Veterans for Common Sense et al v. Peake et al

Memorandum in Opposition re Motion to Strike Declarations Submitted on Reply

N.D. Cal.December 12, 2007

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 Case No. C 07 3758 SC1 Defendants’ Opposition to Plaintiffs’ Motion to Strike Declarations Submitted on Reply JEFFREY S. BUCHOLTZ Acting Assistant Attorney General SCOTT N. SCHOOLS United States Attorney RICHARD LEPLEY Assistant Branch Director DANIEL E. BENSING (D.C. Bar No. 334268) STEPHEN Y. BRESSLER (D.C. Bar No. 482492) KYLE FREENY (D.C. Bar No. 247857) Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Telephone: (202) 514-5108 Facsimile: (202) 616-8460 Email: Kyle.Freeny@usdoj.gov Attorneys for Defendants Hon. Gordon H. Mansfield, the U.S. Department of Veterans Affairs, Hon. James P. Terry, Hon. Daniel L. Cooper, Bradley G. Mayes, Hon. Michael J. Kussman, Ulrike Willimon, the United States of America, Hon. Michael B. Mukasey, and Hon. William P. Greene, Jr. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO VETERANS FOR COMMON SENSE and ) VETERANS UNITED FOR TRUTH, ) No. C 07-3758-SC ) Plaintiffs, ) ) DEFENDANTS’ INITIAL v. ) OPPOSITION TO PLAINTIFFS’ ) MOTION TO STRIKE Hon. GORDON H. MANSFIELD, ) DECLARATIONS SUBMITTED Acting Secretary of Veterans Affairs, ) ON REPLY et al., ) ) Date: December 14, 2007 Defendants. ) Time: 10:00 a.m. ____________________________________) Courtroom: 1 INTRODUCTION On December 10, 2007, Plaintiffs filed Plaintiffs’ Objections to and Motion to Strike Case 3:07-cv-03758-SC Document 89 Filed 12/12/2007 Page 1 of 5 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 Case No. C 07 3758 SC2 Defendants’ Opposition to Plaintiffs’ Motion to Strike Declarations Submitted on Reply 2 Improper Declarations Submitted on Reply (“Motion to Strike Reply Declarations”), seeking to strike the Declaration of Charles J. De Sanno in Support of Defendants’ Motion for Protection Order (“De Sanno Declaration”) and the Declaration of Mark Bologna in Support of Defendants’ Motion for Protective Order (“Bologna Declaration”), and noticed the motion for hearing on December 14, 2007. Plaintiffs neither acknowledge nor attempt to justify their second motion noticed for hearing improperly this time just four days later. See N.D. Cal. Civ. R. 7-2(a); 7- 3(a), (c); McColm v. San Francisco Hous. Auth., 2006 U.S. Dist. LEXIS 93450 at *7-8 (N.D. Cal. 2006) (“The local rules . . . do not provide for ‘counter-motions’ but instead require that all motions be filed on a 35-day briefing schedule.”). Should the court choose to hear this motion out of time, Defendants submit the following initial brief response in opposition. This unnecessary procedural motion should not distract the Court from the profound defects in Plaintiffs’ complaint nor the unreasonably overbroad and premature discovery Plaintiffs seek. ARGUMENT Contrary to Plaintiffs’ contention, the De Sanno and Bologna declarations are proper rebuttal declarations addressing inaccurate statements submitted by Plaintiffs in the Declaration of Paul Sullivan in Support of Plaintiffs’ Motion to Strike Bowman Declaration and Opposition to Defendants’ Motion for Protective Order (“Sullivan Declaration”). See, e.g., De Sanno Decl., ¶ 5 (“I submit this declaration to clarify and refute statements made in Mr. Sullivan’s declaration”); Bologna Decl., ¶¶ 5-11, 13, 15 (detailing inaccuracies in Mr. Sullivan’s declaration). Plaintiffs’ claim that the De Sanno and Bologna Declarations are “an obvious attempt to cure the defects in the Bowman Declaration[,]” (Motion to Strike Reply Declarations, at 2), is based on the faulty premise that the Declaration of Thomas G. Bowman (attached to Case 3:07-cv-03758-SC Document 89 Filed 12/12/2007 Page 2 of 5 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 Case No. C 07 3758 SC3 Defendants’ Opposition to Plaintiffs’ Motion to Strike Declarations Submitted on Reply 3 Defendants’ Notice of Motion and Motion for Protective Order to Stay Discovery at Attachment B) (“Bowman Decl.”) is defective. Defendant addressed this issue in their Opposition to Plaintiffs’ Motion to Strike Declaration of Thomas G. Bowman (“Opposition to Motion Strike Bowman Declaration”). Plaintiffs’ hearsay objections in their Motion to Strike Reply Declarations fail for the same reasons stated in the Opposition to Motion Strike Bowman Declaration. As this Court held, “[t]he affidavit or testimony of an agency official, who is knowledgeable [about the issue to which he testifies] . . . complies with the [personal knowledge] standard.” Ramo v. Dep’t of Navy, 487 F. Supp. 127, 130 (N.D. Cal. 1979), aff’d, 692 F.2d 765 (9th Cir. 1982). As detailed in the Opposition to Motion Strike Bowman Declaration, the holding of Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981), that an agency official may testify as to matters he learns upon review of agency documents and information made available to him in the course of his duties, has been followed consistently by courts in this Circuit and elsewhere. See Opposition to Motion Strike Bowman Declaration at Argument, Section I. Plaintiffs also object that the De Sanno and Bologna Declaration include “unqualified expert opinion testimony.” Motion to Strike Reply Declarations, at 4. In their attempt to keep the tremendous cost and burden of response to 191 Requests for Production from the Court, Plaintiffs advance an argument challenging the testimony of De Sanno and Bologna as “unqualified expert opinion” that weakens their position. The De Sanno and Bologna Declarations are similar in nature in all salient respects to the testimony provided by Plaintiffs’ declarant, Mr. Sullivan, in support of Plaintiffs’ first motion to strike. Compare Bologna Decl., ¶ 5 (“Mr. Sullivan’s declaration relies on assumptions regarding the scope of the RFPs that are inconsistent with those requests.”) (cited in Motion to Strike Reply Declarations, p. 7), with Case 3:07-cv-03758-SC Document 89 Filed 12/12/2007 Page 3 of 5 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 1 / Plaintiffs’ complaints about the meet and confer obligations not only misstate1 2 Defendants’ efforts to comply therewith, but are entirely hollow in light of Plaintiffs’ intransigent 3 stance on every issue and failure to acknowledge that any of their 191 Requests for Production 4 (“RFP”) are overbroad. Second, this argument goes not to the instant motion to strike 5 declarations, but to another motion entirely Defendants’ Motion for Protective Order to Stay 6 Discovery (“Motion for Protective Order”). Third, this claim is entirely repetitious of arguments 7 Plaintiffs have already made (and Defendants have already rebutted) in briefing on the earlier 8 motion. Case No. C 07 3758 SC4 Defendants’ Opposition to Plaintiffs’ Motion to Strike Declarations Submitted on Reply 4 Sullivan Decl., ¶ 9 (“Defendants’ estimates of cost and time for searching claim files are based upon assumptions that ignore common sense.”); compare De Sanno Decl., ¶ 10 (“Complying with the plaintiffs’ requests for production as they relate to searching for terms, phrases, and names contained in email would place a significant burden on VA IT staff and resources as described in the declaration of Mr. Bowman.”), with Sullivan Decl., ¶ 8 (“Defendants’ estimate . . . is a vastly inflated estimate of the true costs that would be incurred.”). Although the form of testimony in Plaintiffs’ and Defendants’ declarations may be similar, the base of knowledge of the declarants differs. While it seems apparent that as a mid-level employee for a few years at VA, Plaintiffs’ witness is not as qualified, if indeed he is qualified at all, as the VA witnesses who have direct responsibility for the systems at issue, what cannot be gainsaid is that if the Court declines to consider the Bologna and De Sanno declarations, it must also ignore Mr. Sullivan’s testimony. /1 CONCLUSION For the foregoing reasons, Plaintiffs’ Motion to Strike Declarations Submitted on Reply should be denied. Dated December 12, 2007 Respectfully Submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General Case 3:07-cv-03758-SC Document 89 Filed 12/12/2007 Page 4 of 5 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 Case No. C 07 3758 SC5 Defendants’ Opposition to Plaintiffs’ Motion to Strike Declarations Submitted on Reply 5 SCOTT N. SCHOOLS Interim United States Attorney RICHARD LEPLEY Assistant Branch Director /s/ Kyle R. Freeny KYLE R. FREENY California Bar #247857 DANIEL BENSING D.C. Bar # 334268 STEVEN Y. BRESSLER D.C. Bar #482492 Attorneys U.S. Department of Justice, Civil Division P.O. Box 883 Washington, D.C. 20044 (202) 514-5108 (telephone) Counsel for Defendants Case 3:07-cv-03758-SC Document 89 Filed 12/12/2007 Page 5 of 5