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

Filing 94

Letter from Plaintiffs re Discovery. (Cohn, Cindy) (Filed on 5/1/2006)

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

Doc. 94

Electronic

Frontier

I

P"'tectlng Rights and P",motlng Freedom on the EIodnInic F_r

y

a

M

1,

2006

Via Hand Delivery
. n o H Vaughn R. Walker

and Electronic

Filing

Chief

Judge

United
r o f the

States District
Northern District

Court
of California

Courtroom

6

450 Golden Gate Avenue, 16th Floor
n a S Francisco, CA 94102

RE:
g n ; t p e H r a e D Judge

v.

AT&T,

C-O6-0672-VRW

Walker:

e

W

write

in

accordance

with

the

Court's

Standing

Order

1.5

to

compel

discovery.

As

the

Court is aware, plaintiffs have a pending motion for preliminary injunction, which the Court has scheduled for hearing on June 21, 2006. In connection with that motion,
s f f i t n i a l p have served a Rule 30(b)(6) notice of deposition and an associated document

request on defendant

AT&T
Corp. a whole.

These

discovery

requests

were

narrowly

tailored

to

address only issues raised by the preliminary
d e s i a r by the case as They were also

injunction
only directed

motion, and not broader issues
to one of the defendants,

AT&T
Corp. e h t document

A

copy

of

plaintiffs'

30(b)(6)

notice

is

attached

hereto.

Plaintiffs

noticed

production

for

April

26,

2006

and

the

30(b)(6)

deposition

for

May

3,

2006.

Last week, the parties met and conferred regarding plaintiffs' discovery request.
' s t n a d n e f e D position is that no discovery or Rule 26 initial disclosures should go forward l i t n u the Court has heard and decided defendants' motions to dismiss, which they filed

,

y

a

d

i

r

F

April

28,

2006.

In

conjunction

with

their

motions

to

dismiss,

defendants

have

filed an administrativemotion to setthe hearingof their motionsto dismissfor June8, 2006, in advance the hearingon plaintiffs' preliminary injunction motion. Plaintiffs of will be filing their oppositionto defendants'administrativemotion within the time setby
Local Rule 7-11.

Defendants believe that discovery is unnecessaryand wasteful becausethe Court will grant their motions to dismiss and thereby moot plaintiffs' preliminary injunction motion.
n I its statement of interest filed on April 28, 2006, the government has also requested that

no discovery go forward in advance of the Court's hearing and decision of the state secretsmotion the government intends to file on May 12, 2006. Neither the defendants nor the government have moved for a protective order.

454 ShotwellStreet. San Francisco, 94110 USA CA

. [phone] [phone] . www.eff.org0

[e-mail]

Dockets.Justia.com

Hon.

Vaughn

R.

Walker

y

a

M

1,

2006

Page 2

The limited discovery plaintiffs seek is highly relevant to the issues raised by plaintiffs' preliminary injunction motion and is also relevant to the arguments in defendants' motion to dismiss. The preliminary injunction motion contends that, together with the government, defendants are conducting massive suspicionless searchesof many millions
f o domestic as well as foreign communications passing through their hands-a

surveillance program far broader than the one admitted to by the government so far,
h c i h w is purportedly limited to foreign communications in which there is a reasonable n o i c i p s u s that either the sender or the receiver is connected to Al Qaeda. The motion also

contends that defendants have received no court order or other judicial authorization for this broader program, and that defendants have received no executive branch authorization that comports with the Foreign Intelligence Surveillance Act, the Wiretap
, t c A or any other congressionally-established procedure. By the discovery they have

served,plaintiffs seekto further confirm the broad scopeof the suspicionless surveillance defendants facilitating andto establishthe absence anyjudicial authorizationand are of the absence any lawful executivebranchauthorizationcomportingwith any statutory of procedure. Specifically, the documentrequestseeksany purportedcertificationsunder
y n a of the relevant statutes or other authorizations from the government concerning any

interceptions of customer communications

without a court order.

After reviewing defendants' motions to dismiss, plaintiffs also believe that defendants' confidence in the certainty that their motions will be granted is unwarranted, to say the
. t s a e l The main argument in the motion to dismiss brought by defendant AT&T, Corp. is t a h t any surveillance they conducted was authorized by law, making them immune from

liability. It is because the tremendous of gravity of the constitutionalissuespresented by this casethat it is all the more importantthat procedurallythe caseshouldproceedas any
r e h t o case does, where discovery goes forward while defendants make their motions to s s i m s i d or other defensive motions. Experience has shown time and again that contorting

e

h

t

ordinary

discovery

and

scheduling

procedures

to

slow

down

the

case

pending

consideration a defendant's"sure-fire" dispositivemotion only endsup unnecessarily of delayingprogress towardsa resolutionon the merits and increasingthe burdenson the
s e i t r a p and the Court in the long run. We also note that the discovery seeks information y l n o from

AT&T
Corp.,

not

from

AT&T,

Inc.,

which

has

raised

a

jurisdictional

challenge.

Given the briefing schedule by the Court, in which plaintiffs' reply brief on their set preliminary injunction motion is due May 25, 2006,the discoverysoughtby plaintiffs must go forward soonif it is to be availablefor usein the preliminary injunction proceedings.For that reason,plaintiffs respectfullyrequestthat the Court considerthe matterby holding a telephoneconference with the parties,and that for the reasons stated abovethe Court direct that the 30(b)(6) go forward and documents requested be produced.

HoD. Vaughn
y a M 1, 2006

R. Walker

e

g

a

P

3

Encl

30(b)(6) Notice
Opposing Counsel

cc:

via electronicfiling
David Carpenter David Lawson
y e l d i S Austin Brown & Wood

via email

April 7. 2006
y r u b s l l i P Winthrop Shaw Pittman LLP

e

c

u

r

B

A.

Ericson

50 Fremont
n a S Francisco,

Street
CA 94105

Re: HeRtingv. AT&T C-O6-0672-VRW
y B personal delivery

Dear

Bruce:

e

W

would

like

to

schedule

some

early,

targeted

discovery

related

to

our

motion

for

a

preliminary

.

n

o

i

t

c

n

u

j

n

i

Attached

please

find

a

notice

of

deposition

under

FRCP

30(b)(

6)

for

AT&T

employees who can testify regarding issues related to our motion.
n a C we set up a time to discuss scheduling these depositions, as well as an agreement to ensure

t

a

h

t

we

can

conduct

a

broader,

non-overlapping

30(b)(6)

deposition

later

and

obtain

the

l

a

n

o

i

t

i

d

d

a

supporting

documents

that

we

requested

in

the

30(b)(6)

notice?

As

you

might

expect,

e

w

would

like

to

complete

this

limited

discovery

prior

to

May

25,

2006,

when

our

reply

brief

in

support of our preliminary
h g u o h t l A we have set the deposition

injunction
to

motion is due.
begin on May 3. 2006. we are willing to change the date

to a more convenient time for you and your clients. so long as it is consistent with our being able
o t use the deposition transcripts as part of our reply memorandum. We are also willing to

discussthe subjectof schedulingdiscoverywith respectto Plaintiffs' declarants.
s A we mentioned in our letter to you of Wednesday, we are of course open to discussions about

an appropriate protective order.

Sincerely,

,"-Z~t:~'-- -e e L Tien

454 Shotwell Street, San Francisco, CA 94110 USA ...1A1~ A"tAQ"t"t"t 1..\...1A1~ A"tAQQQ"t 11\ _H ftPn