Witt v. Department of the Air Force et al

Filing 79

DECLARATION of Sher S. Kung filed by Plaintiff Margaret Witt re 77 MOTION for Protective Order Prohibiting Interference with Non-Party Witnesses by Defendants (Dunne, Sarah)

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Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MAJOR MARGARET WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE; et al., Defendants. DECLARATION OF SHER KUNG IN SUPPORT OF MOTION FOR PROTECTIVE ORDER PROHIBITING INTERFERENCE WITH NON-PARTY WITNESSES BY DEFENDANTS Case No. C06-5195-RBL

I, SHER KUNG, do hereby declare under penalty of perjury under the laws of the United States of America, that the following facts are true and correct: 1. I am over the age of 18 years, have personal knowledge of the facts contained in

this Declaration and am competent to testify to them. 2. I am counsel for the plaintiff. In the course of my duties as counsel for Major

Witt I have contacted several people who serve, or who previously served, in the 446th Aeromedical Evacuation Squadron, to ask them for information pertinent to the case. 3. Central to the plaintiff's case is the contention that prior to Major Witt's
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

DECL. OF SHER KUNG IN SUPPORT OF MOT. FOR PROTECTIVE ORDER PROHIBITING INTERFERNCE WITH NON-PARTY WITNESSES BY DEFS. -- Page 1 (Case No. C06-5195 RBL)

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suspension in 2004, several gay and lesbian persons served in the 446th AES for many years; that their sexual orientation was well known to members of the 446th; and that no one was bothered by this fact; and that the unit morale, discipline and cohesion did not suffer as a result. Several witnesses that have already been deposed in this litigation have testified that during their years of service in the 446th AES they suspected that there were gay and lesbian servicemembers serving in the unit, and that the presence of these members did not cause any problems. 4. I have attempted to contact numerous current and former members of the 446th

AES by telephone over the past two months. Some members have not returned my calls. Of the unit members that I have spoken with, more than one current servicemember has expressed hesitation to talk to me because they fear consequences. The members have told me that this fear stems from a recent Air Force briefing where they were given an instruction not to speak with Plaintiff's counsel without command's permission. I suspect that the reason other members have not responded to my attempts to contact them is that the Air Force instruction has had a chilling effect. 5. One member that I have spoken to is reluctant to identify himself/herself to the

Court for purposes of a declaration because s/he fears repercussions from his/her supervisors for speaking with me. 6. In interviews with Air Force personnel, I ask members questions about the

following topics: Major Witt's performance while serving in the 446th AES; knowledge of and reactions to Major Witt's suspension and discharge; suspicions of gay or lesbian persons serving in the 446th AES; whether members' sexual orientation has ever impacted or interfered with job performance, unit morale, unit cohesion and discipline; and service with Major Witt if she were to be reinstated. 7. I do not intend to ask any questions that will lead to discovery of classified Air

Force information or that could impact national security. Specifically, I will not ask questions about where specific personnel were deployed overseas, the nature DECL. OF SHER KUNG IN SUPPORT OF MOT. FOR PROTECTIVE ORDER PROHIBITING INTERFERNCE WITH NON-PARTY WITNESSES BY DEFS. -- Page 2 (Case No. C06-5195 RBL)
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

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or length of their missions, or the purpose of the missions. I only intend to ask whether and when a member has been deployed overseas in order to inquire about experiences with other crews upon deployment, and whether gay or lesbian servicemembers have ever created a problem overseas.

DATED this 27th day of April, 2010, in Seattle, Washington.

_/s/ Sher S. Kung___________________ Sher S. Kung, WSBA #42077

DECL. OF SHER KUNG IN SUPPORT OF MOT. FOR PROTECTIVE ORDER PROHIBITING INTERFERNCE WITH NON-PARTY WITNESSES BY DEFS. -- Page 3 (Case No. C06-5195 RBL)

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

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CERTIFICATE OF SERVICE I hereby certify that on April 27, 2010, I electronically filed this Declaration of Sher Kung in Support of Motion for a Protective Order Prohibiting Interference with Non-Party Witnesses 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 27th day of April, 2010.

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: /s/ Nina Jenkins Nina Jenkins Legal Program Assistant 705 Second Avenue, Suite 300 Seattle, WA 98104 Tel. [phone] [e-mail]

DECL. OF SHER KUNG IN SUPPORT OF MOT. FOR PROTECTIVE ORDER PROHIBITING INTERFERNCE WITH NON-PARTY WITNESSES BY DEFS. -- Page 4 (Case No. C06-5195 RBL)

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]