In re National Security Agency Telecommunications Records Litigation

RESPONSE to AT&T's Response to August 14, 2006 Order in Hepting, Et al., v. AT&T Corp., et al.

N.D. Cal.September 15, 2006

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 27 28 700528486v2 AT&T’s Response to Aug. 14, 2006 Order (Hepting Dkt. No. 336) MDL No. 06-1791-VRW PILLSBURY WINTHROP SHAW PITTMAN LLP BRUCE A. ERICSON #76342 DAVID L. ANDERSON #149604 JACOB R. SORENSEN #209134 MARC H. AXELBAUM #209855 DANIEL J. RICHERT #232208 50 Fremont Street Post Office Box 7880 San Francisco, CA 94120-7880 Telephone: (415) 983-1000 Facsimile: (415) 983-1200 Email: bruce.ericson@pillsburylaw.com SIDLEY AUSTIN LLP DAVID W. CARPENTER (admitted pro hac vice) DAVID L. LAWSON (admitted pro hac vice) BRADFORD A. BERENSON (admitted pro hac vice) EDWARD R. McNICHOLAS (admitted pro hac vice) 1501 K Street, N.W. Washington, D.C. 20005 Telephone: (202) 736-8010 Facsimile: (202) 736-8711 Attorneys for the AT&T Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION In re: NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION MDL Dkt. No. 06-1791-VRW AT&T’S RESPONSE TO AUGUST 14, 2006 ORDER IN HEPTING, ET AL. v. AT&T CORP., ET AL. (DKT. NO. 366) This Document Relates To: Hepting, et al. v. AT&T Corp., et al., No. C-06-0672-VRW Courtroom: 6, 17th Floor Judge: Hon. Vaughn R. Walker In re National Security Agency Telecommunications Records Litigation Doc. 34 Dockets.Justia.com 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 27 28 700528486v2 - 1 - AT&T’s Response to Aug. 14, 2006 Order (Hepting Dkt. No. 336) MDL No. 06-1791-VRW Defendant AT&T CORP. and specially appearing Defendant AT&T INC. (collectively, “AT&T”) file this response (“Response”) to the Court’s August 14, 2006 Order in Hepting, et al. v. AT&T Corp., et al., No. C-06-0672-VRW (Hepting Dkt. 336), which requested that the parties in that action apprise the Court of (i) recent developments in the petitions by AT&T and the United States for permission to appeal under 28 U.S.C. § 1292(b) and (ii) the status of transfers to MDL 06-1791 (N.D. Cal.). I. PETITIONS FOR PERMISSION TO APPEAL. On July 31, 2006, AT&T and the government filed in the Ninth Circuit petitions for permission to appeal this Court’s July 20, 2006 Order (Hepting Dkt. No. 308) denying the government’s and AT&T’s motions to dismiss. See App. Case Nos. 06-80109, 06-80110 (U.S.C.A. 9th Cir.). On August 9, 2006, Plaintiffs filed a response to the petitions, and filed a cross-petition of their own, seeking permission to appeal this Court’s ruling that the state secrets privilege prevented them from conducting discovery regarding AT&T’s alleged provision of call record data to the government. As of the filing of this Response, the Ninth Circuit has not acted on the pending petitions. AT&T notes that an appeal from the August 17, 2006 Order of the Honorable Anna Diggs Taylor granting a permanent injunction in ACLU v. NSA, Case No. 06-10204 (E.D. Mich.) is pending in the U.S. Court of Appeals for the Sixth Circuit.1 AT&T is not a defendant in that case. II. TRANSFER OF CASES TO MDL 06-1791. A. Initial Transfer Order. On August 8, 2006, the Judicial Panel on Multidistrict Litigation (“Panel”) issued an Initial Transfer Order (“ITO”) transferring to this Court sixteen actions previously pending outside the Northern District of California. The Panel subsequently vacated the ITO as to one of the sixteen actions when it learned that the Honorable William J. Haynes, Jr. 1 The Honorable Garr M. King issued an Opinion and Order in Al-Haramain Islamic Foundation, Inc. v. Bush, Case No. 06-274 (D. Ore.), on September 7, 2006. AT&T is not a defendant in that case. 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 27 28 700528486v2 - 2 - AT&T’s Response to Aug. 14, 2006 Order (Hepting Dkt. No. 336) MDL No. 06-1791-VRW dismissed the action filed in the Middle District of Tennessee (Kathryn Potter v. BellSouth Corp., M.D. Tenn. No. 3:06-469). MDL Dkt. No. 11. The Clerk of this Court has already received the files for fourteen of the remaining fifteen actions identified in the ITO: Case Name Original Filing Information Clerk’s Notice of Transfer N.D. Cal. Case No. Bissit, et al. v. Verizon Commc’ns, Inc. et al. C.A. 1:06-0220 (D.R.I.) MDL Dkt. No. 10-4 C 06-5066 VRW Conner, et al. v. AT&T Corp., et al. C.A. 1:06-0632 (E.D. Cal.) MDL Dkt. No. 32-1 C 06-5576 VRW Dolberg v. AT&T Corp. C.A. 9:06-0078 (D. Mont.) MDL Dkt. No. 12-3 C 06-5269 VRW Fuller v. Verizon Commc’ns, Inc., et al. C.A. 9:06-0077 (D. Mont.) MDL Dkt. No. 12-1 C 06-5267 VRW Harrington, et al. v. AT&T Inc. C.A. 1:06-0374 (W.D. Tex.) MDL Dkt. No. 26 C 06-5452 VRW Herron, et al. v. Verizon Global Networks, Inc., et al. C.A. 2:06-2491 (E.D. La.) MDL Dkt. No. 16-3 C 06-5343 VRW Hines, et al. v. Verizon Northwest, Inc., et al. C.A 3:06-0694 (D. Or.) MDL Dkt. No. 16-2 C 06-5341 VRW Mahoney v. AT&T Commc’ns, Inc., et al. C.A. 1:06-0223 (D.R.I.) MDL Dkt. No. 10-3 C 06-5065 VRW Mahoney v. Verizon Commc’ns, Inc., et al. C.A. 1:06-0224 (D.R.I.) MDL Dkt. No. 10-2 C 06-5064 VRW Marck, et al. v. Verizon Commc’ns, Inc. et al. C.A. 2:06-2455 (E.D.N.Y.) MDL Dkt. No. 10-1 C 06-5063 VRW Schwarz et al. v. AT&T Corp. et al. C.A. 1:06-2680 (N.D. Ill.) MDL Dkt. No. 27 C 06-2680 VRW 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 27 28 700528486v2 - 3 - AT&T’s Response to Aug. 14, 2006 Order (Hepting Dkt. No. 336) MDL No. 06-1791-VRW Case Name Original Filing Information Clerk’s Notice of Transfer N.D. Cal. Case No. Souder v. AT&T Corp., et al. C.A. 3:06-1058 (S.D. Cal.) MDL Dkt. No. 10-5 C 06-1058 VRW Terkel, et al. v. AT&T Inc. C.A. 1:06-2937 (N.D. Ill.) MDL Dkt. No. 16-1 C 06-5340 VRW Trevino, et al. v. AT&T Corp., et al. C.A. 2:06-0209 (S.D. Tex.) MDL Dkt. No. 12-2 C 06-5268 VRW The one remaining case transferred pursuant to the ITO for which the Clerk of this Court has not yet received the case files is Carl J. Mayer, et al. v. Verizon Commc’ns, Inc., et al., C.A. No 1:06-3650 (S.D.N.Y.). B. Related Case Consolidation. In addition to the actions filed outside the Northern District of California that have been or soon will be transferred to MDL 06-1791 pursuant to the ITO, the Court recently consolidated into MDL 06-1791 four actions over which it has presided since before the issuance of the ITO: Roe, et al. v. AT&T Corp., et al., No. C-06-3467 VRW; Riordan, et al. v. Verizon Commc’ns, Inc. et al., No. C-06-3574 VRW; Spielfogel-Landis v. MCI, LLC, No. C-06-4221 VRW; and Campbell, et al. v. AT&T Commc’ns of Cal., et al., No. C-06- 3596 VRW. C. Conditional Transfer Orders. On August 31, 2006, the Panel issued a Conditional Transfer Order (“First CTO,” attached hereto as Exhibit A) conditionally transferring to this Court twenty-one “tag- along” actions that the Panel determined have “questions of fact common to the actions previously transferred” to this Court.2 The plaintiffs identified in the First CTO had until 2 The Panel vacated the First CTO as to an action filed in the District of Nebraska (Tyler v. AT&T, Inc. et al.., D. Neb. No. 8:06-523) after the Honorable Lyle E. Strom dismissed the case. A copy of the Panel’s Order striking Tyler from the First CTO is attached hereto as Exhibit B. Plaintiff filed an appeal of the dismissal in the Eighth Circuit, although transmission of the notice to that court has been delayed in light of plaintiff’s failure to comply with the Prison Litigation Reform Act, 28 U.S.C. § 1915(b). 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 27 28 700528486v2 - 4 - AT&T’s Response to Aug. 14, 2006 Order (Hepting Dkt. No. 336) MDL No. 06-1791-VRW today, September 15, 2006, to file oppositions to thereto. As of the time the JMPL Clerk’s Office closed today, the plaintiffs in four of the twenty actions subject to the First CTO had filed oppositions: Mink v. AT&T Commc’ns, et al., C.A. 4:06-1113 (E.D. Mo.), Shubert, et al. v. Bush, et al., C.A. 1:06-2282 (E.D.N.Y.), Center for Constitutional Rights, et al. v. Bush, et al., C.A. 1:06-313 (S.D.N.Y.), and Al-Haramain Islamic Foundation, Inc., et al. v. Bush, et al., 3:06-274 (D. Or.). On September 11, 2006, the Panel issued a Second Conditional Transfer Order (“Second CTO,” attached hereto as Exhibit C) conditionally transferring to this Court one tag-along action that the Panel determined has “questions of fact common to the actions previously transferred” to this Court. The plaintiffs in that action, Bready, et al. v. Verizon Maryland, Inc., C.A. 1:06-2185, have until September 26, 2006 to file an opposition to the Second CTO. D. Additional Tag-Along Actions. In addition to the tag-along actions subject to the conditional transfer orders, AT&T recently notified the Panel of five potential tag-along actions involving state governmental entities that may be subject to a future transfer order. See Letter from Bradford A. Berenson, Sidley Austin LLP, to Jeffrey N. Lüthi, Clerk of the Panel, Judicial Panel on Multidistrict Litigation (Sept. 8, 2006) (attached hereto as Exhibit D). As of the filing of this Response, no orders have issued with respect to these recently tagged actions. Based on the cases currently filed, AT&T believes that all cases related to MDL 06- 1791 and subject to the Panel’s jurisdiction have been identified,3 and that future conditional transfer orders will address the transfer of all actions that should be a part of the MDL. III. CONCLUSION. Appeals: The Ninth Circuit has yet to act on the parties’ cross-petitions. An appeal 3 AT&T is aware of another prisoner pro se action filed in a Nebraska state court. AT&T will remove that action to federal court and present it to the Panel as a tag-along action once it is removed. 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 27 28 700528486v2 - 5 - AT&T’s Response to Aug. 14, 2006 Order (Hepting Dkt. No. 336) MDL No. 06-1791-VRW to the Sixth Circuit in ACLU v. NSA (E.D. Mich.) is pending. (As stated above, AT&T is not a party to ACLU v. NSA.) Transfers: The Clerk of this Court has received files for all but one of the cases subject to the ITO. An additional 20 cases are subject to transfer under the First CTO; the plaintiffs in four of those actions filed oppositions, which are now pending. The plaintiffs to the single case subject to the Second CTO must file their opposition by September 26, 2006. Pending before the Panel are an additional five tag-along cases that AT&T recently identified, but as to which the Panel has not yet ruled. Finally, in addition to the cases filed outside this District, there are four related actions filed in this Court that the Court has already consolidated into MDL 06-1791. Dated: September 15, 2006. PILLSBURY WINTHROP SHAW PITTMAN LLP BRUCE A. ERICSON DAVID L. ANDERSON JACOB R. SORENSEN MARC H. AXELBAUM DANIEL J. RICHERT 50 Fremont Street Post Office Box 7880 San Francisco, CA 94120-7880 SIDLEY AUSTIN LLP DAVID W. CARPENTER DAVID L. LAWSON BRADFORD A. BERENSON EDWARD R. McNICHOLAS 1501 K Street, N.W. Washington, D.C. 20005 By /s/ Marc H. Axelbaum Marc H. Axelbaum Attorneys for Defendants AT&T CORP. and AT&T INC.