Witt v. Department of the Air Force et al

Filing 92

MOTION to Amend 87 Order on Motion for Protective Order,by Defendants Department of the Air Force, Donald H Rumsfeld, Michael W Wynne, Mary L Walker. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order) Noting Date 6/18/2010, (Phipps, Peter)

Witt v. Department of the Air Force et al

Doc. 92

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Judge 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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. C06-5195 RBL DEFENDANTS' MOTION TO AMEND THE ORDER OF MAY 17, 2010 (Note Defendants' Motion on the Motion Calendar for June 18, 2010)

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Defendants have fully complied with the Court's order for a curative instruction dated May 17, 2010 (Docket #87), but now respectfully request that the Court amend one sentence of the findings in support of that order. By way of background, the Court's order required "counsel for defendants to issue a curative instruction in writing to all current unit members of the 446 AES" with a specified text. See Order at 2. The Air Force has done so already, going well beyond that which the Court directed. The Air Force issued a curative instruction signed by two Air Force counsel and the commander of the 446th Aeromedical Evacuation Squadron. See Declaration of Lt. Col. Todi S. Carnes ¶ 5 (copy attached as Ex. 1). The Air Force sent the curative instruction via U.S. Mail not just to every current member of the 446th AES, but also to any former members who were
( C 0 6 -5 1 9 5 -R B L ) DEFENDANTS' MOTION TO AMEND THE ORDER O F MAY 17, 2010 - 1
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Dockets.Justia.com

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members at the time the Air Force briefed the 446th AES regarding the DoD and Air Force regulations. See id. ¶ 6, Attach. The Air Force also emailed the curative instruction to the official email address of every current member of the unit. See id. Moreover, the Air Force posted a copy of the curative instruction in the squadron's bulletin board. See id. Having already taken these actions in response to the Court's order, defendants nonetheless respectfully request that the Court delete one sentence of that order, specifically, the last sentence on the first page of the order: The Court further FINDS that the Defendants' instruction to non-party former and current Air Force employees requiring Air Force consent before non-party former and current Air Force employees may voluntarily speak with counsel for Plaintiff concerning this litigation is contrary to Washington Rules of Professional Conduct 3.4(a). Order at 1. Defendants seek this amendment to the Court's order to avoid any potential issues, ethical reporting, or collateral attacks that individual Air Force counsel may otherwise encounter. Three reasons support defendants' request. First, the requested deletion is of a further finding, which is not necessary to the integrity of the Court's order, or for compliance with the Court's order. Second, Air Force personnel were acting in good faith in their original instructions. See Carnes Decl. ¶¶ 2-3; Declaration of Maj. Linell Letendre ¶¶ 2-3 (copy attached as Ex. 2). Moreover, they were acting pursuant to federal regulations, which in the context of informal factgathering, have never been found by any court to be inappropriate. Third, Washington Rule of Professional Conduct 3.4(a) speaks only of "unlawful" efforts at obstructing access to evidence. Defendants submit that in these circumstances with the presence of valid and lawful Department of Defense and Air Force regulations, Air Force personnel should not as a consequence thereof be confronted with potential ethics issues for actions taken in good faith. Accordingly, defendants respectfully seek amendment of May 17, 2010 order through deletion of the one identified sentence.

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Dated: June 1, 2010

Respectfully submitted, TONY WEST Assistant Attorney General VINCENT M. GARVEY Deputy Branch Director /s/ Peter J. Phipps PETER J. PHIPPS BRYAN R. DIEDERICH STEPHEN J. BUCKINGHAM United States Department of Justice Civil Division, Federal Programs Branch Tel: [phone] Fax: [phone] E-mail: [e-mail] Mailing Address: Post Office Box 883, Ben Franklin Station Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Attorneys for Defendants

Of Counsel: LT. COL. TODI CARNES 1777 N. Kent Street, Suite 11400 Rosslyn, VA 22209-2133 [phone]

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA CERTIFICATE OF SERVICE

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I hereby certify that on June 1, 2010, I electronically filed the foregoing Defendants'
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Motion to Amend the Order of May 17, 2010, with the Clerk of the Court using the CM/ECF
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system which will send notification of such filing to the following persons:
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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

James E. Lobsenz, Esq. Carney Badley Spellman, P.S. 701 Fifth Avenue, Suite 3600 Seattle, WA 98104 Tel: [phone] Fax: [phone] E-mail: [e-mail]

Sarah A. Dunne, Esq. American Civil Liberties Union of Washington 705 Second Avenue, Suite 300 Seattle, WA 98104 Tel: [phone] E-mail: [e-mail] Sher S. Kung, Esq. American Civil Liberties Union of Washington 705 Second Avenue, Suite 300 Seattle, WA 98104 Tel: [phone] E-mail: [e-mail]

/s/ Peter J. Phipps PETER J. PHIPPS United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883, Ben Franklin Station Washington, DC 20044 Tel: [phone] Fax: [phone] E-mail: [e-mail] Attorney for Defendants