SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 1 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 James B. Reed (AZ
Bar No. 014015) Attorney for Plaintiff Jay Anthony Dobyns UNITED
STATES COURT OF FEDERAL CLAIMS JAY ANTHONY DOBYNS, Plaintiff, vs.
THE UNITED STATES, Defendant. NO. 08-700c JOINT STATUS REPORT
(Judge Francis M. Allegra) (Judge John M. Facciola Special Master)
Pursuant to the Courts order dated April 7, 2015, plaintiff Jay
Anthony Dobyns and defendant, the United States, submit this joint
status report addressing a potential discovery schedule, a hearing
date, a hearing location, and a schedule for pre-hearing
andpost-hearingfilingsbeforetheSpecialMastertoinvestigatethespecificsubject
matter requiring discovery as identified by the Special Master in
the April 7, 2015 order.See Dkt. No. 348 at 12.Because the parties
have not been able to reach agreement
onallaspectsofthefutureproceedingsinthismatter,theyhavesetforththeir
positions separately. BAIRD, WILLIAMS & GREER, L.L.P. 6225
NORTH 24TH STREET, SUITE 125 PHOENIX, ARIZONA 85016 TELEPHONE(602)
256-9400 FACSIMILE (602) 271-9308 Case 1:08-cv-00700-FMA Document
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20 21 22 23 24 25 1.Discovery. a.Plaintiffs proposal. i.Written
discovery.Plaintiff requests fifteen requests for production,
thirty non-uniform interroga-tories and forty requests for
admission. Plaintiff submits that the following are examples of
essential records and information regarding the events at issue
that require identification and production through discovery: (a)
reports and interviews of relevant witnesses by the Office of
Professional Responsibility, the Office of Inspector General, Civil
Division, by ATF investigative divisions and by ATFs Office of
Chief Counsel, and by the office of James Cole; (b) all
investigative files created or maintained by ATF and DOJ, including
all criminal investigative files, related to this topic; and (c)
emails, texts, correspondence, memoranda, transcripts.Plaintiffs
proposed schedulefor written discovery and depositions will require
an extension of time beyond the May 29, 2015 date set by the Court
for filing the Special Master report.However, Plaintiffs proposed
timeframe is appropriate given the gravity of the allegations, and
is consistent with the Courts orders and opinions regarding this
matter. The Courts orders and opinions specifically allow written
discovery. Paragraph 4 of the Courts February 9, 2015 Order states:
the special master will exercise the full range of authority
permitted by the courts rules, to and including: (i) the taking of
discovery of all forms, including depositions and all forms of
electronically stored information (ESI).Paragraph 17 of the Special
Master Order states in relevant part: Case 1:08-cv-00700-FMA
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13 14 15 16 17 18 19 20 21 22 23 24 25 17. Pursuant to RCFC
53(c)(1), the special master may: (A)regulate all proceedings;
(B)take all appropriate measures to performthe assigned duties
fairly and efficiently; and (C)exercise the assigned judges power
tocompel, take, and record evidence, including the resolution of
any issues regarding the admissibility of evidence. Paragraph 22 of
the Special Master Order states in relevant part: Consistent with
this mandate, the central functions of the special master are to:
(A) Gather evidence to include documents of all forms (including
all forms of electronically store (sic) information (EDS)); audio
recordings, the taking of oral or video depositions to include the
depositions of any attorney, or other government officer or other
individuals subject to this order; and the taking of oral
testimony; and Finally, page six of the Courts December 1
Indicative Ruling, paragraph 3, states: If the Federal Circuit
remands the action, the court will allow both parties an
opportunity to present argument, as well as relevant evidence and
other testimony, before ruling on a motion for reconsideration
under RCFC 60.See Hazel-Atlas Glass Co., 322 U.S. at 251; 11 Wright
& Miller, supra, at 2870.(emphasis supplied) The circumstances
and allegations call for written discovery Plaintiff believes that
DOJs exclusive goal is to protect its attorneys, and therefore,
Plaintiff does not trust limited, voluntary production of documents
by the Justice Department.Written discovery is, from Plaintiffs
perspective, necessary to overcome the fact that Civil Division has
a documented willingness to withhold critical documents and make
material false misrepresentations about the reasons, whether
because DOJ claims that it lost the documents, i.e., the two
unlawful audio recordings made of Plaintiff that DOJ failed to
produce, or because DOJ falsely claims the documents are not
relevant, i.e., DOJs misrespresentations as to the contents and
conclusions of the October 11, 2012 Internal Affairs Division
Report of Investigation. Case 1:08-cv-00700-FMA Document 350
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20 21 22 23 24 25 As for the inclusion of OPR documents within the
scope of written discovery, Plaintiff anticipates that OPR
suspended the investigation of these allegations in part because it
discovered facts so detrimental to DOJ, that OPR was concerned that
its investigation would damage the defenses of the attorneys under
investigation by Judge Allegra and by the Special Master. Plaintiff
intends to determine if anyone at Civil Division instructed Charles
Higman to intimidate Christopher Trainor and who at DOJ or ATF
ordered the shut-down of the criminal investigation into Charles
Higmans threats against Christopher Trainor.The OPR reports are
relevant to that inquiry and should be produced. ii.Depositions.
Plaintiff requests to take the following depositions, each to last
not more than two (2) hours with respect to Plaintiffs questioning
time, with time added for objections or argument to the Court,
excepting the witnesses set forth below, whose testimony is
anticipated to require up to three (3) hours, again, for Plaintiffs
questioning time only. It is understood that Defendants questioning
time would be additional to that. If the Special Master attends the
depositions, then Plaintiff submits that a final hearing may prove
unnecessary.If the Special Master does not attend the depositions,
or if other reasons support the conduct of a final hearing, then
Plaintiff proposes the conduct of a final hearing as of the dates
set forth below.Two prefatory comments regarding witnesses Charles
Higman and Veronica Onyema are necessary. The United States
unreasonably opposes the deposition of Charles Higman, the
individual who made the threats against Christopher Trainor.
Defendants opposition to Case 1:08-cv-00700-FMA Document 350
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20 21 22 23 24 25 the deposition of Charles Higman is a clear
indication of the value of Higmans testimony and the potentiality
that his deposition would reveal that Civil Division attorneys
cooperated with the strategy of witness intimidation. Plaintiffs
specific allegations are that (1) the safety and lives of a main
witness and his children were threatened, (2) DOJ attorneys twice
threatened Christopher Trainors career if he reported the threats
to Judge Allegra, and (3) ATF shut down the criminal investigation
of Charles Higman so as not to compromise the governments defense
of Jay Dobyns lawsuit and so that Plaintiff would not find out
about the threats.DOJ was complicit in threats against a federal
agent and his children if DOJ encouraged Higman to make the call to
Trainor, which Plaintiff believes he will prove based upon, inter
alia, Higmans use of the phrase case law when referring to the
jurisdiction of ATF to investigate the arson. Plaintiff Dobyns
worked in the Tucson office of the Phoenix Field Division where
Charles Higman was stationed, and to Plaintiffs knowledge, Higman
did not use and would have used the phrase case law ever - it was
more likely supplied to him by David Harrington and possibly other
DOJ attorneys. Plaintiff has already explained in his reply
memorandum that the legalistic terminology and legal arguments used
by Higman in his voicemail to Trainor to challenge ATFs
jurisdiction to respond to the August 10, 2008 arson betray the
preparatory influence of Civil Division lawyers. The transcript of
the July 2, 2013 telephone call between Charles Higman and
Christopher Trainor states in relevant part:I dont know if you are
aware Chris but they cant, dont seem to have any jurisdiction in
that matter. There is plenty of case law out there that showed that
we dont have Case 1:08-cv-00700-FMA Document 350 *SEALED*Filed
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any jurisdiction for house fires, residential fires. (emphasis
added) Charles Higman is not a lawyer and his statement about the
case law regarding the jurisdiction of ATF appears to have been
rehearsed with a Department of Justice attorney; otherwise, Higman
would appear to be one of the few Tucson ATF agents who would have
ever referred to, on the subject of ATF lacking jurisdiction for
arson investigations, plenty of case law out there. Moreover, the
recklessness with which Higman acted in leaving a voicemail
threatening Trainor and his children and leaving a road
construction cone stuffed up the tailpipe of Trainors SUV is
inconsistent with the training and, as Plaintiff has elsewhere
characterized it, the street smarts of Higman. It would appear that
instead, Higman was acting out of a desperation that was motivated
by someone whose identity and means Plaintiff and the Special
Master should discover.And the answer is simple the Justice
Department was desperate to overcome the devastating testimony of
Christopher Trainor during the Tucson phase of the trial, and so
they informed Higman that unless Trainor were to alter or temper
his report of investigation regarding Higman, that Civil Division
would have to deal with the obvious perjury implications of Higmans
testimony. That adversity between DOJ and a retired ATF agent such
as Higman could have cost Higman his retirement pension.Thus,
Higman acted out of direction by, and fear of, David Harrington and
Civil Division lawyers. And to keep the information from Judge
Allegra, on a telephone call with Trainor, Harrington, Corrine
Niosi and Veronica Onyema, one that was listened to by Daniel
Machonis, David Harrington twice threatened the career of
Trainor.Those pieces all fit together. Also very unreasonably, Case
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defendant opposes
the deposition of trial attorney Veronica Onyema, who was on the
telephone call with trial attorneys David Harrington and Corrine
Niosi when Harrington twice threatened the career of Christopher
Trainor if Trainor reported the threats by Higman to Judge Allegra.
To oppose the deposition of a material eye witness to complicity in
Higmans threats and additional threats against a witness is
patently unreasonable. Plaintiff submits that all depositions
should take place in Washington DC.Non-attorney deponents / hearing
witnesses: 1)IAD Lead Investigating Agent Christopher Trainor (3
hours) 2)Chief, ATF Office of Professional Responsibility (OPR)
Daniel Machonis (listened to telephone call with Trainor and David
Harrington, had conversations with Trainor as to threats from
Higman and Harrington) 3)ATF Deputy Director Thomas Brandon (may
have been aware of or involved in a decision to use Higman to
pressure Trainor, along with decision to close down criminal
investigation of Charles Higman) 4)Person(s) responsible for
closing down ATFs criminal investigation into the threats by
Charles Higman Rule 30(b)(6) / the person(s) most knowledgeable (3
hours) 5)Retired Tucson Group Supervisor Charles Higman (3 hours)
(resides in Arizona, but in-person deposition in Washington DC)
6)ATF Director B. Todd Jones (may have been aware of or involved in
a decision to use Higman to pressure Trainor, along with decision
to close down criminal investigation of Charles Higman) 7)ATF
Assistant Director for OPR Michael Gleysteen (may have been aware
of or involved in a decision to use Higman to pressure Trainor,
along with decision to close down criminal investigation of Charles
Higman) 8)ATF Assistant Director for Field Operations Ron Turk (may
have been aware of or involved in a decision to use Higman to
pressure Trainor, along with decision to close down criminal
investigation of Charles Higman) Case 1:08-cv-00700-FMA Document
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20 21 22 23 24 25 Attorney deponents / hearing witnesses: 1.DOJ
lead trial attorney David A. Harrington (3 hours) 2.Former DOJ lead
trial attorney Kent C. Kiffner (resides in Ohio, telephonic) (Kent
Kiffner, despite no longer being lead counsel, is anticipated to
have had conversations with Harrington and Bouman regarding the
Higman-Trainor events) 3.Former ATF attorney Rachel Bouman (3
hours) 4.Former DOJ Director of Commercial Branch Jeanne E.
Davidson (3 hours) 5.DOJ case supervising attorney Donald E. Kinner
6.DOJ assistant trial attorney Corrine A. Niosi 7.DOJ assistant
trial attorney P. Davis Oliver 8.DOJ assistant trial attorney
Veronica Onyema 9.DOJ supervising attorney Bryant G. Snee 10. DOJ
former supervising attorney and current Asst. Atty. Gen. Stuart
Delery. 11. DOJ Deputy Attorney General James Cole (Trainor
incident referred to him) 12. United States Attorney John Leonardo
(resides in Arizona, telephonic) 13. United States Attorney General
Eric Holder (regarding (1) any participation in misconduct
decisions relating to the Trainor incident, and (2) communications
with ATF Director B. Todd Jones, Deputy Attorney General James
Cole, Stuart Delery, Jeanne Davidson or other DOJ personnel
regarding the incident) All short form depositions of 2-3 hours
listed by Plaintiff are warranted Meet and confer objections by the
Justice Departments to particular witnesses preliminarily listed by
Plaintiff were unpersuasive for the reasons which follow.First,
Jeanne Davidson was intimately involved in and signed off on the
conduct of David Harrington.Jeanne Davidsons own February 8, 2013
letter to Plaintiffs counsel states that: Case 1:08-cv-00700-FMA
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13 14 15 16 17 18 19 20 21 22 23 24 25 Dear Mr. Reed:
Thisletterrespondstoyourvariouse-mailcommunications alleging
improprieties by David Harrington, counsel of record for the United
States in this matter. I have reviewed your e-mail messages,
correspondence, pretrial materials and other
documents,includingtherecordingoftheearlymeetingof
counselandthereportofinvestigationinthepending personnelaction.
Additionally,IhavemetwithMr.
Harrington,aswellasDonaldKinner(theimmediate
supervisoronthecase)andCorinneNiosi(atrialattorney assisting with
the case). Becausewetakeseriouslyanyallegationofpotential
impropriety,howeverunfounded,Ihaveconsideredyour complaints
anddiscussedthemwithofficialswithintheCivil Division. [] Mr.
Harrington has always kept his supervisors
appropriatelyapprisedaboutcasedevelopments [.]
Baseduponmyreview,asdescribedabove,Ibelieve
thatyourcomplaintsarewithoutmeritandthatno inappropriate conduct
has occurred. As for Kent Kiffner, David Harrington stated at the
first day of trial that he and Kent Kiffner are good friends. Based
on that, and Kiffners likely continuing interest in the progress of
the case, Plaintiff anticipates that Harrington and Bouman provided
Kiffner with updates of the case, particularly regarding Charles
Higman, whose depositions Kiffner twice-defended.In no sense are
those disclosures to Kiffner privileged, and therefore such
conversations represent a vulnerability against which Plaintiff
anticipates the Justice Department is trying to protect. the
October 24, 2014 order barring the seven attorneys, Judge Allegra
had received updates from James Cole, the OIG, and/or OPR,
regarding an investigation of Higmans threats against Trainor;
Judge Allegra referred the threats to Cole on September 17,
2014.Accordingly, Plaintiff intends to discover why Judge Allegra
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 included Bryant
Snee, given that Judge Allegras decision to do so may have been
motivated by updates from Cole, OIG or OPR. Stuart Delery was
significantly involved in this lawsuit, and given his documented
proximity to the issues involving Valerie Bacons attempted
obstruction of a criminal arson investigation in the form of two
read receipts for emails identifying the Valerie Bacons attempted
obstruction of justice as the subject line, stayed involved in the
lawsuit with respect to all sensitive matters.If Delerys deposition
early on establishes that he knows nothing about the events, then
it can terminate quickly.But if he has any awareness of the events,
then he must testify truthfully and fully, so as to lead to other
avenues of proof. U.S. Attorney John Leonardo was presented with
multiple requests by plaintiff to investigate Charles Higman and
instead refused.Plaintiff anticipates that John Leonardo received
instructions to do so from someone equal to or senior to his status
at DOJ; who that person is and what they told John Leonardo as to
why he must stand down from any investigations, are topics which
Plaintiff is entitled to discover, as it may lead to additional
avenues of discovery and proof regarding whether DOJ asked Higman
to pressure Trainor with the phone call, and whether DOJ attorneys
participated in a cover up afterwards by influencing ATF to shut
down the criminal investigation of Higman.James Cole is the
attorney who received the referral from Judge Allegra regarding
Christopher Trainors report of physical threats by Charles Higman
and career threats by Civil Division attorneys David Harrington,
Corrine Niosi and Veronica Onyema.James Cole should testify
regarding what he knows about these events.It is difficult to
imagine that ATF immediate past Director B. Todd Jones and ATF
current Acting Director Thomas Brandon were not consulted as to the
events Case 1:08-cv-00700-FMA Document 350 *SEALED*Filed 04/10/15
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5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regarding
Charles Higman and Christopher Trainor, and particularly the
decision to shut down the criminal investigation of Charles Higman,
for reasons stated to Christopher Trainor that were primarily to
defend against Jay Dobyns lawsuit.In other words, it is hard to
imagine that Jones and/or Brandon were not, at the very least,
complicit in any cover up and obstruction of justice, if such
occurred, by prematurely shutting down the criminal investigation
into the threats which Charles Higman issued to Trainor.If Jones
and/or Brandon were complicit in that investigative shut-down, then
they would logically have been first told DOJs motivation to have
them do so.Plaintiff suspects that that motivation was the
likelihood that Higman, when questioned, would have disclosed that
he made the threats at the request of Civil Division attorneys,
most likely David Harrington. To Plaintiffs understanding, Eric
Holder told slain Border Patrol Agent Brian Terrys family that he
is familiar with the Dobyns lawsuit and maintains his own separate
file on it.Since Eric Holder was almost certainly consulted by
James Cole regarding the Higman threats following the referral from
Judge Allegra to Cole, and because Holder may have been consulted
by Jeanne Davidson or Stuart Delery as well, Eric Holder is a prime
deposition candidate.Plaintiff believes that any order to terminate
the criminal investigation into Charles Higmans threats against
Christopher Trainor and his family had to come from a high level
whether from ATFs senior manager B. Todd Jones, Thomas Brandon,
Michael Gleysteen or Ron Turk, or whether from Eric Holder and
could have been motivated by a desire to avoid Charles Higman
informing ATF that he was put up to the threat against Christopher
Trainor by Civil Division.Given the gravity of the allegations in
context, death and violence threats against an agent and his
children, and a cover-up afterwards by closing the criminal
investigation - Eric Holders testimony is relevant Case
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to this proceeding
if he is aware of the foregoing facts; questioning him is the only
way to find out. b.Defendants proposal. i.Written discovery. The
United States submits that the parties should exchange those
documents and other materials that are relevant to the subject
matter requiring discovery as identified by the Special Master in
the April 7, 2015 order:Mr. Trainors allegations related to the
conduct of certain Department of Justice attorneys.Dkt. No. 348 at
12.The United States will produce documents and other materials
related to the subject matter identified in the Special Masters
order after expediently resolving, with the aid of the Special
Master, issues related to the United States attorney-client
privilege and attorney work product doctrine.We further anticipate
that the subsequent document production will occur on a rolling
basis, and that we will provide the Special Master with a copy of
those materials when they are produced to plaintiff. We do not
anticipate releasing any documents that have been generated as a
result of an ongoing inquiry, such as the one initiated by the
Office of Professional Responsibility.OPR has clearly informed the
Court that, while it is not taking certain actions because of the
pendency of this proceeding, its inquiry is not concluded.Dkt. No.
329.Plaintiff has provided no valid basis to obtain documents
generated from that inquiry.At the same time, the United States
anticipates serving a discrete set of document requests on
plaintiff, Mr. Dobyns, related to the same subject matter and Case
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Rule 60.We
anticipate filing those document requests by April 16, 2015, and
request that plaintiff respond by April 27, 2015. The United States
opposes the other forms of written discovery sought by plaintiff
(fifteen requests for production, thirty non-uniform
interrogatories and forty requests for admission).The subject
matter defined by the Special Master is discrete and narrow, and
interrogatories and requests for admissions are not necessary to
fully develop the evidence on that subject matter.In addition, the
United States believes that the discovery plan regarding Mr.
Trainors allegations should reflect the Courts instruction in its
February 23, 2015 order that the Special Masters report shall be
filed on or before May 29, 2015.While the Court did allow that the
Special Master may request an extension of that deadline as
appropriate, the discovery plaintiff proposes would take this
matter well past that deadline.The United States believes that with
an appropriate scope of discovery, we can allow the Special Master
to meet the May 29 deadline or, more realistically, come close to
it.Accordingly, the United States requests that written discovery
be limited to tailored requests for the production of documents
consistent with the April 7 order. ii.Depositions. The United
States concurs with plaintiff that the depositions of the following
five individuals is appropriate.a.Christopher Trainor; b.Daniel
Machonis (who has recently left ATF); c.David Harrington; d.Corinne
Niosi; and Case 1:08-cv-00700-FMA Document 350 *SEALED*Filed
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25 e.Rachel Bouman. We also concur with plaintiff regarding the
stated length of the depositions of Mr. Machonis, Mr. Harrington,
Ms. Niosi, and Ms. Bouman, but understand that those times are good
faith estimates and are not rigid.The United States reserves the
right to also question these witnesses and, should plaintiff use
most or all of his requested time for questioning a witness, the
United States reserves the right to extend the deposition beyond
that requested time to complete our questioning.We also request
that Mr. Trainors deposition be scheduled for approximately seven
hours, in light of the central role he plays regarding this subject
matter. Beyond those five depositions, we additionally propose to
depose plaintiff, Jay Dobyns, related to Rule 60 issues and his
interactions with Mr. Trainor.We anticipate that Mr. Dobyns
deposition can be scheduled for two hours.Like plaintiff, we
believe the relevant depositions should be conducted in Washington,
D.C.We further concur with plaintiff that the Special Master should
attend each of the scheduled depositions, to promote the efficient
resolution of this matter. The United States otherwise objects to
the depositions identified by plaintiff. Specifically, for the
reasons set forth in section III.B. of the United States March 13
filing, Dkt. No. 342 at 44-45, we request that the Special Master
prohibit the depositions of the Attorney General, the former Deputy
Attorney General, the former ATF Director, the U.S. Attorney from
Arizona, the current Acting Associate Attorney General, Branch
Director Jeanne Davidson, and Branch Deputy Director Bryant
Snee.Also, as plaintiff readily acknowledges, Kent Kiffner who left
the Department of Case 1:08-cv-00700-FMA Document 350 *SEALED*Filed
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25 Justice in April 2012 now resides in Ohio and was not with the
Department at the time of the conduct alleged by Mr. Trainor.He can
offer no first-hand information regarding any of the
allegations.Similarly, other Civil Division attorneys plaintiff has
listed have no first-hand information to provide regarding the
allegations.None of these witnesses should be required to
participate in this discovery. Furthermore, the United States
requests that the Special Master prohibit the depositions of
individuals to the extent they are based on plaintiffs bald
suspicion that Mr. Higman may have been used to pressure Mr.
Trainor, or to explore why ATFs investigation of Mr. Higmans
voicemail message to Mr. Trainor was closed.There is no factual
basis for that discovery and it is outside of the discovery
contemplated by the April 7 order, which stated that [i]t appears
that, if there was an attempt to induce Trainor not to testify as
he did, it failed, and limited discovery to the behavior of the DOJ
attorneys who may have learned of the Higman threat.Dkt. No. 348 at
12. The United States anticipates that the six depositions could be
taken shortly after the conclusion of document production and,
barring any significant scheduling conflicts with a witness, could
be conducted during the course of a single week. 2.Hearing
a.Plaintiffs Proposal At the close of written discovery and
depositions, Plaintiff asks that the Special Master conduct a
status conference with the parties to hear argument on whether to
conduct a final evidentiary hearing, at which time the Special
Master could determine how many witnesses each side could present,
and whether the parties may present, in Case 1:08-cv-00700-FMA
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13 14 15 16 17 18 19 20 21 22 23 24 25 final briefing, and Special
Master may rely upon deposition transcript testimony from any
witnesses not appearing at a final hearing. If the Special Master
determines not to conduct a final hearing, then Plaintiff requests
that the parties be permitted to submit final briefing on the
issue(s) before the Court, similar to motions for summary judgment,
not to exceed forty pages.In the event that the Special Master
conducts a final evidentiary hearing, Plaintiff proposes that such
a hearing commence on July 20, 2015, and continue to conclusion
through Thursday, July 23, 2015, with closing argument to occur on
Friday, July 24, 2015, for ninety minutes for each side, to be
supplemented by closing briefs due twenty-eight (28) days later,
not to exceed forty pages per side. b.Defendants Proposal The
United States concurs with plaintiff that the Special Master should
conduct a status conference with the parties after the conclusion
of depositions to hear argument on whether to conduct a final
evidentiary hearing.This could occur immediately at the conclusion
of the last scheduled deposition.We further agree that, should the
Special Master decide not to conduct a final evidentiary hearing,
the parties should be permitted to submit filings similar to
motions for summary judgment on the specific issues identified in
the April 7, 2015 order.We disagree with plaintiff regarding the
schedule for any evidentiary hearing, should the parties and/or the
Special Master determine that a hearing is appropriate.The hearing
should be scheduled as soon as practical to comply as closely as
possible with the Courts instruction that the Special Masters
report should be filed by May 29, 2015. Case 1:08-cv-00700-FMA
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13 14 15 16 17 18 19 20 21 22 23 24 25 3.Schedule The parties were
unable to agree upon a schedule of proceedings and present their
respective proposals below: a.Plaintiffs Proposal At the time Judge
Allegra ordered the May 29, 2015, production date of the Special
Masters report, neither the Court nor Plaintiff contemplated the
scenario that Civil Division (a) directed Charles Higman to call
Christopher Trainor and pressure, intimidate or threaten Trainor,
or (b) caused ATF to shut down the criminal investigation of Higman
because Higman would have revealed that Civil Division caused him
to contact Trainor. These new allegations of Civil Division
misconduct call for more discovery and investigation by Plaintiff
and the Special Master.Such discovery and proceedings are
appropriate given the focus of the Special Masters investigation.
the allegations at issue are of ethical violations that, if proven,
should result in monetary sanctions against defendant in favor of
plaintiff, which would increase plaintiffs damages. If Justice
Department attorneys committed ethical infractions and criminal
conduct in the context of this lawsuit, then itis appropriate for
the Special Master to explore the issue thoroughly, which requires
time beyond May 29, 2015. Plaintiff proposes that the Court adopt
the following pretrial schedule: Last day to serve written
discovery April 27, 2015 Last day to respond to written discovery,
with copies of responses served simultaneously on the Special
Master May 18, 2015 Status conference to resolve any outstanding
written discovery disputes May 22, 2015 Case 1:08-cv-00700-FMA
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13 14 15 16 17 18 19 20 21 22 23 24 25 Week 1 of depositions Week 2
of depositions June 8-12, 2015 June 15-19, 2015 If evidentiary
hearing is conducted, Plaintiff files his final witness list, final
exhibit list, and Memorandum of Contentions of Fact and Law June
26, 2015 If evidentiary hearing is conducted, Defendant files its
final witness list, final exhibit list, and Memorandum of
Contentions of Fact and Law June 30, 2015 If hearing, date for any
motions in limineJuly 6, 2015 Responses to motions in limine are
filed July 10, 2015 Replies in support of motions in limine are
filed July 14, 2015 Pre-hearing ConferenceJuly 17, 2015 If no
evidentiary hearing occurs, then final briefs are due, forty pages
per side July 27, 2015 If no evidentiary hearing occurs,
thensimultaneous responses to final briefs are due August 11, 2015
If evidentiary hearing is conducted, witness testimony is takenJuly
20-23, 2015If evidentiary hearing, date of closing argument, ninety
minutes per side July 24, 2015 If evidentiary hearing, post-hearing
briefs due, forty pages per side If evidentiary hearing, then
simultaneous August 28, 2015 final post-hearing response briefs are
dueSeptember 11, 2015 Case 1:08-cv-00700-FMA Document 350
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20 21 22 23 24 25 b.Defendants Proposal The United States believes
that much of the discovery proposed by plaintiff is unnecessary and
inconsistent with the Courts instructions and the Special Masters
April 7, 2015 order.Because we propose a much more limited
discovery process, our suggested schedule is notably different than
plaintiffs pretrial schedule.The United States proposes that the
Court adopt the following schedule, which should be subject to
reasonable requests for extensions of time as may become
appropriate: Completion of Document ProductionApril 27, 2015
Depositions ConductedMay 4-11, 2015 Dispositive Motions FiledMay
18, 2015 Reply briefs on dispositive motions filedMay 27, 2015 If
an evidentiary hearing is conducted, final witness list and exhibit
list filed May 15, 2015 If an evidentiary hearing is conducted,
hearing (with 45-minute closing arguments) held May 20-22, 2015 If
an evidentiary hearing is conducted, simultaneous post-hearing
briefs filed May 29, 2015 4.Final Arguments. a.Plaintiffs argument.
If the Department of Justice prepared Charles Higman to apply
pressure to Christopher Trainor, then that is almost certainly why
the Justice Department does not want Plaintiff to depose anyone
involved in the shut-down of the criminal investigation of
Higman.If Civil Division directed Higman to attempt to pressure or
intimidate a ATF agent and witness in a federal proceeding, in the
form of Trainor altering his report by Case 1:08-cv-00700-FMA
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13 14 15 16 17 18 19 20 21 22 23 24 25 including a statement from
Higman, with Trainors report of investigation already admitted into
evidence as an exhibit and concerning which Trainor had already
testified, it may ultimately result in a monetary sanction in favor
of Plaintiff.And if any Justice Department attorneys participated
in or encouraged the closing of the Higman criminal investigation
for improper reasons would represent obstruction of a criminal
investigation and call for the imposition monetary sanctions in
favor of Plaintiff.As a result, if there were only five to six
witnesses, as Defendant claims (a claimwhich Plaintiff obviously
opposes), whose depositions were required by the facts of this
investigation, those witnesses would be (1) Charles Higman, (2)
Christopher Trainor, (3) David Harrington, and every person who
listened to David Harringtons telephone call to Trainor in which
Harrington twice threatened Trainors career; Plaintiff understands
those other persons to be (4) Daniel Machonis, (5) Corrine Niosi
and (6) Veronica Onyema. A thorough investigation of the facts of
any direction to Higman to make the call to Trainor and DOJs role
in the shut-down of the criminal investigation of Higman by ATF,
requires witnesses in addition to those six. Plaintiff agrees with
Defendants meet-and-confer statement, that the behavior of the DOJ
attorneys who may have learned of the Higman threat is in fact at
issue.But the behavior of those attorneys in possibly encouraging
and assisting Higman to make the threatening call to Trainor, and
the attorneys behavior in potentially directing, suggesting or
encouraging the closing of the criminal investigation into Higmans
threat against Trainor, is not merely relevant to the investigation
of the Special Master; it is the heart and soul of this Rule 60
fraud proceeding. Case 1:08-cv-00700-FMA Document 350 *SEALED*Filed
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21 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 Given the circumstances, Plaintiff submits that the Justice
Department cannot be entrusted to undertake a proper investigation
of this matter.It is left to this Court to ensure the integrity of
its own proceedings by investigating the conduct of this issue
thoroughly, in part by allowing Plaintiff to conduct the necessary
discovery and present those findings to the Special
Master.b.Defendants argument. The United States will not provide
extensive argument in this, a joint status report.We instead rely
principally upon our positions stated above, as well as the
argument and legal authority cited in our March 13, 2015 filing
with the Special Master, Dkt. No. 342, as our response to
plaintiffs arguments. One argument raised by plaintiff bears a more
specific response.To justify his onerous discovery plan and the
ordering of Mr. Higman to Washington for a deposition, plaintiff
now relies heavily on what he terms new allegations that the Civil
Division directed Charles Higman to call Christopher Trainor and
threaten him, or caused ATF to shut down the criminal investigation
of Higman because Higman would have revealed that Civil Division
caused him to contact Trainor.These allegations, however, are based
solely on the fact that Mr. Higman used the phrase case law in his
telephone conversation with Mr. Trainor and plaintiffs mere
speculation that the phrase was more likely supplied to him by
David Harrington and others, and appears to have been rehearsed
with a Department of Justice attorney.That speculation, much like
plaintiffs allegations of Department of Justice involvement in
recent threatening phone calls and an assault on the Chicago
Jetway, falls far short of a Case 1:08-cv-00700-FMA Document 350
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20 21 22 23 24 25 colorable claim of fraud that could justify
discovery under Rule 60.That ungrounded speculation, however, now
shapes much of plaintiffs proffered discovery plan. Finally,
counsel for the United States can be available at the Special
Masters convenience for oral argument that the Special Master may
deem helpful before ruling on the appropriate breadth of discovery
and the ultimate schedule in this matter. Respectfully submitted,
/s/ James B. ReedBENJAMIN C. MIZER JAMES B. REEDActing Assistant
Attorney General Baird Williams & Greer, LLP 6225 North 24th
St., Suite 125 Phoenix, Arizona 85016s/ Robert E. Kirschman, Jr.
Telephone: (602) 445-7720 ROBERT E. KIRSCHMAN, JR.Facsimile: (602)
271-9038Director Commercial Litigation Branch Attorneys for
PlaintiffCivil DivisionDepartment of Justice Ben Franklin Station
P.O. Box 480 Washington, D.C.20044 (202) 616-0465 (202) 305-7644
(fax) e-mail: [email protected] April 10, 2015Attorneys
for Defendant Case 1:08-cv-00700-FMA Document 350 *SEALED*Filed
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25 CERTIFICATE OF SERVICE The undersigned hereby certifies that, on
April 10, 2015, a copy of the foregoing
JointStatusReportwasservedoncounselforDefendantelectronicallytoRobert
Kirschman,CommercialLitigationBranch,CivilDivision,UnitedStatesDepartment
of Justice, PO Box 480, Ben Franklin Station, Washington DC20044.
/s/ James B. Reed James B. Reed Case 1:08-cv-00700-FMA Document 350
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