Witt v. Department of the Air Force et al

Filing 89

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

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 INTRODUCTION Defendants oppose the motion to compel production of documents, claiming that the information requested is irrelevant to the claims in this litigation. Defendants' contentions have no merit because the inquiry into Plaintiff's effect on unit cohesion and morale cannot be examined in a vacuum, and the requested information is germane to the inquiry. Further, Defendants tellingly do not address the deposition testimony in this case raised by Plaintiff in her moving papers, which confirms that certain relationships have impacted the morale of unit members, and other relationships show that command has allowed the presence of other gay or lesbian members to serve in the unit. Finally, contrary to Defendants' mistaken assertion, the parties all agree that a protective order should govern the production of these documents and
Pl Reply Memo. in Supp. of Pl Mot to Compel
(Case No. 06-5195)­ 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.

No. C06-5195 RBL PLAINTIFF'S REPLY MEMORANDUM 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

AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue #603 Seattle, Washington 98164 [phone]

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Plaintiff respectfully requests the Court to enter her proposed order granting this motion that contains such language. A. Information concerning Command's treatment of other gay or lesbian servicemembers and concerning a perceived relationship that negatively impacted unit morale is highly relevant to the assessment of Plaintiff's effect on unit cohesion and morale.

Defendants attempt to argue that the only evidence relevant to this case is Plaintiff's isolated effect on unit cohesion and morale. In their opposition, Defendants merely make the conclusory statement that information concerning other servicemembers' relationships has no bearing on Plaintiff's effect on unit cohesion and morale. Defendants fail to acknowledge any evidence obtained in this litigation up to now, of which shows that the unit commander of the 446th AES has permitted unit members to engage in same-sex relationships, or that unit morale has been negatively influenced by other perceived sexual relationships between unit members. In their opposition, Defendants do not address the deposition testimony Plaintiff presented in the moving papers. (Pl.'s Mot. To Compel at 3-5 (Dkt. No. 84)). This testimony supports a finding that the requested documents are relevant. Furthermore, discovery evidence obtained thus far shows that the current unit commander, Colonel Moore-Harbert, is of the opinion that Major Witt's known sexual orientation would negatively affect unit cohesion, morale, and discipline and that Major Witt's reinstatement with the 446th AES would likely have a negative impact on unit morale, cohesion or discipline. (Defs.' Objections and Resps. to Pl.'s First Reqs. for Admis., Interrogs. and Reqs. for Produc. Nos. 3 and 9 (Kung Reply Decl. Ex. A at 5-9)). At the same time, when asked, "What evidence do you have that Major Witt specifically would cause that reaction?" Col. Moore-Harbert answered, "I have no evidence." (Col. Janette Moore-Harbert Dep. (Kung Reply Decl. Ex. B at 12-16) 186:10-13; see also id. at 183:19-184:1, 186:14-188:7). In light of this testimony, it is significant that Col. Moore-Harbert disciplined two same-sex servicemembers for fraternization only, and that the servicemembers still remain serving. Because Defendants rely on the commander's assessment of Plaintiff's effect on unit
AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue #603 Seattle, Washington 98164 [phone]

Pl Reply Memo. in Supp. of Pl Mot to Compel
(Case No. 06-5195)­ Page 2

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cohesion and morale, any records that indicate the presence of other gay or lesbian unit members and her treatment of these unit members is relevant to discrediting this assessment. Additionally, Defendants rely on the unit climate surveys as a reliable gauge of the morale of the 446th AES at various points in time. (See Defs.' Mot. for Protective Order at 11 (Dkt. No. 63)). Since Defendants put at issue the unit climate surveys, Plaintiff is entitled to put on evidence of factors that have affected the morale of unit members, such as the perceived relationship between a prior commander and officer. Defendants also claim that disclosure of this information should be barred because it has potential to cause undue annoyance or embarrassment and Defendants cited one case to support this contention. See Gay-Straight Alliance of Okeechobee High Sch. v. Sch. Bd. of Okeechobee County, 242 F.R.D. 644 (S.D. Fla. 2007). In Okeechobee, the Court denied the defendants' attempt to inquire about the sexual orientation of club members, names of anonymous participants, and participants' personal lives outside of school, because that information was not necessary or even relevant to deciding the plaintiff's rights under the Equal Access Act. Id. at 644-45. Unlike the circumstances in the Okeechobee case, Plaintiff's requests for evidence here are directly tied to the inquiries at hand: unit cohesion and morale. B. Plaintiff has been willing to enter into a protective order governing the disclosure of the requested information.

Defendants are mistaken about Plaintiff's position. Plaintiff does not assert that Defendants should have disclosed information governed by the Privacy Act without a court order; instead, Plaintiff is well aware that Exception 11 of the Privacy Act allows for disclosure of information only pursuant to a court order. For this reason, Plaintiff proposed a draft Stipulation and Order to protect the confidentiality of such documents and information. (Kung Decl. Ex. B) (Dkt. No. 86). The proposed Stipulation and Order constituted an appropriate order of the court pursuant to the Privacy Act disclosure requirement. See e.g. Laxalt v. McClatchy, 809 F.2d 885, 887 (D.C. Cir. 1987) (where parties agreed to a Stipulation and Order authorizing
AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue #603 Seattle, Washington 98164 [phone]

Pl Reply Memo. in Supp. of Pl Mot to Compel
(Case No. 06-5195)­ Page 3

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limited disclosure of information pursuant to the Privacy Act). Plaintiff anticipated that parties would exchange other confidential information in the discovery period, and the draft of the Stipulation and Order was intended to serve the purpose which Defendants cite: "limit [] the persons having access to information, their freedom to discuss the information to which they are given access, and the uses to which the information may be put." (Defs' Opp'n to Pl's Mot. to Compel at 4-5 (Dkt. No. 88)). C. Plaintiff is entitled to attorney's fees because Defendants' refusal to enter into a protective order has no merit.

Defendants contend that Plaintiff is not entitled to seek fees for filing this motion because Defendants are statutorily prohibited from releasing information absent a court order, thus Plaintiff's position has no merit. Defendants overlook Plaintiff's attempts to avoid having to burden this Court with unnecessary motion practice. For over two weeks, Plaintiff offered to enter into a protective order, and waited for Defendants' response to the proposed Stipulation and Order. (Correspondence between counsel (Kung Decl. Ex. C, D and E at 18-24)). Plaintiff is entitled to seek fees because of Defendants' delay and refusal to agree to the Stipulation and Order. It is meritless to assert that the commander's treatment of current gay or lesbian members in the unit is irrelevant to this case. It is also meritless to put at issue the unit climate surveys which gauge unit morale, while then attempting to hinder Plaintiff's ability to put forth evidence of a perceived relationship that affected morale. The requested documents are thus reasonably calculated to lead to the discovery of relevant evidence. Moreover, discovery will close on June 7, which is less than two weeks away. Defendants have continuously delayed Plaintiff's efforts to effectively conduct discovery, thus compelling Plaintiff to file this motion that could have been reasonably resolved with the proposed Stipulation and Order. // // //
AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue #603 Seattle, Washington 98164 [phone]

Pl Reply Memo. in Supp. of Pl Mot to Compel
(Case No. 06-5195)­ Page 4

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 DATED this 27th day of May, 2010.

CONCLUSION For the reasons stated above, Plaintiff requests entry of an order compelling Defendants to produce documents responsive to the above-captioned Requests, and also seeks attorney's fees for this motion.

Respectfully submitted, AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: __/s/ Sher S. Kung______________ Sarah A. Dunne, WSBA #34869 Sher Kung, WSBA # 42077 ACLU of Washington Foundation 901 Fifth Avenue #603 Seattle, WA 98164 [e-mail] [e-mail] [phone] James Lobsenz, WSBA #8787 CARNEY BADLEY SPELLMAN 700 Fifth Avenue, Suite 5800 Seattle, WA 98104 [phone] [e-mail] Attorneys for Plaintiff

Pl Reply Memo. in Supp. of Pl Mot to Compel
(Case No. 06-5195)­ Page 5

AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue #603 Seattle, Washington 98164 [phone]

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CERTIFICATE OF SERVICE I hereby certify that on May 27, 2010, I electronically filed Plaintiff's Reply Memorandum in Support of Motion to Compel Production of Documents Responsive to Requests for Production Nos. 33 to 36 and Proposed Order 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 27th day of May, 2010.

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: /s/ Nina Jenkins Nina Jenkins Legal Program Assistant 901 Fifth Avenue #603 Seattle, WA 98164 Tel. [phone] [e-mail]

Pl Reply Memo. in Supp. of Pl Mot to Compel
(Case No. 06-5195)­ Page 6

AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue #603 Seattle, Washington 98164 [phone]