IN RE: DEPARTMENT OF VETERANS AFFAIRS (VA) DATA THEFT LITIGATION - MDL 1796

REPLY to opposition to motion re MOTION for Discovery Pursuant to Rule 56

D.D.C.March 20, 2007

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ In Re: DEPARTMENT OF VETERANS : AFFAIRS (VA) DATA THEFT : LITIGATION : ____________________________________: Misc. Action No. 06-0506 (JR) : MDL Docket No. 1796 This Document Relates To: : ALL CASES : ____________________________________: PLAINTIFFS’ REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ RULE 56(f) MOTION FOR DISCOVERY Pursuant to Federal Rules of Civil Procedure 7 and Local Civil Rule 7, Plaintiffs hereby reply to “Defendants’ Opposition to Plaintiff’s Rule 56(f) Motion For Discovery” filed on March 16, 2007 (“Defs.’ Opp.” ). In sum, Defendants failed to identify any substantive reason that the Court should not grant Plaintiffs’ motion for appropriate discovery. If anything, Defendants’ arguments regarding the relevance of the factual material Plaintiffs’ seek and the affidavit requirements of Federal Rule of Civil Procedure 56 (“Rule 56”), while unavailing here, do serve as an admission that “Defendants’ Motion To Dismiss Or, in the Alternative, For Summary Judgment” (Feb. 22, 2007) (“Defs.’ Mot.” ) is, as a matter of law, based on irrelevant and unsupported factual information. As such, Plaintiffs expect Defendants to admit their error when responding to Plaintiffs’ , “Motion to Strike” (filed Mar. 13, 2007, which seeks to eliminate all such defective material from Defendants’ Motion). The essence of Defendants’ opposition to limited discovery in this matter is that: (1) the motion for summary judgment is only “ in the alternative;” (2) Plaintiffs “seek discovery unrelated to the allegations in their complaint” or based on “speculation;” and (3) Plaintiffs have not supported their motion with proper affidavits. See Defs.’ Opp. at 1, 4-6. None of these reasons withstand even the most cursory consideration. Moreover, if Defendants’ arguments were valid, their “alternative” summary judgment motion would be without any factual or legal Case 1:06-mc-00506-JR Document 16 Filed 03/20/2007 Page 1 of 7 2 foundation and the Court would be compelled to deny it. I. Defendants’ Filing is a Rule 12 Motion in Name Only Defendants’ assertion that their February 22, 2007, filing is primarily based on Federal Rule of Civil Procedure 12 (“Rule 12”) ignores and misleads the Court as to the extensive evidentiary thrust of their moving papers. While it is true in a very narrow sense that Defendants moved for dismissal pursuant to Rules 12(b)(1) (lack of jurisdiction), (5) (insufficiency of service) and (6) failure to state a claim, the reality is that any Rule 12 dismissal of all these actions is not reasonably anticipated. Turning first to Defendants’ Rule 12(b)(5) assertion of insufficient service reveals that it applies only to the Bivens claims - not the actions in toto. See “Memorandum of Law In Support of Defendants’ Motion To Dismiss or, in the Alternative, For Summary Judgment” (Feb. 22, 2007) (“Defs.’ Mem.”) at 35-36. Thus, even assuming the Bivens claims were dismissed, it would have no effect on the other claims. Next, and as Defendants well know, Rule 12 explicitly states that if “on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed. R. Civ. P. 12(b) (emphasis added); see, e.g., Colbert v. Potter, 471 F.3d 158, 164 (D.C. Cir. 2006). Here, Defendants’ filing of 27 supporting exhibits in excess of 300 pages constituted “matters outside the pleadings.” See Defs.’ Mem., Exs. 1-27. Thus, unless the Court excludes all of these exhibits from consideration, all of Defendants’ Rule 12(b)(6) assertions must be treated as provided for in Rule 56, not Rule 12. It then remains that only Defendants’ Rule 12(b)(1) assertions, could possibly result in a complete dismissal. Defendants have, of course, asserted that neither the organizational or Case 1:06-mc-00506-JR Document 16 Filed 03/20/2007 Page 2 of 7 3 individual Plaintiffs have standing. Defs.’ Mem. at 18-24. But the Court, however, need only find a single Plaintiff has standing to require the Rule 56 “alternative” per Rule 12. Where “one plaintiff establishes standing to sue, the standing of other plaintiffs is immaterial.” National Wildlife Federation v. Agricultural Stabilization and Conservation Service, 955 F.2d 1199, 1203 (8th Cir. 1992) (citing Bowen v. Kendrick, 487 U.S. 589, 620 n.15 (1988)); see also Price v. Pierce, 823 F.2d 1114, 1118 (7th Cir. 1987) (“it is enough to give us jurisdiction over the case if one of the plaintiffs has standing”) (citing Sec’y of Interior v. California, 464 U.S. 312, 319 n.3 (1984)). And this determination leans heavily in favor of Plaintiffs. It has long been established that “standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500 (1975). The “adverse effect” reference in 5 U.S.C. § 552a(g)(1)(D) “acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue.” Doe v. Chao, 540 U.S. 614, 624 (2004). And here, standing has been properly pled: “Each of Defendants’ Privacy Act violations caused Plaintiffs adverse effects.” See, e.g., VVA Compl. ¶ 64; see also id. ¶¶ 29- 37, 39, 40 (alleging “adverse effects”); “As a direct and proximate result of Defendants acts and omissions, Plaintiffs have been exposed to a risk of substantial harm and inconvenience, and have incurred actual damages in purchasing comprehensive credit reports and/or monitoring of their identity and credit.” Hackett Compl. ¶26; see also id ¶¶ 6, 25, 28, 29, 35-38, and VII (Prayer for Relief). Thus, Defendants’ Motion hinges on evidentiary materials, and will clearly “be treated as one for summary judgment and disposed of as provided in Rule 56,” and therefore Plaintiffs’ should “be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Case 1:06-mc-00506-JR Document 16 Filed 03/20/2007 Page 3 of 7 4 II. Defendants’ Opposing Arguments Here Support Plaintiffs’ Contention That Their Supporting Summary Judgment Materials Should Be Stricken Defendants would have it both ways - they rely heavily on the VA OIG Report in their moving papers, yet here they label as “unrelated” the very underlying source documents upon which the report is founded. It is here that Defendants’ arguments unravel: there is no legal basis for their position that the VA OIG Report - which is facially based upon summarizations and compilations of underlying factual material - is relevant for purposes of Defendants’ moving papers; yet, the actual factual materials that allegedly underlie the summaries, are not. Specifically, Defendants assert that the Plaintiffs “seek discovery unrelated to allegations in their complaint” (Defs.’ Opp. at 5 (emphasis added)) that “are not relevant to whether defendants committed Privacy Act violations.” Id. at 8. However, Defendants plainly ignore, as detailed in Plaintiffs’ Memorandum, that Plaintiffs seek discovery of only the factual material underlying the report that Defendants’ cited 31 times in their “Material Facts As To Which There Is No Factual Genuine Issue” and upon which their entire Motion is based. See Pls.’ Mem. at 3, 5 and Ex. A. Thus, Defendants challenge - if not conveniently ignore - the seemingly obvious principle that if information is relevant to one party’s assertions, it must be relevant to the other party’s rebuttal.1 All Plaintiffs seek is the same information that the VA Office of Inspector General stated formed the factual basis for the report Defendants relied upon for every substantive “ fact” supporting their Motion. See VA OIG Rep’ t at 2; Pls.’ Mem. at 3. Plaintiffs cannot fathom a discovery request any more “precisely tailored to uncovering facts that would prevent summary judgment,” Defs.’ Opp. at 7, than to request the facts upon which the summary judgment motion is based. Defendants’ arguments otherwise turn the Federal Rules and common sense topsy turvy. 1 As but one example, Defendants claim that their assertion based on the VA OIG Report that John Doe was authorized to access the Privacy Act records is a “ fact,” but Plaintiffs’ allegation that he was not authorized based on sworn testimony is “speculation” without “evidentiary foundation.” Defs’ Opp. at 8. Case 1:06-mc-00506-JR Document 16 Filed 03/20/2007 Page 4 of 7 5 Defendants’ arguments regarding Plaintiffs’ supporting affidavit, to the extent they have any substance at all, serve only to highlight Defendants’ total reliance on inadmissible hearsay in their Motion. The few affidavits submitted by Defendants with their Motion are limited to peripheral issues such as returns of service and VA employee training and do not address any of the substantive issues. See Defs.’ Facts (only 11 of 22 “material facts” cite affidavits). In challenging Plaintiffs’ affidavits, Defendants have erected a standard that they themselves miserably fail to meet. In any event, it is clear that if Plaintiffs’ motion should fail, which it does not as set forth below, for want of adequate affidavits, Defendants’ Motion must fail on the issues where it lacks any affidavits. Further, only one affidavit was obtained from any individual, Dat P. Tran, with first hand knowledge of John Doe or the Privacy Act records at issue. See, Defs.’ Mem., Ex. 20, Declaration of Dat P. Tran. Ironically, Mr. Tran’s declaration clearly fails to meet Defendants’ stated interpretation of Rule 56 standards, as it does not contain any “specific facts” and is entirely “conclusory” regarding the material issues. See Decl. of Dat P. Tran ¶¶ (repeatedly stating “I followed established policies” without identifying the policies or the requirements therein). Mr. Tran made no statement regarding the real issues at bar including whether (1) he was the individual authorized to grant access, (2) he had any personal knowledge of John Doe’s actual authorization for access, or (3) “established policies” met minimum Privacy Act safeguards requirements. Thus, per Defendants’ own standard, Mr. Tran’s declaration is deficient “as a matter of law.” Even more befuddling is Defendants’ inflammatory rhetoric questioning of the factual basis of allegations regarding “backdating” and “cover-up” (see Defs.’ Opp. at 5) when the basis of these allegations is the very sworn testimony of Mr. Tran himself which was obtained before this litigation was initiated. Notably, it was Mr. Tran himself who identified and reported the “backdated” document; and it was Mr. Tran who expressed concern about misleading Congress Case 1:06-mc-00506-JR Document 16 Filed 03/20/2007 Page 5 of 7 6 as well concerns regarding what, if any, “established policies” were applicable to the events at issue in this case. Mr. Tran: . . . It’s called the Security Guideline for Single-User Remote Access, and they told me that the document had been down there since March 10th, 2006. . . . So, when I - I thought I go in and - look it up in the Office of Cyber Security and Office of IT website, and I did a search, . . . the properties show that that document was created at 3:51 p.m. on May the 22nd . . . . . . Mr. Tran: [in progress]2 - mean the Secretary and other senior official at the hearing on the 25th, and I know that this was the document that the VA basically told Congress and everyone that this is the guideline that the employee violated, which I told Mr. McClendon, I thought it was kind of odd that how can an employee violate a guideline that was dated after the incident, and that’s the reason why I thought I should bring it to your attention. Sworn Testimony of Dat Tran, Acting Director, Data Management and Analysis Service, Office of Policy (May 30, 2006) (attached as Exhibit A) at 4-8; see also id. at 22-24, 45-46 (“Mr. Secretary, you don’t even know your own VA policy. You sat in front of us at a hearing and say the employee violate all these things, and there is no such thing.”). Thus, Mr. Tran’s contemporary sworn testimony was not that he followed policies, but that he was unsure what policies even existed, let alone applied. Thus, not only is there factual basis for Plaintiffs’ “information and belief” in the motion for discovery, but the veracity and basis of Defendants’ lone substantive affidavit in support of their Motion to Dismiss is called into question. Thus, the Court should grant the pending Motion because Plaintiffs: (1) cannot fully present relevant facts in opposition to Defendants’ Motion; (2) can identify specific sworn 2 The “[in progress]” text appears in the transcript and illustrates one of the issues with the documents that Plaintiffs’ have been able to obtain despite Defendants’ obstructions. Many of the transcripts are redacted, appear incomplete, do not contain the exhibits discussed in the text, or combinations of all three. Case 1:06-mc-00506-JR Document 16 Filed 03/20/2007 Page 6 of 7 7 interview testimony, documents, and other material in Defendants’ possession, but not available to Plaintiffs, that establish those facts; and (3) can demonstrate how discovery of the specific information and deposition of specific individuals will enable Plaintiffs to not only rebut Defendants’ assertions of no genuine issues of fact, but, upon information and belief, also establish one or more willful and intentional Privacy Act violations by Defendants. Plaintiffs also respectfully renew their request that the Court timely rule on the pending Motion or extend the date for filing Plaintiffs’ opposition to summary judgment until a reasonable time after such a ruling is forthcoming or the ordered discovery is completed. Respectfully submitted, /s/ Douglas J. Rosinski Donald A. Cockrill Douglas J. Rosinski Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1320 Main Street, Suite 600 Columbia, SC 29201 (803) 252-1300 (803) 254-6517 (fax) Counsel in No. 1:06-CV-01943(JR) John C. Murdock Jeffrey S. Goldenberg Murdock Goldenberg Schneider & Groh, LPA 35 E. 7th Street, Suite 600 Cincinnati, OH 45202 (513) 345-8291 (513) 345-8294 (fax) Counsel in No. 1:06-CV-01943(JR) Marc D. Mezibov Christian A. Jenkins Mezibov & Jenkins, LLP 401 E. Court Street, Suite 600 Cincinnati, OH 45202 (513) 723-1600 (513) 723-1620 (fax) Counsel in No. 1:06-CV-01943(JR) Gary E. Mason The Mason Law Firm, L.L.P.. 1225 19th Street, N.W., Suite 500 Washington, DC 20036 (202) 429-2290 (202) 429-2294 (fax) Counsel in No. 1:06-CV-01943(JR) Mark D. Smilow Weiss & Lurie The French Building 551 Fifth Avenue, Suite 1600 New York, NY 10176 (212) 682-3025 (212) 682-3010 (fax) Counsel in No. 1:06-CV-01944(JR) Alexander E. Barnett The Mason Law Firm, L.L.P. 1120 Avenue of the Americas Suite 4019 New York, NY 10036 (212) 362-5770 (917) 591-5227 Dated: March 20, 2007 Case 1:06-mc-00506-JR Document 16 Filed 03/20/2007 Page 7 of 7 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 1 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 2 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 3 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 4 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 5 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 6 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 7 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 8 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 9 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 10 of 11 Case 1:06-mc-00506-JR Document 16-2 Filed 03/20/2007 Page 11 of 11