Witt v. Department of the Air Force et al

Filing 83

DECLARATION of Sarah A. Dunne filed by Plaintiff Margaret Witt re 77 MOTION for Protective Order Prohibiting Interference with Non-Party Witnesses by Defendants (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 v. UNITED STATES DEPARTMENT OF THE AIR FORCE; ET AL., Defendants. MAJOR MARGARET WITT, Plaintiff, No. C06-5195 RBL DECLARATION OF SARAH A. DUNNE IN SUPPORT OF REPLY MEMORANDUM FOR MOTION FOR PROTECTIVE ORDER PROHIBITING INTERFERENCE WITH NON-PARTY WITNESSES BY DEFENDANTS NOTE ON MOTION CALENDAR: MAY 7, 2010 ORAL ARGUMENT REQUESTED Pursuant to 28 U.S.C. § 1746, I, Sarah Dunne, hereby declare as follows: 1. 2. I am counsel for the plaintiff and have personal knowledge of the facts contained Attached hereto as Exhibit A is a true and correct copy of Defendants United in this Declaration. States et al. Supplemental Responses to Requests 3, 4, and 5 of Plaintiff's First Set of Requests
Decl of Sarah A. Dunne in Support of Reply Memo for Mot for Prot Order Prohibiting Interference with Non-Party Witnesses by Def. (C06-9195)--1 AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN WASHINGTON AT TACOMA DIVISION

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for Admission propounded in Log Cabin Republicans v. United States, Case No CV04-8425 (C.D. Cal.). 3. 4. Attached hereto as Exhibit B is a true and correct copy of an excerpt from the On April 21, 2010, I conducted a witness interview of a current unit member of deposition of Master Sergeant Stacey Julian, dated March 18, 2010. the 446th AES who is a gay or lesbian service member. This service member has retained private counsel to represent him/her during this litigation in the event s/he decides to testify and tell the truth about the unit culture and his/her sexual orientation. His/her attorney was also present when I conducted the interview. 5. On April 21, 2010, government counsel and I participated in a telephone conference concerning the issue of non-party witness interference. We discussed the issue for almost thirty minutes but were unable to reach a resolution amenable to both parties. Among the issues we discussed was whether the DoD Touhy regulations were applicable in litigation involving the United States as a party and if they were not, whether the conduct of the Department of Justice attorneys and Air Force counsel violated Rule 3.4(a), 8.4(a) and (d), and 1.7(a) of the Washington Rules of Professional Conduct. 6. In particular, I discussed with government counsel the fact that Plaintiff's counsel believed the Touhy regulations did not apply in litigation involving the United States based on the case law and my prior experience as a trial attorney for the United States Department of Justice. I further raised the point with government counsel that Plaintiff's counsel believed the only basis for objecting to the interviews was because of some privilege, such as national security. But I made the point that Plaintiff's counsel did not believe someone's sexual orientation was a matter of national security. Because Air Force counsel had previously raised the argument at the end of MSgt. Stacey Julian's deposition that the Air Force represented current personnel in their "official capacity," (Julian Dep. 63:19-64:18), I also informed government counsel that we believe any assertion of joint representation by the Government of the Defendants and Air Force personnel was a conflict under Rule 1.7(a) because current unit members may have interests adverse to Defendants. To support this, I shared with government
AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

Decl of Sarah A. Dunne in Support of Reply Memo for Mot for Prot Order Prohibiting Interference with Non-Party Witnesses by Def. (C06-9195)--2

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counsel that I knew of at least one current gay or lesbian unit member of the 446th AES who had retained private counsel. Government counsel contended that it could not order its client to issue a curative instruction and I asserted to government counsel that I did not believe DOJ could avoid its ethical obligations based on this reason pursuant to 8.4(a) and 8.4(d). We also discussed the fact that Washington had adopted Rule 3.4(a) but had not adopted Model Rule 3.4(f), as noted in Washington Comment [5]. I declare under penalty of perjury that the foregoing is true and correct, and that this Declaration was executed on May 7, 2010 in Seattle, Washington. _/s/ Sarah A. Dunne______________ Sarah A. Dunne, WSBA #34869

Decl of Sarah A. Dunne in Support of Reply Memo for Mot for Prot Order Prohibiting Interference with Non-Party Witnesses by Def. (C06-9195)--3

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

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Decl of Sarah A. Dunne in Support of Reply Memo for Mot for Prot Order Prohibiting Interference with Non-Party Witnesses by Def. (C06-9195)--4 AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

CERTIFICATE OF SERVICE I hereby certify that on May 7, 2010, I electronically filed Declaration of Sarah A. Dunne in Support of Reply Memorandum for Motion for Protective order Prohibiting Interference NonParty Witnesses by Defendants 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] Stephen J. Buckingham [e-mail] Bryan R. Diederich [e-mail]

Attorneys for Defendants

DATED this 7th day of May. 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]

EXHIBIT A

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EXHIBIT B

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prevent it from happening would be granted; is that right? A. Q. A. Yes, for a small moment. Small moment, what does that mean, a couple of days? No, the conversation that she had, and I don't know who she had it with, but it was with your office. Q. A. Mm-hmm. That there was a -- something was put in that they wanted to try to stop depositions. was mine or all of them. Q. A. I see. But I didn't think that that would happen, so I figured. Q. But in any event the Air Force's attorneys never told you that that attempt was made? A. No. MR. LOBSENZ: Thank you. I didn't know if it

(Off the record) COLONEL CARNES: I'd like to make a comment.

I do represent him in an official capacity. MR. LOBSENZ: mean by that. I'm not really sure what you

But he isn't a party, and I don't

believe you represent witnesses. COLONEL CARNES: In an official capacity, and And the Air Force is

he is a member of the Air Force.

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my client. MR. LOBSENZ: not. I agree with that, but he's

And I don't know that we need to have that

discussion here now, but it might turn into an issue later. But I did feel that it was important for me to

say that I would complain to the Judge bitterly if you in any way purported to give him legal advice. Because

I think that is a conflict there, you can't do that. You represent the Air Force, but you don't represent all the employees of the Air Force. You represent

those within the control group of the Air Force, which is probably the Secretary of the Air Force and the Assistant Secretary and maybe a few high-ranking Generals, and that is it. witnesses. either -MR. BUCKINGHAM: COLONEL CARNES: At that time and place. Resolve that issue. You don't represent the

But if we disagree about that, we can

(Deposition concluded) (Signature reserved)

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