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
. +14154369333 0 +14154369993 . www.eff.org0
information@eff.org
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
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