Witt v. Department of the Air Force et al

Filing 126

DECLARATION of Sarah Dunne filed by Plaintiff Margaret Witt re 115 MOTION for Sanctions due to Spoliation of Evidence (Dunne, Sarah)

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 27 28 29 Pursuant to 28 U.S.C. § 1746, I, Sarah Dunne, hereby declare as follows: 1. 2. 3. 4. I am counsel for Plaintiff and have personal knowledge of the facts contained in Attached hereto as Exhibit A are true and correct copies of excerpts from the Attached hereto as Exhibit B is a true and correct copy of documents numbered Attached hereto as Exhibit C is a true and correct copy of a memo as produced by
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Decl. of Sarah Dunne in Supp. of Reply in. Supp. of Mot. For Sanctions Due to Spoliation of Evidence (Case no. C06-5195) ­ Page 1

Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN WASHINGTON AT TACOMA DIVISION

MAJOR MARGARET WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE; et al., Defendants.

Case No. C06-5195-RBL DECLARATION OF SARAH DUNNE IN SUPPORT OF PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE NOTE ON MOTION CALENDAR: AUGUST 13, 2010 ORAL ARGUMENT REQUESTED

this Declaration. deposition of General Eric W. Crabtree, dated March 24, 2010. AF026763-768 as produced by Defendants. Defendants, from Colonel Eric Crabtree to Major Adam Torem and is dated October 1, 2004.
CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

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5.

Attached hereto as Exhibit D is a true and correct copy of a memo as produced by

Defendants, from Lieutenant Colonel Stephen Geringer to 446 MSS/DPMAR dated December 8, 2004. 6. 7. Attached here to as Exhibit E is a true and correct copy of a letter dated On July 14, I sent a letter to government counsel requesting they produce May 11, 2010, from Sarah Dunne to Bryan Dierderich. unredacted copies of documents numbered AF26763 to 26773. As of today's date, Plaintiff's counsel has not received unredacted copies of documents numbered AF26763 to 26773. I declare under penalty of perjury that the foregoing is true and correct, and that this Declaration was executed on August 6, 2010, in Seattle, Washington. /s/ Sarah A. Dunne Sarah A. Dunne, WSBA #34869

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Decl. of Sarah Dunne in Supp. of Reply in. Supp. of Mot. For Sanctions Due to Spoliation of Evidence (Case no. C06-5195) ­ Page 2

CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

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ERTIFICATE OF SERVICE I hereby certify that on August 6, 2010, I electronically filed this Declaration of Sarah Dunne in Support of Reply 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 6th day of August, 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]

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Decl. of Sarah Dunne in Supp. of Reply in. Supp. of Mot. For Sanctions Due to Spoliation of Evidence (Case no. C06-5195) ­ Page 3

CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

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EXHIBIT A

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MARGARET WITT, Major, ) ) Plaintiff, ) ) v. ) ) UNITED STATES DEPARTMENT OF THE ) AIR FORCE; ROBERT M. GATES, ) Secretary of Defense; MICHAEL B. ) DONLEY, Secretary of Department ) of the Air Force, Colonel; ) JANETTE L. MOORE-HARBERT, ) Commander of the 446th ) Aeromedical Evacuation Squadron, ) Colonel; McChord AFB, ) ) Defendants. ) _________________________________)

NO. C06-5195-RBL

Deposition of MAJOR GENERAL ERIC W. CRABTREE, taken on behalf of Plaintiff, at 2040 Main Street, Suite 250, Irvine, California, commencing at the hour of 1:12 p.m., ending at 2:31 p.m., on Wednesday, March 24, 2010, before MICHELLE LOTT-MEYERHOFER, CSR 8226

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Major General Eric W. Crabtree
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have been relatively quick. not take long. BY MR. LOBSENZ: Q

Normally, those things do

Can you be pretty confident that it was after

May 18, 2004? A Yes. MR. DIEDERICH: BY MR. LOBSENZ: Q So sometime between May 18, 2004 and early July, Objection to form.

we can narrow it down to that period with relative certainty? A Q Yes. Okay. Were you sent by Air Force Reserve

Command the complaint -- I think that's the word you used -- that was sent to General Jumper? A Q No. You weren't. Did you ever see the e-mail

complaint that was sent to General Jumper? A Q Sherrard. Not to my recollection. Okay. So you get these orders from General

And does he say in his orders to you that he

got these from General Jumper or from General Jumper's staff? MR. DIEDERICH: THE WITNESS: Objection to form. It was made clear that the

Yes.

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Major General Eric W. Crabtree
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July 7th, he says in paragraph two: evidence."

"I have reviewed the

Do you know what evidence he's talking about? A No. I would -- I would assume he was talking

about the letter that came designated telling us to do the investigation and the allegations. Q Are you assuming that is this letter the letter

that was sent to General Jumper or what letter are you talking about? MR. DIEDERICH: THE WITNESS: Objection to form.

I would believe that it was the

information coming from General Jumper's office with an outline of the allegations. BY MR. LOBSENZ: Q Okay. So your belief is that he did not see the

underlying complaint from whoever complained to General Jumper? MR. DIEDERICH: THE WITNESS: BY MR. LOBSENZ: Q Okay. Did you ever, at any time, hear the name Objection to form.

I would believe not.

of the person who made the complaint to General Jumper? A Q I did. I know it was a Mr. McChesney.

And you do not have any recall of ever reading

the actual letter or e-mail sent by McChesney to the Air

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Major General Eric W. Crabtree
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Force? A Q I don't recall reading it, no. General Duignan, did he consult with you before

he authorized the fact-finding inquiry? A Q Not that I recall. He didn't ask your opinion whether you thought

an inquiry should be launched? A Q No. At any time do you recall giving General Duignan

your opinion as to whether or not a fact-finding inquiry should be started? A Q No. Did you have an opinion as to whether one should

be started? A No. Whenever we get directed to do one of

these, we -- we find an investigating officer and begin the process without questioning it. Q As I understand it, you're telling me: It

doesn't matter what my opinion was, because I've been directed to do this? A Q Exactly, yes. Have you ever stopped and dwelt upon the If you had not been ordered to do it, but

question of:

had been allowed the discretion to decide yourself, do you have any opinion as to what you would have done?

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Major General Eric W. Crabtree
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MR. DIEDERICH: THE WITNESS: about that. BY MR. LOBSENZ: Q Okay.

Objection to form.

No, I have never really thought

Did you talk to Coronal Walker before you

made the request of General Duignan? A Q I don't remember speaking with her about it, no. From the time that you got the directive from

General Sherrard to the time you got the memo of July 7th from General Duignan, can you remember talking to anyone else in the world other than the Judge Advocate General and your lawyer and the Judge Advocate Office? Can you

remember talking to anybody else in the world about Major Witt's case or this investigation? MR. DIEDERICH: THE WITNESS: anybody about it. BY MR. LOBSENZ: Q What did you do after you got authority from Objection to form.

No, I don't remember talking to

General Duignan to proceed? A We appointed Major Torem, and he came in. I had

a briefing with him on basically the type of investigation being done, which was a commander directed investigation. Q Could you explain that to me? Bearing in mind

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Major General Eric W. Crabtree
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Who are you concurring with? The Judge Advocate's Office prepares -- they do

a legal review and prepare a letter that's attached to the file saying that they believe the case -MR. DIEDERICH: I don't want you to get into the

specific content of what the Judge Advocate General would say to you. THE WITNESS: BY MR. LOBSENZ: Q I don't want to ask about that either. I'm just Okay.

looking for the identity of the person that you're concurring with. And that's some person within the Judge

Advocate General's office on base at McChord? A Q That's correct. And this, I think, you could answer if there's

no -- would that be Gerringer or do you know? A Q It would be. Okay. So when this sentence says: "Forwarded

is the legal review of the Commander's recommendation," who is the "Commander"? What's the identity of the

"Commander" in that sentence? A Q That would be Coronal Walker. I see. The court reporter's handed you Exhibit No. 7, which, as you can see, is redacted so that the entire

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Major General Eric W. Crabtree
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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 no.

A Q

No, I don't remember discussing it with her. Or with Coronal Janette Moore-Harbert, do you

remember discussing it with her ever? A Q No. Did she ever come to you and inquire whether she

had the authority to retract or counterman Coronal Walker's recommendation? A No, I don't remember ever having that

conversation. Q Do you remember getting any communication from

Air Force Robins from Reserve Headquarters asking for further information or further consideration of the case? A No, I don't remember any conversations or

information. Q Other than Major Witt, have you had any prior

experience, while in the Air Force, with any investigations or discharges of any service member on the grounds that they were suspected of being gay or lesbian? A Prior? MR. DIEDERICH: Objection. Before you answer, I

just want you to exclude the names, because I think they are probably covered by the privacy act. MR. LOBSENZ: Right now I'm just asking yes or

MR. DIEDERICH:

Okay.

That's fair.

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Major General Eric W. Crabtree
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THE WITNESS: MR. LOBSENZ: THE WITNESS: BY MR. LOBSENZ: Q

Prior to this case? Yes. Not prior to this case, no.

So this was the first one ever that you'd ever

been involved with? A Q Yes. Okay. Since Major Witt, you have been involved

in subsequent investigations for discharges of a gay or lesbian service member? A Q A Q A Q Yes. How many? Two. Two more? Yes. I don't want to know names, but were either of

those at Air Force Base McChord? A Q A Q No. What base were they at? The Air Reserve Personnel Center in Denver. I don't want to know names, but what would your

role have been in each of those? MR. DIEDERICH: THE WITNESS: commander. Objection to form.

In those cases, I was their direct

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Major General Eric W. Crabtree
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EXHIBIT B

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Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

AF026763 14

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

AF026764 15

Attorney work product; deliberative process privilege

Attorney-client privilege; Attorney work product; deliberative process privilege

AF026765 16

AF026766 17

AF026767 18

AF026768 19

EXHIBIT C

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AF026533 21

EXHIBIT D

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EXHIBIT E

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SARAH DUNNE
LEGAL DIRECTOR

ACLU
AMERICAN CIVil LIBERTIES UNION of WASHINGTON

NANCY TAlNER
STAFF ATTOR NEY

ROSE SPIDELL
STAFF ATTORN EY FLOYD AND DELORES JON ES FAM ILY FELL OW

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May 11,2010

S HER KUNG
PERKINS COlE FELLOW

LIND S EY SOFFES
ROPES & GRAY FELLOW

Via E-mail Bryan R. Diederich Peter J. Phipps Stephen 1. Buckingham Civil Division, Federal Programs Branch U.S. Department of Justice 20 Massachusetts Ave., N.W. Washington, D.C. 20001

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION
705 2ND AVENUE, 3 RD FL. SEATTLE, WA 981 04

Re:
Dear Bryan and Steve,

Witt v. U.S. Air Force et aI., No. C06-5195 (W.D. Wash.)

T/20b.b24.2184
F/20b.b24.2190

WWW.ACL U-WA .ORG
J ESSE WING BOARD PRESIDEN T

KATHLEEN TAYLO R
EXECUTIVE DIRECTOR

Thank you for the productive phone conference yesterday concerning Defendants ' Objections and Responses to Plaintiffs Second Set of Requests for Production of Documents and Things. I am writing to confirm our understanding of the agreements we reached yesterday relating to certain outstanding discovery matters.
Requests Nos. 1-8,10 and 11

First, we asked about Defendants' ongoing efforts to respond to Requests for Production Nos. 1-8, 10 and 11. Our understanding is that you tasked an Information Technology (IT) group at Joint Base Lewis-McChord to run a search on the local server for the 446th AES for responsive documents, that some documents were found, and that DOJ will have an opportunity to review those documents and produce any responsive documents in the next week. We further understand that you have tasked an IT group located at a separate military base that has access to the 446th AES server at a different level to re-run similar searches to identify responsive documents. The target date for completion of thi s search is the end of this week with any responsive documents being produced shortly thereafter on a rolling basis. Finally, you also mentioned that because you suspect that reservists may not use their military email accounts regularly due to the infrequency of being on base, DOJ has tasked a JAG officer to call and speak with members directly to ask about their use of private email accounts. If members confirm that they do in fact use other services such as gtnail or yahoo, the JAG officer will ask them to run a search with specific key telms in order to identify responsive documents. All responsive, non-privileged documents will be produced on a rolling basis, but no later than June 7. Second, we asked whether Defendants, key decision makers (such as Generals Jumper, Dguinan or Sherrard), and 446th unit members with relevant knowledge

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Letter to DO] May 11, 2010 Page 2

about Major Witt's suspension and discharge were asked to retain any files or documents concerning Major Witt's suspension and discharge via a litigation hold, either in writing or by oral instruction. Our understanding from you is that the Air Force has never given such an instruction either orally or in writing to Defendants, key decision makers, and 446th unit members with relevant knowledge about Major Witt's suspension and discharge. Thus, no litigation holds were put in place to prevent the destruction of documents that may have been relevant to Major Witt's suspension or discharge. Based on your representation that DOJ is conducting a search for documents responsive to Requests Nos 1-8, 10 and 11 and will produce any remaining responsive documents on or before June 7, coupled with the absence of litigation holds, Plaintiff will not file a motion to compel with respect to these pat1icular Requests because such a motion has no purpose if there are no documents remaining, either because they were destroyed or because they do not exist. Instead, Plaintiff may seek remedial relief relating to spoliation of evidence from the Court at a later date.

Request Nos. 25 and 31
We also discussed Request for Production No. 25 and you confirmed that Defendants have produced all responsive, non-privileged documents subj ect to any supplemental production pursuant to Rule 26(e). With respect to Request for Production No . 31, Defendants initially objected to the request for "all public statements made by the Defendants" concerning "U.S. Armed Forces personnel and sexual orientation or sexual conduct between two people of the same sex" on the basis that the materials are equally available to both patties because the documents were at some point in the public domain (either via a speech presented in a public forum or available on the Internet). To confirm whether Plaintiff has all responsive documents, I agreed that Plaintiffs counsel wi ll seat'ch for any docwnents responsive to Request No. 31 available over the internet and produce the same; DOl will contact the Department of Defense press office to confirm whether any responsive docunlents other than the ones produced by Plaintiff exist and if so, Defendants will produce those additional responsive documents.

Request Nos. 33-36
With respect to Requests for Production Nos. 33-36, we understatld that your client is unwilling to agree to a protective order, and objects to the production of members' personnel files, in whole or in part, based on the Privacy Act. Parties agree that Plaintiff will file a motion to compel on the above docwnent requests, and will redact members ' names in order to maintain privacy.

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Letter to DO] May 11, 2010 Page 3

Please contact me if any of the above representations is inaccurate, or if you have any questions about the contents of the letter.

Sincerely,

Sarah A. Dunne Legal Director

cc: James Lobsenz

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