Jewel et al v. National Security Agency et al

Filing 30

DECLARATION of Cindy Cohn in Opposition to 29 Memorandum in Opposition, Declaration of Cindy Cohn Pursuant to Fed. R. Civ. P. 56(f) in Opposition to Government Defendants' Motion to Dismiss and For Summary Judgment filed byGregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Attachments: # 1 Exhibit A)(Related document(s) 29 ) (Meny, Rachael) (Filed on 6/3/2009)

1 ELECTRONIC FRONTIER FOUNATION CINY COHN (SBN 145997)
2 cindy~eff.org

LEE TIEN (SBN 148216) 3 KURT OPSAHL (SBN 191303) KEVIN S. BANSTON (SBN 217026) 4 JAMES S. TYR (SBN 083117) 454 Shotwell Street
5 San Francisco, California 94110

Telephone: [phone]; Facsimile: [phone]

6 KEKER & V AN NEST, LLP
7 RACHAELvE.cMENY (SBN 178514) rmeny~k n. om PAULA L. BLIZZAR (207920) 8 MICHAEL S. KWU (198945)

9 AUDREY WALTON-HADLOCK (250574) 710 Sansome Street San Francisco, California 94111-1704 10 Telephone: [phone]; Facsimile: [phone]
11 LAW OFFICE OF RICHAR R. WIEBE

RICHAR R. WIEBE (SBN 121156)
12 wiebe~pacbell.net

425 California Street, Suite 2025 13 San Francisco, California 94104
Telephone: [phone]; Facsimile: [phone]

14 THE MOORE LAW GROUP
15 THOMASmoorelawteam. com 115107) E. MOQRE III (SBN tmooretq
16 228 Hamilton Avenue, 3ro Floor

Palo Alto, California 94301

17 Telephone: [phone]; Facsimile: [phone]

Attorneys for Plaintiffs
18

UNITED STATES DISTRICT COURT
19

NORTHERN DISTRICT OF CALIFORNIA
20

CAROLYN JEWEL, TASH HEPTING, 21 GREGORY HICKS, ERI KNTZEN and themselves JOICE WALTON, on behalf of 22 and all other similarly situated,
23

Case No. C-08-4373-VRW
CLASS ACTION

DECLARTION OF CINDY COHN
PURSUANT TO FED. R. CIV. P. 56(1) IN OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
Date: Time: Dept: Judge:

Plaintiffs,
v.

24

25 NATIONAL SECURTY AGENCY, et aI.,
26

July 15, 2009
10:30 a.m.

Defendants.

27
28

6, 1 ih Floor Vaughn R. Walker

Date Compo Filed: September 18,2008

442718.02

DECLARATION OF CINY COHN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUGMENT CASE NO. C-08-4373-VRW

1 I, CINDY COHN, declare and state:

2

1.

I am an attorney duly licensed to practice law in the courts of the State of

3 California, and I am a member of the bar of this district. I am also Legal Director for the
4 Electronic Frontier Foundation, counsel of

record to the Plaintiffs in this action. I am familiar

5 with the records and proceedings in this action as well as the records and proceedings (with the
6 exception of the in camera, ex parte materials submitted by the Governent) in In Re National

7 Security Agency Telecommunications Records Litigation, MDL No. 06-1791 VRW("the

8 MDL").
9
2.

In Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992, (9th Cir. 2009), the Ninth

10 Circuit held that neither the Federal Rules of Civil Procedure nor the state secrets evidentiary

11 privilege established in United States v. Reynolds, 345 U.S. 1,9-10 (1953) would permit a
12 district court to dismiss a well-pleaded complaint at the pleadings stage on the basis of an
13 evidentiary privilege that must be invoked during discovery or at triaL. 563 F.3d at 1009. As in
14 Jeppesen, the Governent here has not filed an answer to the complaint in this case, and

15 discovery has not begun. However, because the Governent has styled its motion as a motion to
16 dismiss or alternatively for summar judgment, Plaintiffs are compelled to invoke their rights
17 under Rule 56(f) to have an opportunity to conduct discovery to obtain "facts essential to justify

18 its opposition" to summar judgment.
19
3.

During the course of opposing the Governent's motion to dismiss and/or for

20 summar judgment in the MDL, on October 16,2008, Plaintiffs filed an extensive factual record

21 that establishes the genuine issues as to the material facts surrounding the Governent's
22 unlawful surveilance of milions of

ordinary Americans. MDL Docket Nos. 479,486-495. This
the existence of

23 Court may take judicial notice of

that factual record under Federal Rule of

24 Evidence 201. Plaintiffs summarzed that factual record in their Summary of Voluminous
25 Evidence filed under Federal Rule of Evidence 1006, a true and correct copy of

which is attached

26 hereto as Exhibit A. i Plaintiffs have also fied several Notices of Additional Authorities

27
28 i The Sumary of

Voluminous Evidence was filed electronically as MDL Docket No. 481. The evidence itselfwas filed manually, see MDL Docket No. 484, because it was too voluminous to
1

DECLARATION OF CINY COHN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO

442718.02 GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUGMENT
CASE NO. C-08-4373-VRW

1 containing additional information that has been discovered since the Summary of

Voluminous

2 Evidence was filed. MDL Docket Nos. 535,627 ("Additional Authorities").
3

4.

In addition to the evidence Plaintiffs have already presented, Plaintiffs are entitled

4 under Rule 56(f) to conduct discovery before the Court decides the Governent's motion.
5 Plaintiffs respectfully submit that further information supporting their opposition is in the hands

6 of other parties and witnesses, including the Governent and its agents and employees and the

7 telecommunications companies and their agents and employees. Discovery is likely to reveal
8 additional facts that will help demonstrate that there are genuine issues of material fact that

9 preclude granting the Governent's motion.

10
11 least some of

5.

As the Court ordered in Al Haramain (MDL Docket No. 537), if necessary, at

Plaintiffs' attorneys would seek a security clearance in orderto allow them to

12 conduct discovery.
13

6.

. The evidence that Plaintiffs intend to uncover through discovery is available

14 through several channels, as outlined below.
15

7.

Plaintiffs would take the deposition of former governent offcials who have

16 spoken publicly about the communications carrers' involvement in the NSA's warrantless
17 surveilance, including Defendants Richard B. Cheney, Michael B. Mukasey, John M.

18 McConnell, David S. Addington, Alberto R. Gonzales, John D. Ashcroft and John D.
19 Negroponte, and nonparties Michael Chertoff, Keith B. Alexander, Michael V. Hayden, James
20 Corney, Andrew Card,

Jack Goldsmith, John Yoo, Patrick Philbin, Robert S. Mueller III,

21 Thomas M. Tamm, Royce C. Lamberth and Russell Tice. As noted above, if needed Plaintiffs

22 would seek a security clearance to enable them to conduct this discovery in a manner that
23 protects national security.

24

8.

Plaintiffs would seek further wrtten and deposition discovery arsing out of the
Voluminous Evidence and in the
the information inthose

25 documents summarized in the accompanying Summary of

26 Additional Authorities filed in part to address any claims that any of

27 documents requires authentication, is hearsay, or is otherwise inadmissible.

28

be filed electronically.
442718.02

2

DECLARATION OF CINY COHN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY mDGMENT CASE NO. C-08-4373-VRW

1

9.

For instance, the Summary of

Voluminous Evidence references the unclassified

2 nature of 17 paragraphs of notes of then White House Counsel Alberto Gonzales' March 10,
3 2004 meeting with certain members of Congress known as the "Gang of

Eight." The notes the Department of Justice

4 discuss legal concerns about the program. As the Inspector General of

5 reported: "The NSA officials determined that 3 of 21 paragraphs in the notes contains SCI
6 information about the NSA surveillance program (and) 1 paragraph contains SCI information
7 about signals intelligence." Declaration of

Kurt Opsahl ("Opsahl Decl.," MDL Docket No. 479)
Investigation Regarding

8 Ex. 7 (Office of

the Inspector General, Us. Dept. of Justice, Report of

9 Allegations of Mishandling of Classifed Documents by Att Y Gen. Alberto Gonzales (Sep. 2,

10 2008), at p. 10, n.14). Those notes themselves are evidence, or at a minimum are likely to lead
11 to the discovery of admissible evidence, about the scope and legal justification for some portion
12 of

the alleged surveillance.
10.

13
14 Attorney General

Similarly, testimony regarding issues discussed at the March 10, 2004 meeting in

Ashcroft's hospital room is not classified, since non-cleared personnel were

15 present. See Opsahl Decl. Ex. 11 (Dept. of Justice Oversight: Hearing before the S. Judiciary

16 Comm. 110th Congo (Jan 18, 2007)).2 Again, those issues are either directly relevant to the
17 sureilance alleged in this case or are likely to lead to the discovery of admissible evidence
18 about the facts of the surveillance that led to legal concerns about it at the Department of Justice.
19
11.

Plaintiffs would take depositions of and seek documents from the named sources
Voluminous Evidence (Exhibit A hereto)

20 in the published reports included in the Summary of

21 and in the Additional Authorities, regarding those sources' personal knowledge of published or

22 unpublished information or their discussions with or knowledge of other sources of information.
23
12.

To the extent Plaintiffs are able independently to identify any additional sources

24 of evidence, Plaintiffs would seek to obtain declarations from, or propound depositions on

25 written questions to, any unnamed sources, including those quoted in news reports.
26 27
28
13.
Plaintiffs would seek discovery regarding the fact of

the carrers' interception and

2Available at http://ww.washingtonpost.comlwpsrv /politics/ documents/ gonzalez_ transcript_ 072407 .htmI.
3 DECLARATION OF CINDY COlIN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUGMENT
CASE NO. C-08-4373-VRW

442718.02

1 disclosure of the communications and communications records of the telecommunications
2 companies' customers, including those of

the named Plaintiffs and class members.

3

14.

Plaintiffs would take the depositions of

Qwest executives including Joseph

4 Nacchio regarding non-privileged discussions with the NSA pertaining to warrantless
5 wiretapping, including content data acquisition. Published accounts note that unlike AT&T,

6 Qwest publicly disclosed that it received a request from the NSA to intercept and disclose
7 customer

communications and data, and that it rejected the request.
15.

8

Plaintiffs would take the depositions ofVerizon executives regarding non-

9 privileged discussions with the NSA pertaining to warrantless surveilance, including content

10 data acquisition, among other things. For instance, a Verizon Wireless spokeswoman has
11 publicly

disclosed that Verizon Wireless received but rejected requests by the NSA that Verizon

i 12 Wireless intercept and disclose customer communications and data.

13

16.

Plaintiffs wouldTequest an inspection of

the premises of AT&T's Folsom Street

14 facility under Fed. R. Civ. P. 34, including the WorldNet Internet room, the splitter cable, the
15 inside and outside of the splitter cabinet, and the area outside the SG3 Secure Room. Plaintiffs
16 would also request an inspection of

the premises outside of other of AT&T's SG3 rooms, which

17 the record indicates exist in Atlanta, Seattle, San Jose, San Diego, and Los Angeles. Declaration
18 of

Mark Klein ir 36 (Hepting v. AT&T, No. C-06-672 VRW, Docket No. 31 (VoL. 5, Ex. 78, p.

19 02041)).

20

17.

Plaintiffs would take the depositions (or obtain the sworn declarations) of curent

21 or former AT&T employees with knowledge of, and who worked in, the SG3 Secure Room,
22 doing so in a manner that would protect the identities of

these witnesses, as needed. Such

23 persons would include, but are not limited to: (1) James W. Russell, who fied a Declaration
24 dated April 10, 2006, under seal due to AT&T trade secret concerns, see Notice of

Manual

25 Filing, Hepting Docket No 42; and (2) the named author of certain exhibits to the Klein
26 Declaration that were also filed under seaL. See Notice of

Manual Filing, Hepting Docket No.

27 31.
28
18.

Plaintiffs would request an inspection of AT&T's facilities housing the Daytona
4
PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION

DECLARATION OF CINY COHN

TO

442718.02

GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT CASE NO. C-08-4373-VRW

1 database and databases used for similar purposes at AT&T and other carrers.

2

19.

Plaintiffs would take depositions of

the persons most knowledgeable about

3 AT &T' s Daytona database and databases used for similar purposes at AT&T and other carriers.
4
20.
Each of

the topics of specific discovery outlined above is highly likely to yield
Plaintiffs' claims.

5 further evidence of genuinely disputed material facts relating to all of

6 Specifically, the discovery would lead to evidence regarding the nature and scope ofthe

7 Governent's surveillance program, the timing of efforts to concoct a legal justification for the
the ilegal aspects of 8 program, the efforts to mislead Congress and the FISA court about

the

9 program, and the intention on the part of the individual defendants to violate the Wiretap Act,
10 ECl A, FISA and the Fourth Amendment.

11 I declare under penalty of perjury that the foregoing is true and correct.

12 Executed at San Francisco, California, this 3rd day of June 2009.
13

14
15

/s/ per General Order 45X.B

CINY COHN

16 17 18 19

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21

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23

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25

26 27 28
5
442718.02

DECLARATION OF CINY COHN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUGMENT CASE NO. C-08-4373-VRW