northern district of california vs. ) no. c …...northern district of california before the...

Pages 1 - 82

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE WILLIAM H. ALSUP

RAHINAH IBRAHIM, an individual, ) ) Plaintiff, ) ) VS. ) NO. C 06-0545 WHA ) DEPARTMENT OF HOMELAND SECURITY, )et al, ) ) San Francisco , California Defendants. ) Friday ) November 15, 2013 ___________________________________) 9:00 a.m.

TRANSCRIPT OF PROCEEDINGS

APPEARANCES: For Plaintiff: McMANIS-FAULKNER Fairmont Plaza, 10th Floor 50 W. San Fernando Street San Jose, California 95113 BY: ELIZABETH PIPKIN, ESQ. CHRISTINE PEEK, ESQ. RUBY KAZI, ESQ. JENNIFER MURAKAMI, ESQ. For Defendants: U.S. DEPARTMENT OF JUSTICE Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20001 BY: PAUL FREEBORNE, ESQ. JOHN THEIS, ESQ. LILY FAREL, ESQ. Reported By: Debra L. Pas, CSRReported By: Debra L. Pas, CSRReported By: Debra L. Pas, CSRReported By: Debra L. Pas, CSR 11916 11916 11916 11916, , , , CRR, RMR, CRR, RMR, CRR, RMR, CRR, RMR, RPR RPR RPR RPR Official Reporter - US District Court Computerized Transcription By Eclipse Debra L. Pas, CSR, CRR, RMR, RPR Debra L. Pas, CSR, CRR, RMR, RPR Debra L. Pas, CSR, CRR, RMR, RPR Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California Official Reporter - U.S. District Court - San Francisco, California Official Reporter - U.S. District Court - San Francisco, California Official Reporter - U.S. District Court - San Francisco, California (415) 431-1477 (415) 431-1477 (415) 431-1477 (415) 431-1477

2

1 THE CLERK: Calling civil 0645, Ibrahim versus

2 Department of Homeland Security.

3 Counsel, can you please state your appearances fo r the

4 record.

5 MR. FREEBORNE: Paul Freeborne for the defendants,

6 your Honor. With me at counsel table is Lily Far el and Jack

7 Theis.

8 THE COURT: Welcome to all of you.

9 MS. PIPKIN: Good morning, your Honor. Elizabeth

10 Pipkin from McManis-Faulkner on behalf of plainti ff Rahinah

11 Ibrahim. With me today is Ruby Kazi, K-A-Z-I.

12 MS. KAZI: Good morning.

13 THE COURT: Good morning both of you.

14 MS. PIPKIN: Good morning.

15 And also at counsel table we have Christine Peek, Jennifer

16 Murakami and our paralegal Michelle Gabellini.

17 THE COURT: Good morning to all of you.

18 Okay. We're here for a final pretrial conference for a

19 trial that starts in a couple weeks and a number of motions in

20 limine have been filed. I usually like to take u p the motions

21 in limine first, but if you all have a better pro gram, then

22 I'll -- some other way to proceed, then we'll do that.

23 So you're the plaintiff. What do you have to say ,

24 Ms. Pipkin?

25 MS. PIPKIN: We're in favor of taking up motions in

Debra L. Pas, CSR, CRR, RMR, RPR Debra L. Pas, CSR, CRR, RMR, RPR Debra L. Pas, CSR, CRR, RMR, RPR Debra L. Pas, CSR, CRR, RMR, RPR Official Reporter - U.S. District Court - San Francisco, California Official Reporter - U.S. District Court - San Francisco, California Official Reporter - U.S. District Court - San Francisco, California Official Reporter - U.S. District Court - San Francisco, California (415) 431-1477 (415) 431-1477 (415) 431-1477 (415) 431-1477

3

1 limine, your Honor.

2 MR. FREEBORNE: Your Honor, there are two issues that

3 I think are fairly large issues.

4 The first is the public access issue. We underst and that

5 plaintiff will have an opportunity to respond to our motion,

6 but that's an issue that I think will permeate th e trial.

7 And then there's also the issue of -- we have -- in our

8 trial brief we note that we don't see how this ca se can proceed

9 to trial given the evidence that's been excluded in the case.

10 Last night, pursuant to the Court's order, we pro vided

11 Exhibit B to plaintiff's counsel in redacted form .

12 Perhaps, to the extent possible, we could address the

13 larger issue, which is the -- how this case can p roceed without

14 reference to the excluded evidence.

15 THE COURT: Well, which motion in limine is that?

16 MR. FREEBORNE: It relates to a few of the motions in

17 limine, your Honor, but it's also an issue that, again, we

18 think needs to be resolved on a more macro level than motions

19 in limine.

20 MS. PIPKIN: Your Honor, plaintiff objects to this.

21 The government did not file a motion in limine re lated to those

22 issues. We got a brief that was filed late. We' re going to

23 respond.

24 THE COURT: You have a summary judgment motion.

25 Didn't you make this very point on summary judgme nt?


4

1 MR. FREEBORNE: We did, your Honor. And you found

2 that our showing was too conclusory on Section 3 of our

3 argument. We would like the opportunity, to the extent

4 possible, to present that argument here today so that at the

5 very least we can receive guidance on how we shou ld be

6 presenting our case and proceeding to trial in li ght of the --

7 in our view the heart of the case has been exclud ed pursuant to

8 the State Secrets Provision.

9 THE COURT: You excluded it. I didn't exclude it.

10 You excluded it by invoking the State Secret -- w ait a minute.

11 We're not going to do this first. We'll do it in due course

12 today.

13 But here is the point you should be thinking abou t. You

14 told me repeatedly in this case -- I went back an d read all the

15 reports -- that when you invoked the State Secret s Doctrine,

16 the evidence is out of the case for all purposes. You won't

17 rely on it and they can't rely on it. It's like it never

18 existed.

19 MR. FREEBORNE: That's true, your Honor. We stand

20 here today and stand behind those statements.

21 THE COURT: All right. So then we just ignore it.

22 We just ignore it.

23 MR. FREEBORNE: If Mr. Theis --

24 THE COURT: I'll give you one minute and, if

25 necessary, we'll go back into this later on in th e hearing.


5

1 But that's what you told me before. Now you seem to be

2 saying that you're entitled to rely on the eviden ce to secretly

3 knock this case out, period. That's what you're telling me

4 now. That's what I understand you to be saying i n your brief

5 and your secret submission.

6 Go ahead, counsel.

7 MR. THEIS: So, your Honor, the Jeppesen analysis,

8 when we submitted our information to the Court, i n order to

9 look to whether or not the information that we su bmitted that

10 was classified was covered by the State Secrets P rivilege, that

11 requires three steps. Your Honor completed the f irst two of

12 those steps. The first being, were the procedura l requirements

13 met; and the second is the independent determinat ion of the

14 information and whether it should be excluded.

15 But the ultimate question how this case can proce ed once

16 that information is excluded hasn't fully been re solved. And

17 that question is now directly going to be at issu e at trial.

18 THE COURT: No. Because you can't rely on it. You

19 told me that you would not rely on that evidence at trial.

20 MR. THEIS: And then we submitted in our summary

21 judgment brief, Section 3, which states that, fol lowing the

22 Ninth Circuit precedent, if this information is e xcluded from

23 the case and if it goes to the core of the case - - meaning

24 plaintiff can't use it to establish her claims an d the

25 defendants can't use it to present a defense. If that is the


6

1 case, the Ninth Circuit makes clear it can't go f orward because

2 neither party can use it.

3 And that information that we -- we submit, we exp lained in

4 further detail in our submission why exactly that information

5 is what is at issue here. And I can't --

6 THE COURT: All right. I feel that I have been had

7 by the government.

8 I'm going to read you something. This is -- this was a

9 request that I sent out on September 13th. And t his was after,

10 at least twice, the government had told me in the se discovery

11 disputes that if you invoke the State Secrets Doc trine, then

12 the evidence that is withheld on account of state secrets,

13 meaning classified information, cannot be relied upon by either

14 side. It's out of the case and we litigate it in some other

15 way.

16 All right. So on the -- on one of these later ro unds of

17 compelling production, I got to thinking about th e very mess --

18 the very corner that you were painting yourself i nto.

19 Are you listening to me now, counsel?

20 MR. THEIS: I am, your Honor.

21 THE COURT: If you need to get a document, I'm happy

22 to let you take a moment to get the document.

23 So I'm thinking to myself: Is the government -- does it

24 know where it's heading? So I said to myself: I 'm going to

25 make clear, make this clear. So it is a very sho rt order.


7

1 I'll read the whole thing. September 13th, this year.

2 "Plaintiff's pending motion to compel production

3 of documents raises questions regarding what evid ence

4 the government intends to rely on at summary judg ment

5 and at trial. The Court is of the view that the

6 government may not rely in any way upon any

7 information it has refused to turn over to plaint iff

8 in response to a reasonable request.

9 "The government shall file a submission stating

10 whether it agrees with or objects to this princip le

11 by September 17th at noon.

12 "Although this principle applies across the

13 board, the government should also specifically

14 address the question as it pertains to plaintiff' s

15 arguments in favor of compelling production of," and

16 then I give some Bates numbers.

17 Okay. Here is what you said. I'm just reading p art of

18 what you said, not the whole thing.

19 You say:

20 "In response, defendants affirm that they will

21 not rely on any information they have withheld on

22 grounds of privilege from plaintiff in response t o a

23 discovery request in this case. Defendants are

24 mindful of the Court's December 20, 2012 ruling t hat

25 the government may not affirmatively seek to prev ail


8

1 in this action based upon information that has be en

2 withheld on grounds of privilege and have acted i n a

3 manner consistent with that ruling in both the

4 assertion of privilege and summary judgment

5 briefing."

6 So, to my mind, what this means is, yes, you have all this

7 secret classified information. You have withheld it. I have

8 upheld your withholding of that, except with very minor

9 exception. And now that's just -- we ignore that . It's gone.

10 So now you're coming in to say that you -- becaus e of

11 something, some home run that's lurking in that c lassified

12 information, you think that the case has to be di smissed.

13 Now, that's what I -- possibly I -- you know, I j ust got a

14 block and I can't see that I'm wrong about this, but that's the

15 way I see the problem.

16 So I'll let you now -- you can try to address tha t.

17 MR. THEIS: Your Honor, we're not asking the Court,

18 and we can't ask the Court, to rely on the merits of the

19 information that's contained on there to make any sort of

20 judgment based on the content of the information that's been

21 excluded. And the Court can't do that. We can't use it.

22 Plaintiff can't use it. No one can use it for th e merits of

23 the ultimate questions.

24 But Jeppesen and other Ninth Circuit cases make c lear that

25 when the information that is at the core of the c ase, when it


9

1 is what is the most central to our defense and pl aintiff's

2 claims, when that information is removed from the case and

3 neither party can rely on it, the case can't go f orward.

4 So we're not asking the Court to look to the info rmation

5 to say this information contains information goin g either

6 direction about plaintiff. We're not asking the Court to make

7 any sort of merits adjudication relating to her.

8 All we're saying is, this information that's been excluded

9 is -- no longer can be used by either party. And in those

10 circumstances the Ninth Circuit has been clear th at the case

11 can't go forward.

12 And we -- this point we argued in our summary jud gment

13 brief as our first step of our -- of Section 3 of our summary

14 judgment brief; that when -- in these circumstanc es when the

15 only issue was when the core of the case revolves around

16 information that's been excluded, the case can't go forward.

17 So in that regard we're not asking the Court in a ny way

18 to use that information affirmatively. We're not using it

19 affirmatively. They are not -- they can't use it affirmatively

20 and neither can we. We're simply pointing out to the Court

21 that in the third step of the Jeppesen analysis the ultimate

22 question that is before the Court, the Court need s to weigh

23 whether or not this information is at the core of the case, is

24 central to our defense and is central to their cl aims.

25 And that's why we submitted both Exhibit A and Ex hibit B.


10

1 Exhibit A does the -- under seal, explains why ea ch one of her

2 claims and the way that she's articulated each on e of her

3 claims ultimately gets to information that's been excluded.

4 And that's why we've submitted that in this case.

5 THE COURT: Well, why didn't you say all of that in

6 the statement that you made back in response to t he Court's

7 request that was filed on September 17?

8 MR. THEIS: Your Honor, we did say that the Court

9 would need to -- I believe in that submission and certainly in

10 our summary judgment, we said the Court needed to consider the

11 effect of the exclusion of the information; not t he merits of

12 the information, not whether it going either way on the

13 ultimate questions, but what happens once it's ex cluded.

14 THE COURT: All right. What does the plaintiff want

15 to say?

16 MS. PIPKIN: Your Honor, this case, as you know, has

17 been pending more than seven years and throughout these seven

18 years the government's tactic has been to delay, to delay and

19 today even more delay.

20 And the government has never contested this case on its

21 merits. This case has a lot of merit. The Ninth Circuit has

22 said that Dr. Ibrahim should be treated the same as any United

23 States citizen.

24 This case is about the rights of United States ci tizens

25 and the government's response to that is to try t o cloak this


11

1 proceeding in secrecy contrary to the law. The l aw does not

2 provide that this case should be dismissed based on the State

3 Secrets Doctrine.

4 As your Honor is aware, the Reynolds standards have three

5 circumstances under which a case should be dismis sed if the

6 State Secrets Doctrine has been invoked. And I b rought a

7 slide, your Honor, is welcome to look at it. We' ll bring it

8 up. It's slide two.

9 MR. THEIS: Can we see the information?

10 (Whereupon, document was shown to counsel.)

11 (Document displayed)

12 MS. PIPKIN: The first circumstance is if the

13 plaintiff cannot prove the prima facie elements o f her claim

14 with non-privileged evidence.

15 The second circumstance is if the privilege depri ves the

16 defendant of information that would otherwise giv e the

17 defendant a valid defense to the claim. A valid defense, your

18 Honor.

19 And the third circumstance is if litigating the c ase to

20 judgment would present an unacceptable risk of di sclosing state

21 secrets.

22 None of those circumstances apply in this case.

23 With respect to the first circumstance, plaintiff can

24 prove her prima facie case and has put forward fa cts that the

25 Court relied upon to deny the summary judgment mo tion. And


12

1 this is unlike the -- many of the cases that the defendants

2 cite where the plaintiff had confidential informa tion that the

3 plaintiff would try to rely on.

4 In this case the plaintiff doesn't have any acces s to

5 classified information. There is no risk that th e plaintiff is

6 going to disclose something classified.

7 Now, the second circumstance is if the privilege deprives

8 the defendant of information that would otherwise give the

9 defendant a valid defense to the claim.

10 And there is a case called the In Re Sealed case, your

11 Honor.

12 And if we go to slide three.

13 (Document displayed.)

14 This is a case in which the Court addressed what the

15 defendants have to show to prove a valid defense. And the

16 Court said:

17 "The District Court may properly dismiss a

18 complaint because of the unavailability of a defe nse

19 when the District Court determines from appropria tely

20 tailored in camera review of the privileged recor d

21 that the truthful state of affairs would deny

22 defendant a valid defense that would likely cause the

23 trier of fact to reach an erroneous result. A va lid

24 defense is meritorious and not merely plausible a nd

25 would require judgment for defendants. In other


13

1 words, the defense must be both meritorious and

2 dispositive."

3 In order for the government to obtain dismissal o f this

4 case based on the State Secrets Information, they have to show

5 that they are deprived of a meritorious defense a nd one that

6 would require the Court to dismiss the case in th eir favor.

7 They cannot meet that burden.

8 All of the evidence that we know about indicates that the

9 defendants do not have a valid defense. I haven' t seen the

10 classified information, but unless the defendants can tell you

11 that there is something in there that would absol utely require

12 dismissal and that moving forward with this case would result

13 in a false and untruthful result, then they can't get dismissal

14 of this case.

15 And these cases talk about -- the In Re Sealed case talks

16 about how this is similar to if you have a witnes s die, for

17 example, and the evidence just becomes unavailabl e. The

18 defendants have claimed State Secret Privilege. That means

19 that evidence is just now unavailable, as you wou ld if you had

20 a witness who was unavailable.

21 We all the time in cases have a situation where m aybe not

22 all of the evidence we might like to put in is av ailable.

23 Maybe it's inadmissible. Maybe a witness is outs ide of the

24 jurisdiction. Maybe something is privileged. I' m sure it

25 would be helpful to me if I could get defense cou nsel's notes.


14

1 I'm not going to be allowed to do that.

2 So the defendants can't just stand up here and sa y to you:

3 Well, maybe we can use some of this information. It might come

4 into play, et cetera. That's not enough to meet the standard

5 under the In Re Sealed case.

6 Now, the third prong is whether litigating the ca se to

7 judgment presents an unacceptable risk of disclos ing the state

8 secrets. And here that does not apply either. W e have already

9 been through a significant amount of discovery an d the

10 defendants have shown they can object to question s. The Court

11 has sustained those objections. We have been abl e to address

12 these issues on a case-by-case basis. And much o f the

13 government's information regarding Dr. Ibrahim is already

14 known.

15 Again, this case is very dissimilar from the Mohamed case

16 and other cases the government cites because the system we're

17 talking about here is an unclassified data base, the terrorist

18 screening data base. It is the system that is -- it's been

19 reported widely in the press. There are numerous , numerous

20 government reports discussing these data bases. Every American

21 who flies is -- their information is run through this system.

22 The government is constantly assuring the America n public that

23 because of these data bases, the public is safe f rom terrorist

24 attacks.

25 And this is totally different from the situation in


15

1 Mohamed versus Jeppesen where there was a secret CIA rendition

2 program that the government had never acknowledge d the

3 existence of. Everybody knows about these data b ases. They

4 are shared with local law enforcement. They are shared with

5 the airlines. Sheriff Andy Taylor Mayberry is pr ivy to this

6 information.

7 So this is not a situation like the cases where t he

8 government cites where it's a top secret program and the

9 existence is going to be revealed and the governm ent is going

10 to be harming national security by litigating the case. The

11 government can object as appropriate. The Court can sustain

12 those objections.

13 We have examples in this case where the governmen t has

14 claimed that something was classified and state s ecret and it's

15 not because it's available through FOIA requests and it's been

16 produced to other people and it's on the internet .

17 I have an example at slide five. Let me show thi s to the

18 government, just so they have the opportunity to object, your

19 Honor.


21 We're putting up on the screen, this is Defendant 's

22 Exhibit EE to Christine Peek's declaration in sup port of the

23 motion for summary judgment.

24 (Document displayed.)

25 This is a document that was obtained by the Epic


16

1 Organization pursuant to a FOIA response on Septe mber 13, 2011.

2 And you'll see here this document states that:

3 "The Counterterrorism Division's policy requires

4 that all main IT subjects" -- which is internatio nal

5 terrorism subjects -- "for both full and prelimin ary

6 investigations in the 315 classification."

7 Your Honor, may remember at the last hearing we s howed

8 that Dr. Ibrahim's interview summary showed that she was in the

9 315 classification, and that those 315 classifica tions is on

10 the FBI's website. You can see that it stand for international

11 terrorism investigation.

12 "So everyone in this category and all subjects of

13 domestic terrorism full investigations in the 266

14 classification shall be nominated for entry into the

15 TSC's Terrorist Screening Data Base (TSDB) and al l

16 eligible supported systems if the subject meets t he

17 criteria for inclusion.

18 And I'm not going to read the rest of that right now. But

19 the point here is, your Honor, the circled inform ation that

20 I've circled here -- this document was also produ ced to

21 plaintiffs in this case, but the circled informat ion was

22 redacted because it's supposedly privileged or su pposedly a

23 state secret and there was a notation there for 0 2, which means

24 classified. The truth is, it's not classified. It's available

25 on the internet.


17

1 There is no harm to national security here. The

2 information that plaintiff is going to rely on is publicly

3 available and widely known and the Court can sust ain

4 objections, as appropriate, as we move forward wi th the trial.

5 I would like to bring up a quote from -- your Hon or

6 mentioned Justice Douglas last time. At slide si x we have a

7 quote from Justice Douglas. He was dissenting in this

8 particular case, so maybe that doesn't bode well.

9 He said:

10 "Anyone who has ever been in the executive branch

11 knows how convenient the 'top secret' or 'secret'

12 stamp is. How easy it is to use and how it cover s,

13 perhaps for decades, the footprints of a nervous

14 bureaucrat or a wary executive."

15 And as I pointed out, your Honor, we've had some stamps in

16 this case that are a little bit dubious as well.

17 The Court mentioned that the government has made

18 statements that they can proceed with this case. They always

19 have represented that their objection on state se crets grounds

20 simply takes the evidence out of the case and the n neither side

21 can use it. And that's how we all proceeded with this case.

22 Now, suddenly they are coming in here and arguing that the

23 entire case needs to be dismissed because they do n't want to

24 defend this case on its merits, as they have show n for seven

25 years. What they are really objecting is that th is trial is


18

1 going to force them to admit that some of the inf ormation that

2 is publicly known is actually true.

3 Now, let's look at on slide seven we have another

4 statement by the government, in addition to the o ne that your

5 Honor mentioned from a previous hearing, where th e Court asked

6 the government this question.

7 So at slide search the Court said:

8 "I'll ask the government. If it's true that at

9 the trial you plan to use classified information,

10 then isn't it absolutely right that at that point , if

11 you're going to affirmatively use it, you are wai ving

12 any privilege, and they get to look at it?"

13 And Ms. Farel said:

14 "Your Honor, the effect of the assertion of the

15 State Secrets Privilege is to exclude the informa tion

16 entirely from the case."

17 And the Court said:

18 "All right. So you're not going to look at it at

19 all. You're not going to raise it at all."

20 And Ms. Farel said:

21 "Your Honor, we're not going to."

22 And then the Court said:

23 "That's what I thought would be your answer, so

24 thank you for the brief answer. All right. You' re

25 going to have a chance to talk in a minute, but - -


19

1 so, Ms. Peek, they're not going to bring it up.

2 They're not going to raise it. They are not goin g to

3 rely on it. They are going to sit back and wait for

4 you to make out a prima facie case."

5 These have been the representations of the govern ment

6 throughout this case. They should not be allowed to now come

7 in here and say that this case should be dismisse d after

8 everything that we have all been through. It's t ime to

9 adjudicate this case on its merits.

10 That's what I have to say right now about state s ecrets,

11 your Honor.

12 THE COURT: Can you go back to the slide with the

13 three points? I want to see that slide again.

14 MS. PIPKIN: Yes, your Honor. That's slide two.

15 (Document displayed)

16 THE COURT: Okay. Let's hear from the rebuttal.

17 MR. THEIS: Your Honor, this case is similar to

18 Jeppesen and to Kasza and the other Ninth Circuit cases that we

19 have submitted in this case and the description t hat's on the

20 slide right now in that in all those cases there was an

21 assertion and a perfection of the State Secrets P rivilege. And

22 then the next step was: What happens next?

23 Jeppesen does a lengthy analysis of what exactly the Court

24 needs to do once the information has been exclude d from the

25 case, and it requires an analysis of what happens next.


20

1 These three factors are part -- all go to the gen eral

2 question of: Is this question the core of the ca se? Each one

3 of their claims that they have articulated in the ir joint

4 proposed pretrial order begin with the issue that 's the core of

5 this case, and the basis of that issue has been e xcluded.

6 We have -- not today. We never at any point have said

7 that we're ever going to rely on the merits of th e information

8 that's underlying -- that's contained within the State Secrets

9 Privilege information to make a merits ruling in this case.

10 All that we're saying is that this -- and we said in our

11 summary judgment brief. All that we're saying is that these

12 three factors prove that this case cannot go forw ard because

13 the core of the case has been excluded.

14 And I would note, your Honor, that this is -- the effect

15 of this type of dismissal is a dismissal without prejudice. If

16 there is a way to move forward in a case that doe s not involve

17 the State Secrets Information, where that informa tion is not

18 the core of the case, that could potentially go f orward. But

19 the way that this -- the claims have been articul ated by

20 plaintiff, the way that they are focusing specifi cally on the

21 information that has been excluded from the case in order to

22 resolve it, we don't see a way that it can go for ward. We

23 don't see a way that we can present the defense t o that

24 claim -- to those claims. We don't see a way tha t they can

25 establish their prima facie case.


21

1 THE COURT: All right. Anything more on this issue?

2 MR. THEIS: One last point we'd make, your Honor, is

3 the third point of the Jeppesen unless also includes the risk

4 of disclosure. And we've discussed this at lengt h at previous

5 hearings and we set forth the reason why that's a t issue here.

6 If the witnesses are called, the government witne sses that

7 are called, it's likely that plaintiff's counsel will ask

8 questions and go to issues that are, again, at th e heart of her

9 case. She has every intent to do so. In those c ircumstances

10 that's another factor the Court can consider in t he Jeppesen

11 analysis.

12 THE COURT: Anything more the lawyers want to add?

13 MS. PIPKIN: No, your Honor.

14 THE COURT: All right. Here is the ruling. This

15 case has been here a long time. At an earlier st age in the

16 case the Court held -- this Court held that the p laintiff did

17 not have standing because she was an alien who ha d voluntarily

18 left the United States and, therefore, did not ha ve standing,

19 in my view, to assert constitutional rights from abroad in a

20 U.S. District Court.

21 And I think I told you all at the time that that could

22 lead to a lot of mischief with aliens abroad -- w ith, perhaps,

23 not the best interest of the United States at hea rt -- bringing

24 lawsuits here in our federal courts and aliens, p erhaps even

25 terrorists, trying to control rulings by the U.S. District


22

1 Court.

2 So this Court held that an alien who voluntarily left the

3 United States no longer had the right to bring pr ospective

4 claims, but could bring retroactive claims for da mages.

5 The damages part of the case went away, but on ap peal by a

6 two to one vote I was overruled and the Ninth Cir cuit said that

7 if an alien abroad had a substantial connection t o the United

8 States, they could assert constitutional rights. The United

9 States did not seek review in the Supreme Court o f that

10 decision, but instead acquiesced. So we came bac k down here.

11 My job is to honor what the Court of Appeals has ruled.

12 And even though I disagree with it, I still think my original

13 ruling was correct. Nonetheless, my job as the d istrict judge

14 is to salute and say, "I'm going to followed my o rders." And I

15 believe in following the law, and the law is that I have -- I

16 used the wrong standard for determining standing.

17 So that then led to a long series of fights over

18 discovery. The judge looked at some of the infor mation under

19 the so-called SSI privilege, the law enforcement privilege and,

20 also, classified information. And then, finally, we get up to

21 a summary judgment time. The government won on o ne issue, but

22 lost on other issues and we're going to -- now we 're going to

23 have a trial.

24 So here we are at the final pretrial conference, after

25 many years of litigation in the case, and the gov ernment is


23

1 basically making a motion for reconsideration on something that

2 they brought up in its motion for summary judgmen t and the

3 Court ruled against it.

4 So as a motion for reconsideration, just on that ground

5 alone, this has to be denied. This is not -- thi s could have

6 been -- everything that you submitted in that sec ret document

7 could have been raised before, but you just didn' t do it. So,

8 too bad for you. You should have done it. You d idn't.

9 But I'm not going to rest just on that. The seco nd point

10 I'm ruling against you on is that this is a compl ete reversal

11 of field from what the government has been tellin g me all along

12 in this case is the effect of invoking the State Secrets

13 Doctrine. What you have been telling me all alon g is that when

14 we get to trial, we pretend as if the evidence ne ver existed,

15 nobody can rely on it, and we litigate the case i n some other

16 way.

17 Now, the plaintiff is prepared to go forward. Th ey don't

18 have any classified information. They have got a long list of

19 -- not a long list, but a list of witnesses they want to

20 present. I haven't heard any of it yet.

21 There is other evidence to present, and now I am learning

22 for the first time -- and, really, it was surface d for the

23 first time in your summary judgment motion -- tha t, no, you're

24 not going to stand by what you told me earlier; t hat you now

25 want to say that you want to rely upon a ruling i n the Jeppesen


24

1 case that is this three-part test, which you neve r told me that

2 before. Instead, you told me it was just to be i gnored. The

3 classified information was to be ignored.

4 All right. So I think it's been waived. So I'm going to

5 rule it's been waived, that provision. But even if we did

6 consider it, here is the problem. There is the t hree-part

7 test.

8 The first one is, plaintiff can't prove their pri ma facie

9 case. I don't know that yet. I haven't heard th e evidence. I

10 don't know that the plaintiff is never going to b e able to

11 prove a prima facie case. I need to hear -- I ne ed to hear it.

12 Maybe at the end of the plaintiff's case I can sa y: You

13 haven't proven it.

14 Number two -- actually, that's what I thought the

15 government was kind of waiting to see what can th ey possibly

16 come up with. You know, they have got experts. Possibly they

17 could prove a case.

18 Number two. The privilege somehow deprives the d efendant

19 of a valid defense. Well, I don't know that it w ould be a

20 valid defense yet. I have seen the information, but until I

21 see what the plaintiff's case is, I don't know fo r certain that

22 it would be this great home run that the governme nt seems to

23 think it is.

24 After all of the evidence is presented at the tri al, I

25 might be in a position then to say: Okay, the St ate Secrets


25

1 Information would -- it would be grossly unfair n ot to let the

2 government -- this would be unfair to ignore that evidence and

3 they have been deprived of a valid defense. I do n't know that

4 yet because the rest of the evidence from which w e could decide

5 the case hasn't been presented. And even then, y ou would have

6 to get around the waiver point that this -- this is coming out

7 of left field at the last minute.

8 Then the third issue is, is there -- litigating t he case,

9 will there be an unacceptable risk of disclosure? Well, from

10 the plaintiff's point of view, they -- they don't have any

11 classified information to present. So we can at least hear the

12 plaintiff's case. And then whenever you present your witnesses

13 on the government's side, yes, we'll have to be c areful that

14 they won't answer questions that reveal state sec rets or they

15 exclude state secrets. But that's kind of like - - we can deal

16 with that on a question-by-question basis. And i f it gets out

17 of hand, I'll tell counsel to stop asking those k ind of

18 questions.

19 So has that test been satisfied? Can I say with certainty

20 at this point that the plaintiff can't prove a ca se in some

21 other way or absolutely this is going to deprive the defendant

22 of a meritorious and sure thing defense? I can't say that yet

23 because I haven't heard the evidence that can oth erwise be

24 presented.

25 So in the Court's view, this motion to knock the case out


26

1 and go up to the Court of Appeals for the third t ime and for --

2 wherein the government has lost two prior appeals , no. That

3 motion is denied.

4 So we will now proceed to the next issue that you all want

5 the Court to address. And what issue is that goi ng to be? Oh,

6 you want to recuse me. Let's go to that.

7 MS. PIPKIN: Your Honor, the Court has recognized

8 that the state secrets evidence is excluded. We don't know

9 what that evidence is and our motion in limine nu mber one is

10 that that information shouldn't be considered.

11 And the recusal point was just to say that if the Court,

12 after reviewing all that information, will be una ble to

13 disregard it, then the Court can consider whether that's

14 appropriate.

15 But I don't -- I'm not saying we want to recuse y our

16 Honor --

17 THE COURT: Is this just a formal motion? Is this

18 just a vague suggestion? What is this?

19 MS. PIPKIN: It's a vague suggestion, your Honor.

20 THE COURT: All right. Well, let me give you a vague

21 answer in response. Not so vague.

22 You have seen from the rulings that I have made t hat I

23 cannot stand ex parte submissions. I do not like them in any

24 kind of a case, and I have taken extra steps here to try to

25 guard against the risks of ex parte. I've just s een in my many


27

1 years of being in the court how abused ex parte c an be done.

2 However, there are circumstances where a district judge

3 must, must, and is obligated to review materials as part of the

4 job.

5 I can give you several examples. One is on just a routine

6 issue of privilege, say, attorney-client privileg e. The judge

7 reviews those all the time, says those are not go ing to be

8 admitted in evidence -- I'm sorry, not be turned over to the

9 other side. And the judge knows those things, kn ows that

10 information, but we all take it for granted that the judge will

11 be able to compartmentalize and keep straight wha t they have

12 seen and know what's in the record, not in the re cord for a

13 decision. So that's one example.

14 Another example is on the criminal side. I'll gi ve you --

15 we meet with the defense lawyers, because under t he CJA Act we

16 have to regulate how much money they spend of the taxpayers and

17 we say: Do you really need to spend $60,000 for this expert?

18 And they say: Yes, we do. Here is the reason. We say:

19 That's ridiculous. That's never going to go anyw here. And

20 then they say: Well, how about a different exper t? Okay.

21 Maybe 30,000 for that expert. And we know all ki nds of things

22 about the defense case that the government doesn' t know. And,

23 yet, when it comes time for a ruling on motions a nd the trial,

24 we compartmentalize it and rule based upon the re cord of

25 decision.


28

1 Same thing is true when the government asks us to review

2 something in camera, like, should we turn this ov er under the

3 Brady rule? We review material in camera. We know that the

4 government has memos that say certain things, but we say it's

5 not Brady material and so you don't have to turn it over.

6 Anyway, I've given you some examples.

7 I would say in many cases as part of our job we h ave to

8 review in camera allegedly privileged material. We often

9 sustain the privileges and we go into a hearing o r trial

10 knowing information that is not going to be part of the record

11 for decision and, yet, we still are able to compa rtmentalize.

12 And in my view I can do that. And I don't think there is

13 a basis for me to voluntarily recuse myself. And if that were

14 enough, then we could never have a judge on the C ourt of

15 Appeals even decide the appeal because they're go ing to have to

16 ultimately look at the same material and then rec use themselves

17 under this theory.

18 So I just think it proves too much to make this s uggestion

19 and if I ever did get to the point where I felt I was so mixed

20 up and unable to compartmentalize the information , then I would

21 raise it with the lawyers as to what I should do. But I -- I'm

22 convinced I can do my job properly.

23 So to the extent it is a motion, I'm going to den y it.

24 And so let's leave it at that.

25 MS. PIPKIN: Thank you, your Honor.


29

1 THE COURT: All right. I don't hold it against you

2 in any way. You're doing a great job in represen ting your

3 client, but that's the way I feel about it.

4 MS. PIPKIN: Thank you.

5 THE COURT: I normally would like to take up the

6 motions in limine that are directed first at the plaintiff's

7 case because that's the first case I'm going to h ear. So that

8 would mean taking up the defense motions in limin e.

9 So let's look at the defense motions in limine th at are

10 directed to the plaintiff's case.

11 MR. THEIS: Thank you, your Honor.

12 Our first motion in limine is to exclude the expe rt

13 testimony of Professor Jeffrey Kahn and Professor Shirin

14 Sinnar.

15 As we put in our brief, we move on three differen t

16 grounds. First, both expert reports and the test imony that

17 would come from those reports are based on insuff icient facts

18 and are made without specialized knowledge.

19 Second, they are replete with legal conclusions. Those

20 legal conclusions are that they are the province of the Court.

21 We don't need to have a professor articulate why a particular

22 act is legal or not. That's the Court's job.

23 And then, three, the reports and the testimony, a s they

24 admitted in their depositions, these will not be applied to the

25 plaintiff specifically, and that would be the onl y issue to


30

1 which they would be relevant.

2 So for those three reasons we've sought to exclud e this

3 testimony.

4 THE COURT: All right. Let's hear the opposition.


6 To address the first --

7 THE COURT: May I suggest you redirect the microphone

8 a little bit closer to your voice.

9 MS. PIPKIN: To address defendant's first issue with

10 respect to the insufficient facts, we've addresse d that in our

11 opposition to their motion, but I just want to hi ghlight that

12 Professor Kahn supplemented his report. He submi tted a revised

13 report, which outlined a couple hundred sources t hat he relied

14 on in authoring his book. And all of those have been provided

15 to defendants and, therefore, there is a sufficie nt amount of

16 facts that he has relied on to arrive at his opin ions.

17 To turn to the second issue they raise with respe ct to

18 legal conclusions, both of our experts are law pr ofessors and

19 one of them is testifying about the history of th e nature of

20 the laws at issue and the other one is testifying about the

21 impact of those laws. They are not presenting le gal

22 conclusions.

23 It's perfectly proper for law professors to testi fy about

24 the knowledge they have about the history of laws or their

25 impact, and that's exactly what Professor Sinnar and Professor


31

1 Kahn would be doing.

2 The third point that defendants mention --

3 THE COURT: Why do you have two experts?

4 MS. PIPKIN: Well, Professor Kahn is going to be

5 testifying about the history of the laws, that's his area.

6 And Professor Sinnar will be testifying about the

7 disparate impact with respect to the impact that the watch

8 listing has on the Muslim population. So they do have

9 different areas of expertise.

10 THE COURT: Okay.

11 MS. PIPKIN: And then with respect to defendant's

12 third point, that neither of the experts have dir ected their

13 opinions directly towards plaintiff, Professor Ka hn actually

14 has reviewed -- once he was cleared to view sensi tive security

15 information, was able to review the plaintiff's f ile and his

16 opinions remain consistent with what they were at the

17 beginning.

18 THE COURT: Was that in the report?

19 MS. PIPKIN: It is. In Section 8 of the report he

20 basically states that after his supplemental revi ew, his

21 opinions have not changed. And the defendants ha d the full

22 opportunity to question him about that.

23 THE COURT: Well, you know the experts are limited to

24 what's in the report; not what's in the depositio n, but what's

25 in the report, except on cross-examination. If t he other side


32

1 asks a question that opens the door to anything t hat witness is

2 qualified to speak to, then the witness is entitl ed to go

3 beyond the report. That happens all the time. B ut on direct

4 examination, you can't get into what's in the dep osition. You

5 have to stick to what's in the report.

6 MS. PIPKIN: Yes. And we believe that our report is

7 thorough. Professor Kahn did state his opinions in great

8 detail in the report and the fact that he added i nformation

9 about his review of plaintiff's specific case and the fact that

10 his opinions have not changed --

11 THE COURT: But what did he say on her specific case?

12 MS. PIPKIN: I can point that to the Court.

13 THE COURT: I think --

14 MR. THEIS: Your Honor this might get close to --

15 MS. PIPKIN: I'll check.

16 THE COURT: If you'll just give me the page number,

17 I'll look at it without reading it out loud.

18 MS. PIPKIN: Sure.

19 THE COURT: I think I have the whole report here.

20 MS. PIPKIN: If you have the whole report, it's

21 Exhibit K to the Peek declaration and Page 145.

22 THE COURT: I'm sorry. Maybe I don't.

23 MS. PIPKIN: Do you have -- so it's attached to our

24 opposition to their --

25 THE COURT: I have defendant's -- okay. Your


33

1 opposition.

2 MS. PIPKIN: And the declaration in support of our

3 opposition has the report attached.

4 THE COURT: I only have your brief. I don't have

5 your -- do you have an extra copy to hand up to m e?

6 MS. PIPKIN: I do.

7 (Whereupon, document was tendered to the Court.)

8 THE COURT: Thank you.

9 All right. So I have this big thick document "Re vised

10 Expert Report." What page do I look at?

11 MS. PIPKIN: Page 145.

12 THE COURT: All right. Well, is it just that

13 Paragraph 8?

14 MS. PIPKIN: Yes, it is.

15 THE COURT: That's one, two, three, four, five, six,

16 seven, eight, nine, ten lines. All right. Let m e read it to

17 myself.

18 (Brief pause.)

19 THE COURT: Well, it's not very specific to her, but

20 here is the thing. It doesn't have to be specifi c to her. An

21 expert -- we have -- all the time we have experts who come in

22 and testify to custom and practice, for example. They don't

23 even have to make it specific.

24 For example, in a -- you might have an expert com e in and

25 explain what the -- how the security industry wor ks or how the


34

1 New York Stock Exchange works and it has nothing to do with the

2 immediate issue the jury is going to have to deci de, but it's

3 good background information so that they will hav e that

4 information.

5 So it's not fatal to an expert that they just giv e general

6 information. It doesn't have to be tied into the particular

7 plaintiff as long as it's useful to the trier of fact.

8 And I presume you'll have other information that ties into

9 the plaintiff, but you don't have to present -- e very expert

10 does not have to have information that ties into the plaintiff

11 so long as the general information they present i s germane to

12 the issues of the case.

13 So that last point is that the government made is not

14 persuasive, but the government did make two other points which

15 I've forgotten now. I'm sorry. What were those other two

16 points? Your first two points?

17 MR. THEIS: First, your Honor, is the opinion is

18 based on insufficient facts and without any speci alized

19 knowledge.

20 THE COURT: But he does have specialized knowledge.

21 And your other thing was legal conclusions.

22 He does have -- he does have specialized knowledg e to -- I

23 mean, he teaches this subject matter, right?

24 MS. PIPKIN: Yes.

25 THE COURT: Why wouldn't that be enough to come in


35

1 here and kind of lay out the history of the laws dealing with

2 this subject?

3 MR. THEIS: That would be -- that type of testimony

4 is not necessarily objectionable.

5 But the issue is that, really, this part of our m otion

6 focuses explicitly on -- more so on Professor Sin nar. Her

7 knowledge is not based on any sensitive security information

8 that she has received. It's based exclusively, a s she has

9 admitted in her depositions, on news reports and documents that

10 she has reviewed that are publicly available.

11 Typically there must be information that goes bey ond the

12 information known by a common lay person; that th ere is a --

13 that there has to be some sort of specialized kno wledge that

14 they can apply that would assist the trier of fac t.

15 THE COURT: Let's see. I have her report. I think I

16 do have her full report here.

17 She starts off -- can I read this out loud or is this

18 something secret?

19 MR. THEIS: That's fine.

20 THE COURT: (As read)

21 "This report and accompanying attachments provide

22 a statement of my views concerning issues 1 throu gh

23 13 identified in the plaintiff's list of issues f or

24 expert testimony.

25 "My views are based primarily upon my study of


36

1 publicly available sources and interviews conduct ed

2 with current and former officials with the U.S.

3 government and other persons. This report was

4 written without having received permission to acc ess

5 SSI in this case."

6 So then she goes through her qualifications, and then she

7 gets into watch lists.

8 MS. PIPKIN: Your Honor, I believe you're reading

9 from Professor Kahn's original.

10 THE COURT: Is that what it is?

11 MS. PIPKIN: Yes.

12 THE COURT: Where can I find hers?

13 MS. PIPKIN: It's in Defendant's B to the defendant's

14 motion.

15 THE COURT: I thought that's what I was reading -- or

16 is that A? I'm sorry.

17 All right. I take it back. There is an Exhibit B. She

18 says:

19 "The report below provides a statement of

20 opinions I will express at trial and the basis fo r

21 these opinions. I have relied upon my review of

22 federal policies, U.S. government audits, and oth er

23 documents on terrorist's watch lists, racial and

24 ethnic profiling and national security

25 investigations."


37

1 You said it was just newspaper stories, but that sounds

2 like it's more than newspaper stories.

3 MR. THEIS: Your Honor --

4 THE COURT: Also, her prior experience as a civil

5 rights lawyer focused on national security discri mination and

6 profiling. What's wrong with hearing that?

7 MR. THEIS: The second piece, your Honor, at trial if

8 they attempt to -- if she attempts to submit test imony based on

9 her conversations during her representations of a ny clients,

10 we're obviously going to move to exclude that bec ause that's

11 not -- that's attorney-client privileged communic ations that

12 can't be used.

13 But if it's based on the first part -- the reason this is

14 important is because her conclusion, the core of what -- the

15 purpose that they're presenting her here today is that the

16 watch listing standards are such that a person's race,

17 ethnicity, religion, national origin or nationali ty may

18 sometimes factor into watch listing decisions. T hat's the core

19 of her conclusion. And she does not have access to the

20 criteria or the basis for putting someone onto a watch list.

21 THE COURT: Well, you raised two points. Let's be

22 clear on something.

23 Let's say that she's represented 10 other people and in

24 her heart of hearts truly believes they were disc riminated

25 against based on race. She can't testify to that . That would


38

1 open the door to all of that privileged informati on and then we

2 would have to have 10 trials within a trial.

3 Even assuming that I'm willing to do that, 10 tri als

4 within a trial, the privilege would have to be wa ived so that

5 the government would have a fair shot at being ab le to say:

6 No, that person wasn't discriminated against, and show that

7 nine out of the 10 cases there was no discriminat ion based on

8 the merits.

9 She can't purport to give opinions based upon per sonal

10 experience like that without opening the door to everything she

11 knows, which includes privileged information.

12 Now, if those other -- if those 10 clients are wi lling to

13 waive the privilege, that should have been done a long time ago

14 so that the government could go talk to these peo ple.

15 But do you see how unfair that would be?

16 MS. PIPKIN: Well, your Honor, Professor Sinnar

17 gathers her opinions through not just her experie nce as an

18 attorney, but, also, through the review that she has done of,

19 you know, various documents that are publicly ava ilable.

20 THE COURT: Well, relying on documents that are

21 publicly available and government policies and th ings, I'm not

22 addressing. That on its face sounds okay. That would be a

23 legitimate basis for -- for example, if she's fou nd a

24 government document that says: Here are the fact ors we look at

25 at the TSA, and one of them is race, well, that's very


39

1 important to know. So that would be okay. She c ould do that.

2 But what she can't do is come in and say: I've

3 represented people in civil rights cases and in m y opinion this

4 happens over and over again, that people are disc riminated

5 against based upon race. She would have to waive the privilege

6 in all of those cases and we would postpone this trial so the

7 government could go take those depositions and sh e would have

8 to waive the privilege.

9 Now, there is no way she's going to waive that pr ivilege.

10 So that would be very unfair for her to offer opi nions like

11 that on something where she cannot properly be cr oss examined.

12 I'm just not going to allow that.

13 MS. PIPKIN: Well, there's a lot of information that

14 comes out when representing a client that doesn't come from

15 privileged communications.

16 The fact that she had clients that were from diff erent

17 races that experienced the same thing that is con sistent with

18 her review of public documents is something that doesn't come

19 from privileged communications.

20 THE COURT: We will never allow that. That is so

21 anecdotal and cloaked in privilege, and it's her say-so. She's

22 coming in as a fact witness in that case to give anecdotal

23 evidence. That's hearsay. Yes, she is purportin g to be an

24 expert, but you can't use an expert to launder th rough and

25 masquerade fact evidence as expert evidence. No way. That's


40

1 not going to work. If that's what you have in mi nd, forget

2 her.

3 MS. PIPKIN: Your Honor, that's not what we have in

4 mind.

5 She has extensive experience reviewing various do cuments

6 that she used in support of her cases that she wo rked on.

7 THE COURT: All right. Okay. I repeat, if she's

8 found through her research good documents that sh ow TSA looks

9 for race, that's a factor, and that's a governmen t document, of

10 course, she can use that. That would be fine. I don't have a

11 problem with that.

12 But what I do have a problem is, is the scenario that I

13 gave you awhile ago. And I hope you don't go dow n that path of

14 trying to -- you cannot start putting individual cases or --

15 she can't even say, "In my experience the governm ent

16 discriminated." No. Because her experience is r epresenting

17 people where she's contended they were discrimina ted against

18 and that's a contingent, but it's cloaked in priv ilege and it's

19 not expert testimony. It's fact testimony.

20 So I think you've got to be very careful to limit what

21 she's trying to do here to showing what's -- show ing me squibs

22 and quotes from government documents. That part would be okay.

23 All right. What else do you want to bring up on her?

24 Yes.

25 MS. PIPKIN: May I add one thing to that, your Honor?


41

1 THE COURT: Of course.

2 MS. PIPKIN: Because I defended Professor Sinnar's

3 deposition.

4 When she was asked about this issue at her deposi tion, she

5 was asked about specific instances she was aware of in

6 conversations. She certainly did say she was awa re of cases

7 where she represented people. I agree with you. We can't rely

8 on that because that would be waiving privilege a nd, of course,

9 she's not willing to do that.

10 What she also said was that in her role in the Mu slim

11 community and as a lawyer, that she had had non-p rivileged

12 conversations with individuals as well.

13 So I just wanted to alert the Court --

14 THE COURT: That's all hearsay. You can't do that.

15 You can't bring somebody in and give anecdotal ev idence that --

16 it's not a survey. It's just anecdotal evidence.

17 MS. PIPKIN: Understood, your Honor.

18 THE COURT: It's not probative. It's hearsay. And

19 we can't do that.

20 MS. PIPKIN: I believe her questions in that sense

21 were in response to the government's questions as king her about

22 instances she was personally aware of.

23 THE COURT: If the government asks that question on

24 cross-examination and they open the door to invit ing hearsay,

25 of course, she can say that. Right now I'm talki ng about


42

1 the -- I'm not talking about the cross. I'm talk ing about your

2 direct.

3 MS. PIPKIN: Yes. And we don't intend to go into

4 that on our direct. And if at some point informa tion starts to

5 come out that could be hearsay, there are proper objections

6 that could be made, but excluding a witness at th e outset is

7 not the appropriate remedy either.

8 THE COURT: Okay. Let's say that you stick by my

9 guideline and the witness gets tendered for cross -examination

10 and the government gets up and says: You don't k now of a

11 single instance in which anybody ever got discrim inated

12 against, do you? And she says: Yes, I do, and h ere are four

13 examples right here.

14 Well, even though it's hearsay, she could testify to that

15 because the government has invited it on cross-ex amination.

16 They can't now complain about it any more because they asked

17 the question.

18 You understand that, right? So they understand t hat.

19 MR. THEIS: (Nodding.)

20 THE COURT: The fact that it came out -- you know,

21 the depositions they are entitled to probe, but n ot everything

22 that gets asked in a deposition is admissible at trial.

23 Okay. What other issue -- does that take care of

24 Professor Sinnar or are there more issues about h er?

25 MR. THEIS: That does, your Honor.


43

1 THE COURT: All right. So she can testify. I'm

2 looking forward to hearing her, but she's got to stick to the

3 guideline that I've mentioned here. This is -- y es. All

4 right.

5 Okay. What's the next issue?

6 MR. THEIS: Your Honor, just briefly. Professor Kahn

7 is the other expert. The only other point we'd l ike to raise

8 is what we raised in our supplemental submission earlier this

9 week to the motion in limine.

10 Your Honor has the revised report from Professor Kahn in

11 front of you. As you recall what happened was Pr ofessor Kahn

12 submitted a seven page report that had no footnot es and no

13 citations to what the basis of his opinions were. The Court

14 then ordered the plaintiff to resubmit the report , to disclose

15 the opinions and the bases and reasons and other information

16 considered in forming the report. That's not wha t they

17 submitted and that's not what this 212 page docum ent is.

18 What we think this is is a copy and paste of larg e

19 sections of his book, which create new opinions t hat were not

20 in the original report and which create -- there are certainly

21 parts of the original report that have new citati ons, which is

22 what we sought and we understood the Court to ord er.

23 But now they've introduced another a hundred and -- 206

24 pages of information that's not -- that's new opi nions and new

25 facts that aren't the basis for the original repo rt.


44

1 THE COURT: What can I do about it? You complained

2 about the original report, so then I said: Do a better report.

3 They did a better report. Now you're complaining that they did

4 a better report. I don't know. You're trying to hold them to

5 the original report, no. I'm not going to buy th at argument,

6 as a concession to the shortness of life.

7 I've got this long report here. I'm not going to go

8 through it and try to figure out which opinions a re new and

9 which opinions are not new. You had a chance aft er this report

10 to take the deposition. I'm just going to leave it at that.

11 All right. Any other objections to these experts ?

12 MR. THEIS: No, your Honor.

13 THE COURT: All right. Great.

14 So now we go to -- you had another one. You had defense

15 number two, exclude fact witnesses.

16 MR. FREEBORNE: Correct, your Honor.

17 And we move to exclude under Federal Rules of Evi dence 403

18 certain witnesses that plaintiff has indicated th at she may

19 call at trial and they break down into four categ ories.

20 The first category are witnesses that they intend to call

21 that were declarants in support of the various pr ivileges that

22 were at issue in the motion to compel, base of th is case.

23 We don't see any relevance to that. That discove ry has

24 disclosed and, therefore, we would ask that those --

25 THE COURT: Is that Eric Holder and James Clapper?


45

1 MR. FREEBORNE: That's correct. And your Honor has

2 already ruled on --

3 THE COURT: Here is what -- I've read this motion.

4 Let me give you a tentative ruling and then you c an both talk

5 me out of it. There is no way we should have Eri c Holder and

6 James Clapper coming out here to testify on this case. So I

7 think that -- at least on the record I have now. If something

8 dramatic were to change my mind, I would be open to listening

9 to it later, but those two should not have to be -- those

10 should not be even on the list.

11 Now, as to everybody else, I think the thing to d o is wait

12 and see if they present them and then argue about it then,

13 instead of going through 42 witnesses now and a h ypothetical.

14 I'm going to give you both time limits, so there' s no way

15 they are going to call 42 witnesses. So they hav e six that

16 they will call and 42 that they may call. So we should not be

17 arguing over these -- except for Holder and Clapp er, we should

18 not be arguing over the 42 may calls. So do you want -- what

19 do you think of that.

20 MR. FREEBORNE: Your Honor, in brief.

21 We think a ruling would be appropriate now in tha t they

22 seek to relitigate issues that have already been litigated in

23 discovery. They seek to relitigate, frankly, the Ninth

24 Circuit's decision regarding substantial ties.

25 The Stanford witnesses that plaintiff intends to call, as


46

1 I understand their opposition, will testify that she has a

2 substantial connection to this country. We don't intend to

3 relitigate that issue and plaintiff shouldn't be allowed to --

4 THE COURT: I was going to raise that. So are you

5 prepared to stipulate that she has standing under the -- she

6 has standing under the Ninth Circuit's test and y ou concede

7 that for purposes of the -- this litigation, so w e don't need

8 to have the Stanford people come in?

9 MR. FREEBORNE: Well, with respect to -- there are

10 two issues of standing. Article III standing we do not

11 concede.

12 With respect to the other issue of standing, whet her or

13 not she has substantial connections sufficient to avail herself

14 of the Constitution, we understand that's the law of the case

15 pursuant to the Ninth Circuit's decision and we h ave no

16 intention to relitigate, nor should they have the ability to

17 inject that into a trial proceeding. It's wastef ul.

18 We also think that the other witnesses --

19 THE COURT: But do you concede -- you say that you

20 don't have any plans to litigate it, but in light of what's

21 happened on this other issue, I need to ask you. That's a way

22 maybe of saying you don't plan to litigate it, bu t she still

23 has to carry her burden.

24 MR. FREEBORNE: Your Honor, we don't concede it

25 either as a matter of law or as a matter of fact. However, we


47

1 recognize it to be the law of the case pursuant t o the Ninth

2 Circuit's decision.

3 THE COURT: See, it's not the law of the case. The

4 government on appeal all the -- they didn't have a factual

5 record. The Court of Appeals said that this was what was

6 proffered by the plaintiff. Based on that proffe r, they said

7 she would have standing and -- but it still remai ns for you to

8 prove it, doesn't it?

9 So unless it's conceded on the facts, they have e very

10 right to bring in -- within your time limits, you have the

11 right to bring in people from Stanford. So until you concede

12 that point, they are going to -- I'm not going to exclude them.

13 MR. FREEBORNE: Very well, your Honor.

14 Our third motion, I guess that's the --

15 MR. THEIS: Third motion in limine, your Honor, is

16 the -- unless there was anything further?

17 THE COURT: Did you want to argue against my

18 ruling --


20 THE COURT: (Continuing) -- on number two?

21 Okay. Let's go to number three.

22 MR. FREEBORNE: Third motion in limine, your Honor,

23 we move to exclude several of the documents that are on the

24 exhibit lists. These documents fall into four se parate

25 categories.


48

1 The reason that we've raised this now, and we und erstand

2 that this could be raised during the trial as the se exhibits

3 are brought in, we think that this is important t o streamline

4 and to get resolution on some of the sort of key issues that

5 are potentially going to take up a large part of the trial.

6 And so the first category that we've sought to ex clude are

7 documents and -- about information gathering and investigations

8 by the FBI. As the Court ordered earlier in this case, there

9 is no nexus between the hypothetical collection o f information

10 about plaintiff and her constitutional claims and so there's --

11 THE COURT: Wait. I don't understand that point.

12 Give me an example of one of these -- is this an email?

13 MR. THEIS: No. These are -- there are a group of

14 documents that relate to -- it's primarily press coverage

15 relating to what is described in the press accoun ts as the

16 Mosque Outreach Program.

17 Again, this has nothing to do -- none of these do cuments

18 are relating to plaintiff specifically, but the a rticles talk

19 about how -- the articles discuss activities by t he FBI that

20 are discussed and alleged in the articles regardi ng reaching

21 out to the Muslim community during the mid-2000s.

22 THE COURT: Reaching out to do what?

23 MR. THEIS: Your Honor, that's an issue that could be

24 potentially litigated or addressed, but that's no t part of what

25 this case is about.


49

1 THE COURT: I don't know. Are you planning on

2 getting into that?

3 It would be helpful to me to see an actual docume nt that

4 is at issue here so that I can focus on it. So t hat would be a

5 useful thing to do, is to pull one of these out s o that I can

6 look at it. If it's in this stack of materials, I have your

7 stack on motion number three. I could look at it , but I just

8 see a log, a very long log.

9 MS. PIPKIN: As a general matter, your Honor, I'm

10 hesitant to say we're definitely going to use any particular

11 document because there are a lot of claims here. We,

12 obviously, have to streamline our case to meet ti me limits.

13 And so I -- I'm hesitant to make -- about hypothe tical rulings

14 at this point.

15 THE COURT: Well, that's why I need to see a -- I

16 don't want to pass on this yet until I see a part icular

17 document so I can better understand what this pro blem is.

18 (Brief pause.)


20 MR. THEIS: Your Honor, I have Exhibit 525 on the

21 exhibit list that is included in the exhibits tha t the

22 plaintiff may potentially present at trial. It's an article

23 from the New York Times discussing in 2004, I believe, inquiry

24 into information -- what the FBI -- inquiry into -- well, I

25 guess the article -- the headline explains exactl y what it is.


50

1 (Whereupon, document was tendered to the Court.)

2 THE COURT: It says, "Inquiry Targeted 2,000 Foreign

3 Muslims in 2004."

4 MR. THEIS: So there's two problems with this. The

5 first is the hearsay and the hearsay within hears ay.

6 THE COURT: Let's just stop right here. Why would we

7 be putting newspaper stories into evidence? That 's bizarre to

8 me.

9 MS. PIPKIN: Your Honor, I don't have any intention

10 to try to introduce that on -- I don't have the a rticle in

11 front of me right now. I think there might be st atements in

12 some articles that were made by party opponents t o this case.

13 THE COURT: That is still hearsay. The New York

14 Times is not infallible. It's a third-party hearsay sou rce.

15 You can't -- I don't see how you could possibly g et that into

16 evidence for the truth of anything that's in here .


18 Again, I think that this is -- we have a very -- we have a

19 lot of documents on our exhibit list. We're goin g to

20 streamline this case. And I don't have that docu ment in front

21 of me, so I'm not sure exactly --

22 THE COURT: Here, I'll hand it down.

23 (Whereupon document was tendered to counsel.)

24 MR. THEIS: Perhaps, your Honor, what we could do is

25 we can sort of revise this to say: Any newspaper article


51

1 should not be part of this trial. And there are a substantial

2 number of them.

3 I have another one of them at Exhibit 675 that th ey put on

4 their list of potentially using. Other ones incl ude 699 to 600

5 [sic], 652 --

6 THE COURT: I can't go that far because there are

7 limited circumstances in which a newspaper story might be

8 admissible for a certain purpose.

9 But you are correct, the general rule is you've g ot to

10 have firsthand testimony or otherwise admissible evidence such

11 as an admission in a document authored by the gov ernment that

12 would come into evidence.

13 So I'm going to follow the Rules of Evidence. So that --

14 the normal rule that every judge I've ever been i n front of as

15 a lawyer would, you cannot try your case by newsp aper stories.

16 So you -- you need to just keep that in mind. It seems to me

17 the way to do this is to just wait in trial until something

18 controversial comes up and then I can see it. Al l right. I've

19 given you that as a general guideline.

20 Okay. What's the next one I can give you a gener al

21 guideline on?

22 MR. THEIS: Sure. There's a series of emails, your

23 Honor, that are drafted by plaintiff. They all c oncern, and

24 they were brought up slightly earlier in the hear ing, the

25 health of --


52

1 THE COURT: Her ties to the United States, her

2 substantial ties to the USA and Stanford?

3 MR. THEIS: Well, that's -- I'm not exactly sure

4 that's exactly what they intend to use for all of them. There

5 is the health of her faculty advisor and then the re's the

6 information regarding completing her thesis. We don't give --

7 we just submitted it. We don't understand exactl y what the

8 relevance is to those.

9 THE COURT: All right. What would the relevance of

10 those be?

11 MS. PIPKIN: There are a lot of emails that are on

12 the exhibit list. Some of these emails are about the harm to

13 plaintiff from the fact that she couldn't come ba ck to the

14 United States, which we have to prove to show tha t we're

15 entitled to an injunction.

16 Some of these emails address plaintiff's visa sta tus.

17 They are emails from people at Stanford that tell plaintiff

18 that her visa was still valid at the time that sh e left the

19 United States.

20 THE COURT: That would not be -- that's not

21 admissible for the truth of it.

22 MS. PIPKIN: Understood, your Honor. We may have

23 some witnesses testify about those.

24 Again, I'm concerned that we're being asked here to prove

25 our case and to talk about what we might do and i t's really not


53

1 a productive exercise.

2 THE COURT: I'll give you a guideline, and this is

3 always subject to revision.

4 Ordinarily, of course, the government can put in all the

5 emails by the plaintiff they want because those a re party

6 admissions.

7 If it's an email by her that you want to put in o n the

8 plaintiff's side, it's possible it could come in for -- to

9 prove up the transaction, is the way I phrase it. So it's not

10 hearsay. In other words, if you're simply trying to show that

11 there were a lot of communications that dealt wit h the thesis

12 and so you're proving the transaction. It's like in a contract

13 case, you prove what the offeror said and you pro ve that the

14 other said, "I accept." That's not hearsay. Tha t's proving

15 the transaction.

16 It's like proving a drug deal. The government co mes in

17 and they always have a lot of talk. It's not -- no one is

18 putting it in to prove the truth of it. You're t rying to prove

19 that there was a drug deal. So, you know, "I wan t to buy

20 two ounces." "How much will you pay?" All of th at. Is that

21 hearsay? No, of course. The government -- that' s not hearsay.

22 It's proving up the transaction.

23 So in your case if you're trying to prove up the

24 transaction simply to show that she had transacti ons with

25 Stanford over her thesis and, thus, had a substan tial


54

1 connection within the Ninth Circuit's ruling, tha t's fine. But

2 it's only -- that's what it's limited to.

3 If there was another statement in there that said : And,

4 by the way, the government is discriminating agai nst me and

5 they told me that I was not allowed back in becau se I'm a

6 Muslim, no way that's not admissible for anything .

7 So you see the point? That's a guideline.

8 I think I know the Rules of Evidence. I've done it in

9 many trials and I'm going to follow the Rules of Evidence. You

10 will not be -- no side is going to trick me -- I can't say

11 never, because I probably do get tricked now and then. But

12 you're not going to -- I know the Rules of Eviden ce.

13 So you can prove up the emails, the transaction. That

14 would be okay. But you can't use them to prove h er visa

15 status. That would be for a different purpose. You're going

16 to have to do that a different way. Why don't yo u -- just call

17 the right person from the government and ask what her visa

18 status is. That's the way to do that.

19 MS. PIPKIN: Of course. Your Honor, I'm not the one

20 who made this motion. This is --

21 THE COURT: All right, okay. All right. So I think

22 the thing to do -- let me ask you about a differe nt one though.

23 I want to get educated on it.

24 There is an issue about your FBI training materia ls. The

25 government argues that they are not relevant. It seems to me


55

1 that they would be relevant, possibly relevant. What if there

2 is training materials there that go to the heart of who they

3 look for as terrorists and it says: Look for Mus lims. They

4 are high on our list for terrorists. I don't kno w if it says

5 that or not, but I can imagine circumstances wher e the training

6 materials would be relevant.

7 So I am curious to know why you're objecting to t raining

8 materials coming in. That's when it's an admissi on against the

9 government.

10 MR. THEIS: Your Honor, it's difficult to respond to

11 this particular category of documents on the publ ic record

12 because I think the full response to that is in o ur briefs.

13 THE COURT: All right. Right now I'm going to say

14 I'm not going to rule on it then until I see a

15 document-by-document thing and we will address it then.

16 MR. THEIS: Can we raise one more from this

17 particular motion, your Honor?

18 THE COURT: Yes.

19 MR. THEIS: This is the expert reports. It does seem

20 that -- I think if I read the opposition to the m otion in

21 limine correctly that they concede that they will not be

22 seeking to introduce the expert reports.

23 THE COURT: The reports never come into evidence.

24 The witness has to testify firsthand.

25 MR. THEIS: Okay.


56

1 THE COURT: Okay.

2 MR. THEIS: We wanted to make it clear.

3 THE COURT: But they are limited on direct. Both

4 sides are limited on direct to what's in the repo rts.

5 All right. So that's what we're going to do. Wi th those

6 guidelines, we will fight it out document by docu ment.

7 Okay. Now we go to plaintiff's -- you just had t hose

8 three, right?

9 MR. THEIS: That's right, your Honor.

10 THE COURT: Now we go to the motions directed at the

11 defense case to exclude evidence submitted ex par te and not

12 produced. Well --

13 MS. PIPKIN: I believe we already covered that one,

14 your Honor.

15 THE COURT: So forget that one.

16 MS. FAREL: Your Honor, if I may, with your patience?

17 I think it might be useful here to provide an exa mple of what

18 this trial would look like on the claims.

19 To the extent that there has been any misundersta nding

20 about the government's position or the government has

21 misunderstood the Court's position, I think that if you would

22 allow me a brief opportunity to present this.

23 THE COURT: All right. Go ahead.

24 MS. FAREL: So in the motion -- the hearing on the

25 motion for summary judgment and earlier today pla intiff's


57

1 counsel presented the Court with multiple publicl y available

2 documents that she stitched together in a way to make a

3 suggestion regarding whether or not plaintiff was the subject

4 of an investigation by the FBI.

5 In Attorney General Eric Holder's declaration sup porting

6 our assertion of state secrets one of the categor ies of

7 information covered by that assertion is whether or not any

8 individual is or was the subject of an investigat ion.

9 Now, I presume that at trial plaintiff's counsel will

10 present these documents again and will put them t ogether in a

11 way and elicit testimony in a way that suggest th at plaintiff

12 was the subject of an investigation. When that h appens, if

13 that happens, defendants are limited in what they can say under

14 the State Secrets Privilege.

15 So defendants will not, for example, say: Your H onor,

16 look back at that classified document which expla ins either

17 that she was not the subject of an investigation or that she

18 was and here is why. That would be relying on th e substance of

19 the information that's been excluded from the cas e.

20 What defendants will say, that we cannot respond to those

21 allegations because to do so would reveal informa tion that's

22 been excluded from the case. So defendants will make the

23 statement and make the record that without the in formation

24 that's excluded from the case, they are deprived of the

25 opportunity to prevent -- present information in their defense.


58

1 And I think that this is an important distinction .

2 So we will not, for example, rely on any document that

3 your Honor has seen through ex parte review to de fend

4 ourselves, but we will point your Honor to the ex clusion of

5 that information and the effect of that exclusion on

6 defendant's ability to present a defense.

7 THE COURT: Well, when we get to that point, you can

8 bring that up and maybe I will agree with you. B ut you still

9 have all these statements that you previously mad e, which

10 strongly suggested that you never suggested anyth ing like that

11 in the past, and that disturbs me that that was n ot said.

12 All right. So, but -- but I will hear -- if and when we

13 get to the point where you're put in that positio n -- maybe

14 there are things that you could -- maybe there ar e things that

15 are just protected by the law enforcement privile ge or maybe by

16 SSI with which you could defend yourself and it d oesn't mean

17 that you have to resort to classified information . So I don't

18 know that yet.

19 MS. FAREL: Yes, your Honor. And I'm not attempting

20 to reargue an issue that your Honor has already r uled on.

21 But in our opposition to plaintiff's motion to co mpel when

22 we did assert state secrets, the government noted that at this

23 point in the litigation with the claims that we s aw we were not

24 seeking dismissal, but that we may have to resort to seek

25 dismissal at a later point in the case.


59

1 THE COURT: You said that on summary judgment.

2 MS. FAREL: We said that --

3 THE COURT: I don't think you said that very clearly

4 in the things that I went back and looked at and read some of

5 them into the record earlier.

6 MS. FAREL: In our opposition to the plaintiff's

7 motion to compel when we asserted the privilege. We were very

8 clear.

9 And your Honor knows. This is a privilege that i s -- it's

10 a very unique privilege. It has special conseque nces that

11 other privileges don't have. And as a result, it 's asserted as

12 narrowly as possible and in as limited a way as i mpossible.

13 And the government tried to be very careful about the way

14 that it was asserting the privilege to protect in formation that

15 was classified and could cause significant harm t o the national

16 security if released.

17 Now, this is not a litigation decision to assert the

18 privilege. This is to protect the national secur ity. And the

19 government recognizes, certainly, that consequenc es of

20 asserting that privilege are unique, unusual.

21 The idea that dismissal is appropriate in some ca ses and

22 judgment should be entered for the defendants bec ause they are

23 deprived of using that information is -- that's n ot a result

24 you see in your run of the mill privilege asserti ons, but it is

25 unique to the State Secrets Privilege. And that is why Courts


60

1 require -- excuse me, the Ninth Circuit and the S upreme Court

2 require Courts to consider the effect of the excl usion of that

3 privilege -- of that information.

4 THE COURT: Well, when I have the rest of the trial

5 evidence in front of me and if I can get over the fact that I

6 think I got misled by the government on what your position was,

7 maybe I will let you make that showing, but we're not there

8 yet.

9 MS. FAREL: Yes, your Honor.

10 THE COURT: So I think we're done with number one.

11 Number two is: Exclude witnesses not permitted t o be

12 deposed.

13 MS. PIPKIN: Yes, your Honor.

14 THE COURT: Really, you're complaining that I only

15 gave you have four depositions, right? Didn't I give you more

16 than four?

17 MS. PIPKIN: Three depositions.

18 THE COURT: I thought I gave you an extra one.

19 MS. PIPKIN: You did. That's right. One more.

20 THE COURT: All right. So, you know, if I hadn't

21 limited it, you were asking to go and depose all kinds of

22 people in the government that I thought would be a waste of

23 time. So I gave you those. Then you asked for o ne more and I

24 gave you that one.

25 Who is it that you have -- maybe I'll give you on e more


61

1 between now and the time of trial. Who is it tha t you would

2 like to depose that's going to come in here as a witness?

3 MS. PIPKIN: Your Honor, it's not so much a matter of

4 who we want to depose, but it's the fact that, yo u know,

5 defendant's witness list names people who initial ly we had

6 wanted to depose. We didn't have the opportunity to do so.

7 Even being able to do so at this late stage of th e case would

8 be prejudicial to plaintiffs.

9 Particularly we take issue with Lee Korman and Jo hn

10 Bondanella. These are two individuals that we ha d sought to

11 depose. We had issued -- we served depo notices back in 2009

12 and we would maybe not have selected the remainin g deponents

13 had we understood that we would be limited to a s pecific

14 number.

15 So our issue is with the fact that defendants cou ld

16 possibly call these individuals that we had sough t to depose

17 early on in the case.

18 THE COURT: So are you going to call these two as

19 witnesses?

20 MS. FAREL: We may, your Honor. But, your Honor,

21 these witnesses have been known to plaintiff sinc e 2006

22 certainly.

23 As plaintiff's counsel noted, they had attempted --

24 plaintiff had attempted to depose both of these g entlemen in

25 2009.


62

1 Your Honor -- when the case was remanded and your Honor

2 proceeded to discovery, your Honor offered plaint iff's counsel

3 the choice of three depositions and then allowed an additional

4 deposition.

5 This was a litigation decision on their part. Th ese

6 individuals have been on our initial disclosure s ince 2006.

7 And the fact that plaintiff's counsel or plaintif f made a

8 litigation decision, a strategic decision that no w she is

9 unhappy with, is no reason to allow them to depos e an

10 additional -- or two additional individuals.

11 THE COURT: Well, they say it would do no good anyway

12 to depose anybody at this point. You'll get a ch ance to cross

13 examine them.

14 You know, in criminal cases you don't get deposit ions at

15 all. You get up there and you cross examine. So there is no

16 necessary right to have a deposition in advance o f trial.

17 People go into trial all the time and do cold

18 cross-examinations of witnesses.

19 So since you don't want to take their depositions , I

20 overrule this objection. So you will -- your law firm is a

21 very good law firm. They know how to do cross-ex aminations at

22 trial. So you will be able to stand right there and do a good

23 cross. I am confident.

24 MS. PIPKIN: Well, thank you, your Honor.

25 If I could just state one more point, though, for the


63

1 record, which is that defendants are trying to ar gue that

2 plaintiff's made a litigation decision and chose who to depose.

3 When we started with these depositions, we starte d with

4 the understanding, based on the Court's order of April 2013,

5 that we were only being restricted in the number of 30(b)6

6 depositions, not in the number of depositions tot al. And the

7 ones that we are taking an issue with right now, the potential

8 witnesses, are not 30(b)6 witnesses, obviously, b ut percipient

9 witnesses.

10 MS. FAREL: And when --

11 THE COURT: Where does Bondanella live?

12 MS. FAREL: In Virginia, your Honor.

13 THE COURT: Where does Korman live?

14 MS. FAREL: I believe Mr. Korman lives on the west

15 coast.

16 MR. FREEBORNE: Oregon, I believe, your Honor.

17 THE COURT: All right. Between now and the time of

18 trial if you want to go to their place, where the y reside, and

19 their take their deposition, each a one-day depos ition, I'll

20 let you do that. I don't think you need that. I think you can

21 do a cross-examination like they do in the crimin al cases all

22 the time without ever having even seen the witnes s.

23 But if you want to do that -- the trial is what d ay,

24 December 5th?

25 MS. FAREL: 2nd, your Honor.


64

1 THE COURT: So between now and then if you can

2 subpoena them, great. I'll let you do that.

3 MS. FAREL: Your Honor, can I ask for one point of

4 clarification?

5 These witnesses are both listed on plaintiff's wi tness

6 list and I believe in their motion in limine they say that

7 plaintiff does not intend to call these witnesses unless we

8 call them first. Does the fact that plaintiff's counsel will

9 be allowed to depose these witnesses change that position or is

10 that still the position of the party?

11 THE COURT: I don't know.

12 MS. PIPKIN: We're not ready to speak to that, your

13 Honor. We would need to look at that further.

14 THE COURT: You think about that. This is

15 November 15th. So I think you should be -- if yo u're going to

16 subpoena them for a deposition, you should get cr acking because

17 otherwise they will invoke the Thanksgiving holid ay and you

18 will be out of luck.

19 So all right. Enough on this one. Unless there is

20 somebody else that you feel strongly about, I'll listen to you

21 on, but I think -- you had adequate opportunity. I took into

22 account the needs of the case and what it was tha t you were

23 saying at the time. And I kept hearing these thi ngs, that you

24 were going to take the deposition of Eric Holder and these

25 high-ranking people, and it just left the impress ion with me


65

1 that you wanted to squander your deposition time taking away

2 the -- these high-ranking officials from their im portant

3 duties. It just didn't -- did not seem right to me.

4 So, anyway, I gave you the number of depositions that I

5 thought your case deserved based on what was befo re me then.

6 All right. I'm sorry that I didn't give you two more at the

7 time. Now I'm giving you those two, if you can c rack them

8 down.

9 All right. I've now gone through your motions in limine.

10 MS. FAREL: Thank you, your Honor.

11 THE COURT: All right. So this is a bench trial,

12 isn't it?

13 MR. FREEBORNE: It is, your Honor.

14 THE COURT: All right. Good. So we don't have to

15 worry about the jury issues. The time limits. I think I was

16 going to suggest -- well, first of all, on openin g statements

17 each side can have 45 minutes for opening stateme nts; is that

18 adequate?


20 MR. FREEBORNE: Yes, your Honor.

21 THE COURT: All right. And then for the evidence

22 time, let me explain how I work the evidence time . The

23 evidence time is both your cross and direct. So some

24 lawyers -- it's not just your direct. It's the c ross as well

25 of the other side's witnesses.


66

1 So I was thinking 10 hours per side would be adeq uate for

2 this case. That includes your deposition read-in s, that

3 includes reading in any stipulations. So it -- t he clock runs

4 when you're standing at the lectern and should be asking

5 questions or we're in a sidebar -- we wouldn't re ally have a

6 sidebar in this kind of case, with a bench trial. But if it's

7 a witness you called and it's time for direct exa mination, then

8 the clock is running against you. If it's a witn ess the other

9 side called and it's time for cross-examination, then the clock

10 is running against the other side, that side.

11 So with 10 hours per side, it will definitely go into and

12 consume most of two weeks generally. Our hours w ill be 7:30 in

13 the morning until 1:00 o'clock in the afternoon. And then so

14 that's what I'm thinking about for time limits.

15 All right. Anyone want to argue with the time li mits?

16 MR. FREEBORNE: Not from the government's side, your

17 Honor.


19 THE COURT: All right. So I want to come to a

20 different rule, and that is -- this is the judge has the

21 authority to regulate access to witnesses. There will be one

22 exception to that that I would alert you to in ad vance, but in

23 trials -- this is very common on the east coast. It's not as

24 common out here, but I think it's a good rule; th at while

25 somebody is on adverse examination, usually meani ng


67

1 cross-examination -- but it could be called as an adverse

2 witness. Anyone on adverse examination, the lawy er -- no

3 lawyer can talk to them.

4 Now, the one exception I would make to that in th is case

5 is that you could make an exception to talk with him if an

6 issue of privilege comes up such that we needed t o before

7 answering a question, there was a privilege issue so I can make

8 that exception right away. But otherwise if it's just -- see,

9 the problem is the lawyers go out -- one side has the witness

10 on the ropes and they are going down for the thir d time. Good.

11 I love to see that. I just think it's the trial process at its

12 best. And then the other side want to get that w itness out in

13 the hallway and say: No, no, no. The light was red. It

14 wasn't green. It was red. Remember, red.

15 Oh, yeah, that's the ticket.

16 And then they go back in and they change their te stimony.

17 Probably you lawyers have never seen that happen, have

18 you? Well, it does. It happens all the time. E xcept not in

19 this courtroom so much because I don't allow anyb ody to talk to

20 the witness while they are on -- even overnight.

21 Now, does anyone have an objection to that rule?

22 MR. FREEBORNE: Not from the government, your Honor.

23 MS. PIPKIN: I think I have to object, your Honor,

24 but I understand that's the Court's rule and I ju st think

25 Mr. McManis would probably make me object to that one. But


68

1 this is your courtroom.

2 THE COURT: What is your objection?

3 MS. PIPKIN: That you have a right to speak, for

4 example, with your clients --

5 THE COURT: You're client is not even going to be

6 here.

7 MS. PIPKIN: Well, she might be. We don't know.

8 THE COURT: Well --

9 MS. PIPKIN: I understand that's the Court's rule.

10 THE COURT: That is the rule and I apply it even to

11 clients.

12 It's going to work against the government, too. Their

13 clients can't talk to them while they are on cros s-examination.

14 And it's not a regulating the parties problem. I t's regulate I

15 go the witness problem. Now, while they are on d irect

16 examination you can talk to them. But it's a cro ss-examination

17 problem.

18 MR. FREEBORNE: There is just one clarifying. There

19 is kind of a strange aspect to this case.

20 As I understand it, certain government witnesses will be

21 called in plaintiff's case-in-chief, as well as p otentially in

22 our case in defense. As I understand the Court's rule, though,

23 that when they are on cross, it would be, for exa mple -- well,

24 I guess it's kind of a strange dynamic, but they would take the

25 government witness in their case-in-chief as an a dverse


69

1 witness.

2 THE COURT: Correct. And then you could not talk to

3 them during that time. That's the way it works. If it's on

4 adverse examination, then neither side talks to t hem while they

5 are on adverse. But whenever they go off the -- when it

6 becomes your turn to examine, then at breaks you' re free to

7 talk to them, or overnight. But not -- not while they are on

8 the adverse examination by the other side. All r ight?

9 MR. FREEBORNE: All right, your Honor.

10 THE COURT: Okay. So if you do come up with any

11 stipulations, we should read them into the record . I like to

12 hear them. Even in a bench trial. I like to hea r them, focus

13 on them as they are read in so that I just don't have some

14 document stuck in the file somewhere. I like to absorb it as

15 it comes in. If it's important enough, you shoul d read it in.

16 If you're going to have some dispute over discove ry --

17 like, this comes up in trials sometimes. One sid e jumps up and

18 says: No, no, they can't do that. They refused to turn that

19 over in discovery. They can't use it now.

20 Okay, I've heard that before. Well, then I'd say : What

21 are you talking about? One side gives me their v erbal version.

22 The other side gives a verbal version. And then I say: Well,

23 how about this? And the lawyer has to resort to "I believe."

24 "I believe XYZ."

25 Well, I have learned that it's only 50/50 likely to be


70

1 true if a lawyer says "I believe." Because they don't really

2 know, they are just hoping.

3 And so what -- the way to deal with that is you j ust bring

4 the discovery materials in and have them here in the courtroom;

5 the letters, emails. That way you can cite to ch apter and

6 verse and say: Here is the email. We told them we were not

7 going to do this. If they had an objection, let me know

8 tomorrow. They didn't let me know tomorrow. End of story.

9 Instead of trying to reconstruct it by memory.

10 So I'm going to rule against an objection where y ou don't

11 have the materials in the courtroom to cite to ch apter and

12 verse. This ought not to be too hard to do. I'm just giving

13 you a heads-up that you need to have the discover y materials

14 and emails and whatever so I can just see it in b lack and

15 white.

16 MR. FREEBORNE: Your Honor, can I ask a question

17 about the reading of the stipulation?

18 THE COURT: Yes.

19 MR. FREEBORNE: Is it the Court's preference to have

20 those read in at the beginning of trial or as the evidence

21 comes in?

22 THE COURT: No. I think it's better to do it when

23 it's most relevant. In fact, let's say you're cr oss examining

24 a witness and it's highly relevant to show that b oth sides

25 stipulate that something happened that's relevant to this


71

1 witness's testimony. You can read it in then. A nd I'll turn

2 to you and say: Do you so stipulate? And you'll say: Yes.

3 If it's in writing, I assume you will.

4 All right. I think in terms of the -- you don't need to

5 give me all of your exhibits. In fact, I prefer not. I just

6 don't have enough room up here. But what you cou ld each do is

7 give me a small notebook that's not any bigger th an this

8 (indicating) that I can -- so I can hold it up wi th one hand.

9 Maybe each side can give -- of your most importan t materials.

10 You can give me two notebooks, if you think you h ave to give me

11 two notebooks, but I don't want all. I want mayb e, like, the

12 top 10 documents from each side.

13 And then on the other documents as they come in, I might

14 look at them then; but as an ongoing matter, I do n't need to

15 have the entire set. As I said, I would rather j ust have the

16 ones you think -- you know, as a booklet to consu lt. So you

17 use your own judgment on which ones you want to g ive me.

18 If it's SSI, you've got to let me know. Stamp it "SSI" or

19 "Law Enforcement Privilege" or whatever it is so I know that I

20 have to handle it with care.

21 I think in terms of closing the courtroom, I woul d like to

22 wait and see how much we need to do that. For ex ample, when

23 the plaintiff testifies, I assume by deposition - - is that the

24 way it's going to work?

25 MS. PIPKIN: Assuming she's not here, yes, your


72

1 Honor.

2 THE COURT: So she doesn't have any secret

3 information. So everything she says could be hea rd by the

4 public. And everything that expert of yours is r elying on is

5 in the public domain, right?


7 THE COURT: Unless we get to the part where it is

8 SSI. So I think we need to -- we need to wait un til a witness

9 is presented where there is a privilege problem a nd then we'll

10 ask the members of the public to step outside.

11 But in the meantime, I would like to try to maint ain as

12 much of a public access to the trial as possible just because

13 it's, you know, the right of the public under the common law to

14 be here.

15 So any objection to that?

16 MR. FREEBORNE: Not from the government's side, your

17 Honor.


19 THE COURT: All right. Okay. I've run out of things

20 to raise with you. What do you have to raised wi th me?

21 MS. PIPKIN: May I confer Ms. Peek --

22 THE COURT: Why don't we do this? We've been going a

23 long time. We'll take a 15-minute break and we'l l resume in

24 about 15 minutes and you can raise anything else you like,

25 okay?


73


2 MR. FREEBORNE: Thank you, your Honor.

3 (Whereupon there was a recess in the proceedings

4 from 10:57 a.m. until 11:15 a.m.)

5 THE COURT: All right. Back to work. Be seated

6 please.

7 What do you have more to do today?

8 MR. FREEBORNE: I don't believe we have any further

9 issues, your Honor, we need to raise.

10 MS. PIPKIN: We have two things, your Honor.

11 The first is our firm has a case called White versus

12 University of California Board of Regents and it's on appeal in

13 the Ninth Circuit. The hearing on that case is D ecember

14 the 3rd and Christine Peek, sitting here, has don e the lion's

15 share of the work on that case.

16 Our firm is giving the opportunity to a third-yea r lawyer

17 to argue that case in the Ninth Circuit that morn ing, but we

18 would like to be able to have Christine there to assist her.

19 THE COURT: That's fine, but you'll be here.

20 MS. PIPKIN: Well, your Honor, and Ms. Kazi is also

21 supervising that argument. So we're asking if th ey can -- if

22 we can be out of session the morning of December 3rd.

23 THE COURT: No. You mean, entirely out of session?

24 MS. PIPKIN: I don't know what time argument is.

25 MS. PEEK: It's 9:30.


74

1 THE COURT: No. We've got to push forward. Ms. Peek

2 can be there. You need to be here.

3 MS. PIPKIN: Okay, your Honor.

4 THE COURT: I don't think that's a good enough reason

5 to suspend proceedings.

6 MS. PIPKIN: Okay. Move on to the second issue.

7 Can plaintiff --

8 THE COURT: She can be absent. I want to make it

9 clear. Ms. Peek can be absent and we will contin ue on with our

10 presentation of testimony on that Tuesday.


12 The second request is if plaintiff can have an ad ditional

13 day for our response to the government's brief on the open

14 court proceedings. So it's currently due --

15 THE COURT: On the what?

16 MS. PIPKIN: The brief that was filed by the

17 government late Wednesday night. Can we have -- our

18 opposition -- our response is currently due noon on Monday.

19 Can we file our --

20 THE COURT: What was this about? Didn't I already

21 rule on what we were going to -- how we were goin g to conduct

22 the open court thing?

23 MS. PIPKIN: I thought you did, your Honor. I

24 think -- do you want a response from plaintiff?

25 THE COURT: If you want to put in a response, you


75

1 have one extra day. You can have an extra day.


3 THE COURT: I've told you what I -- how I think we

4 ought to proceed. There will be times when we ca n and times

5 when we can't and I'll just do my best to regulat e that.


7 We have a few things we'll put on the record with respect

8 to the history of the issue, but I understand the Court's

9 ruling.

10 THE COURT: All right. Go ahead. What else?

11 MS. PIPKIN: That's it, your Honor.

12 THE COURT: I don't know what good it's going to do

13 you to file the brief when I've already made the ruling. You

14 can do that, but then if you are unhappy with my ruling, you've

15 got to bring to my attention and make some kind o f motion to

16 modify it so that I'll -- and refer back -- I don 't like the

17 idea of something just larded in the record that will exploded

18 on appeal.

19 So I've ruled we're going to let the courtroom be open to

20 the public when we can, like, when your client's testimony is

21 read in or the experts on your side; but when a q uestion gets

22 asked that is going to call for classified inform ation or SSI,

23 we have to clear the room I think.

24 MS. PIPKIN: And that's not what the filing would be

25 addressing, your Honor.


76

1 THE COURT: What is it?

2 MS. PIPKIN: Well, the government has a 20-page brief

3 about their legal analysis on the various privile ges and why

4 things would need to be closed for certain issues , et cetera.

5 THE COURT: Yes, okay. Go ahead. That's a good

6 point. Yes. Please address all those things. Y ou have one

7 extra day to do that.


9 THE COURT: What else?

10 MR. FREEBORNE: Nothing from the government, your

11 Honor.

12 THE COURT: Normally I would bring up with you

13 whether or not I could refer you to a magistrate judge to get

14 you to settle your case. I'm assuming that's hop eless. So I'm

15 not going to do that unless you ask me to, in whi ch case, of

16 course, I would. It's my duty to bring it up.

17 MR. FREEBORNE: We've tried, your Honor. I don't

18 believe that would be fruitful at this juncture.

19 MS. PIPKIN: Plaintiff is always willing to discuss

20 settlement, your Honor. I don't think we have be en the issue

21 with respect to that.

22 THE COURT: All right. It takes two to tango on

23 this. So if the government doesn't want to do it , that's fine.

24 MR. FREEBORNE: Well, no, your Honor. That's not

25 what I'm saying. We're always open, too. We've tried. We met


77

1 with the magistrate and it doesn't seem that ther e was a

2 workable framework for settlement. We, too, are always open to

3 settlement.

4 THE COURT: Who was the magistrate judge?

5 MR. FREEBORNE: Judge Corley, your Honor.

6 THE COURT: She's an excellent settlement judge. Can

7 I ask you to go back and try again with her, or i s that going

8 to interfere with your trial preparation?

9 MR. FREEBORNE: Perhaps the best thing is for

10 Ms. Pipkin and I just to discuss the issue and se e if it's

11 fruitful. If we do have some agreement that it's fruitful,

12 perhaps then we could engage Judge Corley.

13 THE COURT: I'll tell you what I'll do. You do that

14 and I'll ask her to give you a ring and see. But I'm not going

15 to order you to do it.

16 I believe that if -- if either side wants to try the case,

17 good for them. That's the American way and I'm o kay with that.

18 But I do feel it's my duty to bring it up and try to

19 facilitate it if -- not if either side wants it, but if both

20 sides want it.

21 So I will have her call you and I'll just step ou t of it.

22 At that point it will be between you two and Magi strate Judge

23 Corley.

24 Okay. What else can I bring up with you?

25 MS. PIPKIN: Plaintiff has nothing further.


78

1 THE COURT: I did have one other -- who will be -- I

2 know who your client is over there. But who will be the client

3 representative for you? Are you going to even ha ve one?

4 MR. FREEBORNE: We have multiple. We will have an

5 FBI counsel accompanying us, as well as perhaps a TSA

6 representative.

7 THE COURT: They've got to be parties of the case.

8 In other words, is the FBI still a party in the c ase?

9 MR. FREEBORNE: They are.

10 THE COURT: So you've got an FBI representative and a

11 TSA --

12 MR. FREEBORNE: TSA will be here. They are not a

13 party, but they will be here.

14 THE COURT: Are they part of Homeland Security?

15 MR. FREEBORNE: Excuse me?

16 THE COURT: Are they part of Homeland Security?

17 MR. FREEBORNE: They are part of --

18 THE COURT: You could designate somebody from TSA to

19 be your representative for Homeland Security, but you can only

20 have one per party. So how many parties are ther e on the

21 defense side?

22 MR. FREEBORNE: There are many. In likelihood, we

23 will not have a representative from each of the c lient agencies

24 with us at counsel's table, if that's --

25 THE COURT: It's likely you will or will not?


79

1 MR. FREEBORNE: We will not.

2 THE COURT: You don't have to have any, but you can't

3 have more -- because of the witness exclusion rul e, you can

4 only have one per agency.

5 So, anyway, I think it would be useful to -- for you to

6 tell the other side before trial starts in a lett er who they

7 will be so that they can -- it makes a difference sometimes as

8 to whether they are in the courtroom and can hear all of the

9 testimony.

10 I usually, by the way, exclude witnesses as well, even

11 experts, during the testimony unless you two stip ulate that

12 your experts can attend. So you need to -- becau se, really,

13 they shouldn't be going beyond what's in their re ports anyway.

14 But if you stipulated to have testifying experts and/or any

15 other kind of percipient witness to be in the cou rtroom during

16 openings, okay. I'll let you do it, but otherwis e they have

17 got to be excluded. Unless they are a party repr esentative,

18 and then you can have all the party representativ es you want

19 that work for that agency.

20 MR. FREEBORNE: Very well, your Honor.


22 THE COURT: What else can I do for you?

23 MR. FREEBORNE: Nothing from our side, your Honor.

24 MS. PIPKIN: That's it, your Honor.

25 THE COURT: I've run out of issues. Have you learned


80

1 with Dawn how to work the electronic machinery?

2 MR. FREEBORNE: We have not, your Honor.

3 THE COURT: Dawn will make herself available to give

4 you a lesson on it so that it will come up on the screen up

5 here.

6 Since this is a bench trial if you want to put a screen

7 over there, it's probably the best place so that if you want --

8 so that -- it's up to you. You're the advocates. But we can

9 rearrange it so that it will suit your style the way you want

10 it to be.

11 MS. PIPKIN: So what are the locations for a screen,

12 your Honor? We could do here. Is that pretty mu ch it?

13 THE COURT: Well, I think you could put one there as

14 well, but then it gets in the way of getting in a nd out of the

15 doorway. Over here, we don't need to go over in that corner

16 during a civil trial. So that would be the best place for a

17 large screen, would be over there.

18 Dawn, didn't we have a second one somewhere?

19 THE CLERK: A second what? I'm sorry?

20 THE COURT: A second screen, big screen.

21 THE CLERK: TV monitors. Yes, there was a second

22 one. It stopped working.

23 THE COURT: Maybe we can borrow one from another

24 courtroom and put it there if that's what you wen t.

25 We do need to have one for the public to view for the


81

1 documents that are not classified. That's for th em, the

2 public.

3 I would say if you're going to put one there for the

4 judge, right in that area would be good. But you don't have

5 to. I can also read the small print on the scree n.

6 MS. PIPKIN: I have one other logistical question,

7 your Honor. I understood someone from our office -- forgive

8 me, I might get this slightly bungled -- spoke to someone here

9 in chambers about a room where we could set up a printer so if

10 we needed to print something. Is that possible?

11 THE COURT: I don't know.

12 THE CLERK: There is a small witness room next door

13 to us. It's where Gina used to sit, in that offi ce next door.

14 THE COURT: Does it have that ability?

15 THE CLERK: If they leave something in there. The

16 room is locked and only accessible by court staff , but they

17 could actually conceivably leave something in the re.

18 THE COURT: Accessible, but both sides.

19 THE CLERK: It's actually for both sides, so it's not

20 designated for just one side.

21 THE COURT: Can you two share that?

22 MS. PIPKIN: That's what I would propose. Maybe I

23 should discuss with the defendants.

24 THE COURT: It sounds like we have -- it's right over

25 here in this hallway, right?


82

1 THE CLERK: Correct.

2 THE COURT: There is a room and you work it out with

3 Dawn, but we only have one so both of you would h ave to use

4 it -- or let's put it this way. Both of you have would have

5 the right to use it. You might decide not to, bu t you at least

6 have the right to use it.


8 MR. FREEBORNE: Thank you, your Honor.

9 THE COURT: Okay. See you here on December number

10 two. Good luck on your December 3 argument in th e Court of

11 Appeals.

12 MS. PEEK: Thank you, your Honor.

13 (Proceedings adjourned.)

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CERTIFICATE OF REPORTER

I certify that the foregoing is a correct transcrip t from

the record of proceedings in the above-entitled mat ter.

__________________________________

Debra L. Pas, CSR 11916, CRR, RMR, RPR

Monday, November 18, 2013


northern district of california vs. ) no. c …...northern district of california before the...

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