Witt v. Department of the Air Force et al

Filing 127

DECLARATION of Michelle McCluer 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 I, MICHELLE MCCLUER, do hereby declare as follows: 1. 2. I am over the age of 18 years, have personal knowledge of the facts contained in I served on active duty as a judge advocate ("JAG") in the United States Air this Declaration and am competent to testify to them. Force from 1997 to 2008. I served as a prosecutor, a base defense counsel, and a senior defense counsel in courts-martial throughout the western United States and the Pacific Rim. In 2003, I began a three-year assignment as an appellate counsel, writing briefs and arguing cases before the Air Force Court of Criminal Appeals and the Court of Appeals for the Armed Forces. I spent v. UNITED STATES DEPARTMENT OF THE AIR FORCE; ET AL., Defendants. MAJOR MARGARET WITT, Plaintiff, No. C06-5195 RBL DECLARATION OF MICHELLE MCCLUER IN SUPPORT OF REPLY MEMORANDUM FOR MOTION FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE NOTE ON MOTION CALENDAR: AUGUST 6, 2010 ORAL ARGUMENT REQUESTED UNITED STATES DISTRICT COURT WESTERN WASHINGTON AT TACOMA DIVISION Honorable Ronald B. Leighton

DECL. OF MICHELLE MCCLUER IN SUPP. OF REPLY MEMO. FOR 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

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my final two years on active duty as the Assistant Director of the legal office at Andrews Air Force Base in Maryland, home of Air Force One. 3. Since September 2008, I have served as the Executive Director of the National Institute of Military Justice at American University Washington College of Law in Washington, DC. I list my affiliations for background and identification purposes only. I make this declaration in my individual capacity, not as a representative of the Department of Defense or the National Institute of Military Justice ("NIMJ"), nor do I take a position as to the merits of this motion or the pending case as a whole. 4. 5. 6. Attached hereto as Exhibit A is a copy of documents numbered AF026763Attached hereto as Exhibit B is a copy of documents numbered AF026769I have reviewed the email strings attached as Exhibits A and B. With the AF026768, which Plaintiff's counsel provided to me for review. AF026773, which Plaintiff's counsel provided to me for review. exceptions of General Jumper and Major General John Batbie (AFRC/CV), none of the recipients in the string of the emails are commanders in Major Witt's chain of command. The "AFRC/CV" position is the second-highest position in the Air Force Reserve Command, though he generally does not have command authority to order an investigation. It is, however, possible that an AFRC/CV may have had temporary command authority if he was "on G-series orders." Other than General Jumper and possibly Major General Batbie, none of the other addressees have authority to order an investigation into allegations of homosexual conduct. 7. In general, JAG officers do not have command authority in the U.S. Air Force. JAG officers are advisors, not commanders (with the exception of one JAG position in the Air Force, the Air Force Legal Operations Agency Commander, who has command authority over paralegals and other JAGs). JAG officers cannot give orders to commanders. Accordingly, a JAG officer has no authority to order an inquiry into allegations of homosexual conduct. // // //
DECL. OF MICHELLE MCCLUER IN SUPP. OF REPLY MEMO. FOR MOT. FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE (Case No. 06-5195)­ Page 2

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

MERICAN CIVIL LIBERTIES UNION

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

CERTIFICATE OF SERVICE I hereby certify that on August 6, 2010, I electronically filed this Declaration of Michelle McCluer in Support of Reply Memorandum for 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]

DECL. OF MICHELLE MCCLUER IN SUPP. OF REPLY MEMO. FOR MOT. FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE (Case No. 06-5195)­ Page 4

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

MERICAN CIVIL LIBERTIES UNION

EXHIBIT A

5

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

AF026763 6

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

AF026764 7

Attorney work product; deliberative process privilege

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

AF026765 8

AF026766 9

AF026767 10

AF026768 11

EXHIBIT B

12

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

AF026769 13

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

Attorney work product; deliberative process privilege

AF026770 14

Attorney work product; deliberative process privilege

AF026771 15

AF026772 16

AF026773 17