Jewel et al v. National Security Agency et al

Filing 7

MOTION to Relate Case Administrative Motion by Plaintiffs to Consider Whether Cases Should be Related; Declaration of Kevin S. Bankston; Proof of Service filed by Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Bankston, Kevin) (Filed on 10/21/2008)

Jewel et al v. National Security Agency et al

Doc. 7

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ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) [e-mail] LEE TIEN (148216) KURT OPSAHL (191303) KEVIN S. BANKSTON (217026) JAMES S. TYRE (083117) 454 Shotwell Street San Francisco, CA 94110 Telephone: [phone]; Fax: [phone] RICHARD R. WIEBE (121156) [e-mail] LAW OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: [phone]; Fax: [phone] Attorneys for Plaintiffs

THOMAS E. MOORE III (115107) [e-mail] THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor Palo Alto, CA 94301 Telephone: [phone]; Fax: [phone]

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL and ERIK KNUTZEN, on behalf of themselves and all others similarly situated, ) ) ) ) ) Plaintiffs, ) ) vs. ) ) AT&T CORP.,et al., ) ) Defendants. ) ) ) CAROLYN JEWEL, TASH HEPTING, ) GREGORY HICKS, ERIK KNUTZEN and ) JOICE WALTON, on behalf of themselves and ) all others similarly situated, ) ) Plaintiffs, ) ) vs. ) ) NATIONAL SECURITY AGENCY, et al., ) ) ) Defendants. CASE NO. C-06-0672-VRW ADMINISTRATIVE MOTION BY PLAINTIFFS TO CONSIDER WHETHER CASES SHOULD BE RELATED; DECLARATION OF KEVIN S. BANKSTON [PROPOSED ORDER FILED CONCURRENTLY]

CASE NO. C-08-4373-CRB

[N.D. CAL Civ. L.R. 3-12, 7-11]

Dockets.Justia.com

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TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: Pursuant to Civil Local Rules 3-12 and 7-11, Plaintiffs hereby move the Court for an Order relating Jewel, et al., v. NSA, et al., No. C-08-4373-CRB (hereinafter simply "Jewel") to Hepting, et al. v. AT&T Corp. et al., No. C-06-0672-VRW (hereinafter simply "Hepting"). APPLICABLE RULE ( Civil Local Rule 3-12 provides, in pertinent part: "An action is related to another when:

(1) The actions concern substantially the same parties, property, transaction or event; and 2) It appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." THE RELATIONSHIP BETWEEN JEWEL AND HEPTING On September 18, 2008, all four of the named Plaintiffs in Hepting, along with a fifth AT&T customer, Joice Walton, filed a complaint in the U.S. District Court for the Northern District of California in San Francisco. That complaint seeks damages on behalf of the named Plaintiffs, and equitable relief for a class of AT&T customers, against the U.S. government and its agencies, including the National Security Agency, as well as a number of current and former government officials in their official and/or personal capacities. As in Hepting, the Plaintiffs in this pending case, Jewel, allege that AT&T and the government have illegally collaborated in a program of surveillance of Plaintiffs' and class members telephone and internet communications and communications records ("the Program"), in violation of, inter alia, the U.S. Constitution, the Foreign Intelligence Surveillance Act ("FISA"), and the Electronic Communications Privacy Act ("ECPA"). Hepting originally was assigned to, and is still pending before, Chief Judge Vaughn R. Walker; Jewel has been assigned to Judge Charles R. Breyer. Jewel and Hepting concern substantially the same parties. As already noted, all four named Plaintiffs in Hepting are also named Plaintiffs in Jewel; the Electronic Frontier Foundation serves as lead counsel for the Plaintiffs in both cases. Furthermore, the definition of the Jewel class is identical to the definition of the Hepting Nationwide Class: All individuals in the United States that are current residential subscribers or customers of AT&T's telephone services or Internet services, or that were
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residential telephone or Internet subscribers or customers at any time after September 2001.1 Hepting named two AT&T entities as Defendants, while Jewel is exclusively against the United States, its agencies, and current and former U.S. government officials. However, the United States has intervened in Hepting, and has been an extremely active participant in that case. And although Plaintiffs have been advised by the Department of Justice ("DOJ") that attorneys in the Constitutional Torts section of the DOJ will represent individuals sued in their personal capacity in Jewel, it appears that the same Department of Justice attorneys representing the United States in Hepting will also represent the United States and its agencies and offices in Jewel. In addition to concerning substantially the same parties, Jewel and Hepting concern substantially the same transactions and events. In particular, both cases allege the same facts: that in 2001 the President authorized a program of domestic surveillance without court approval or other lawful authorization, and that through this Program, the government illegally obtained and continues to obtain with AT&T's assistance the contents of Plaintiffs' and class members' telephone and Internet communications, as well as records concerning those communications. Discovery related to those allegations and the findings of fact required in both cases are therefore also substantially the same, leading to unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different judges. Furthermore, although the specific counts asserted in Hepting against the AT&T Defendants are not strictly identical to those against the government and its officials in Jewel, they do raise identical legal questions, i.e. and e.g., whether the Program violated or violates Plaintiffs' rights under the U.S. Constitution, FISA and ECPA. Litigating those legal questions before

different judges, as with the factual questions, will undoubtedly lead to unduly burdensome duplication of labor and expense by both Plaintiffs and the government, and would threaten to generate conflicting results. Although the same in substance, the class definition in Jewel varies slightly in form from the Hepting Nationwide Class definition: Because Hepting named AT&T entities as Defendants, while Jewel does not, the Hepting definition refers to customers of "Defendants," while the definition in Jewel refers to customers of "AT&T." Additionally, Hepting includes a separate California Class not included in Jewel.
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NEED FOR ADMINISTRATIVE MOTION As explained in more detail in the attached Declaration of Kevin S. Bankston, and as required by Civil Local Rule 7-11(a), counsel for Plaintiffs in both Hepting and Jewel have attempted but failed to secure a stipulation from counsel for the Government and government Defendants in Hepting and Jewel, for AT&T in Hepting, and for the personal capacity Defendants in Jewel. However, as detailed in the Bankston declaration, neither the Government nor AT&T oppose this motion. Counsel for the personal capacity Defendants in Jewel has indicated that because those Defendants have not yet been served with the Jewel complaint, their consent is irrelevant for this motion. CONCLUSION The parties, transactions and events in Hepting and Jewel are substantially the same, and there is a substantial risk of unduly burdensome litigation, and, more important, of conflicting results, if Jewel is not related to Hepting. Plaintiffs therefore respectfully submit that Jewel can and should be related to Hepting pursuant to Civil Local Rule 3-12. Plaintiffs further direct the Court's attention to Rule 7.5(a) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation. That rule provides that the assignment of potential "tag-along actions" such as Jewel to this court as a part of In re National Security Agency Telecommunications Records Litigation, MDL No. M:06-cv-01791-VRW (a proceeding that also includes Hepting) may be accomplished without any action on the part of the Panel on Multidistrict Litigation, and Plaintiffs respectfully ask for such assignment here.

DATED: October 21, 2008 By /s/ ELECTRONIC FRONTIER FOUNDATION CINDY COHN LEE TIEN KURT OPSAHL KEVIN S. BANKSTON JAMES S. TYRE -4-

ADMINISTRATIVE MOTION BY PLAINTIFFS TO CONSIDER WHETHER CASES SHOULD BE RELATED

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Case No. C-06-0672

454 Shotwell Street San Francisco, CA 94110 Telephone: [phone] (fax) RICHARD R. WIEBE (121156) LAW OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] THOMAS E. MOORE III (115107) THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor Palo Alto, CA 94301 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs

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DECLARATION OF KEVIN BANKSTON I, KEVIN S. BANKSTON, declare and state: 1. On Wednesday, October 1, 2008, I was informed by Plaintiffs' counsel and

Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn that she had spoken that morning with counsel for the government Defendants, Anthony Coppolino of the U.S. Department of Justice's Civil Division, who indicated that the government would not oppose relation of Jewel to Hepting or assignment of Jewel to the MDL. He further indicated to Ms. Cohn that based on a voicemail message he had received from AT&T counsel Bradford Berenson, he believed that AT&T would oppose, although he noted that the voicemail was somewhat garbled. 2. To seek clarity on the Government and AT&T's position on the matter, on Friday,

October 3, 2008, I circulated via email to Mr. Coppolino and Mr. Berenson a copy of our draft motion to relate the cases, seeking their consent and requesting a response by Wednesday, October 8, 2008. 3. Mr. Berenson responded to me by email on Monday, October 6, 2008, stating in

relevant part that: AT&T has reviewed your draft and decided that it will not oppose the motion. AT&T does not wish to join in the motion or to be represented as affirmatively consenting or stipulating, but you may represent that AT&T has no objection to the requested relief and does not oppose the motion. It is possible that after you file, AT&T may make a very short submission explaining its non-opposition. 4. After alerting me in a timely manner that there would be a slight delay in his

response as he consulted with his clients, Mr. Coppolino responded to me by email on Thursday, October 9, 2008, stating in relevant part that: The Government Defendants sued in their official capacity in the Jewel case (08-cv4373-CRB) do not oppose the relief requested in your administrative motion, made pursuant to Local Rule 3-12, for an Order relating Jewel to the Hepting case (06-cv00672-VRW) and, in turn, for the assignment of Jewel to MDL 06-cv-1791-VRW pursuant to MDL Rule 7.5(a). Other than this consent, the Government Defendants do not agree to or adopt any statement or representation made in the motion itself. 5. Mr. Coppolino further explained in a subsequent email on October 9 that the

appropriate contact regarding the personal capacity Defendants in Jewel was trial attorney Jim Whitman of the Constitutional Torts Section of the Torts Branch of the U.S. Department of -1DECLARATION OF KEVIN S. BANKSTON

Case No. C-06-0672

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Justice's Civil Division. I emailed the draft motion to Mr. Whitman, along with our draft proposed order, that same day, seeking his consent on behalf of the Jewel personal capacity Defendants. 6. The next day, Friday, October 10, 2008, Mr. Whitman left a voicemail message for

me indicating that because he had not yet secured authority to represent all of the individual personal capacity Defendants in Jewel, and because those Defendants had not yet been served with the Jewel complaint, he was unable to provide--and did not believe Plaintiffs required--the consent of those Plaintiffs. 7. relevant part: To summarize, I do not yet have authority to represent all the individual Defendants in their personal capacity. With that, and because those Defendants have not yet been served in their personal capacity (for the same reason, I'm still working on getting authority to accept service on behalf of the Defendants), I am not in a position to oppose or not oppose Plaintiffs' motion to relate. In theory, I see no reason to oppose that motion, but I simply cannot make that representation at this time. So, since the individual Defendants are technically not "in the case" yet, I see no problem with Plaintiffs going forward with their motion to relate without obtaining the individual Defendants' consent (or, more accurately, non-opposition). 8. On Tuesday, October 14, 2008, I was informed by Plaintiffs' counsel and EFF Civil Mr. Whitman summarized his voicemail in an email to me later that same day. In

Liberties Director Jennifer Granick, who had been conferring with Mr. Whitman on service issues, that he had indicated to her by phone that afternoon that he had secured authority to represent the individual Jewel Defendants in their personal capacity and that he could accept service of Plaintiffs' motion to relate Jewel to Hepting, but again indicating that he could not and need not consent to such because the individual Defendants had not yet been served with the complaint. 9. Ms. Granick forwarded to me on October 14, 2008 an email from Mr. Whitman sent

to her that same day summarizing their discussion, which stated in relevant part: As I indicated, I am now authorized to represent all of the individual Defendants in the Jewel case in their individual capacities.... [T]his [email] will confirm that I am authorized to accept service of Plaintiffs' motion to relate the case and motion to reassign it to the MDL on behalf of the individual Defendants. For that purpose, you can serve me ... by e-mail at this e-mail address.

Case No. C-06-0672

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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

DATED: October 21, 2008 By /s/ Kevin S. Bankston KEVIN S. BANKSTON 454 Shotwell Street San Francisco, CA 94110 Telephone: [phone] (fax)

Case No. C-06-0672

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PROOF OF SERVICE I am a citizen of the United States and employed in San Francisco County, California. I am over the age of eighteen years and not a party to the within-entitled actions. My business address is 454 Shotwell Street, San Francisco, California 94110. On October 21, 2008, I served true and correct copies of the documents described as · ADMINISTRATIVE MOTION BY PLAINTIFFS TO CONSIDER WHETHER CASES SHOULD BE RELATED; SUPPORTING DECLARATION OF KEVIN S. BANKSTON; and · PROPOSED ORDER DEEMING CASES RELATED AND ASSIGNING JEWEL TO MDL Docket No 06-1791 VRW, IN RE NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION BY EMAIL on JAMES WHITMAN, trial attorney, U.S. Department of Justice, Civil Division, Torts Branch, Constitutional Torts Section, counsel to the personal capacity Defendants in Jewel, et al., v. NSA, et al., No. C-08-4373-CRB, by transmitting copies of the documents to [e-mail], and BY ELECTRONIC FILING using the Court's CM/ECF system on the parties to Hepting, et al. v. AT&T Corp. et al., No. C-06-0672-VRW, counsel for whom includes counsel for the government Defendants in Jewel. I declare that I am a member of the bar of this court at whose direction the service was made. Executed on October 21, 2008, at San Francisco, California. \s\ Kevin S. Bankston KEVIN S. BANKSTON

PROOF OF SERVICE