Witt v. Department of the Air Force et al

Filing 85

DECLARATION of Sher Kung filed by Plaintiff Margaret Witt re 84 MOTION to Compel Production of Documents Responsive to Requests for Production No. 33 to 36 (Kung, Sher)

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MERICAN CIVIL LIBERTIES UNION

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.

No. C06-5195 RBL DECLARATION OF SHER KUNG IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF DOCUMENTS RESPONSIVE TO REQUESTS FOR PRODUCTION NOS. 33 TO 36. NOTE ON MOTION CALENDAR: MAY 28, 2010

Pursuant to 28 U.S.C. § 1746, I, Sher Kung, hereby declare as follows: 1. 2. 3. 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 an excerpt of Plaintiff's Attached hereto as Exhibit B is a true and correct copy of a letter dated April 23, in this Declaration. Second Set of Requests for Production of Documents and Things to Defendants. 2010, from Sarah Dunne to Bryan Diederich, including the attachment to the letter--a draft Stipulation and Order that would govern disclosure of any confidential personnel and medical records in this litigation.

DECL. OF SHER KUNG IN SUPP. OF MOT. TO COMPEL PROD OF DOCS RESP TO REQ FOR PRODUCTION NOS. 33 TO 36(Case No. 06-5195)­ Page 1

A OF WASHINGTON FOUNDATION

705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

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4. 5. 6. 7.

Attached hereto as Exhibit C are true and correct copies of excerpts from the Attached hereto as Exhibit D are true and correct copies of excerpts from the Attached hereto as Exhibit E are true and correct copies of excerpts from the Attached hereto as Exhibit F is a true and correct copy of an excerpt of

deposition of Captain Jill Robinson, dated March 16, 2010. deposition of Captain Edmond Hrivnak, dated March 17, 2010. deposition of Colonel Janette Moore-Harbert, dated February 25, 2010. Defendants' Objections and Responses to Plaintiff's Second Set of Requests for Production of Documents and Things. 8. On April 13, 2010, government counsel, Sarah Dunne and I participated in a telephone conference concerning Defendants' Objections and Responses to Plaintiff's Second Set of Requests. Government counsel restated their position that the Privacy Act contains no exception permitting disclosure of the requested documents. 9. On May 10, 2010, government counsel, Sarah Dunne and I participated in a telephonic meet and confer and government counsel conceded that there is a provision in the Privacy Act which allows for the release of Privacy Act information upon court order. Government counsel however confirmed that their client was unwilling to agree to a Stipulation and Order governing the handling of the documents requested here. The government stated that their client still maintained the position that the Privacy Act protects personnel files from disclosure. Government counsel also stated that they shared our interest in handling confidential documents in a careful manner. 10. Attached hereto as Exhibit G is a true and correct copy of a letter dated May 11, 2010, from Sarah Dunne to Bryan Diederich, memorializing the May 10 conversation. I declare under penalty of perjury that the foregoing is true and correct, and that this Declaration was executed on May 13, 2010 in Seattle, Washington. /s/ Sher S. Kung______________ Sher Kung, WSBA # 42077

DECL. OF SHER KUNG IN SUPP. OF MOT. TO COMPEL PROD OF DOCS RESP TO REQ FOR PRODUCTION NOS. 33 TO 36(Case No. 06-5195)­ Page 2

A OF WASHINGTON FOUNDATION

MERICAN CIVIL LIBERTIES UNION

705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

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CERTIFICATE OF SERVICE I hereby certify that on May 13, 2010, I electronically filed this Declaration Sher Kung in Support of Motion to Compel Production of Documents Responsive to Requests for Production Numbers 33 to 36 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 13th 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]

DECL. OF SHER KUNG IN SUPP. OF MOT. TO COMPEL PROD OF DOCS RESP TO REQ FOR PRODUCTION NOS. 33 TO 36(Case No. 06-5195)­ Page 3

A OF WASHINGTON FOUNDATION

MERICAN CIVIL LIBERTIES UNION

705 Second Avenue, Suite 300 Seattle, Washington 98104-1799 [phone]

E

XHIBIT A

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THE 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. PLAINTIFF'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS TO DEFENDANTS No. C06-5195 RBL

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiff Major Margaret Witt submits the following Second Set of Requests for Production of Documents and Things to Defendants (collectively the "Discovery Requests"), the Department of Air Force, Robert M. Gates, the Secretary of Defense, Michael B. Donley, the Secretary of the Air Force, and Colonel Janette Moore-Harbert. INSTRUCTIONS These Discovery Requests must be answered fully, in writing and under oath, and

the requested documents served on counsel for Plaintiff, within thirty days of service of these

Pl.'s Second Set of Req. for Produc. of Docs. to Defs., Page 1 of 12 (Case No. 06-5195)
5

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 705 SECOND AVENUE, SUITE 300 SEATTLE, WASHINGTON 98104-1799 [phone]

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MAJOR MARGARET WITT,
Plaintiff,
) ) )

)
) ) ) ) ) ) )

v. UNITED STATES DEPARTMENT OF THE AIR FORCE, et ai, Defendants.

No. C06-5195 RBL

DEPOSITI ON UPON ORAL EXAMINATION OF COLONEL JANETTE MOORE-HARBERT

TAKEN AT Carney Badley Spellman

701 Fifth Avenue, Suite 3600
Seattle, WA 98104

FEBRUARY 25, 2010

THURSDAY, 9:00 A.M.

Reported by: MARIE WHITE, CSR # WH-IT-EM-*29906

37

80 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

crosses your mind to think this person probably is of

this sexual orientation.

In thirty-two years other

than Major Witt have you ever suspected any other person in the Armed Forces to be gay or lesbian?

MR. PHIPPS: form.

Objection , characterization and

A.
Q.

I don't know. You don't remember ever suspecting any such person?

MR. PHIPPS,

Objection, vague.

A.

My focus is I focus on the fact that I try to keep
myself professional. out. I am not interested in finding

Q.

I am not asking if you're interested.

A.

And from the standpoint of I don't lead myself down
that line of trying to say I am going to suspect one

way or the other.

Q.

So are you saying that you actively prevent yourself from considering the possibility whenever you meet anyone, you just don't want to consider it?

A.

I don't think that is an important avenue unless it brought to me specifically against that criteria that we discussed with the military.

Q.

Okay.
That there is a concern. How about outside the military?
38

A.
Q.

85 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
39

A.
Q.

That's correct.

It is a fraternization issue.

Does it cross your mind that they were having a sexual

relationship?

A.
Q.

Did it cross my mind?
Yes. No, my focus was fraternization.

A.
Q.

It didn't cross your mind? My focus was fraternization.

A.
Q.

Did it cross your mind?
My focus was fraternization. Did it cross your mind that they were having a sexual relationship? I don't care what your focus was.

A.
Q.

Did it cross your mind?

A.
Q.

No, because my issue was fraternization. Okay, and did you learn how they came to be living

together?

A.

I had someone that I actually bad initiation of what

was called a command directive investigation on the
issue of fraternization. came together.

And I don't know how they

The issue was the fact that the

fraternization issue of the two of them renting, one renting from the other, the officer and the enlisted, was inappropriate.

Q.

Didn't you learn that -- w h a t is the name of the other

86
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woman?

It was ISM-C

and the other woman was?

2 3 4 5 6 7 8 9 10
11

A.
Q.

SM-D SM-D Thatls correct? Did you learn how where SM-D
?

A.
Q.

had been

before she was with the 446th?

A.
Q.

No.
You never learned that? She was -- s h e came into our squadron as a

A.

l1li

And the only thing in that I knew
was that she was also what is called a

12
13

Q.

You didntt l e a r n why she came and transferred to the
446th?

14 15 16 17 18 19 20 21 22 23 24 25
40

A.

No, I was unaware why she came, she came over and was

hired as the
Q.
So no one ever suggested to you that she came in order to live with SM-C
?

A.
Q.

Nope .
Okay. Did you discipline either of these people?

A.
Q.

Yes, I did.
Who did you discipline?
I

A.

gave

SM-C

, itls

SM-C

now, a

Letter of Admonishment for the fraternization issue . And SM-D got a Letter of Counseling.

-

.

92 1 2 3

A.
Q.

He confirmed fraternization. That is not what I am asking.
I don't have the Police Report in front of me. He

A.

,
5 6 7 8 9 10 11 12 13
l'

confirmed fraternization.
Q.

Okay.

To you that means that he confirmed they lived

together in the same house?

A.

He confirmed that an officer and an enlisted were living together.

Q.

Anything else he confirmed?
Not in the COl.

A.
Q.

Did he confirm they had a domestic incident?
I don't have the report in front of me to be able to

A.

refer to.
Q.

Who did he interview?
MR. PHIPPS: Objection, foundation.

15 16 17 18 19 20 21 22 23 2' 25

A.
Q.

Again I don't have the report.
You don't remember who he interviewed? It more than likely would have been the parties involved. But I don't have it in front of me.

A.

Q.

Okay.

And after you got the report did you at that

point have any reason to suspect that either one of these women was a lesbian?

A.

Suspect based off of the criteria that we talked about suspect?

Q.
41

Suspect the way that I have consistently asked you the

....

·

93 1 2 3
4

question about suspect. A.

Did it cross your mind?

And in this particular instance, I am using suspect based off of the criteria.

Q.

Okay, but I'm not .

11m asking you after you read this

5 6 7 8 9 10
11

report did it cross your mind? A. I don't know.
SM-C

Q.
A.

is still with the unit?

Yes, she is.

Q.

Did this incident cause in your opinion any morale
problems in the unit?

A.

I don't know that the information went out in the unit
regarding this. This is not something that we will

12
13

discuss -Q.
A.

1. 15 16 17 18 19 20 21 22 23 24 25
42
I ,

You think nobody else knows it?
I have no idea. the incident? I don't go out and tell the unit of

Q.

So you have no sense of whether anyone else in the unit
knows about it?

A.

That's correct .

Q.

When you gave the Letter of Admonishment to
SM-C

was anyone else present? I can't remember who it was.

A.

There was.

Q.

Did you instruct whoever it was to keep it secret and not tell anyone?

A.

Well, it's an action that occurs between a Commander

--

EXHIBIT F

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Judge Ronald B. Leighton 2
3 4

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6

7
8

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10 II
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MAJOR MARGARET WITT, Plaintiff,
v.
) )

)
)

No. C06-5195 RBL DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFF'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS

14

UNITED STATES DEPARTMENT OF THE AIR FORCE, et al., Defendants.

15 16

) ) ) ) )
) ) ) ) )

17
18

-----------------------------)
Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendants the Department of the Air Force, Robert M. Gates, the Secretary of Defense, Michael B. Donley, the Secretmy of the Air Force, and Colonel Janette Moore-Harbert, the commander of the 446th Aeromedical Evacuation Squadron, McChord Air Force Base, hereby submit the following objections and responses to Plaintiffs Second Set of Requests for Production of Documents and Things (the "Requests"). GENERAL OBJECTIONS
I.

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Defendants object to the definitions and instructions in the to the extent that they

conflict with or purpOli to expand upon Defendants' obligations under the Federal Rules of Civil Procedure or the Civil Rules for the United States District Court for the Western District of
(C06-5195-RBL) DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFF'S SECOND REQUESTS FOR PRODUCTION - I 44
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION. FEDERAL PROGRAMS BRANCH
P.o. Box 883, BEN FRANKLlN STATION

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WASJ-IlNGTON, D.C. 20044 [phone]

SM-A A SM-B

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EXHIBIT G

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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

I

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

49

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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