Witt v. Department of the Air Force et al

Filing 116

DECLARATION of Sher Kung and Exhibits A-K filed by Plaintiff Margaret Witt re 115 MOTION for Sanctions due to Spoliation of Evidence (Attachments: # 1 Exhibit L-BB)(Dunne, Sarah)

Witt v. Department of the Air Force et al

Doc. 116

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Pursuant to 28 U.S.C. § 1746, I, Sher Kung, hereby declare as follows: 1. 2. 3. 4. I am counsel for the plaintiff and have personal knowledge of the facts contained Attached hereto as Exhibit A is a chronology of events relevant to this motion, Attached hereto as Exhibit B is a true and correct copy of excerpts from the Attached hereto as Exhibit C is a true and correct copy of excerpts of Defendants' in this Declaration. created to aid the court in following the timeline of events. deposition of Lieutenant General Charles E. Stenner, dated May 17, 2010. Objections and Responses to Plaintiff's First Requests for Admission, Interrogatories, and Requests for Production. v. UNITED STATES DEPARTMENT OF THE AIR FORCE; ET AL., Defendants. UNITED STATES DISTRICT COURT WESTERN WASHINGTON AT TACOMA DIVISION MAJOR MARGARET WITT, Plaintiff, Honorable Ronald B. Leighton

No. C06-5195 RBL DECLARATION OF SHER KUNG IN SUPPORT OF MOTION FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE NOTE ON MOTION CALENDAR: AUGUST 6, 2010 ORAL ARGUMENT REQUESTED

DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE (Case No. 06-5195)­ Page 1

A OF WASHINGTON FOUNDATION
901 Fifth Avenue #630 Seattle, Washington 98164 [phone]

MERICAN CIVIL LIBERTIES UNION

Dockets.Justia.com

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5. 6. 7. 8.

Attached hereto as Exhibit D is a true and correct copy of excerpts from the Attached hereto as Exhibit E is a true and correct copy of excerpts from the Attached hereto as Exhibit F is a true and correct copy of excerpts from the Attached hereto as Exhibit G is a true and correct copy of document AF027162,

deposition of Colonel Mary L. Walker, dated January 8, 2010. deposition of Colonel Janette Moore-Harbert, dated February 25, 2010. deposition of Captain Jill Robinson, dated March 16, 2010. the CDI memo from Colonel Janette Moore-Harbert to Lieutenant Colonel Patrick Kearney, dated 24 January 2008, which was produced by Defendants (filed under seal). 9. Attached hereto as Exhibit H is a true and correct copy of documents AF027164AF027168, a the Incident Report Summary issued by McChord AFB, which includes a transcription of the Tacoma Police Report, which was produced by Defendants (filed under seal). 10. Attached hereto as Exhibit I is a true and correct copy of document AF027163, the Investigating Officer's Report from Lieutenant Colonel Patrick Kearney to 446 AES/CC, dated 4 February 2008, which was produced by Defendants (filed under seal). 11. Attached hereto as Exhibit J is a true and correct copy of AF027091 and AF027098, excerpts from the "AFRC Courts-Martial and Serious Incident Report," dated January 2008, which was produced by Defendants (filed under seal). 12. Attached hereto as Exhibit K is a true and correct copy of AF027136, excerpts from the "AFRC Special Interest Cases," dated May 2008, which was produced by Defendants (filed under seal). 13. 14. Defendants. 15. Attached hereto as Exhibit N is a true and correct copy of AF000153, a letter dated July 27, 2004, from James Lobsenz to Major Adam Torem.
A OF WASHINGTON FOUNDATION
901 Fifth Avenue #630 Seattle, Washington 98164 [phone]
MERICAN CIVIL LIBERTIES UNION

Attached hereto as Exhibit L is a true and correct copy of excerpts from the Attached hereto as Exhibit M is a true and correct copy of AF001613, a memo

deposition of Major General Eric Crabtree, dated March 24, 2010. from Major General Duignan to 4 AF/CC, dated July 7, 2004, which was produced by

DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE (Case No. 06-5195)­ Page 2

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16. 17.

Attached hereto as Exhibit O is a true and correct copy of excerpts of Plaintiff's On May 10, 2010, government counsel, Sarah Dunne and I participated in a

Second Set of Requests for Production of Documents and Things. telephonic conference to discuss outstanding discovery matters. Attached hereto as Exhibit P is a true and correct copy of a letter dated May 11, 2010, from Sarah Dunne to Bryan Diederich, memorializing the May 10 conversation. 18. 19. 20. 21. Attached hereto as Exhibit Q is a true and correct copy of a letter dated May 12, Attached hereto as Exhibit R are true and correct copies of Defendants' cover Attached hereto as Exhibit S is a true and correct copy of a letter dated June 24, On July 1, 2010, government counsel, Sarah Dunne and I participated in a 2010, from Bryan Diederich to Sarah Dunne. letters for supplemental productions of documents, dated June 11, 16, and 18. 2010, from Bryan Diederich to Sarah Dunne. telephonic conference to discuss our understanding of Defendants' actions to locate, search and preserve documents as detailed in their June 24 letter. Attached hereto as Exhibit T is a true and correct copy of a letter dated July 2, 2010 from Sarah Dunne to Bryan Diederich, memorializing the conversation. 22. 23. 24. 25. 26. Attached hereto as Exhibit U is a true and correct copy of a letter dated July 9, Attached hereto as Exhibit V is a true and correct copy of a letter dated July 14, Attached hereto as Exhibit W is a true and correct copy of a memorandum dated Attached hereto as Exhibit X is a true and correct copy of a records request dated Attached hereto as Exhibit Y is a true and correct copy of excerpts from the 2010, from Bryan Diederich to Sarah Dunne. 2010, from Sarah Dunne to Bryan Diederich. June 21, 2010, from the Air Force to Major Margaret Witt, including attachments. June 28, 2010, and an Honorable Discharge certificate sent to Plaintiff. deposition of Major Margaret Witt, dated May 24, 2010.

DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE (Case No. 06-5195)­ Page 3

A OF WASHINGTON FOUNDATION
901 Fifth Avenue #630 Seattle, Washington 98164 [phone]

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27.

Attached hereto as Exhibit Z is a true and correct copy of AF000402, the cover

page of the Record of Board Proceedings of Major Margaret Witt dated 28 & 29 September 2006, which was produced by Defendants. 28. Attached hereto as Exhibit AA is a true and correct copy of AF001612, a memorandum dated 7 July 2004, from Major General Eric Crabtree to Adam Torem, which was produced by Defendants. 29. Attached hereto as Exhibit BB is a true and correct copy of AF000009, a memorandum dated 5 Nov 2004, from Colonel Mary L. Walker to Major Margaret Witt, which was produced by Defendants. I declare under penalty of perjury that the foregoing is true and correct, and that this Declaration was executed on July 22, 2010 in Seattle, Washington.

/s/ Sher S. Kung______________ Sher Kung, WSBA # 42077

DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE (Case No. 06-5195)­ Page 4

A OF WASHINGTON FOUNDATION
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CERTIFICATE OF SERVICE I hereby certify that on July 22, 2010, I electronically filed this Declaration of Sher Kung in Support of Motion for Sanctions Due to Spoliation of Evidence with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Peter Phipps [e-mail] Marion J. Mittet [e-mail] Bryan R. Diederich [e-mail] Stephen J. Buckingham [e-mail]

Attorneys for Defendants DATED this 22nd day of July, 2010.

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: /s/ Nina Jenkins Nina Jenkins Legal Program Assistant 901 Fifth Avenue #630 Seattle, WA 98164 Tel. [phone] [e-mail]

DECL. OF SHER KUNG IN SUPP. OF MOT. FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE (Case No. 06-5195)­ Page 5

A OF WASHINGTON FOUNDATION
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EXHIBIT A

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Witt v. U.S. Air Force et al.
Chronology of Significant Events In Support of Plaintiff's Motion for Sanctions Due to Spoliation of Evidence Date June 14, 2004 Subject A third party civilian notifies the Air Force that Maj Witt has engaged in homosexual conduct Col Crabtree receives "order" from Air Force Reserve Headquarters concerning Maj Witt Crabtree seeks authorization from Maj Gen Duignan, 4th AF, forwarding him evidence of the allegations Source Kung Decl. Ex. Y (16:117:23) Kung Decl. Ex. L (14:21-15:17, 16:6-10) Kung Decl. Ex. L (28:13-22, 29:16-23)

? ? July 7, 2004 July 7, 2004 July 27, 2004 July 27, 2004

Maj Gen Duignan authorizes a fact-finding inquiry Kung Decl. Ex. M after review of evidence Crabtree appoints Maj Adam Torem to conduct a fact-finding inquiry James Lobsenz gives notice of his representation of Maj Witt to the JAG investigation officer Defendants are on notice that Witt intends to challenge any adverse actions. Defendants do not put a litigation hold on any key decision makers. Witt is suspended from duty and is notified of the administrative discharge action against her Col Moore-Harbert becomes commander of 446th AES Witt files complaint in District Court, naming as defendants the Dept of the Air Force, Secretary of Defense, Donald Rumsfeld, Dept of the Air Force Michael Wynne, and Commander of the 446th AES, Col Mary Walker. Witt files declarations of fellow 446th AES members in support of the Complaint Kung Decl. Ex. AA Kung Decl. Ex. N Kung Decl. Exs. P, Q, S, T, U, V Kung Decl. Ex. BB Kung Decl. Ex. E (18:16-18) Dkt. No. 1

Nov 5, 2004 Oct 2005 Apr 12, 2006

Apr 24, 2006

Dkt. Nos. 9-18

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Apr 24, 2006

Defendants do not put a litigation hold on party Kung Decl. Exs. P, Q, S, defendants, key decision makers, or any 446th AES T, U, V unit members. Defendants instruct someone at Air Force Reserve Headquarters and someone at the 446th Air Wing to segregate Maj Witt's personnel file, the inquiry file, and documents relating to her discharge proceedings Witt Discharge Board Proceedings at Robins AFB Secretary of the Air Force directs that Witt be discharged with an Honorable discharge Reserve Order issued discharging Witt with "Honorable Conditions Discharge" Crabtree leaves McChord Domestic incident at the residence of SM-C and SM-D Defendants supplement Ninth Circuit record with July 10 Action document but fail to disclose the July 12 Reserve Order McChord Incident Report Summary issued containing transcription of Tacoma Police Report concerning domestic incident, in which SM-C makes homosexual statement. Moore-Harbert receives police report Moore-Harbert consults with JAG officer about administrative action based on possible fraternization Oral argument in Ninth Circuit Kung Decl. Ex. Z Dkt. No. 84 (Dunne Decl. Ex. C) Dkt. No. 84 (Dunne Decl. Ex. D) Kung Decl. Ex. L (10:45) Kung Decl. Ex. E (84:511); Ex. F (40:2-23); Ex. H Dkt. No. 84 (Dunne Decl. Ex. C) Kung Decl. Ex. H

Sept 28-29, 2006 July 10, 2007 July 12, 2007 Sept 2007 Oct 23, 2007

Oct 23, 2007

Oct 25, 2007

? ? Nov 5, 2007

Kung Decl. Ex. E (84:511); Ex. F(45:2-17) Kung Decl. Ex. E (84:18-21) Dkt. No. 49-2

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Jan 24, 2008

Moore-Harbert orders LTC Patrick Kearney to investigate fraternization between SM-C and SMD, attaching a Police Blotter Moore-Harbert issues SM-C a Letter of Admonishment and SM-D a Letter of Counseling Moore-Harbert meets with SM-C and Robinson. Moore-Harbert tells SM-C that Robinson did not out her. Ninth Circuit issues its decision requiring an individualized analysis under DADT

Kung Decl. Ex. G

? ? May 21, 2008 May 21, 2008

Kung Decl. Ex. E (86:20-25); Ex. K Kung Decl. Ex. F (44:12-45:21) Dkt. No. 49-2

Defendants do not put a litigation hold on party Kung Decl. Exs. P, Q, S, defendants, key decision makers, or any 446th AES T, U, V unit members Defendants searched and gathered documents related to this case, and confirmed that previously segregated documents were maintained Plaintiff propounds a Second Set of Requests for Production of Documents and Things to Defendants Parties discuss outstanding discovery matters The Court grants Plaintiff's motion to compel production of documents Air Force notifies Maj Witt of the amended order to correct the characterization of her discharge Air Force issues an Honorable Discharge certificate to Maj Witt Parties discuss file preservation and confirm that Defendants did not place litigation holds on Defendants' key decision-makers or 446th AES members Kung Decl. Ex. U

June 10, 2009

Feb 23, 2010

Kung Decl. Ex. O

May 10, 2010 June 1, 2010 June 21, 2010 June 28, 2010 July 1, 2010

Kung Decl. ¶ 17, Ex. P Dkt. No. 91 Kung Decl. Ex. W Kung Decl. Ex. X Kung Decl. ¶ 21, Exs. T, U, V

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EXHIBIT B

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Deposition of Lt. Gen. Charles Edwin Stenner, Jr. 5-17-10 Page 1

U.S. DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA M A J O R MARGARET WITT, Plaintiff, vs U N I T E D STATES DEPARTMENT OF THE A I R FORCE; DONALD H. RUMSFELD, S e c r e t a r y of Defense; MICHAEL W. W Y N N E , Secretary of the Department o f Air Force; and COLONEL MARY L. W A L K E R , Commander, 446th A e r o m e d i c a l Evacuation Squadron, M c C h o r d AFB, Defendants. _____________________________________/ DEPOSITION OF LIEUTENANT GENERAL CHARLES EDWIN STENNER, JR. Monday, May 17, 2010 8:50 a.m. Taken by counsel for the Plaintiff at: Robins Air Force Base Warner Robins, Georgia FILE NO. C06-5195 RBL

S t e n o g r a p h i c a l l y Reported By: G a y e D. Traynor C e r t i f i e d Court Reporter-B2209 S t a t e of Georgia
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t h i s deposition? A Q A Q counsel? A f i v e hours. Q A Okay. Do you understand that Major Witt is Over a period of two days, probably four or Other than... Other than counsel? No. Okay. And for how long did you speak with

s e e k i n g reinstatement to the Air Force Reserve, sir? I do not know. MR. PHIPPS: conclusion. B Y MS. DUNNE: Q A Q a b o u t -MR. PHIPPS: A B Y MS. DUNNE: Q -- since the 9th Circuit issued its ruling? MR. PHIPPS: Objection: Calls for a legal Objection. (No response.) Have you read the decision issued in this case No. What do you understand this case is now Objection: Calls for a legal

b y the 9th Circuit in May of 2008?

conclusion, beyond personal knowledge, foundation.

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MR. PHIPPS:

If I instruct you not to answer,

and every now and then I may have to interrupt an answer if it treads into an area of privilege. But, in

general, my objections simply preserve our ability to raise that later. It would be convenient if we had a

Judge every time there was a deposition, but I'm objecting. THE WITNESS: question again. B Y MS. DUNNE: Q So I'm going to restate the question. What do Okay. Okay. You give me the

y o u think the parties are disagreeing over right now? MR. PHIPPS: And I object: Lack of foundation

and seeks a legal conclusion. THE WITNESS: I really don't know what the Okay.

disagreements are about. B Y MS. DUNNE: Q

Now, I'm going to ask you some questions with Do you know Major General Yes.

r e s p e c t to key individuals. R o b e r t Duignon? A Q w i t h him? A

Am I pronouncing that right?

Duignon, D-U-I-G-N-O-N.

How would you characterize your relationship He preceded me in one of the jobs I had as the And then he worked for

P l a n s and Programs so I knew him.

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m e briefly when I took the job that I've got now. Q A o f 2009. Q A Q A Q A Q A Q A Q A Staff. Q A Q So if you know him at all, it's only I've never had a conversation with him. So you've never spoken to him regarding February 2009. Acquaintances. Acquaintances. Duignon. -- Duignon now since he's retired. I have not spoken to him since he retired. Have you ever spoken to General Duignon No. Have you ever spoken to the General -- General No. Do you know General John Jumper? Only by virtue of his position as the Chief of How frequently do you speak Were you friends? Okay. When did he work for you? What dates? From June of 2008 until he retired in February

w i t h General Duignon --

r e g a r d i n g Major Witt?

D u i g n o n regarding this litigation?

professionally?

M a j o r Witt or this litigation?

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him?

A Q A Q A Q A Q A Q A Q A Q

No. How about General James Sherard? Yes. How would you characterize your relationship? He was my boss. Oh. When was he your boss? For the entire period of time that he was the So I think he was between -- I'm going to say He actually had a six-year tenure. Six-year? So whatever period of time that covers. Okay. And would you characterize your Are you friends? Do you know

C h i e f of Staff or the Chief of the Air Force Reserve. 2 0 0 0 to 2004, but I might be wrong on that.

relationship?

Acquaintances. Acquaintances. Do you still socialize after

- - since he's retired? MR. PHIPPS: THE WITNESS: B Y MS. DUNNE: Q A Q Yes. Are you friends with General Sherard? Acquaintances. Acquaintances. Have you spoken to him since Objection: Characterization.

Can you say that one more time?

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h e retired in 2004? A Q A Q A Q A Q A Q A Q A Q spoken? A Q A Q Maybe twice. Have you ever spoken to General Bradley No. Have you ever spoken to General Bradley Yes. How frequently do you speak with him? Very infrequently. Okay. No. Have you ever spoken to General Sherard No. My next question is, do you know Lieutenant I do. How would you characterize your relationship? Friends. Friends? How frequently do you speak with Maybe twice.

Have you ever spoken to General Sherard

r e g a r d i n g Major Witt?

r e g a r d i n g this litigation?

G e n e r a l John Bradley?

G e n e r a l Bradley? Very infrequently. Since he's retired in 2008, how often have you

r e g a r d i n g Major Witt?

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r e g a r d i n g this litigation? A Q A Q w i t h him? A Q A Q A Q A Q M a j o r Witt? A Q A Q A Q A No. Have you spoken to General Crabtree regarding No. Have you ever met Major Margaret Witt? No. What do you know about Major Margaret Witt? Only what I've seen regarding this -- this Boss. Are you also friends as well? Acquaintance. Acquaintance. Weekly. Weekly? Minimum. Have you spoken to General Crabtree regarding How frequently do you speak No. Do you know General Crabtree? I do. How would you characterize your relationship

w i t h General Crabtree?

t h i s litigation?

circumstance.

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Q

Okay.

So I'm going to try to ask a bunch of

q u e s t i o n s then to get at -- because I don't want to know w h a t work product you've been given. What do you know about her career in the Air F o r c e -- the Regular Air Force? A Q A Q A Q A Q A Q M a j o r Witt? A Q A Q No. Have you read her person -- any documents from No. Have you ever communicated to Colonel Janette Nothing. Okay. What do you know about her career in

t h e Air Force Reserve? Nothing. Okay. No. Have you interviewed anyone who served with No. Have you questioned anyone who served with No. Have you read any news articles about Have you, yourself, done any research

o n Major Margaret Witt?

M a j o r Witt about Major Witt?

M a j o r Witt about Major Witt?

h e r personnel file?

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M o o r e - H a r b e r t about Major Witt? A Q is? A Q A Q A Q A Q No. It's Janette, J-A-N-E-T-T-E. Let me go back. Okay. Okay? Have you ever directed one of your staff to No. Have you ever directed one of your staff to And it's No. Do you know who Colonel Janette Moore-Harbert

M o o r e - H a r b e r t , M-O-O-R-E hyphen H-A-R-B-E-R-T. I've seen that name.

c o m m u n i c a t e with Colonel Moore-Harbert about Major Witt?

c o m m u n i c a t e with Colonel Moore-Harbert about this litigation? A Q to? A Q A Q A Q Yes. What is that unit? 446th AES. And what's the home base for the 446th AES? McChord. And not the nickname. Could I get the full No. Do you know what unit Major Witt was assigned

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name? A Q A Q A w o u l d be... Q A Q It's now joint base Lewis-McChord. Okay. I'm not so much of a fan of any name. Sir, what do you know about the 446th AES? W h a t ' s its primary mission? A Q Aeromedical evacuation. Do you know which airlift wing the 446th is I would think of it as its host unit, if Of the base? Uh-huh. McChord Air Force Base. Okay. Well, okay, they are currently a joint base so

i t ' s McChord-Lewis, and I can't tell you the way that

c o n n e c t e d to? A

I ' m saying that right. It's the active-duty wing of McChord, and I c a n ' t give you the number. Q A Q A Q Okay. Okay. Have you ever communicated with anyone in the No. Have you ever communicated with anyone in the It's the 62nd Airlift Wing.

6 2 n d Airlift Wing about Major Witt?

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6 2 n d Airlift Wing about this litigation? A Q No. What do you know, if anything, about the 446th

u n i t members and their social interactions with Major Witt s i n c e she's been discharged? A Q A Q A Q A Q A Nothing. I have to ask these questions. Have you ever served in the 446th AES? No. Have you ever served with the 446th AES? No. Have you ever visited the 446th at joint base Yes. And when was that? It was last year, 2009. And I can't tell you

Lewis-McChord?

e x a c t l y when. Q A Uh-huh. No. MR. PHIPPS: B Y MS. DUNNE: Q A Q Have you ever served with the 4th Air Force? No. Have you ever served... Objection: Foundation but... Could you describe the unit culture

o f the 446th AES?

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c o m m a n d e r s missions and how they executed those missions. Q A Q Did you do anything else? No. No? Other than Major Witt, have you had any

e x p e r i e n c e with investigations, suspensions or discharges o f any service member on the grounds that they were s u s p e c t e d of being gay or lesbian? A No. MR. PHIPPS: B Y MS. DUNNE: Q Have you ever served on an administrative Objection: Characterization.

d i s c h a r g e board that was hearing a case involving h o m o s e x u a l conduct? A Q No. Have you ever participated in a fact-finding

i n q u i r y with respect to a service member concerning h o m o s e x u a l conduct? A Q A Q A Q No. Have you ever served with a service member No. And by that, I mean they told you? No. Have you ever served with a service member

t h a t you knew to be gay or lesbian?

t h a t you suspected might be gay or lesbian?

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A Q A Q A Q

No. Do you have any friends that are gay or No, no. Do you have any relatives that you know of No. I'm asking this question in your personal What is your opinion of the "Don't Ask;

l e s b i a n that you know of?

t h a t are gay or lesbian?

c a p a c i t y only. A Q

D o n ' t Tell" policy? It's an Air Force policy. Is there anything else? Do you have any other

o p i n i o n besides it's an Air Force policy in your personal capacity? A This is your personal feelings. I don't think I can separate my personal

f e e l i n g s from my official capacity. Q Do you plan to provide an expert opinion to

t h e Court on the current "Don't Ask; Don't Tell" policy in y o u r official capacity? MR. PHIPPS: A B Y MS. DUNNE: Q Do you plan to provide an expert opinion to Objection: Vague. (No response.)

t h e Court as to the efficacy of the current "Don't Ask; D o n ' t Tell" policy?

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A Q A Q A Q

It degraded. Degraded. Same question but with respect to good order. Degraded. Same question but with respect to discipline. Degraded. Is there anything else -- you just shared Is there anything else that helped Or that's what I said the

t h o s e experiences. A f i r s t time. Q A Q A Q Uh-huh.

f o r m the opinion you state in D (1)? My experiences.

I think that's my experience. Have you done any particular research to No. So tell me if this is an accurate, fair

s u p p o r t the opinions that you stated in here?

c h a r a c t e r i z a t i o n ; that your opinion in D (1) is based on y o u r 38 years of service in the military. A Q Yes. Besides your 38 years of experience in the

m i l i t a r y , there's nothing else that the opinion you state i n D (1) is based on? A Q No. Have you ever asked Commanders or service

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m e m b e r s how they felt about a uniform homosexual conduct p e r s o n n e l policy? A Q No. Have you ever asked any Commanders or service

m e m b e r s whether they would accept a discretionary p e r s o n n e l policy concerning homosexual conduct? A Q No. What if a different branch of the military Would

a l l o w e d certain service members to serve openly?

t h a t be disruptive to unit morale and cohesion for Air F o r c e Reserve units? A uniformly. Q The key point is a policy that's applied That's what I'm talking about. And so my question is a little bit different.

L e t ' s say that a different branch, the Army or the Navy, a l l o w e d certain service members who are gay or lesbian to s e r v e openly, that is, people could know they were gay or lesbian. A Q A Would that be disruptive to unit morale and Don't know. Don't know? The application of a policy -- uniform

c o h e s i o n for Air Force Reserve units?

a p p l i c a t i o n of a policy is what I'm talking about in here a s far as good order and discipline. Q So if the Army had a policy that allowed

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d o n ' t object to the openly gay service member because the p o l i c i e s have been applied properly and uniformly? MS. DUNNE: Objection: Vague. Objection:

Calls for a legal conclusion. THE WITNESS: Any policy that exists that is

applied uniformly is good for the unit cohesion, good order and discipline and all of the other pieces and parts of how to generate a capability for the war fighter. B Y MS. DUNNE: Q Uh-huh. So I hear that, is it fair to say

t h a t your objection is not with the fact of their homosexuality. It's whether or not the policies are being

a p p l i e d appropriately, correct? MR. PHIPPS: THE WITNESS: MR. PHIPPS: characterization. THE WITNESS: Uniform application of the Objection: Uniformly. I'm going to object based on Characterization.

policy is absolutely appropriate for and necessary for unit cohesion, good order and discipline. B Y MS. DUNNE: Q Let me ask this. Is it your understanding

t h a t if Air Force conduct policies are applied uniformly a n d regularly as to homosexual conduct, that would

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n e c e s s a r i l y result in no gay or lesbian members serving openly? MR. PHIPPS: Objection: Vague, calls for

legal conclusion, calls for speculation. THE WITNESS: uniformly degrades. A policy that's not applied A policy that is applied uniformly

sustains unit cohesion, good order and discipline and ultimately readiness for the war fighter. B Y MS. DUNNE: Q Do you understand what I mean when I say the So gay or lesbian service members

t e r m "serve openly." s e r v i n g openly. A

Do you understand when I use that term? Objection: Vague.

MR. PHIPPS: B Y MS. DUNNE: Q

(No response.)

What -- how would you define a service member

w h o is gay or lesbian, i.e., engages in acts with a member o f the same sex but they are serving in their unit and e v e r y o n e knows of their sexual orientation? p h r a s e you would use because I'm using... A The other option is for you to define what you So I'm -- because... m e a n by openly gay. Q What's the

So, sir, when I say openly gay and lesbian,

t h a t means somebody who's serving within their unit that o t h e r unit members and the Commander know they're gay or

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evidence. A

MR. PHIPPS:

Objection:

Assumes facts not in

(No response.)

B Y MS. DUNNE: Q A You may answer the question. And the question was, whether I consider

m y s e l f highly qualified -Q A Q A Q Highly qualified --- prior to 1981? -- prior to 1981. No. What if you learned that discharge hearing

b o a r d s prior to 1981 would consider the service member's f i t n e s s to serve and his effect on unit cohesion and m o r a l e in deciding whether to retain or discharge the s e r v i c e member who had admitted to homosexual conduct? W o u l d this alter your opinion that you're giving here today? A a policy. My opinion goes to the uniform application of I stand on the fact that that uniform

a p p l i c a t i o n is what leads to good order and discipline. Q Is it fair to say that you're not opining that

t h e military can't logistically have a discretionary c o n d u c t policy concerning gays because it already had one historically?

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this:

MR. PHIPPS:

I'm going to object so I don't

interject again after we go to a question. B Y MS. DUNNE: Q Have a uniform policy today; didn't have one Are you testifying today that you think it

p r i o r to 1981.

i s better for unit cohesion and morale to have a uniform policy? MR. PHIPPS: I'm going to object to

characterization and vagueness. THE WITNESS: Okay. I'm not -- you know, how I believe the

you use the word uniform is appropriate.

uniform application of that policy is absolutely necessary to sustain and maintain good order and discipline, unit cohesion and subsequent readiness of an individual unit. B Y MS. DUNNE: Q Okay. Is there anything -- let me ask you

Do you believe the U.S. military is incapable of

h a v i n g discretionary conduct policies -- physically and l o g i s t i c a l l y can't have a discretionary conduct policy? A I do. I believe that the policy has to be u n i f o r m l y applied cross the board. (Plaintiff's Exhibit 5 marked for identification.) B Y MS. DUNNE:

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Q

So that unit is not -- that unit that may be

c u r r e n t l y allowing gays and lesbians to serve openly is n o t consistent with current Air Force homosexual conduct policies? MR. PHIPPS: conclusion. THE WITNESS: policy is required. B Y MS. DUNNE: Q Okay. Looking back to Exhibit 2, I'm looking It's on page 3 and The uniform application of a Objection: Calls for a legal

a t specifically paragraph 2 -- D (2). g o e s over to page 4.

I'm going to get into a little bit more what w e were just talking about, the differences between the components. So you state in D (2): Because there must be

a seamless integration between the Air Force Reserve and t h e Regular component, there is a need for parity in their p e r s o n n e l policies, including the homosexual conduct policy. It is exception for unit cohesion, morale, good

o r d e r , and discipline that similar rules of conduct apply t o Air Force Reservists and to Regular active-duty members. A Q Is that -- is that your opinion? It is. What's the basis for your opinion?

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A Q

My experience. Can you -- so, please, describe what in your

3 8 years of service helps you come to the opinion that you c a m e to in D (2). A Q A Having worked in all three components -Uh-huh? -- or with all three components. Working in

t w o , working with the third and having moved many times, t h a t experience in the seamless integration of those three c o m p o n e n t s is absolutely essential for good order and discipline. Q A integration. Q Are there challenges that the Regular Air I'm going to break that apart a little bit so I mean the ability to train to the same

t h e Court -- what do you mean by seamless integration? s t a n d a r d s and execute working together is seamless

F o r c e and the Reserves face in creating seamless integration? A challenges. Q Always challenges as far as how to ensure we The financial challenges, airspace But execution-wise it works very well. And maybe I'll ask it this way. What are the What are the a r e trained and ready.

- - and can you explain a little bit more?

d i f f e r e n c e s between the Reserves and the Regular Air

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g e o g r a p h i c region, I mean the state of Washington -- would n o t be consistent with uniform -- with a uniform a p p l i c a t i o n of policy across all geographic regions where t h e Air Force serves? A Q I don't know that. You don't know? I don't know.

Okay.

I'm going to turn to your third opinion that s p e c i f i c a l l y involves Major Witt. states: In D (3) on page 4

Major Witt's discharge from the Air Force

R e s e r v e s furthers basic military functionality as well as u n i t cohesion, morale, good order and discipline because i f she were not discharged, that would mean that Air Force p e r s o n n e l policies were not uniformly applied across g e o g r a p h i c a l boundaries, which would disrupt unit c o h e s i o n , morale, good order, and discipline. What's the basis for that opinion? A Q A Q A Q A My experience. Is there anything particular in your No specific instance. Have you done any research? No. When you say "basic military functionality," I mean execution of the mission. Read any studies?

e x p e r i e n c e that leads you to that opinion?

w h a t do you mean?

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Q A

How does Major Witt's discharge promote unit The uniform application of the policies that

c o h e s i o n as you've just defined it? l e d to the actions that have been taken are what are most i m p o r t a n t for unit cohesion, good order and discipline. Q Is there any other way in which her discharge

p r o m o t e s unit cohesion? MR. PHIPPS: testimony, foundation. THE WITNESS: back to that. Uniform application. I'll go Objection: Scope of expert

The personnel policies that exist.

Uniform application of those policies is necessary for good order and discipline and unit cohesion. B Y MS. DUNNE: Q And I'm just trying to understand the basis

f o r your opinion or, I guess, just trying to understand as P e t e r just said, the scope. So you're only testifying -- you know what: L e t me strike that. There's no other -- besides the uniform a p p l i c a t i o n of the policy, you're not testifying as to any o t h e r basis as to how her discharge promotes unit c o h e s i o n ; is that correct? A I can -- I can go back to this, and it would If she weren't discharged, then the b e predischarge.

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p o l i c i e s had not been uniformly applied. Q So it sounds like because I'm trying to --

t r y i n g to make sure we get this accurate -- so it sounds l i k e from what you just said, you're testifying it's your o p i n i o n that because there wasn't a uniform -- or, sorry. You're testifying that -- I'm trying to see if t h e r e ' s anything else that you're testifying with respect t o how her discharge promotes unit cohesion. And it

s o u n d s to me like you're just saying that it's the uniform a p p l i c a t i o n of personnel policies, and that's it. n o t h i n g else. This is what I'm trying to understand, if t h e r e ' s anything else that you have to testify about with r e s p e c t to unit cohesion, how her discharge promotes unit c o h e s i o n besides the application of -- besides the uniform a p p l i c a t i o n of conduct policies. A Q A I believe that to be true. Okay. How do you define "unit morale"? How the unit feels about itself and how they There's

p e r c e i v e they're doing the job and how they get along. Q unit? A standards. Q And how do you define "discipline" as you've Proper procedures, proper implementation of How do you define "good order" in terms of a

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u s e d it -- the term here in D (3)? A The ability to be consistent, to be d i s c i p l i n e d about and to be consistent with the execution o f the jobs that are outlined for each unit. Q Okay. Okay. So getting back to unit morale,

h o w does her -- how does Major Witt's discharge further u n i t morale? A The discipline that was in the system and the p r o c e s s that was followed to the conclusions were within t h e guidelines and the standards and the processes and the e x e c u t i o n of those personnel policies. Q Is your opinion based on the -- when I say the Or do you mean the 446th and other units

u n i t , the 446th? A Q

w i t h i n the Air Force Reserves? I'm talking about all units. And specific to the 446th, is it correct to

s a y that Major Witt's discharge furthers unit morale b e c a u s e it's consistent with the uniform application of c o n d u c t policies? A That uniform application of that led us to the p r o p e r application of the standards that were there. Q Is there anything -- is there anything else

a b o u t Major Witt's discharge that furthers unit morale? MR. PHIPPS: expert opinion. Objection: Foundation, scope of

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Q state.

THE WITNESS:

The discharge being the end

Uniform application of the personnel policies

and the processes sustain good order and discipline. B Y MS. DUNNE: Q Are you providing any -- do you plan to

p r o v i d e any expert testimony on how Major Witt's -- if -o r I should say the reinstatement of Major Witt may f u r t h e r or not further unit morale? MR. PHIPPS: THE WITNESS: discharge board. Objection: Vague, misleading.

Due process took us to the

And the uniform application of those

personnel policies -B Y MS. DUNNE: Q A Q Uh-huh? -- is what I'm talking about. And so just to answer this question, do you

p l a n to provide any testimony to the Court as to whether M a j o r Witt's reinstatement furthers or does not further u n i t morale? MR. PHIPPS: Objection: Vague, misleading and

the document speaks for itself. THE WITNESS: B Y MS. DUNNE: And then how does Major Witt's discharge And I'm saying unit. You say No, I don't.

f u r t h e r unit good order?

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g o o d order here.

Is that -- let me rephrase that.

How does Major Witt's discharge further good o r d e r for the unit? A If we look at what it was that I stated, if s h e were not discharged, we would not have been through t h e uniform application of the personnel policies. Q Is there any other reasons that you plan to

t e s t i f y to as to how Major Witt's discharge furthers unit g o o d order besides the uniform application of the policy? A The discharge -- and, again, I'll just read it t o you -- if she were not, that would mean the Air Force p e r s o n n e l policies were not uniformly applied. Q A Uh-huh. And how does Major Witt's discharge

f u r t h e r unit discipline? If she had not been discharged, we would not h a v e applied uniformly the policies and processes that n e e d to be followed. Q Is there any other reasons in your opinion

t h a t Major Witt's discharge furthers unit discipline b e s i d e s the application of the uniform policy? MR. PHIPPS: opinion, foundation. THE WITNESS: Personnel policies and the Objection: Scope of expert

uniform application thereof led to an appropriate action which sustains unit morale and good order and

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discipline. B Y MS. DUNNE: Q So it sounds like there's no other reasons

t h a t Major Witt's discharge furthers unit discipline b e s i d e s the uniform application of the conduct policies? MR. PHIPPS: Objection: Characterization,

scope of expert opinion, lack of personal knowledge. THE WITNESS: The discharge board did what

they did based on the facts that they had and sustained good order and discipline in appropriately applying those policies. B Y MS. DUNNE: Q Uh-huh. For the -- for your opinion with

r e s p e c t to how Major Witt's discharge furthers unit m o r a l e , was the basis of your opinion your 38 years of e x p e r i e n c e in the military? A The good order and discipline and the morale w a s sustained and maintained because we applied the p e r s o n n e l policy that in my 35 -- 38 years is most appropriate. Q And so to get at that opinion that you just

s t a t e d , is there anything else besides your 38 years of m i l i t a r y experience that allows you to offer that opinion t o the Court? Were there research studies that you've looked

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at?

Any academic studies that you can -- that you

r e v i e w e d in forming the opinions that you set forth in E x h i b i t 2? A Q No. With respect to D (2), your opinion that you

g a v e in paragraph D (2)? MR. PHIPPS: A B Y MS. DUNNE: Q I'm sorry, Exhibit 2, and then I'm This is Exhibit... (No response.)

s p e c i f i c a l l y looking at paragraph D, subsection 2, pages 3 a n d 4. Besides your experience of 38 years in the

m i l i t a r y , is there any other research that you've done to s u p p o r t the opinion that you give in paragraph D (2)? A Q A Q No. No. No. Sir -- okay. There has been testimony in this Have you interviewed service members?

c a s e that there are several members of the 446th who are g a y and lesbian, and other unit members are aware of their s e x u a l orientation. There's also been testimony that the current C o m m a n d e r of the 446th knows of their sexual orientation. A n d , for example, that Commander disciplined one same-sex c o u p l e within the unit for fraternization but did not

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evidence before the witness. THE WITNESS: B Y MS. DUNNE: Q So given that you don't know about those, so I don't know about those.

l e t ' s assume -- okay, let's assume you learn this, right, b e c a u s e this is what's going to come at trial. t h e Judge -- let's just assume. h y p o t h e t i c a l right now. Let's say that we're dealing with the 446th a n d that hypothetically you learned the current Commander k n o w s there are gays and lesbians in the unit. They've I mean,

We'll raise it as a

b e e n disciplined for fraternization but not under "Don't A s k ; Don't Tell," same-sex couples. How do you reconcile your opinions given today w i t h her behavior? A Q Who's behavior? The Commander. MR. PHIPPS: misleading. THE WITNESS: it is you're saying. B Y MS. DUNNE: Q m a y ask you. So what if you did learn? Because the Judge I don't know anything about what I'm going to object as

What if you did learn, sir, that the current

u n i t has gay and lesbian members who have been disciplined

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Q

Are you aware that there's testimony in this

c a s e from multiple unit members that believe her discharge n e g a t i v e l y affected unit morale and cohesion? A Q No. If you were made aware of such testimony that

t h e y had testified that basically they love Major Witt, s h e does a great job, they don't care about her sexual o r i e n t a t i o n , they think her discharge was wrong, they d o n ' t have any problem with her being reinstated, does t h a t change your opinions at all that you gave here today? A I stand on the opinions that I gave that a u n i f o r m policy -- a uniform application of a policy is n e c e s s a r y for good order and discipline. Q Are you aware that the only evidence thus far

t h a t Major Witt's discharge furthers unit cohesion and m o r a l e is a statement made by the current Commander and t h e n your opinion here today? MR. PHIPPS: misleading. THE WITNESS: My opinion stands that we Objection: Characterization,

followed a process that got us to a point, and it was the uniform application of that process that leads to the good order and sustains the good order and discipline. B Y MS. DUNNE:

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