In re National Security Agency Telecommunications Records Litigation

Filing 738

MOTION for Attorney Fees filed by Al-Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor. (Attachments: # 1 Declaration of William N. Hancock, # 2 Declaration of J. Ashlee Albies, # 3 Declaration of Jon B. Eisenbeg, # 4 Declaration of Kenneth A. Kreucher, # 5 Declaration of Lisa Jaskol, # 6 Declaration of Steven Goldberg, # 7 Declaration of Thomas H. Nelson, # 8 Declaration of Zaha S. Hassan, # 9 Certificate of Service)(Eisenberg, Jon) (Filed on 7/7/2010)

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In re National Security Agency Telecommunications Records Litigation Doc. 738 Att. 7 Jon B. Eisenberg, California Bar No. 88278 ( William N. Hancock, California Bar No. 104501 ( Eisenberg & Hancock LLP 1970 Broadway, Suite 1200 Oakland, CA 94612 510.452.258l Fax 510.452.3277 Steven Goldberg, Oregon Bar No. 75134 ( River Park Center, Suite 300 205 SE Spokane St. Portland, OR 97202 503.445.4622 Fax 503.238.7501 Thomas H. Nelson, Oregon Bar No. 78315 ( P.O. Box 1211 Welches, OR 97067 503.622.3262 -- Cell 503.709.6397 Zaha S. Hassan, California Bar No. 184696 ( P.O. Box 1168, Lake Oswego, OR 97034 360.213.9737 - Fax 866.399.5575 J. Ashlee Albies, Oregon Bar No. 05184 ( Steenson, Schumann, Tewksbury, Creighton and Rose, PC 815 S.W. Second Ave., Suite 500 Portland, OR 97204 503.221.1792 Fax 503.223.1516 Lisa R. Jaskol, California Bar No. 138769 ( 610 S. Ardmore Ave. Los Angeles, CA 90005 213.385.2977 Fax 213.385.9089 Attorneys for Plaintiffs Al-Haramain Islamic Foundation, Inc., Wendell Belew and Asim Ghafoor IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA IN RE NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION This Document Relates Solely To: Al-Haramain Islamic Foundation, Inc., et al. v. Obama, et al. (C07-CV-0109-VRW) AL-HARAMAIN ISLAMIC FOUNDATION, INC., et al., Plaintiffs, vs. BARACK H. OBAMA, et al., Defendants. PAGE 1 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW MDL Docket No. 06-1792 VRW Declaration of Thomas H. Nelson in Support of Motion for Attorney's Fees 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 I, Thomas H. Nelson, hereby declare as follows: 1. I make this Declaration based on my own personal knowledge and would testify to the statements in this Declaration if called as a witness. 2. The purpose of this Declaration is to provide background and details regarding certain activities for which attorneys fees are being requested. Background: Education and Prior Experience 3. After graduation from high school (Soap Lake, WA, 1962) I attended the University of Washington where I received a B.A. degree in 1966. Thereafter I spent approximately four years as a Peace Corps Volunteer in Iran teaching and, following the Khorrassan earthquake of 1968, working in relief and reconstruction activities. Upon returning to the United States, beginning in the fall of 1970 I attended Valparaiso University Law School, where I obtained a J.D. degree "With High Distinction" in 1973. I then received a Sterling Fellowship to attend the LL.M. program at Yale University, from which I was graduated in 1974. I was admitted to the Connecticut Bar in 1974. 4. Following my graduation I became an Assistant Professor of Law at the University of Connecticut School of Law in West Hartford, CT, where I worked for three years. I taught first-year Contracts, Administrative Law, and other courses. 5. I left UConn in 1977 to return to the Northwest, spending an interim year as a Visiting Associate Professor of Law at Valparaiso University, where I taught Constitutional Law, Securities Regulation, and Property II. 6. I was hired by the Portland law firm of Rives, Bonyhadi, and Smith in May 1978, where I engaged in utility regulatory matters on behalf of its main client, Pacific Power & Light Company. Rives, Bonyhadi then merged with Davies Biggs of Portland, PAGE 2 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ultimately to become the present firm of Stoel Rives. I became a partner in Stoel Rives in 1982, where I continued to work primarily on utility regulatory matters. 7. I left Stoel Rives in 1996 to form my own firm in Portland, which ultimately became Nelson Lovinger Norling and Kaufmann, and which continued to practice primarily utility law on behalf of Pacific Power & Light Company's successor, PacifiCorp. Beginning in about 2000 I became more active in civil and human rights activities on behalf of Native Americans and Palestinians. 8. My recent pro bono activities include co-founder of Americans United for Palestinian Human Rights (Portland, OR), member of International Solidarity Movement nonviolent direct action campaigns in Israel and Occupied Territories, 2000-2006, member and legal counsel of Free Gaza Movement first boatlift to Gaza, August 2008, and member of National Lawyers Guild Delegation to Gaza, February 2009. Events Leading to Representation of Al-Haramain Islamic Foundation 9. In 2004 I came to represent Al-Haramain Islamic Foundation of Ashland, Oregon. This occurred because I had represented Brandon Mayfield, an Oregon Muslim attorney who had been falsely accused of being involved in the Madrid train bombing of that year. As a result of the national attention given to that affair I was contacted by the charity's attorneys and asked to represent the charity in a number of matters stemming from the freezing of its assets in Oregon by the Department of the Treasury. Since that time I have been the primary attorney for the Oregon charity and main liaison both to its personnel in Riyadh, Saudi Arabia and with its attorneys in the United States. It was in that role that I initiated litigation on behalf of the charity in this case; the facts surrounding the initiation of litigation are well established in the record of this proceeding. PAGE 3 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 10. My role in this litigation has been to assist in the development and implementation of legal theories challenging the government's "warrantless wiretapping" program. In addition, I have been the primary, and often the only, direct contact between the legal team's efforts in the United States and the plaintiffs in this litigation, including Messrs. Belew and Ghafoor, the corporation's Board of Directors, and other officials located in Riyadh, Saudi Arabia. I was also the primary liaison between the legal team and other attorneys (primarily in Washington D.C.) who have represented plaintiff Al-Haramain Islamic Foundation in related administrative and civil litigation. 11. I maintain time records in this case in the same manner as I maintain time records for my other cases, both paying and nonpaying. Specifically, during the course of the day I record time spent, in tenths of an hour, and following completion of the day's work I enter that time in "Timeslips" software. 12. Pursuant to Civil Local Rule 54-5(b)(2), I provide the following statement of the services activities I have undertaken, costs I have incurred, and the services I have rendered in this case. At the Court's request, and pursuant to Civil Local Rule 545(b)(2), I am prepared to produce my contemporary time records or an abstract thereof for in camera inspection by the Court if the Court deems such appropriate. My hours include time spent traveling to San Francisco, Washington D.C., and Riyadh, Saudi Arabia to confer with the plaintiffs and potential witnesses in this case, to obtain guidance, information, and records salient to this litigation, and to participate in court proceedings. Particular Items of Fees and Costs 13. There are two items for which recovery is requested that deserve explanation and discussion. They are set forth below. PAGE 4 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 13.1 Retention of Expert Counsel on Ethical Matters: During the course of the proceeding I requested expert legal advice on professional ethics from Mark Fucile, an Oregon attorney admitted to practice in Oregon, Washington, Idaho, Alaska, and the District of Columbia. His practice focuses on ethical and professional responsibility issues that arise in the legal profession. The journals of the Oregon, Washington, and Idaho bar associations regularly publish articles by Mr. Fucile on the rules of professional responsibility in those state. I requested Mr. Fucile to provide legal counsel on the following two primary topics: o What obligation does an attorney who has a reasonable suspicion that his communications with and/or affecting his client have to protect his communications from interception? What steps should the attorney take to protect the client's confidences in such a situation? o What obligation does an attorney faced with the United States Government's demand for access to his computers on the basis that classified information may be on those computers have to his client? More specifically, may such an attorney allow the United States Government, an adverse party in this and other unrelated litigation, to have access to his computers? I sought advice on the first issue because it was clear at the beginning of this litigation that all communications with a director of the charity located in Saudi Arabia were being intercepted and monitored by the defendant(s) in this proceeding and that such surreptitious interceptions were being used to the client's (clients') detriment. These interceptions were reasonably believed to PAGE 5 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 include my own communications with the director of the charity residing in Saudi Arabia. Mr. Fucile's advice resulted in the international travel for which recovery is being sought in this motion. I sought advice on the second issue because the United States sought to have access to all of my computers which may have once had an electronic copy of the classified document that caused the initiation of this proceeding. Mr. Fucile provided professional services from November 2006 through June 2007 and billed for his services on a monthly basis. The total amount paid to Mr. Fucile was $6715.00, recovery for which is sought. 13.2 Travel Expenses: The fee petition includes charges for time and expenses incurred in travel, including travel to Washington DC and to Riyadh, Saudi Arabia, where the director of the charity referred to above resides. During the relevant period (December 2005 to the present) I made approximately 40 trips to the Middle East, most involving destinations that included Riyadh, and on all visits to Riyadh I met with and provided legal counsel to the Director of Al-Haramain Islamic Foundation regarding the status of this litigation as well as other matters. This petition seeks recovery of travel expenses for only two trips to Saudi Arabia (one prior to the filing of the complaint in this case and one following the Court's order granting plaintiffs' motion for summary judgment), for two trips to Washington DC to meet with plaintiffs and plaintiffs' attorneys as well as potential witnesses, and for three trips to San Francisco. The total travel reimbursement sought for these trips is $6489.18. Synopsis of Time Charges PAGE 6 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 14. There follows a chronological synopsis of time charges and a general description of the primary activities during the relevant periods. Detailed time records are available to back up these charges. Period I: From Initial Disclosure of Wiretapping to Filing of Complaint (December 16, 2005 to February 28, 2006): Research and analysis of government's "warrantless wiretap" program; consult with potential parties plaintiff; legal research regarding FISA statute and potential remedies; arrange participation of co-counsel; draft and revise complaint and circulate for comment and amendment; prepare final version of complaint and file same along with classified document with court. Total: 96.1 hours Period II: Post-Filing Procedures in Oregon - March 1, 2006 to December 20, 2006: II(A): March 1, 2006 to March 24, 2005: Serve complaint and file corporate disclosure statement; research and consult with co-counsel regarding motion to disqualify Judge Mosman; participate in preparation and review of discovery materials; identify ethical issues involved in handling classified document and access thereto and secure specialist advice re same; review Oregonian motion to intervene and consult with Oregonian attorney re same. Total: 65.6 hours. II(B): March 25, 2006 to May 1, 2006: Legal research and analysis regarding ethical issues and consult with ethics specialist Mark Fucile re same; consult with co-counsel and outside counsel regarding related warrantless wiretapping cases; analysis of and consult with co-counsel regarding intelligence issues and their impact on case; review and consult with coPAGE 7 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 counsel regarding discovery matters; consult with co-counsel and file opposition to ex parte filings by government. Total: 112.1 hours. II(C): May 6, 2006 to September 22, 2006: Consult with clients Ghafoor and Belew; review government submissions in related Al-Haramain litigation and legal research regarding same; prepare draft discovery materials, circulate same, and participate in developing discovery; prepare and revise declarations for clients to review and execute; consult with Oregonian attorney re potential involvement in litigation; prepare and revise own declaration for submission to court; prepare and circulate formatted version of opposition to restrict access to classified document; prepare materials for filing in MDL litigation and participate in telephone conferences regarding same; review and analyze Judge King's order regarding classified document and study how to proceed in response; participate in attorneys' meeting in Portland; review Judge King's Opinion and Government's subsequent Petition for Interlocutory Review and discuss subsequent steps. Total: 214.2.5 hours. II(D): September 25, 2006 to December 21, 2006 (Oregon litigation terminates): Participation in analysis of transfer of case from Oregon; consultations regarding preparation and responses to filings related to classified document; outline issues relating to client confidentiality; outline ethical issues and initial consultations with ethics consultant regarding obligations to clients and issue of government access to computers. Total: 73 hours. Period III: Litigation in Northern District of California, January 2007 to Present: PAGE 8 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 III(A): January 1, 2007 to June 29, 2007: Participate in review of status of issues before Judge Walker and legal issues such as sovereign immunity; review issues relating to telephone records and review records in Saudi Arabia; review issue of potential amendment to complaint; respond to proposals regarding government access to computers, including involvement of ethics specialist; review proposed discovery; review and respond to Government's appeal to the Ninth Circuit; review and participate in responses thereto; in-person meetings with attorneys; review proposed communications to Government regarding access to computers. Total: 152.7 hours. III(B): July 1, 2007 to December 14, 2007 (Ninth Circuit Ruling): Assemble materials for corporate disclosure and corporate status issues; consult with counsel regarding appeal to Ninth Circuit; review and suggest revisions to draft briefs; assemble materials and information regarding FISA operating procedures; further consultation regarding "scrubbing of computers"; review transcript of oral argument and consult with clients regarding same; analyze Ninth Circuit's decision remanding issues to trial court for further development but with limitations on use of classified document; preparation for and attendance at attorneys' meeting in Zigzag. Total: 48.1 hours. III(C): February 3, 2008 to July 2, 2008 (Decision on Motion to Dismiss): Consult with co-counsel regarding responses to Ninth Circuit ruling; comment on draft arguments in opposition to defendants' second motion to dismiss; review drafts and comment on responses to defendants' third motion to dismiss; review 1806(f) issues and comment on same; analyze Espionage Act issues; consult regarding oral argument before Judge Walker; review PAGE 9 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 denial of motion to dismiss and initial consultation regarding subsequent steps. Total: 11.7 hours. III(D): July 3, 2008 to December 15, 2008 (Argument on Motion to File Amended Complaint): Consult with co-counsel regarding elements of amended complaint; internet research regarding non-classified sources regarding surveillance, including events following freezing of AHIF assets in February 2004; review and respond to issues in amended complaint, including non-classified sources relating to discussions between Mr. Al-Buthi and plaintiffs Ghafoor and Belew; review, revise, and circulate draft declarations of Messrs Belew and Ghafoor; consult with other attorneys regarding 1806(f) issues. Total: 22.3 hours. III(E): January 2009 to Present (Amended Complaint, Motions for Summary Judgment and to Dismiss): Review order regarding amended complaint and consult with co-counsel regarding same; coordinate activities with clients; review issues relating to government's motion for a stay and responses thereto; consult regarding denial of government's motion to Ninth Circuit; review issues relating to "inaccuracy"; consult regarding steps toward a protective order; review show cause order and consult regarding position in hearing in San Francisco show-cause hearing; consult with co-counsel regarding filing of motion for summary judgment; review and respond to draft motion; attend hearing on motion for summary judgment; consult with clients regarding result of court's order and subsequent steps, including preparation of draft judgment and attorneys' fees issues; legal research and prepare costs and attorneys' fees materials. Total: 113 hours. PAGE 10 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW 1 2 3 4 5 6 7 8 9 15. Based upon the foregoing, my total hours in this case are 912.7. Using the Laffey matrix hourly rate of $506, I request an award of reasonable attorney fees in the amount of $461,826.20. 16. Based upon the out-of-pocket expenses described in section 12, supra, I request an award of $13,204.18 as reimbursement for such litigation costs. I hereby declare that the foregoing statement is true to the best of my knowledge, information, and belief, and I understand that it is made for use as evidence in court and is subject to penalty for perjury. DATED at Zigzag, Oregon, this 6th day of July 2010. Respectfully submitted, /s/ Thomas H. Nelson, Oregon Bar #78315 Of Attorneys for Al-Haramain Islamic Foundation, Wendell Belew, and Asim Ghafoor 10 PAGE 11 - DECLARATION OF THOMAS H. NELSON IN SUPPORT OF MOTION FOR ATTORNEYS' FEES MDL Docket No. 06-1791 VRW

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