COURT: But that -- that's a sur reply. Your

memorandum on the 20th of November should address the telecommunications carrier's position. If there is need for a sur reply because the government has raised some new issue in its reply that was not raised initially, then you have the ability to ask the Court to file a sur reply, just like in any other case. But a reply memorandum is to address only those matters that are raised in opposition that you didn't have a chance to address in your opening. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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MS. COHN: THE COURT: the opposite. MS. COHN:

Okay.

And then --

Or I guess in this case it would be just

It would be the opposite, the things that

were raised in the opposition. THE COURT: MS. COHN: Right. The other -- I guess the other request I

have -- and I understand your Honor is trying not to do pages, but I would like an equal number of pages to respond to the carriers, rather than a lesser number, since it's their first argument. THE COURT: MS. COHN: All right. Okay. Your Honor, I don't want to spend a Fair enough.

MR. BERENSON:

lot of time arguing about pages -THE COURT: You want to reply though. I just want to -- no. I just want to

MR. BERENSON:

make sure the Court understands that the guts of the briefing, the main issues we'll all be arguing about will really be kicked off by the plaintiff's filing on October the 16th. So the oppositions that come in from the government and from the carriers on November the 15th will essentially be in the nature of an opposition. They will be responding to

arguments the plaintiffs have made against application of the statute. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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So that the filing on the 20th by the plaintiffs is basically a reply brief, and it would be quite unorthodox for a reply brief to have -- they will, in effect, have double the number of pages that we will have to address the guts of the issues that are before the Court if they have 30 on reply. That's my only point. MR. COPPOLINO: Your Honor, if I could just add.

Again, I really hate to dicker about pages, but as Mr. Berenson points out, that is our first shot at their arguments. we at least have the 30 pages? And I can tell you right now our first brief is not going to exceed the local page limit, so we don't need 30 on that. If we could trade off some of that and have 30 for the Could

5th, we would be -- because that's our first shot at all her constitutional arguments, all her arguments on statutory interpretation, the Klein evidence, discovery, due process, everything. of that. MS. COHN: As long as we are trading, I will take 15 pages hardly seems like enough to deal with all

more on opposition in exchange for -- less on response. (Laughter.) THE COURT: Well, all right, Mr. Coppolino. You can

have 30 pages on the 5th of November. MS. COHN: Then, your Honor, I would like to have I said

some more pages to present our arguments than just 30. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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that somewhat facetiously, but we were asking for a 60-page brief. There are -- so now at this point -- we were asking for a 60-page brief just on the constitutional and statutory interpretation issues. As a result of your order today, we are not only going to have to brief those, but brief the actual application of the statute here, which is an additional thing. To try to

do that in 30 pages, I'm afraid that it's not going to be as helpful to the Court as we would like it to be because we are not going to really be able to address all three things that we need to address here, which is constitutional problems, statutory interpretation problems, and then the application of the statute itself in just 30 pages. It's a new statute. and there is just a lot. THE COURT: I gather Mr. Coppolino is telling me that It's a case of first impression

he can file his motion within the local rules limitation, which I think is 25 pages. MR. COPPOLINO: MS. COHN: seal. Right.

That's because it's going to be all under

I want to make sure that those page limits are

everything, not just the part that's public. MR. COPPOLINO: submission. No, it's going to be a public

Motion, public memorandum of law, not to exceed 25

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pages, your Honor. MS. COHN: But the rubber really does meet the road,

I think -- I don't often agree with Mr. Berenson, but I think he's right here. The issue isn't the government's initial papers, which I think are fairly straightforward. The issue is, can Which really

the statute be applied at all and if so, how? doesn't kick in until we get to speak here.

Because the They

government's argument is going to be straightforward. think the statute applies.

They don't think there is any That doesn't take

problem and they want our cases dismissed. very many pages.

But to explain why the statute is the problem and, you know, go through the statutory interpretation questions and, obviously, make the argument that there is so much interpretation here that -- the Court to do it, I think 30 pages is going to -- it's going to be pretty hard for us to lay all that out in that time frame, in the page frame I guess. THE COURT: All right. Well, Miss Cohn, I will give

you exactly the same number of pages as I'm giving the defendants. You can have 40 pages for your opposition and 45

pages for your filing on the 20th of November. MS. COHN: THE COURT: Thank you, your Honor. 25 pages for the government. 30, 30, 85

-- 85 pages on both sides. Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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And counsel should not look pained at that. Court that should look pained at that. All right? Anything further, counsel? Yes, your Honor.

It's the

MR. WHEATON: if we are concluded? MS. WHIPPLE:

If I might be heard,

Perhaps I should also ask, your Honor?

Peggy Whipple on behalf of Missouri Public Service Commission. Could the order clearly include the single Missouri case, which is postured like all the other plaintiff's cases, in which only the telecommunications carriers are the defendants? And I'm the plaintiff's counsel. this briefing schedule at all. plaintiffs' counsel. forgotten. MR. COPPOLINO: I could address it? address it as well. Would you like me to -THE COURT: I'm not sure I understand what you are We do object to that, your Honor. If It will not affect

I cooperate fully with these

I just want to make sure this case is not

And I think Mr. Berenson may want to

MR. COPPOLINO:

Miss Whipple represents the State of

Missouri, I believe, and her lawsuit is related to other pending lawsuits that the government has brought against various state governments who have sought to investigate the Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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carriers for alleged intelligence activities. The one difference in -- one of the Missouri cases as to which they are plaintiffs is that they, I believe, have sued to enforce requests for information, and that is the Clayton case. In the Clayton case they are a plaintiff seeking the

information, a state regulatory body seeking the information. The United States has also sued the State of Missouri. So she represents them as a defendant. We have also

sued several other statutes:

New Jersey, Vermont and a few So those

others, Maine, I think Connecticut is in there, too.

cases involving state regulatory actions have not been on the table today. There is a separate provision of this statute,

which by statute preempts those state investigations. Our view has been, and we have talked with state counsel, including Miss Whipple, that we would separate that issue out for a separate motion track because it concerns separate issues. It concerns whether the Congress can preempt

state governments from investigating federal intelligence activities. So they are not part of this schedule.

Now -THE COURT: make, Miss Whipple? MS. WHIPPLE: That is the point I was trying to make. And that's the point you were trying to

In the Clayton case as it's currently postured, I represent the plaintiff and the only defendants are six Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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Missouri AT&T telecommunications carriers. Currently this case is more descriptive of the other plaintiff's cases, and we would -- Mr. Coppolino and I have talked, and the one thing that I think we don't disagree on is that there is a fair argument to be raised in this one case only. If it -- if it is appropriately put into either

category, it could be argued that it belongs in 802 and not with the other cases that would fall under 803 in which the government is the plaintiff and we are the defendants. The government is not yet a party in the Clayton case, has had more than two and a half years to intervene, has never chosen to. And so my request to the Court is to allow this case, which currently fits into the 802 category, to actually remain there. I don't envision any additional briefing or any changes I will cooperate fully with all these Then whatever this Court rules as to the

in the schedule.

plaintiff's counsel.

constitutionality and/or applicability of 802 will necessarily become the law of the case for the Clayton case as well. Frankly, if the Clayton case is resolved here -- this is the consistent position I have taken before this Court -the other Missouri case becomes at least moot. need to be reached. MR. COPPOLINO: Your Honor, the problem is -- and It will never

this was not teed up in the case management report because all Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California [phone]

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of the other states agreed to take those cases out of this case management proceeding. And the Clayton case, like all the other state cases, are affected by a different provision of the statute; not the would be that has to do with alleged assistance by telecom carriers through the government, but one that specifically preempts states from investigating the carriers. governmental authority. State

It's a completely different issue

requiring a completely different set of motions and briefs. So if you throw Clayton into the mix, whatever argument could be made that 802 applies, 803 certainly applies and we would have to present that. Now, we could kick that off and start a briefing schedule on that, but none of the other state carrier counsel are here to discuss case management proceedings on that. And,

you know, if we have to file a motion to deal with all of the state cases, including Clayton, then that would have to be added to the mix. And my