Witt v. Department of the Air Force et al

Filing 94

DECLARATION of Sarah Dunne filed by Plaintiff Margaret Witt re 92 MOTION to Amend 87 Order on Motion for Protective Order, (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 Pursuant to 28 U.S.C. §1746, I, Sarah Dunne, hereby declare as follows: 1. I am counsel for Plaintiff and have personal knowledge of the facts contained in MAJOR MARGARET WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE; et al., Defendants. Case No. C06-5195-RBL DECLARATION OF SARAH DUNNE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO AMEND THE ORDER OF MAY 17, 2010 NOTE ON MOTION CALENDAR: June 18, 2010 UNITED STATES DISTRICT COURT WESTERN WASHINGTON AT TACOMA DIVISION Honorable Ronald B. Leighton

this declaration. 2. Based on the facts which are known to Plaintiff's counsel as of the date of this

declaration concerning the specific conduct relating to conditioning informal non-party witness interviews, none of Plaintiff's counsel intend to report this Court's May 17 Order to the Washington State Bar or any other state's bar. 3. On May 10, Sher Kung and I participated in a telephone conference call with

government counsel concerning various discovery matters. Attached hereto as Exhibit A is a
Decl. of Sarah Dunne in Supp. of Pl. Opp. to Defs. Mot. to Amend Order of May 17, 2010 (Case no. C06-5195) ­ Page 1

AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

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true and correct copy of a letter dated May 11, 2010, from me to Bryan Dierderich memoralizing the May 10 telephone conference discussion. During this telephone conference, we learned that Air Force counsel had never given an instruction, either in writing or orally, to preserve files and documents that may be relevant to this litigation to Defendants, key decision-makers (such as Generals Jumper, Duignan or Sherrard), or 446th unit members with relevant knowledge about Major Witt's suspension or discharge. From deposition testimony and other discovery, we know that relevant documents and electronic discovery was not preserved. 4. Attached hereto as Exhibit B is a true and correct copy of a letter dated May 12,

2010, from Bryan Dierderich to me in response to the May 11 letter. 5. Attached hereto as Exhibit C is a true and correct copy of the Defendants'

Consented Motion to Supplement the Record filed with the Ninth Circuit on October 24, 2010. 6. Attached hereto as Exhibit D is a true and correct copy of the discharge order for

Plaintiff dated July 2007. 7. Attached hereto as Exhibit E are true and correct copies of excerpts from Air

Force Instruction 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, dated April 14, 2005. I declare under penalty of perjury that the foregoing is true and correct, and that this Declaration was executed on June 14, 2010, in Seattle, Washington.

__/s/ Sarah A. Dunne______________ Sarah A. Dunne, WSBA #34869

CERTIFICATE OF SERVICE
Decl. of Sarah Dunne in Supp. of Pl. Opp. to Defs. Mot. to Amend Order of May 17, 2010 (Case no. C06-5195) ­ Page 2

AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

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I hereby certify that on June 14, 2010, I electronically filed Declaration of Sarah Dunne in Support of Plaintiff's Opposition to Defendants' Motion to Amend the Order of May 17, 2010 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 14th day of June, 2010.

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: /s/ Nina Jenkins Nina Jenkins Legal Program Assistant 901 Fifth Ave, Suite 630 Seattle, WA 98164 Tel. [phone] [e-mail]

Decl. of Sarah Dunne in Supp. of Pl. Opp. to Defs. Mot. to Amend Order of May 17, 2010 (Case no. C06-5195) ­ Page 3

AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, Washington 98164 [phone]

EXHIBIT A

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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

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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 fo