Attorneys For Defendants United States of America and Secretary of Defense

Case 2:04-cv-08425 Document 135 Filed 03/26/10 3 Pages
1 TONY WEST Assistant Attorney General 2 ANDR BIROTTE, Jr. United States Attorney 3 VINCENT M. GARVEY PAUL G. FREEBORNE 4 W. SCOTT SIMPSON JOSHUA E. GARDNER 5 RYAN B. PARKER U.S. Department of Justice 6 Civil Division Federal Programs Branch 7 P.O. Box 883 Washington, D.C. 20044 8 Telephone: (202) 353-0543 Facsimile: (202) 616-8460 9 E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States of America and Secretary of Defense 11 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 12 EASTERN DIVISION 13 LOG CABIN REPUBLICANS, ) No. CV04-8425 VAP (Ex) 14 ) Plaintiff, ) DEFENDANTS NOTICE OF 15 ) MOTION AND MOTION FOR v. ) REVIEW OF MAGISTRATE 16 ) JUDGES DISCOVERY RULING UNITED STATES OF AMERICA AND ) 17 ROBERT M. GATES, Secretary of ) DATE/TIME: EXPEDITED Defense, ) RULING REQUESTED; 18 ) DISCOVERY MATTER Defendants. ) 19 ) BEFORE: Judge Phillips ) 20 ) ) 21 ) 22 23 Filed herewith: 24 25 26 27 28 1. 2. 3. 4. Notice of Motion and Motion for Review of Magistrate Judges Discovery Ruling Memorandum of Points And Authorities in Support of Motion for Review of Magistrate Judges Discovery Ruling Attachments (Defendants Responses to Requests for Admission & Transcript of Hearing before the Magistrate Judge) Proposed Order
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543
DEFENDANTS NOTICE OF MOTION AND MOTION FOR REVIEW OF MAGISTRATE JUDGES DISCOVERY RULING
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NOTICE OF MOTION AND MOTION FOR REVIEW OF MAGISTRATE JUDGES DISCOVERY RULING NOTICE IS HEREBY GIVEN that, pursuant to Local Rule 72-2.1, Defendants the United States and Secretary Gates object to, and seek relief from, the portion of the Magistrate Judges ruling dated March 16, 2010 (Doc. 127) requiring Defendants to unqualifiedly admit or deny Plaintiffs Requests for Admission Nos. 3, 4, and 5 of Plaintiffs First Set of Requests for Admission. By stipulation (Doc. 134), the parties have agreed to an expedited briefing schedule for this motion and jointly request that the matter be deemed submitted for decision upon completion of that briefing, unless the Court determines that a hearing is necessary. Defendants motion is based upon these moving papers, the attached Memorandum of points and authorities in support of the Motion, and upon such other and further arguments, documents, and grounds as may be advanced in the future. This motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on March 25 and 26, 2010. Dated: March 26, 2010 Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, JR United States Attorney VINCENT M. GARVEY Deputy Branch Director
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/s/ Paul G. Freeborne PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 [email protected] Attorneys for Defendants United States of America and Secretary of Defense
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Case 2:04-cv-08425 Document 135-1 Filed 03/26/10 6 Pages
1 TONY WEST Assistant Attorney General 2 ANDR BIROTTE, Jr. United States Attorney 3 VINCENT M. GARVEY PAUL G. FREEBORNE 4 W. SCOTT SIMPSON JOSHUA E. GARDNER 5 RYAN B. PARKER U.S. Department of Justice 6 Civil Division Federal Programs Branch 7 P.O. Box 883 Washington, D.C. 20044 8 Telephone: (202) 353-0543 Facsimile: (202) 616-8460 9 E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States of America and Secretary of Defense 11 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 12 EASTERN DIVISION 13 LOG CABIN REPUBLICANS, ) No. CV04-8425 VAP (Ex) 14 ) Plaintiff, ) DEFENDANTS 15 ) MEMORANDUM OF POINTS v. ) AND AUTHORITIES IN 16 ) SUPPORT OF DEFENDANTS UNITED STATES OF AMERICA AND ) MOTION FOR REVIEW OF 17 ROBERT M. GATES, Secretary of ) MAGISTRATE JUDGES Defense, ) DISCOVERY RULING 18 ) Defendants. ) DATE/TIME: EXPEDITED 19 ) RULING REQUESTED; ) DISCOVERY MATTER 20 ) ) BEFORE: Judge Phillips 21 ) 22 23 24 25 INTRODUCTION Pursuant to Local Rule 72-2.1, Defendants the United States and Secretary
26 Gates object to, and seek relief from, the portion of the Magistrates ruling dated 27 March 16, 2010 (Doc. 127) requiring Defendants to unqualifiedly admit or deny 28
DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION FOR REVIEW OF MAGISTRATE JUDGES DISCOVERY RULING UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543
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1 Plaintiffs Requests for Admission Nos. 3, 4, and 5 of Plaintiffs First Set of 2 Requests for Admission (Doc. 127 at 3) (hereafter sometimes Plaintiffs 3 Requests or Requests). In the unique circumstances of this case, Defendants 4 cannot in good faith unqualifiedly admit or deny these particular Requests 5 because the United States does not have a single position on the questions 6 presented; simply put, the positions of the Executive Branch (as articulated by the 7 President) and Congress differ on these questions. Fed. R. Civ. P. 36(a)(4) 8 expressly permits a party to provide a qualified response to a request for admission 9 precisely so that the party can respond in good faith. Defendants respectfully 10 submit that the Magistrate Judges order directs a response in a manner beyond the 11 scope of what is contemplated by the Federal Rules of Civil Procedure, and thus 12 Defendants hereby seek reversal or modification of the Order so as to permit 13 Defendants to respond in good faith.1 14 15 ARGUMENT Fed. R. Civ. P. 36(a)(4) expressly permits a party to provide a qualified
16 response to a request where good faith requires such a response. A responding 17 party that cannot admit or deny a request outright may make an admission with a 18 qualification or deny only part of a request. Loudermilk v. Best Pallet Co., 19 No. 08-68869, 2009 WL 3272429, at *2 (N.D. Ill. Oct. 8, 2009) (citation omitted). 20 This rule permits a party to, in good faith, qualify its answer or deny only part of a 21 matter. Wiwa v. Royal Dutch Petroleum, No. 96-8386, 2009 WL 1457142, at * 4 22 (S.D.N.Y. May 26, 2009). And while any qualification should provide clarity and 23 lucidity to the genuineness of the issue[s] and not . . . obfuscate, frustrate, or 24 25 Defendants note that they already have complied or fully intend to comply 26 with all other aspects of the Magistrate Judges March 16, 2010 order, including as 27 by stipulation of the parties related thereto (Doc. 134), and herein only seek relief from this one narrow but important aspect of the order. 28
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1 compound the references, Henry v. Champlain Enter., 212 F.R.D. 73, 78 2 (N.D.N.Y. 2003), the bar for a qualified admission should not be set too high. A 3 response under [Fed. R. Civ. P. 36(a)(4)] should be deemed sufficient if it 4 reasonably informs the requesting party what is being admitted or denied. Wiwa, 5 2009 WL 1457142 at *4 (citing JP Morgan Chase Bank v. Liberty Mut. Ins. Co., 6 No. 01-11523, 2002 WL 31159139, at *1 (S.D.N.Y. Sept. 27, 2002)). 7 8 9 10 11 Plaintiffs Requests 3, 4, and 5 ask as follows: 3. 4. 5. Admit that DADT does not contribute to our national security. Admit that DADT weakens our national security. Admit that discharging members pursuant to DADT weakens our national security.
12 These particular Requests were juxtaposed with separate Requests by which 13 Plaintiff asked Defendants to admit that in certain speeches President Obama made 14 particular statements regarding the effect on national security of the Dont Ask 15 Dont Tell policy (10 U.S.C. 654 and its implementing regulations) (sometimes 16 hereafter DADT).2 In response to those separate Requests, Defendants admitted 17 that the President in fact made the statements. 18 In response to Requests 3, 4, and 5, at issue here, Defendants made explicit 19 reference to the responses to the separate Requests regarding the Presidents 20 statements about the DADT, but also stated that Congress was of a different view 21 22 23 24 Specifically, Defendants admitted that President Obama made the 25 statement that the DADT policy does not contribute to national security, and that President Obama made the statement that the DADT policy weakens the national 26 security. See Defendants Responses to Plaintiffs Requests For Admission (Nos. 27 1 and 2), attached hereto at Attachment 1. A copy of the transcript of the hearing before the Magistrate Judge is attached hereto as Attachment 2. 28
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1 when it enacted Section 654 in 1993.3 Such a qualified response was appropriate; 2 indeed, a qualified response is the only response possible under the circumstances. 3 The Presidents statements set forth the Executives view that the statute does not 4 contribute to national security and, indeed, that it weakens it. But it was the 5 considered judgment of Congress in 1993 that the statute was necessary for 6 military effectiveness, and thus to ensure national security, and that statute remains 7 in force today. Importantly, it is the rationality of Congress determination that is 8 relevant and controlling for purposes of litigation in which a statute is called into 9 question. 10 In light of the Courts ruling that this case is governed by rational basis 11 review, the only question presented, thus, is whether Congress rationally could 12 have believed that the conditions of the statute would promote its objective. 13 Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 67114 72, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981). Whether the President has a view 15 about the need for the statute that differs from the considered judgment of 16 Congress is thus irrelevant for purposes of the litigation.4 17 18 Defendants also lodged objections to these requests, which objections they 19 stand by as appropriate. Contrary to Rule 36, these requests fail to relate to facts, the application of law to fact, or opinions about either, see Fed. R. Civ. P. 20 36(a)(1)(A). Moreover, the terms "contribute," weakens, and "national security" 21 in the context of this litigation are vague and ambiguous, and thereby further render these requests improper. 22 4 It is the Governments view that, when presented with a facial challenge to 23 the constitutionality of a statute, as here, the relevant legal consideration is whether 24 Congress had a rational basis for the statute at the time it was enacted. Indeed, a 25 statute is not subject to challenge on the ground of changed circumstances. See, e.g., United States v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 1996); Montalvo26 Huertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989); United States v. 27 Teague, 93 F.3d 81, 84 (2d Cir. 1996). Courts have found that, even where Congress has determined that a previous enactment is no longer necessary, such a 28
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Defendants respectfully submit that the responses to Request Nos. 3, 4, and
2 5, therefore, were made in good faith and that they accurately reflect the position of 3 the United States: the Executive being of the view that Section 654 does not 4 contribute to and even weakens our national security, and the Congress being of 5 the view that enactment of the statute furthered a governmental interest in military 6 effectiveness, and thus national security, in the unique setting of the military. In 7 these circumstances, the only appropriate response is a qualified one, and that is 8 precisely why Fed. R. Civ. P. 36(a)(4) expressly permits qualified answers. The 9 Magistrate Judges Order goes beyond the bounds of Rule 36 to direct the United 10 States to unqualifiedly admit or deny, thus placing the United States in an 11 untenable situation of picking between two words, neither of which alone, in the 12 circumstances, would constitute a good faith response as to the position of the 13 United States as contemplated by Rule 36. 14 For all of the reasons set forth herein, Defendants request that the Magistrate 15 Judges Order directing Defendants to unqualifiedly admit or deny Plaintiffs 16 Requests for Admission 3, 4, and 5 be modified or reversed. 17 18 19 20 21 22 23 24 25 26 finding does not render the statute unconstitutional. See Smart v. Ashcroft, 401 27 F.3d 119, 123 (2d Cir. 2005); Howard v. U.S. Dept. of Defense, 354 F.3d 1358, 1361-62 (Fed. Cir. 2004). 28
Dated: March 26, 2010
Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, JR United States Attorney VINCENT M. GARVEY Deputy Branch Director
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DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION FOR REVIEW OF MAGISTRATE JUDGES DISCOVERY RULING
/s/ Paul G. Freeborne PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 [email protected] Attorneys for Defendants United States of America and Secretary of Defense
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Case 2:04-cv-08425 Document 135-2 Filed 03/26/10 1 Page
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) [PROPOSED] ORDER REGARDING DEFENDANTS MOTION FOR REVIEW OF MAGISTRATE JUDGES MARCH 16, 2010 DISCOVERY RULING REGARDING DEFENDANTS RESPONSES TO REQUEST FOR ADMISSION 3,4 &5
3 LOG CABIN REPUBLICANS,
6 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 7 Defense, 8 9 10 11 12 Defendants.
Defendants responses to Request for Admissions Nos. 3, 4 and 5 are in
13 accordance with Fed. R. Civ. P. 36. The Magistrate Judges March 16, 2010 ruling 14 directing Defendants to provide an unqualified response to these requests is 15 hereby reversed. 16 17 It is so Ordered this ____________________ day of ______________ 2010. 18 19 20 21 22 23 24 25 26 27 28 ______________________________ Hon. Virginia A. Phillips United States District Judge
ATTACHMENT 1
ATTACHMENT 2
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
LOG CABIN REPUBLICANS, Plaintiff, vs. UNITED STATES OF AMERICA, ET AL., Defendants.
) CASE NO: CV 04-8425-VAP(Ex) ) ) CIVIL ) ) Los Angeles, California ) ) Monday, March 15, 2010 ) ) (9:54 a.m. to 12:04 p.m.) )
HEARING RE: (1) PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS; (2) HEARING ON PLAINTIFF'S EX PARTE APPLICATION FOR ORDER COMPELLING DEFENDANTS TO COMPLY WITH LOG CABIN REPUBLICANS' NOTICE OF DEPOSITION OF USA AND ROBERT M. GATES; (3) HEARING ON PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER THAT CERTAIN REQUESTS FOR ADMISSIONS BE DEEMED ADMITTED OR FOR FURTHER RESPONSES BEFORE THE HONORABLE CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
Appearances: Court Reporter: Courtroom Deputy: Transcribed by:
See next page Recorded; CourtSmart Stacey Pierson Exceptional Reporting Services, Inc. 14493 S. Padre Island Drive Suite A-400 Corpus Christi, TX 78418-5940 361 949-2988
Proceedings recorded by electronic sound recording; transcript produced by transcription service.

EXCEPTIONAL REPORTING SERVICES, INC
2 APPEARANCES FOR:
Plaintiff:
DANIEL J. WOODS, ESQ. White & Case 633 W. 5th Street, Suite 1900 Los Angeles, CA 90071 PAUL G. FREEBORNE, ESQ. U.S. Department of Justice P.O. Box 883 Washington, DC 20044
Defendants:
3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: Los Angeles, California; Monday, March 15, 2010, 9:54 a.m. (Call to Order) Calling Civil-04-8425-VAP-EX, Log Cabin
Republicans versus United States of America, et al. MR. WOODS: Good morning, your Honor; Dan Woods of
White & Case for Plaintiff, Log Cabin Republicans. THE COURT: Thank you. Good morning, your Honor; Paul
MR. FREEBORNE:
Freeborne from the Department of Justice representing the United States, as well as Secretary Gates. THE COURT: Thank you.
This matter is before the Court for hearings on one motion and two ex parte applications. The motion is
Plaintiff's Motion to Compel Production of Documents and the ex parte applications are Plaintiff's Application for an Order Compelling Defendants to Comply with Log Cabin Republicans' Notice of Deposition, et cetera, and Plaintiff's Ex Parte Application for an Order That Certain Requests for Admissions be Deemed Admitted, et cetera. I've read all of the papers filed in connection with each of these matters and I have a number of questions for counsel. First, for the moving party, Plaintiff, Mr. Woods. MR. WOODS: THE COURT: Yes, your Honor. With reference to what point in time will
4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? MR. WOODS: The Order, which I do have here, goes on the Court evaluate whether there exists a rational basis for the policy? At the time of the statute's enactment? At the
time of the regulation's issuance?
At the time of the At some other time? At
regulation's instructions reissuance? all of those times? MR. WOODS:
What's your position on that? Our position on that, your Honor, is that
Judge Phillips at the trial will be asked to review the constitutionality of the statute and the policy both at the time it was enacted and today. We argued about that at a
status conference before her in July, July 6th, to be precise, and the transcript of that I believe is in the materials before you. THE COURT: MR. WOODS: I've read it. And following the -- most of the
discussion at that hearing took place on the subject of whether we ought to be entitled to conduct discovery at both or all time periods and the Judge's Order following that status conference was that we would be allowed to do discovery. THE COURT: She didn't indicate you would be allowed
to do discovery with respect to a particular timeframe? MR. WOODS: transcript it's clear. THE COURT: In her Order she didn't so state, Well, I think, your Honor, in the
5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order. to discuss both sides' positions and says that, "Plaintiff is entitled to conduct discovery in this case." you -THE COURT: No, that's not the exact words. But the Now, I agree with
answer to my question is she did not indicate a specific timeframe with regard to discovery relevance in her Order -MR. WOODS: THE COURT: MR. WOODS: Not in that --- correct? Correct, your Honor, not in that written
But I believe -THE COURT: MR. WOODS: THE COURT: All right. -- the transcript makes her -So your position is that you're entitled
to ask the Court to evaluate whether there existed a rational basis at the time of enactment and whether there continues to be any rational basis in light of experience between then and now? MR. WOODS: developments, yes. THE COURT: Let me ask you about that issue, and this But in United States v. Both experience and subsequent case law
may require something of a preamble.
Jackson the Ninth Circuit dealt with the issue of whether the one hundred to one ratio between sentencing for crack cocaine and powder cocaine had a rational basis and the party challenging that disparity argued that the rational basis had
6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 eroded over time, that the Sentencing Commission more recently had recommended to Congress to repeal the disparity, and the Ninth Circuit rejected that argument. In Small v. Ashcraft the
Second Circuit said that a Congressional decision that a statute is unfair, outdated, and in need of improvement does not mean that the statute when enacted was wholly irrational or for purposes of rational basis review unconstitutional. In
Howard v. United States the Federal Circuit indicated that even a Congressional repeal of a statute wouldn't mean that the statute prior to appeal lacked any rational basis. So if you put all of those authorities together and what difference does it make what is happening now in terms of whether people within or without the government are in public statements or otherwise condemning the "Don't Ask, Don't Tell" policy as misguided, irrational, unwise, unfair, unnecessary, what difference does it make from a constitutional standpoint? MR. WOODS: Well, your Honor, the constitutional law
issues governing this case have changed since the statute was passed. Since the United States Supreme Court decided the
Lawrence v. Texas case the constitutional framework of the case has changed. The Ninth Circuit recognized that -That's change in the law and I understand But what
THE COURT:
that that may affect the constitutional analysis. would changes of facts, how would they matter? MR. WOODS:
Well, in the Lawrence case, your Honor,
7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Court did address events that had occurred since Texas had passed its sodomy or anti-sodomy statute. That's one example
of cases -- of a case where information after the enactment of a statute was considered. In other words, the Supreme Court in
that case didn't just decide that the Texas statute was unconstitutional when it was enacted; it decided that it was unconstitutional at the time of the decision. Similarly, we have cited to Judge Phillips a case called United States v. Carolene Products, which is a 1938 United States Supreme Court decision which -THE COURT: Let me interrupt you for a second. In
Lawrence the Supreme Court didn't say that the Bowers case -is that Bowers v. Hardwick? MR. WOODS: THE COURT: Yes. That that case was correct when it was
decided, but it would be incorrect if it were decided that way today. That's not what they decided. MR. WOODS: Well, some of the information in the
Supreme Court decision in Lawrence was information that had developed after both the Texas statute and the Bowers case. Part of it had to do with changing morays in society, things of that sort. As I was saying, in this Carolene Products case the Supreme Court said, "A statute predicated upon the existence of a particular state of facts may be challenged upon showing to
8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Court that those facts have ceased to exist." That case
also cited another United States Supreme Court case, Chastleton v. Sinclair, which again, on a similar point, in challenge to a law enacted in response to a housing crisis was no longer rational when the crisis ceased to exist. We also cited another case to Judge Phillips, Dias, D-i-a-s, against City and County of Denver. THE COURT: MR. WOODS: Right, that's the pit bull case. So there is at least, your Honor, a
substantial disagreement on this issue in the various Courts that have considered it, but we believe the Supreme Court decisions on this point make it clear, if not at least possible for us, that we can challenge the constitutionality of the statute using information, facts, developments that have happened since the law was passed in 1993. Otherwise, it would
be impossible ever to overturn a statute of Congress. THE COURT: Are you seeking discovery into the
motives of Congress and the Department of Defense in authorizing and implementing the policy? MR. WOODS: What we're asking for, your Honor, are
documents and the documents aren't -- the document requests aren't described in those terms. THE COURT: We're also asking in the -Is your contention that
I understand.
the motives are relevant and therefore you're seeking documents that would reflect the motives?
9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 analysis? MR. WOODS: reveal motives. It is possible that the documents would
The motive would be animus or prejudice Another -Is that relevant to a rational basis
towards homosexuals. THE COURT:
Assuming that the real basis for the policy was some
religion-based animus against homosexuality, the policy still could have a rational basis in terms of a speculative rational basis that might be sufficient to uphold the statute in terms of the nature in which the policy arguably serves military discipline in order to prevent sexual tension and all of the things you hear from the Defense side. MR. WOODS: Well, we've seen a moving target about We -My
what the basis for the policy is, your Honor. THE COURT:
Well, it doesn't have to be static.
point is that fortunately or unfortunately, depending on how you look at it from the standpoint of constitutional, law you have to negative all conceivable rational bases regardless of the original intention. MR. WOODS: I may not disagree with that statement,
your Honor, and that's why we need this discovery. For example, we believe that the discovery will show that the government had in its possession reports that -studies and reports on this issue that indicated there would be no negative or adverse impact on the military if gays were allowed to serve openly, but that those studies and reports
10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were concealed from Congress. We believe that the evidence
will show that some of the decision makers involved in the enactment of this policy were biased and prejudiced against homosexuals and that the stated policy of the purpose of the statute was just camouflage for the animus towards homosexuals. We believe, your Honor, that the stated purposes of the policy in this statute are just the latest buzzwords used to camouflage animus against homosexuals that have changed over time. THE COURT: Much of what you just said seems to go to
the wisdom of the policy, rather than its constitutionality. MR. WOODS: Well, no, your Honor. Obviously we're But, as you
not here to debate the wisdom of the policy.
pointed out, it may be our burden to negative every possible rational basis for the policy and that's what I was trying to suggest that we were going to be able to do. THE COURT: All right, let me ask you about a few
procedurals, and that is you argue that because you didn't receive a formal timely response to your Rule 34 request that the Defendants have waived all of their potential objections. But you did receive before the expiration of the deadline for a Rule 34 response a motion by the Defendants seeking an order permitting them to take an interlocutory appeal and in that motion they argued objections to the outstanding discovery requests. So why wouldn't it just be elevating form over
11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. If Burlington does apply, not just when there's a late submitted privilege log but also when there's a late
substance for the Court to discern a waiver when had the Defendants just lifted their opposition out of their motion and re-titled it in a separate document Rule 34 response you wouldn't have that waiver argument? MR. WOODS: Your Honor, I don't happen to have the
Government's Motion for Interlocutory Appeal handy, but the motion only generally addressed the fact that the Government objected to our discovery requests. category by category. It didn't address them
It didn't specify each of the objections
that we now find in the late objections to our requests for production of documents. THE COURT: MR. WOODS: THE COURT: It specified some, but not others. And -Do you think the Burlington case has any
application here with regard to waiver or non-waiver? MR. WOODS: No, your Honor, we don't, for the reasons The Burlington case is largely
we indicated in our papers.
about a privilege log, not about timely or untimely objections to a request for production of documents. And I think you saw
from the transcript we provided you what Judge Phillips thought about the Government's argument about the Burlington case. THE COURT: Yes, she didn't appear to think much of
12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 submitted Rule 34 response or perhaps when there was arguably a timely submitted response in the wrong form, then the Court would have to examine the Burlington factors, including the magnitude of the production sought, the particular circumstances of the litigation with respect to whether discovery is unusually easy or unusually hard. If the Court
were to apply those factors, wouldn't those factors weigh in favor of not finding a waiver, particular because of how you construe some of your requests as being so broad as to encompass documents from outside the Department of Defense? MR. WOODS: Well, first of all, your Honor, in the
Burlington case, if I'm not mistaken, the Court did find a waiver to have occurred. case -THE COURT: different there. MR. WOODS: Right. In this case, your Honor, the That's true, but the facts were a little But, second, the Government in this
United States of America has yet to articulate why its response to the document requests was not timely filed -- served. There's never been any explanation of that, even in the motion papers before you now. So I don't know how, you know, the
Government can ask you -THE COURT: make on that issue? MR. WOODS: Well, it -What difference does subjective intent
13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Whether they thought they had adequately
responded through their motion or whether they mis-calendared the date, or whatever, what difference does it make? MR. WOODS: Well, I think it is relevant to
understand what would be reasonable, which seems to be what the Burlington case examined. There's also, your Honor, no attempt in the Government's papers after it cites and tries to rely on the Burlington case to explain to you how this holistic analysis ought to be resolved in its favor. THE COURT: factors in Burlington. MR. WOODS: Okay. So our discovery -- our document We have, in this case --
Which is why I asked you about the
requests in this case are far less than what was going on in the Burlington case. We had, I believe, 79 requests for You know, despite the fact that we
production of documents.
contend the Government's objections were waived by the untimely response, we did meet and confer with the Government and we did agree to narrow many of the requests and many of the requests have now been resolved, so that we're left with a motion to compel further responses to 17 out of the original 79 categories. We don't think that the documents that have been withheld are anything like the magnitude in the Burlington case. In fact, your Honor, in the declaration that was
14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 submitted with the Government's supplemental papers in connection with this motion the documents that have not been withheld have been apparently Bates stamped and identified. haven't seen them. We don't know what they are. Aren't they talking there only about the We
THE COURT:
documents withheld under claim of deliberative process privilege? MR. WOODS: I think that's right, but I believe,
your Honor, the Government's position is that is all that has been withheld in those categories, that would be the first two categories of the motion, so that the Burlington factors wouldn't support the Government's position as to the deliberative process documents. Similarly, we have the last three requests in Category Four are just about some of the internal documents that the Government has identified, to itself at least, already as privileged that it is now withholding. Again I don't think
that there is anything like the kind of Burlington problem here. THE COURT: When you say Category Four, you're
talking about Requests Number 38, 39, and 40? MR. WOODS: Correct. In other words, the Government
knows what it has in those categories. THE COURT: I'm not sure at all, given your
interpretation of the scope of, for example, Request 39, which

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would seek essentially all documents prepared by any attorney for any employee of the Department of Defense or the Department of Justice concerning homosexual conduct or orientation. I
suspect that read literally that would encompass a tremendous volume of probably attorney-client privileged and work product privileged documents. (Pause) MR. WOODS: your Honor, agreed. THE COURT: document requests. Let me -- we'll come back to some of the That would be the biggest of those three,
I want to ask you about some more
procedural matters in connection with the ex parte application. It appears that, as to the ex parte application concerning the deposition, you knew after you didn't get a response by February 17 that the Government was not going to follow your proposal with regard to a briefing schedule and then you waited until March 5 to file your ex parte application. Similarly, with respect to the request for
admissions, you didn't get any response by your February 17th deadline and so you waited another almost three weeks to file your ex parte application. MR. WOODS: Why the delays?
Well, I think, your Honor, the fact of
the matter is that it takes some time to prepare such motions, but at the same time I think we were all acting under the now mistaken impression that both the trial date and the discovery
16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cutoff date were going to be continued. We had, as you know, a
status conference before Judge Phillips on February 18 and at that status conference she said: "What I'm inclined to do is probably to continue the trial date for a short period of time and continue the discovery cutoff date; because I foresee that what's probably really necessary here is more time to resolve the issues that I have identified about discovery, but not necessarily to issue a stay at this time. So I will issue a written Order."
And then we received the Court's written Order on March 4th, in which we were advised that the Court was not continuing the trial and not continuing the discovery cutoff date. So I appreciate that we perhaps could have moved a
little faster, but that's what was going on in the case. And in that regard, your Honor, I want to be clear with you that these are the only discovery motions that will be brought. We are not contemplating any other discovery motions. It is
We have no other discovery disputes to bring to you. also the case that these -THE COURT:
Let me interrupt you for a second,
because I'm not sure that's necessarily accurate. For example, what if the Court were to grant all or part of the ex parte application concerning the deposition and then the Government were to show up at the deposition with a
17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wholly unprepared Rule 30(b)(6) witness? Would you do nothing
in response to that situation or would you come back into court with a motion or an application seeking a discovery order? MR. WOODS: I suppose I can't predict exactly the
future, your Honor, but I can tell you that we are not planning to come back to you with any discovery motions or issues on the other discovery issues that we have with opposing counsel in this case. In other words, there are other discovery requests
and responses to discovery requests -THE COURT: So apart from the Rule 30(b)(6)
deposition and request for admissions, you know, the document requests, there aren't any other outstanding discovery disputes in the pipeline that you're going to bring to the Court, that's what you're saying? MR. WOODS: THE COURT: MR. WOODS: Yes, your Honor. All right. And I would also tell your Honor that I
do not believe that these disputes before you today and their resolution will in any way delay the progress of the case towards its currently scheduled June 14th trial date. I will also tell you that I believe that we, not only are entitled to the discovery that we're asking for in the motion and in the ex partes, but that it will be important for us to have that discovery in order to respond to an anticipated motion for summary judgment by the Government which we expect
18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be filed March 29th and we would expect to have to file our opposition to it by April 5th. In this regard, your Honor, we have not been dilatory throughout this case and have pursued discovery reasonably and in good faith. I mean -On the surface of it that's a difficult
THE COURT:
proposition to accept, given the fact that the case was filed in 2004. MR. WOODS: THE COURT: discovery period. MR. WOODS: Well, your Honor, I'm sorry that it Your Honor, we -And we're here on the last day of the
appears that way, but that is not the case. THE COURT: I understand that there were some delays
outside of your control. MR. WOODS: Your Honor, we didn't have a ruling on a Okay, that
Motion to Dismiss in this case until January 2009. is the first thing. THE COURT: MR. WOODS: But a little -January 2009? Yes, your Honor.
The case was before
Judge Schiavelli, who took over a year to decide the first Motion to Dismiss and, frankly, never decided the second Motion to Dismiss before he resigned from the bench, after sitting on it for approximately another year. THE COURT: I understand that there's been --
19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WOODS: THE COURT: MR. WOODS: Okay, so --- a tremendous amount of delay. -- those delays were beyond our control,
your Honor, and I don't want us to be painted with the brush of dilatory behavior, because we have not been dilatory. THE COURT: more than a year. MR. WOODS: And we sent the discovery -- the requests But yet between January 2009 and now is
for production of documents, your Honor, some months ago. Anyway, but -THE COURT: MR. WOODS: In September. Yes. But on the subject, your Honor, of
our conduct of discovery, let us be clear, I mean we did meet and confer with the Government about its objections, even though we contended they were untimely. Government -THE COURT: MR. WOODS: THE COURT: MR. WOODS: In February? Pardon? In February of 2010? Yes. We gave -- after we gave the We gave the
Government an extension of time to respond to other discovery requests. We have given the Government extensions of time to
submit its portion of the joint stipulation on the Motion to Compel and additional time to respond to -- to submit its supplemental statement. We just gave the Government an
20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 additional 30 days to conduct the depositions of three experts after the discovery cutoff, even though two of the depositions were not taken because of the Government's problems, not ours. We also stipulated to a protective order by the request of the Government that has delayed the production of documents to us, which maybe are arriving today. We have throughout this case,
your Honor, behaved reasonably and in good faith and have not at all been dilatory. THE COURT: I'm a little unclear on the scope of some
of the document requests in terms of whether you're seeking documents from the Department of Defense, beyond the Department of Defense to the whole of the Federal Government, to just the Executive Branch of the Federal Government. that? Can you clarify
I see in your supplemental memorandum that you at one
time maybe agreed to limit the scope of the requested documents to those housed at the Pentagon. And other times it appears as
if you're arguing for an order that would relate to -- that would be directed to the Executive Branch in whole and at other times you're talking about getting documents from Congressional staffers. So what are you seeking? MR. WOODS: Well, at a minimum, your Honor, we are
entitled to documents from the Defense Department, and it's not just documents that the Defense Department has itself created. I think you saw in the Defendants' objections to some of our discovery requests that -- I think these were the requests for
21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 admissions -- where the Government was contending that it didn't have to respond to our requests for admissions because the Defense Department itself hadn't done a study of a certain issue. That doesn't mean that the Government doesn't have --
the Defense Department doesn't have possession of such studies. In fact, in some of those situations we believe that the Defense Department commissioned a study by someone else on that exact issue where the Government is now claiming it did not itself conduct the study. THE COURT: My question is just this: Ordinarily a
party would be entitled to documents within the possession, custody, or control of the responding party. Here are you
arguing that you're entitled to the documents that are responsive that are in the possession, custody, or control of the Department of Defense, regardless of whether the Department of Defense generated those documents or not? Or are you asking
for something broader, you're asking for documents within the possession, custody, or control of the Federal Government of the United States, regardless of the branch, regardless of the agency? Or is it something between those two? Or is it for
documents housed at the Pentagon? MR. WOODS: Well, as you saw, your Honor, from the
supplemental brief that you read, that we were at one point happy to have documents at the Pentagon which we understood to be documents in the possession, custody, or control of the
22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Department of Defense. THE COURT: Oh, so it's not just documents that
happen to be in that building? MR. WOODS: THE COURT: I believe that is correct, your Honor. Okay. You said at one time, are you no
longer willing to restrict your requests to -MR. WOODS: THE COURT: MR. WOODS: that, your Honor. Well --- to that focus? -- I think it would be reasonable to do
The problem we have is that even after we,
you know, made that agreement in November of last year the Government didn't produce all of the documents. In other
words, that was something that we agreed to in a meet and confer in November of last year and we still don't have all the documents. So rather than, your Honor, looking at us as possibly being dilatory, I think the shoe is on the other foot. It is
the Government in this case that has dragged its feet and objected to every one of our discovery requests. Which is why
we are here today, both because the Government has refused to produce the documents that we expected it would have produced by now, it refused to produce any witness for a 30(b)(6) deposition notice that was properly noticed, and again no motion for a protective order, no objections prior to the date of the deposition, and nobody showed up at the deposition.
23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 date? MR. WOODS: I do not offhand remember, your Honor, up. MR. WOODS: there was prior to -THE COURT: going to show up? MR. WOODS: When we contacted the Defendants' counsel And when did you learn that they weren't Right. But at the same time, your Honor, THE COURT: showed up at the -MR. WOODS: THE COURT: MR. WOODS: THE COURT: No. -- deposition? No. You knew that they weren't going to show Was it a surprise to you that no witness
to confirm that we were on for that particular date for that deposition. THE COURT: MR. WOODS: THE COURT: And that happened a few days before -Yes. -- January 25? Do you remember what
but before we got on the airplane to go to Washington, D.C. for the deposition we contacted opposing counsel. THE COURT: And they said deposition, what Is that what they said?
deposition, we never got the notice? MR. WOODS:
At some point they said that they had not
received the notice, even though it was mailed to the correct

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 events. THE COURT: So after the deposition didn't happen on No, I'm sorry. address. THE COURT: MR. WOODS: Okay. I don't remember the exact sequence of
the 25th you had a meet and confer on the 29th? MR. WOODS: THE COURT: Yes. Yes.
They filed their objections on the 29th,
you had a meet and confer February 9th. MR. WOODS: THE COURT: Right. And did you argue at that time to them
that they've waived everything and they just need to show up and there was nothing to meet and confer about? MR. WOODS: No, we were -- no, we were trying to be
reasonable about this, your Honor, and trying to get the deposition taken care of. the 9th of February. So we met and conferred with them on
We actually withdrew one of the We sent them a letter on
categories in the 30(b)(6) notice.
February 11th, we asked for a response, and, you know, we ended up in the same position at the status conference with Judge Phillips. THE COURT: deposition notice. (Pause) Your deposition notice at Page 2, Line 14, says,
Let me ask you something about your
Excuse me just a moment.
25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "This notice names a government agency as the deponent." What
is the government agency it names, the Department of Defense, was that your intent? MR. WOODS: THE COURT: Yes, your Honor. All right, so you're asking for a
Rule 30(b)(6) deposition of the Department of Defense? MR. WOODS: Yes, the person most qualified at the It may be
Department of Defense to testify on these subjects. one or more than one person. THE COURT:
That's the Defendants' choice.
And your notice mentions Robert Gates,
but he is just named in his official capacity, so you're not asking for a deposition of Robert M. Gates as an individual? MR. WOODS: THE COURT: in the notice. That is correct. Let me ask you about a few of the items
Some of the items in the notice, frankly, Item
appear to focus on legal opinions or legal argument. Number 5 for example, the effect or lack of effect of
Lawrence v. Texas on the policy, the application of the policy, or the legality of the policy, that sounds like the deposition would involve a legal argument between you and the deponent on the effect of Lawrence on the legality of the policy. MR. WOODS: You're correct and that is the category
of the notice that we withdrew in the meet and confer process, your honor. THE COURT: All right. I must have missed that in
26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. MR. WOODS: Well, I think the category is there so the briefing. What about Item 8, Defendant's contention that
the policy is rationally related to a legitimate purpose? MR. WOODS: THE COURT: Yes. That sounds like the legal issue in this
that we can examine the person most qualified at the Defense Department about the facts supporting the Defendant's contention in this regard. THE COURT: But a Rule 30(b)(6) deposition notice is
supposed to describe with reasonable particularity the matters for examination. Ordinarily it's not proper to say in a Rule
30(b)(6) deposition, put forward a witness who knows the most about your defense in this case. that? MR. WOODS: Well, I think it is, your honor. I think Is this any different from
by asking what is rationally related to a legitimate purpose, we're asking the Government to tell us what the alleged legitimate purpose is. THE COURT: what you meant. mean by those -MR. WOODS: THE COURT: MR. WOODS: Yes. -- items. Nine and ten, your honor, go to one of Let me ask you about a few others, as to
Numbers 9 and 10, I'm not clear on what you
27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the issues in the case that I can describe as follows. Despite
the fact that the Government bars openly gay and lesbian members of the Armed Forces from serving, if the Government believes that someone who is in the process of being deployed abroad to fight in a war is gay or lesbian, the Government will not stop the deployment. The Government will allow the person
-- or in fact require the person to go to Iraq or Afghanistan, even though the Government would otherwise be investigating the individual. THE COURT: That relates to Number 10. Number 9
looks a little broader than that; deployment of anyone who is suspected rather than deployment of anyone who is in the process of discharge proceedings or under investigation. MR. WOODS: Yeah, it is admittedly a little broader
and what we're trying to find out in that one, your honor, are what are the policies or procedures or handbooks or rules about such deployments? In other words, we understand, your honor,
that there is a written policy that says, for the United States Army at least, that people may be deployed even though they are suspected of being gay or lesbian. THE COURT: MR. WOODS: Even though --
Suspected by whom? Even though there's been a report that
the person is a gay or lesbian individual -THE COURT: MR. WOODS: So suspected by anyone? I -- again, I don't have that particular
28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Government regulation -THE COURT: MR. WOODS: regulation about this. THE COURT: My question now that I'm asking about Oh, I'm sorry. -- here, but there's a Government
Number 9, not about the -MR. WOODS: THE COURT: MR. WOODS: THE COURT: MR. WOODS: THE COURT: Okay. -- Government regulation you mentioned. Well, what I'm trying to get -- what -Suspected by whom? Suspected by -- I presume by an officer. It's your request, so that was your
intent to mean known or suspected by some -MR. WOODS: THE COURT: MR. WOODS: Yes. In other words --
-- officer. Yes. In other words, not just some other
fellow member of the Armed Forces who has a secret suspicion. Clearly, that's not what we're asking for. THE COURT: Would you look at Number 12, please?
Number 12 is an example of an item that it would appear to the Court would be much more efficiently the subject of some different kind of discovery than a Rule 30(b)(6) deposition. MR. WOODS: As to that one, your honor, we did have a
request for admission -- or several requests for admissions to be more precise, that asked for similar information.
And we
29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have received responses to those requests for admissions. So I
-- so if -- so this one is, I believe, less critical than some of the others. The numbers are hard to determine, your honor,
and we want this request because in response to some of the requests for admissions we did not get clear answers. For
example, in request for Admission 48, we asked the Government to admit that between 1994 and 2003 service women accounted for 27 percent of all separations pursuant to don't ask, don't tell. The response was, "Defendants are unable to admit or So we did receive a lot of information in
deny this request."
response to requests for admission on this subject, but it wasn't perfect. So having said that, 12 is less critical than
some of the others, your honor. THE COURT: Let me ask you about Number 15, because Polls conducted by
the Court doesn't see that one as critical.
or on behalf of Defendants measuring public opinion regarding service by gay or lesbian individuals et cetera. There's not a
very close correlation between the popularity of a law and its constitutionality, so I'm not sure what difference that makes? MR. WOODS: It makes a difference, your honor, only
because in the Congressional Hearings lead to the enactment of the statute polls were utilized as a factor supporting the policies -THE COURT: No question, but Congress is not trying
to determine the constitutionality of its enactments; it's

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 policy -MR. WOODS: THE COURT: Again -- again, let me try to explain --- material to the constitution analysis? trying to determine the wisdom of it. And if your discovery
goes towards trying to refute the wisdom of it, I think the discovery is misguided. Let me ask you about Number 16, which in my mind is a -- is somewhat similar. This one goes to studies concerning
the costs of recruiting additional personnel to replace service members discharged pursuant to the policy costs expended training service members discharged pursuant to the policy. Again, I don't think there's much of a correlation between the constitutionality of a policy and how much it costs to implement, so I question whether this item is valid. MR. WOODS: Again, your honor, I would only point out The
that there are a variety of studies of the costs.
differing studies come to different results as to the estimates of the millions -- hundreds of millions of dollars of costs. And whether it's ultimately admissible at trial or not, I'm not sure, but I thought we were entitled to discover the facts upon which we could evaluate that better. THE COURT: What I'm trying to understand is, why is
the fact of the expensive nature of the policy fiscally for -MR. WOODS: THE COURT: Again, your honor --- or fact of the unpopularity of the
31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WOODS: Again, it's part of what may be our Again, in the
burden to negative any possible rational basis.
testimony, particularly that of I believe General Powell, which the Government relies to support the constitutionality of the enactment of the statute, polls are the subject of discussion. And so again, since we may have to negative every possible alleged rational basis for the statute, we ought to be allowed to at least conduct discovery on those subjects that did arise during the Congressional testimony leading to the enactment of the statute. THE COURT: I won't belabor the point any further,
but it doesn't appear to the Court that as a rational basis the Defendants are putting forward the suggestion the A, the policy is popular or B, the policy doesn't cost very much. our rational bases for constitutionality of it. MR. WOODS: No, it's not the popularity, your honor. The Those are
It is the -- I'm sorry if I didn't make this clear.
Congressional testimony has to do with the fact that the majority of Americans do not want to serve with openly gay individuals. It's not that it's popular. The idea is that the
majority of Americans, according to the polls at that time cited by Colin Powell and others in the Congressional hearings, was that they did not wish to serve with openly gay individuals. We believe the evidence will show that as of
today there is an entirely different outcome from those polls

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and that the polls of both public opinion and even military opinion have changed dramatically since 1993, such that both the general public and the military itself is currently not opposed on a majority basis to open gay service. THE COURT: And if they're not opposed to open gay
service then where is the sexual tension, where is the lack of good order -- the threat to good order and discipline? your argument. MR. WOODS: THE COURT: for admission, please. Yes, your honor. Let me ask you about some of the requests You make an interesting argument and That's
sometimes interesting is a euphemism for not very persuasive, I guess, but you make an argument that certain terms in your request for admissions were borrowed from President Obama's speech, and therefore those terms can't be subject to objection as being vague and ambiguous. That argument doesn't appear to
the Court to be very persuasive; if the terms are vague and ambiguous, then they're vague and ambiguous, whether they come out of the mouth of the President or somebody else. anyway, let me stop there. MR. WOODS: Well, let me address that. I think if And --
you look at requests for Admissions 3, 4, 5, and 10, there isn't any ambiguous term, despite the Government's objections. THE COURT: I'm not saying that all of their vague
and ambiguous terms are well taken, but -EXCEPTIONAL REPORTING SERVICES, INC
33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10. MR. WOODS: THE COURT: Okay. -- for example, let's see, you mention
Ten, I would think, does contain a vague or ambiguous I'm not sure what "essential"
term, the term is "essential". means.
Does it mean that, but for reversing the policy, our
national security is going to be so compromised that there will be an invasion and takeover within the next year? essential mean? MR. WOODS: Well, our intent obviously, your honor, What does
was to use those terms in the same sense as the Commander in Chief used them. THE COURT: MR. WOODS: THE COURT: And -We're not trying to redefine the terms. And the Commander in Chief, like many
statesman and many other people, use terms in speeches that are general, vague, ambiguous. Then you're left with an
objectionable request for admission. MR. WOODS: Well, I -- the words to which the
Government objects as vague and ambiguous, your honor, are contribute. I don't see how that can be -Well, right now I'm on essential. Okay. Let me go to another one that seems to me Thirteen and fourteen and
THE COURT: MR. WOODS: THE COURT:
to be glaringly vague and ambiguous.
fifteen use "cannot afford" -- the United States cannot afford

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this, it cannot afford that. mean? The United States, what does that
Does that mean that we'll go into more debt than we are
already in? MR. WOODS: I -- there's -- you've correctly seized
on 13, 14, and 15, which are less clear than 3, 4, 5 and 10. Three, for example -THE COURT: I seized on 10; we just have a What do you mean
disagreement on the word essential, I guess. by essential? MR. WOODS: THE COURT: Well --
Or perhaps I should ask you what you
believe President Obama meant when he used the word essential? MR. WOODS: I don't believe he intended the word to
be used in anything other than its normal, dictionary definition sense. THE COURT: Which would probably mean that Request
Number 10 is asking, admit that reversing the policy is necessary, in the sense that without it we would have no national security. MR. WOODS: exactly what he said. I think that's right. I think that's
And under the circumstances of -- that
we're in today, I think that's right. THE COURT: So without reversing the policy, we will It is a necessary and essential
have no national security?
prerequisite to our future national security.

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 papers? MR. WOODS: THE COURT: MR. WOODS: I don't believe so. All right. When did you get it? It was only, if I MR. WOODS: That's right, because we are short-
handed, we are arming felons with guns as -- in the military and we are eliminating hundreds of patriotic, gay Americans who are willing to serve and are serving. THE COURT: A couple more things I wanted to ask you.
And I'm skipping around in my prepared questions, but you haven't gotten the privilege log listing documents withheld under claim of attorney/client or work product privilege; is that correct? MR. WOODS: THE COURT: I think we do, your honor. Oh, you do have one? Is that in the
I don't recall.
remember this correctly, only about the attorney/client privileged materials. Well, I'm sorry, there was a category of
documents the Government contended were withheld on the grounds of privacy and following a receipt of that privilege log, we stipulated with the Government that the Government could redact certain identifying information from those documents. Government agreed to produce those documents and my understanding is those were sent to us on Friday. THE COURT: Okay. So that was a privacy log, not an The
attorney/client privilege?
36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on this? THE COURT: When you argue you can tell me. Okay. Well, what I'm trying to MR. WOODS: That was part of the log. And then, if
I'm not mistaken, there was also another part of the log that identified some attorney/client material too. MR. FREEBORNE: Your honor, if I may, can I be heard
MR. FREEBORNE: THE COURT:
Thank you.
understand is it sounded like in your papers with respect to the documents motion, you, the Plaintiff, were arguing that failure to provide a privilege log was something that the Court ought to consider. MR. WOODS: Well, that was the case with respect to
the documents that were allegedly withheld on this deliberative process privilege. THE COURT: MR. WOODS: But not the attorney/client -Right. We have not received any listing
or log of the documents withheld under the deliberative process privilege. THE COURT: All right. All right, there's one other
thing I wanted to mention to you, and it's a small point, but I thought it was such that I wanted to tell you about it, even though it probably doesn't matter much. In the joint
stipulation, with regard to the documents motion, I had some trouble following your discussion of the Hopkins case on Page
37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 and 23. And I didn't have a problem following the gist of
the discussion, but when I read the Hopkins case, I noticed that quotations you attribute to the Hopkins case at Page 22, Lines 5 to 8, Page 22, Lines 21 to 22, and Page 23, Line 14, don't appear in the Hopkins case. So I think something got
messed up, either you were pulling quotes from a different case, but citing Hopkins for those quotes, or there was misquoting. Like I said, it's not material, but for what it's
worth I wanted to call it to your attention. MR. WOODS: Well, I appreciate that, your honor, and
I do apologize for any inconvenience. THE COURT: I've been asking questions and not Is there anything
allowing you to speak too much in argument.
you'd like to talk about that we haven't covered in the questioning before I hear from Mr. Freeborne? MR. WOODS: Just a few things, your honor. With
respect to the motion to compel the production of documents, one development that has occurred with the Government's filing of its supplemental memorandum and the declaration that accompanied it was an identification of the documents currently being withheld under the deliberative process privilege. As
you recall, one of our concerns was whether the Government was interpreting the scope or breadth of that privilege too broadly to include documents that were not reflective of a deliberative process, but were merely reflecting facts and such.
So a
38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 possible suggestion would be for the Court to review the documents identified by the Government in-camera to allow the Court to determine whether those documents are or are not covered by the deliberative process privilege. Again, your honor, I do not believe that the Government has adequately addressed the waiver issue, in that we continue to believe that the Government waived all of its objections to all of the document requests and that the objections should not be considered. Although I, again, would
urge the Court to consider this in-camera review of the documents. With respect to the deposition, the 30(b)(6) deposition, I believe, your honor, that while we've talked about some of the categories, we ought to be entitled to depose the person most qualified at the Department of Defense on at least some of these categories so that we can understand what the Defense is saying on these issues. THE COURT: MR. WOODS: THE COURT: Let me --- supplemental --- interrupt you for a second, because if In the Government's --
the purpose is to understand the Government's legal arguments, I'm not sure whether the Rule 30(b)(6) deposition procedure would be appropriate. If it's to ascertain specific facts
within the possession, custody or control of the Department of Defense, then the deposition procedure might be appropriate if
39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- or would be appropriate if A, the facts are material with the legal issues in the case and relevant to the subject matter, and B, if they're the type of facts that are not more properly obtained or obtainable through other forms of discovery. MR. WOODS: Well, we're -- I certainly have better
things to do than go to Washington D.C. to argue with some witness at a deposition. arguments. know, when We do not intend to get into the And, you
We only intend to find out the facts.
you -- when the Government argues in its opposition
to this particular motion that it's -- would be easier for the Plaintiff to get this information from other discovery means, I think the three motions before you tell us -- tell you and tell us how difficult it has been to get information from the Government, how difficult it has been to get documents from the Government and how difficult it has been to get adequate responses to Request for Admissions. So the Government is simply, in all of its responses to all of our discovery requests, trying to prevent us from getting the information that we want. So if I'm allowed to
take a deposition of a person most qualified at the Department of Defense, I think I'm entitled, your Honor, to ask questions about what studies have been done, what reports have been done on some of the issues involved in this case and to find out just the facts about these things.
40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You know, for example, the Government objects to, you know, one category of the requests and the one category of the deposition notice about how the policy has had a disproportionate impact on women and that is a part of our case. It's not rational for the Government to have enacted
this policy in the first place, vis a vis women, because all of the stated reasons are really about men not women. THE COURT: They argue that you haven't identified
any female members of your association and that should limit discovery to the male related issues. MR. WOODS: They have -- there's no requirement in No ruling has ever made
this case that we do that, your Honor.
on standing in this case that requires us to specify a female member of our group. Our group has female members, in fact it
has thousands of female members as the national chairman testified at his deposition on Saturday. But the real issue
here is the disproportionate impact on women that this policy has because it evidences the fact that the stated purpose of the policy is untrue and nothing more than camouflage for animus against homosexuals. And with respect to the Request for Admissions, your Honor, you may be right that say 13, 14 and 15 are vague but I don't think 3, 4, 5 and 10 are. those. And we should be entitled to
And we ought to be able to get a better response to 81
through 104, which simply asks the Government to admit that

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 otherwise? MR. WOODS: Well it will be much easier to simply certain countries permit openly gay individuals to enlist and service in their armed forces. And the Government is trying to
answer these requests by saying -- or evade answering them by saying they don't know what they mean or that they haven't conducted an independent study. But your Honor, I have to
believe that the United States of America knows whether the United Kingdom permits openly gay people to serve. And what we
would like to have are these requests for admissions answered to greatly simplify our presentation at trial. THE COURT: Because you can't easily prove it
have it admitted than to bring in foreign law or experts on the subject. THE COURT: You reminded me. I wanted to ask you a It seems to me
question about the Request for Admission 106.
it may be one thing to ask the Government to admit that other countries have the policy of permitting service -- military service by openly gay and lesbian service members and it's quite another to ask this series of questions that begins with 106. Admit that, fill in the blank of the name of the country,
this one's Australia, abandoned its prohibition of military service by openly gay and lesbian service members without any documented adverse impact on unit cohesion. I'm not sure what a documented adverse impact would
42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 words? MR. WOODS: THE COURT: MR. WOODS: Yes. All right. But the -- what I was try -be. Would it be anything more than somebody making a written
complaint and would it be something that the United States Department of Defense would know? MR. WOODS: Well, your Honor, there are studies and We have
reports of the experience of these other countries.
been able to locate some of them but the United States Defense Department is in a much better position than we are to know what reports and studies exist and what reports and studies do not exist. In this regard, your Honor, the Government is again
simply trying to evade its obligations when the Chairman of the Joint Chiefs of Staff discussed this very issue at a Senate Hearing on February 2nd and said he had talked to the military leaders of some of these other countries. THE COURT: Well I understand and hear your using the
words not of President Obama but another government individual. MR. WOODS: Well actually we're not. These were sent
out before the statements by Admiral Mullen. THE COURT: misunderstood. MR. WOODS: THE COURT: Yeah. So documented adverse impact are your Oh, you're not? I'm sorry, I
43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 country? MR. WOODS: THE COURT: MR. WOODS: THE COURT: Yes. All right. Anything further? Thank you. THE COURT: MR. WOODS: THE COURT: MR. WOODS: THE COURT: But what do they mean? I mean documented in a report or a study. Not in a complaint communication? Right. Report or study by whom? An official
report or study commissioned -MR. WOODS: THE COURT: By --- by the government of that particular
No, your Honor. Thank you.
Mr. Freeborne.
Let me begin by asking you about the opposition that you have to much of the discovery. Of course Judge Phillips
ruled, on July 24 that Plaintiff is entitled to conduct discovery in this case to develop the basis for its facial challenge. But in opposing these motions or this motion and
these applications you appear, sometimes, to be arguing or to come close to arguing to me that which you argued unsuccessfully to Judge Phillips, namely that because this is a facial challenge discovery is not appropriate, that no discovery is relevant. Am I exaggerating the argument that you're making? MR. FREEBORNE: No, your Honor. And we acknowledge
44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your -- we acknowledge that Judge Phillips has ruled that discovery is appropriate. At the last Status Conference though
she was very clear that she has not made any ruling as to the appropriate scope of discovery. THE COURT: Okay, so what subjects do you believe,
under Judge Phillips' order permitting discovery, would be proper subjects for examination by a Request for Admission of documents or depositions? possibilities. And let me give you some
Are they entitled to have discovery concerning
the truth or pretextural nature of the stated basis for the policy? Are they entitled to have discovery into the
experience that the U.S. military has had since the policy has been implemented? To what are they entitled? Well, your Honor, as a threshold
MR. FREEBORNE:
matter we don't believe that they're entitled to any discovery. But again, we acknowledge -THE COURT: Phillips' order -MR. FREEBORNE: Well, it's difficult to say. I mean Right. My question was under Judge
we're -- you know, again we -- this is a facial challenge governed by rational basis. All of the case law tells us in
both of those contexts that Courts are not to second guess the judgment of the military and the political branches. And so --
but we -- again, we acknowledge -- we don't believe any discovery into the motivations of Congress in 1993 or the
45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Executive in implementing or promulgating implementing regulations is appropriate for all of the reasons that we set forth in our brief and all the Supreme Court and Ninth Circuit authority acknowledges. With respect to the experience of foreign militaries which I believe your Honor just referred to, that may be appropriate in an as applied challenge, but Log Cabin has made a litigation decision -THE COURT: My question is under the order of Judge
Phillips and certainly I can't reach a contrary conclusion to the conclusion that she reached in July, at least I can't do it properly, so under that ruling the Plaintiff is entitled to take discovery to develop the basis for its facial challenge. Discovery of what subjects are appropriate? couple general subjects. And I suggested a
I understand your threshold position
is Judge Phillips was wrong, no discovery should have been permitted but we are where we are. My question is what
discovery is appropriate under the order? MR. FREEBORNE: Well your Honor, perhaps it's best We've worked
addressed in this -- we have produced documents.
with Plaintiff to initially produce studies and statistical information after our November Meet-and-Confer. privilege log and response to that. We produced a
We've also been working
with Plaintiff, recognizing that much of the material that they've requested has interspersed within it a Privacy Act
46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discovery. what? protected information, we've worked with -THE COURT: Okay, I'm interested in knowing where you
drew the lines in making -MR. FREEBORNE: THE COURT: Where we drew the line --
-- your decisions with regard to
Studies and statistical information concerning
Concerning the experience in the military post-1993? Concerning the
Concerning statistics and studies before 1993? lead up to the policy? MR. FREEBORNE: THE COURT: Your Honor --
What did you do? Well, what we did was, again to be
MR. FREEBORNE:
reasonable, we don't agree that any of this discovery is appropriate but acknowledging Judge Phillips' order, we have specifically carved out frankly all of the areas that are now before the Court, either the Motion to Compel or in the two ex parte applications. We have, we don't believe, any discovery
into the motivations of Congress or -THE COURT: Now I know what you haven't given them. Well --
What you haven't given them is
represented in the motion and the applications before me. Right now I'm interested in what you did give them, what you did deem to be at least, if not relevant under your threshold position, relevant enough under Judge Phillips' order, that you
47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 weren't going to fight about it. MR. FREEBORNE: Well in terms of documents, your
Honor, again all of the statistical information we provided that they had asked for. The application of the policy both We
generally and as it relates to various circumstances. provided -THE COURT: How many -MR. FREEBORNE: THE COURT: How many discharges.
Statistical information concerning what?
-- people were discharged and so forth? During what timeframe. We did We
MR. FREEBORNE:
provide information on the so-called enlistment waivers. have, to the best of our ability -THE COURT: That's the felon issue?
MR. FREEBORNE: term is enlistment waiver.
Well they say it's -- the technical Yes, that's the felon issue. Your
Honor again, I want to be clear, we don't acknowledge that any of this discovery is appropriate but we also don't want -THE COURT: All I'm doing is asking for the facts.
You need not repeat your threshold position to preserve the objection. I understand that you object on that basis. But I
don't think you can ask me properly to reach the conclusion that yes, you're right in that threshold argument and Judge Phillips was wrong and therefore I'm denying both of these applications and this motion. I don't think I'm at liberty to
48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mind? MR. FREEBORNE: Your Honor, we've provided all the do that. MR. FREEBORNE: Well, your Honor on that score though
the fact that we have provided documents that relate to many of the issues that Plaintiff seeks to inquire into in the 30(b)6 deposition does establish our point that alternative means were not only available but had been taken advantage of by Plaintiff and we have responded to those which would negate any need for a 30(b)6 deposition. THE COURT: So you gave them discovery concerning
discharge experience and enlistment waivers, to some extent? What other discovery have you given them? MR. FREEBORNE: They had asked for information about
service members who had successful rebutted the presumption. The statutory presumption, your Honor, is that one who makes a statement that he or she is homosexual, that gives rise to a presumption that they will engage in homosexual acts. They had
asked that we produce information about service members who have successfully rebutted that presumption, which of course necessitated the Privacy Act Protective Waiver but we have provided that. THE COURT: All right. Anything else that comes to
studies, which I believe that there were -- don't hold me to this, I believe there were, well hundreds of studies that we
49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had provided pursuant to their request that we initially provide studies and statistical information. THE COURT: Studies? Studies most of which were conducted And --
MR. FREEBORNE:
by third parties, Rand, for example. THE COURT: And they were studies of what? The
propriety of Don't Ask, Don't Tell? MR. FREEBORNE: Well there have been studies of
homosexuality, both generally and in the context of the military since the '50s. The Crittenden Report was a study We have produced all of the
that was conducted in the '50s.
studies within the custody and control of the Department of Defense. THE COURT: Regardless of when they happened, whether
it was 1950's or the 2000's? MR. FREEBORNE: your Honor. Yes. That's all that comes to mind,
I mean we've produced, now that the Privacy Act
Protective Order has been put in place, somewhere in the neighborhood of 50,000 pages of documents. And we've provided
-- we supplied a privileged log, we've provided again in terms of the privilege, we've now supported the deliberative process privileged through the declaration of Mr. Carr. That's why I
think, if I may, I think it is helpful to look at the areas that are now in dispute because we believe that all of the areas of dispute are either facially improper in the document
50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 context? MR. FREEBORNE: Well your Honor, in Romer what the -The face of the requests and very narrow. Your Honor will note that in the deliberative process assertion we've focused on -- we've only asserted privilege over PERSREC Reports. And with respect to the so-called
Category One documents we've only withheld draft regulations on the grounds that the only reason they want those is because they want to probe the motivations of the Executive in promulgating regulations, which is per se improper. THE COURT: We --
Well in -- they're entitled to probe, are
they not, the factual context of the relation between the policy and the purposes the policy supposedly serves, that's what the U.S. Supreme Court said in Romer versus Evans. they're entitled to do that. MR. FREEBORNE: THE COURT: Your Honor, if I -What's the factual So
What does that mean?
what was examined was the face of the statute. statute -THE COURT:
Oh, I understand that but the Court said
that the law must be grounded in a sufficient factual context for the Court to ascertain some relation between the classification and the purpose it served. MR. FREEBORNE: And your Honor, the Phillips Court
has specifically recognized that there are two -- at least two

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conceivable constitutional applications in the privacy context as well as in the reduction of sexual tension. to those. We've pointed
They must negate those two basis that have now been And
found by the Ninth Circuit to not be grounded in animus.
frankly, none of their discovery goes to that. And the expert discovery that we've conducted thus far tells us that their experts have steered away from that issue. THE COURT: Well, I understand the argument. You're
trying their import the Phillips' rational -- I'm sorry, equal protection conclusions on to the substantive due process claim that the Plaintiff makes and Judge Phillips said that Phillips wasn't decisive because you can't do that, but again I'm not sure that needs to be the focus of this discussion. Phillips also says -- I'm sorry the case Phillips, not the Judge Phillips, that -- and you argue this point in your papers, that just because there's an imperfect fit between the policy and the purposes that it maybe was designed to serve that that doesn't mean that there's a lack of rational basis just because there's an imperfect fit. MR. FREEBORNE: THE COURT: That's correct, your Honor.
As I understand it, the Plaintiff is
attempting to demonstrate, factually, that there's no fit, not just an imperfect fit, that there's no fit between the policy and the purposes it -- the stated purposes anyway it was supposed to serve. If they prove that factually then they win,
52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't they? MR. FREEBORNE: No, your Honor, for the reasons Judge
Noonan -- this is a judgment, this is really not susceptible to empirical -THE COURT: Well Judge Noonan's concurrence you
interpret as saying you defer always and everywhere to whatever the military says is a stated purpose? MR. FREEBORNE: No, what Judge Noonan said is that
this is not -- privacy and the need to reduce sexual tension, those types of considerations are not susceptible to empirical study, factual study. Those are judgment calls that frankly
were made here by Colin Powell -THE COURT: Would you -- I'm sorry, would you repeat
that, my mind wandered for a second. MR. FREEBORNE: Well the point that Judge Noonan
makes in his concurrence is that when you have considerations such as the need to address heterosexual privacy and the need to address sexual tension within the unit, those types of considerations do not lend themselves to empirical or factual analysis and therefore the discovery that they seek, both in terms of documents as well as testimony -THE COURT: Well --- it just doesn't fit.
-- well what if they're talking about I'm sure they wouldn't
getting discovery about public opinion?
53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be able to establish this, but hypothetically, what if they could establish that there is no American citizen or resident inside or outside the military that has any objection whatsoever to homosexuals serving openly in the military, why wouldn't that be something? Why wouldn't that show that sexual
tension is capable of being proven or refuted? MR. FREEBORNE: Well a.) they already have those
polls, b.) I think your Honor is right that they would not be able to prove that, according -- even according to their own experts, c.) To our knowledge the -- I think Admiral Mullen made it clear at the February 2nd hearing, the Government hasn't undertaken any poll, it's just too difficult an area to poll in by the Government. THE COURT: Well the -So for all those reasons their
MR. FREEBORNE:
discovery, at least in that area is inappropriate. THE COURT: Is it sexual tension or is promoting
morals, good order, discipline and unit cohesion that is the -that the offered rational basis for the policy now? MR. FREEBORNE: Well your Honor, I think the Phillips Two of the
Court framed it nicely in that it's unit cohesion.
considerations that again they focused on were privacy and the reduction of sexual tension which are part of unit cohesion. THE COURT: Well, I guess that part of the problem is
if a policy, a military policy is stated in terms of -- in such

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one. general terms, such vague terms as unit cohesion, maybe the terms are not susceptible to factual refutation because they're so vague. But does that mean that every vaguely stated
military policy is something to which the Courts ought to defer in a rational basis analysis? MR. FREEBORNE: Your Honor again, the focus of -- if
you -- the Senate Armed Services Committee report is on the privacy and sexual tension and everybody understood what Colin Powell was talking about there, but as Judge Noonan recognized in his concurrence, appropriately so, any inquiry or attempt to rebut what Colin Powell said during his testimony is not susceptible to factual rebuttal. than that. It is judgment, nothing more
So it does not come down to the vagueness. THE COURT: You're not arguing, I suppose, that
there's no stated military purpose that a Court couldn't say that's lacking in a rational basis. but you understand what I'm asking? I used a double negative, Could there be -- let me
phrase it better, could there be some stated purpose, purpose stated by the military to be served by some discriminatory policy where the Court would say no, even though the military claims that this policy would serve that purpose it seems so nonsensical to us or nonsensical in relation to experience, that we're going to decide there's no rational basis there? MR. FREEBORNE: Your Honor, it's hard to conceive of
I thought your Honor was going to ask -EXCEPTIONAL REPORTING SERVICES, INC
55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Could you conceive of one? I can't conceive of one. I --
MR. FREEBORNE:
perhaps I'm too grounded in this case and this policy, but -THE COURT: Well let's take it way out of this case.
What if -- because -- well -MR. WOODS: THE COURT: I can conceive of one. Please. What if the military decided
that for the sake of order and discipline, unit cohesion and uniformity or whatever that we need in the military, that we can't have people in the military who have naturally blonde hair, we'll let them in only if they conceal the fact that they're natural blondes and dye their hair black or brown -did I say, yeah black or brown. of cohesion. And we need that for the sake
Or what if the military said, for whatever reason
unit cohesion, discipline, general -- generality, generality we're not going to let in anybody in the military who's exactly five feet nine inches tall. We'll let in people that are 5'10"
but not 5'8" -- or 5'8" but not 5'9". You and I looking at that would say probably both of those policies, that's ridiculous. What the military is
saying, and my hypothetical I understand has no basis in fact, the military is saying we need that for uniformity. We're the
experts, this is important stuff, the Courts ought not to be second guessing us. Wouldn't those be examples of situations
where stated policy serving stated purposes but the Courts

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would say no rational basis? MR. FREEBORNE: Perhaps, your Honor. Although the
two examples you give I mean I'd have to know more facts, frankly. But perhaps those are areas, but here again the Ninth
Circuit has spoken to the privacy and sexual tension rationales. Now we agree, Judge Phillips has not dismissed this case based upon what she sees in Phillips, she has deferred it to Summary Judgment. That doesn't -- I don't believe she's
ever ruled or suggested that the Ninth Circuit's recognition there that the privacy and sexual tension rationale's rebut any claim of animus. So again, we don't have the blonde hair -Does -- does animus matter? Well it perhaps could matter in a
THE COURT:
MR. FREEBORNE:
context like Romer where the only rationale was based upon what the Court found to be animus. But here again, the Ninth
Circuit has found, with respect to this policy, just the opposite. THE COURT: So in my hypothetical an animus against
blonde haired people by the majority of Americans who are black or brown hair, that wouldn't matter, even if a significant minority of the soldiers wouldn't want to be around somebody with blonde -- naturally blonde hair? would it? MR. FREEBORNE: Well animus of a statute or a policy That wouldn't matter or
57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that is grounded in nothing but animus would run afoul of Clayburn and Romer. THE COURT: Uh-huh. But what I'm saying and the Ninth
MR. FREEBORNE:
Circuit has said is that the Ninth Circuit has looked at this precise issue and determined query, does the statute have any grounding outside of animus and they specifically found that the privacy and sexual tensions rationales are not grounded in any animus. THE COURT: So you're saying if Phillips hadn't been
-- isn't -- if Phillips were not on the books it would be open to Plaintiff to discover facts concerning animus, facts concerning whether the stated policy is real or fictitious. But Phillips is on the books and establishes that as to this policy those two reasons off of unit cohesion are applicable at least in the sense that the Courts can't second guess it? MR. FREEBORNE: No. What I'm saying is that the One would look at the
analysis would be as it was in Romer.
face of the statute and find that that could only be grounded in animus and in a concern that would run afoul of Clayburn but that it would not necessarily lead to discovery of that issue. You would look at the face of the statute, which again in this case is that's perfectly appropriate because they had made a decision to pursue nothing but a facial challenge. THE COURT: But you say though that they have to do
58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the month? MR. FREEBORNE: Well Mr. Corve (phonetic) is Honor. THE COURT: Is there a couple -There's one -more than look at the face of the statute, they have to negative any even hypothetical speculative basis that might be served -- purpose that might be served by the policy. MR. FREEBORNE: Well that is the analysis. But
again, we're focusing on privacy and sexual tension and their discovery doesn't go to that. THE COURT: Some of it does. I -- you know, their experts have
MR. FREEBORNE:
steered away from this issue and so we don't read their discovery as even relating to that. THE COURT: You have reports from their experts? We had deposed of their experts, your
MR. FREEBORNE:
-- who are going to be deposed later in
undergoing cancer treatment, the other two were to be deposed in Canada and we have to go through the Canadian Embassy to swear a witness which has created some logistical difficulties and so we've filed a stipulation with the Court. THE COURT: Let me ask you about some procedural You argue that you didn't waive
aspects of these disputes.
your objections to the document requests by not serving timely

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a formal Rule 34 response. Judge Phillips seemed to indicate Why shouldn't I
that you had waived your potential objections.
apply the Richmark case and reach the same conclusion that she maybe stated tentatively? MR. FREEBORNE: Well your Honor, we set forth, as
your Honor noted in the 1292(b) motion as well as in the July 6th argument, our objection to the discovery that we now have before the Court. We specifically noted the case law regarding
any attempt to probe the motivations of Congress, seeking to inquire into drafts and making it clear that that would be subject to deliberative process. attorney -THE COURT: With regard to deliberative -- you did We also noted that the
use the words deliberative process in your October, 2009 motion. But you didn't give any item by item response and you
didn't then or even now apparently submit a privilege log identifying those documents withheld under claim of deliberative process privilege. Regardless of what the Court
does with respect to the other Rule 24 request, why shouldn't the Court discern, even under Burlington a waiver as to deliberative process privilege? MR. FREEBORNE: Well your Honor, we've supported the
privilege through Mr. Carr's declaration. THE COURT: Filed in your supplemental memorandum in
opposition to the documents motion, about as late a filing as

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it could possibly be. MR. FREEBORNE: Well your Honor but even if the Court
were to ignore that, under Ramirez the cases that are cited in Ramirez recognize that the Court has the authority to void an improper request. And really all the discovery disputes that
we're now down to, drafts are per se deliberative, seeking on their face to inquire into attorney/client documents, things that talk about Lawrence for example -THE COURT: I'm quite concerned with their
attorney/client document requests, regardless of whether you submitted a proper Rule 34 response. But you said Ramirez, you
wanted to call the Court's attention again to that case. MR. FREEBORNE: Well, your Honor, the cases that are For example, the Cruzan
cited under the waiver analysis there.
(phonetic) case, the District of Massachusetts case, I mean that case makes clear that the Court has the authority to void a facially improper request; requests that ask for drafts are deliberative. And also here, where we have requests for draft
regulations, are improper both because they're deliberative; also because they are -- plaintiff is seeking to inquire into the motivations of the executive in promulgating regulations, so on that ground it -THE COURT: I'm not at all sure that a request
seeking documents that may be covered by a qualified privilege like the deliberative process privilege is the same thing as
61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 asking for documents that are covered by an absolute privilege like the attorney-client privilege. MR. FREEBORNE: Well, your Honor, to be clear, what
we have asserted deliberative process over is the PERSREC report (phonetic), which frankly didn't even address the unit cohesion argument, and counsel knows this from our discovery. It focused on the interrelationship between homosexuality and security clearances, which don't play any role in this policy. So to the extent there's any balancing analysis, the balance would be in favor of the privilege we would respectfully submit. THE COURT: What's the approximate volume of the
documents you're withholding under the claim of deliberative process privilege? MR. FREEBORNE: in the Carr declaration. THE COURT: I've read the Carr declaration but what's Well, your Honor, they're set forth
the approximate volume? MR. FREEBORNE: It's about a binder -- I don't know
the exact page number, your Honor; I apologize. THE COURT: That's all right; it gives me some idea. And your Honor, we are willing to
MR. FREEBORNE:
make the documents available for in camera review in response to Mr. Woods' suggestion, if the Court would like to undertake that inquiry.
62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 back up. THE COURT: My tentative view is that if I decide
that you haven't waived as to deliberative process privilege, I probably will require an in camera review. You make some arguments procedurally -- Well, let me As to the 30(b)(6) deposition, ordinarily a party is
required to show up at a properly noticed Rule 30(b)(6) deposition, and that objections served later are improper and ineffective to redeem that failure to appear. I guess you argue here that circumstances are different than the norm because you didn't get a copy of the notice timely? MR. FREEBORNE: Yes, your Honor. And it's unclear to
me why they mailed the notice. early in the case. my take.
They were mailing things to me
I hope it wasn't gamesmanship but that was
And they were e-mailing things and mailing other
things I never received, and to this day, I've never received an actual copy through the mail of the notice of deposition. So when I received e-mail notification from Mr. Huneas (phonetic), Mr. Woods' partner, that they had served such a notice, I obviously was taken by surprise. I
immediately informed Mr. Huneas that we would not be producing a witness and we needed additional time to consider appropriate objections to the notice. January 29th. We did that. We went a letter on
Mr. Huneas and I had a very professional meet-
and-confer on February 9th in which we agreed to exchange -EXCEPTIONAL REPORTING SERVICES, INC
63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that motions practice would be by way of cross-motion. We
would move for a protective order; they would move to compel. We essentially agreed to disagree on the issues. And, in fact, they served us, your Honor, which is somewhat lost in the papers, with a stipulation on May 3rd on the 30(b)(6). THE COURT: I'm sorry; you said May 3rd? I'm sorry, March 3rd. Excuse me,
MR. FREEBORNE: your Honor.
On March 3rd they actually served us with a
stipulation pursuant to our agreement to proceed by way of cross-motion. But as Mr. Woods pointed out, on March 4th Judge
Phillips ruled that she would not extend the discovery period. They realized that they were out of time, that they couldn't properly notice a motion within the discovery period, and so they proceeded by way of ex parte application. Now, I
appreciate your Honor doesn't want to get into the 'he said she said', but that's the factual background. With respect to the RFAs, I contacted counsel, frankly three times. I talked to Melanie Scott, Mr. Huneas
individually and then Mr. Woods and Mr. Huneas following the status conference to work out a manageable briefing schedule on all of the discovery motions, the documents, the 30(b)(6) and the RFAs. I said 'Let's just brief these together; it's more
convenient for the Court, it's frankly more convenient for the parties.'
64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: when, February 18th? MR. FREEBORNE: After the status conference, your This is you talking or communicating
And they said 'No, we want to press ahead.' THE COURT: Which was when, I'm sorry? It was February 18th, your Honor.
All right. I communicated that --
By then it was too late to proceed by
notice motion and have the motion heard before the discovery cutoff, wasn't it? MR. FREEBORNE: days, your Honor. As I read the rules, it's twenty-one
We could have, if we had filed -No, you're leaving out the seven days
THE COURT:
that you get once you get their portion of the joint stipulation to give them your portion of the joint stipulation. MR. FREEBORNE: Well, your Honor, I think again, we
perhaps both assumed that the Court would be extending the discovery period. THE COURT: Right; but for an extension of the
discovery cutoff which didn't happen, these disputes would have to be heard on short notice or by ex parte application. MR. FREEBORNE: Correct, your Honor. And that's why They
we were trying to work cooperatively with the other side. said no, so they wanted to proceed.
Then they realized that we
65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were out of time and they moved by way of ex parte application, which, you know, is not the appropriate mechanism to proceed. THE COURT: It was the only one that was available
under the circumstances at that point, wasn't it? MR. FREEBORNE: Well perhaps, your Honor. But again,
I had said 'Let's move jointly for an extension of the discovery period.' So, your Honor, again, that's all I have on the merits of the respective motions. If your Honor wants to
discuss the 30(b)(6), I know we've discussed the documents -THE COURT: specific requests. The request number thirty-eight asks for the defensibility -- I'm sorry, document request thirty-eight. It's page thirty of the joint stipulation. It asks for the I have a few additional questions on
defensibility memorandum and all drafts or prior versions of that memorandum. Is the government's response accurately
reprinted at pages thirty and thirty-one of the joint stipulation? MR. FREEBORNE: I believe so, your Honor. We have
produced a copy of the defensibility memorandum. THE COURT: But that's on a website. But they have it. I mean this is
MR. FREEBORNE:
something that's publicly available. THE COURT: Right. So you're not, or you didn't,
66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 et cetera. THE COURT: Yeah. And your response is nowhere in object to request thirty-eight on grounds of attorney-client or work product privilege -MR. FREEBORNE: THE COURT: Well, this is --
-- correct? Well, your Honor, this is within --
MR. FREEBORNE:
we have not searched outside of DOD for these documents. That's why this is category three. We believe that the only
appropriate search area is within DOD for all the reasons that we set forth. I mean this is a fundamentally -My question is: Just did you interpose an
THE COURT:
objection on grounds of attorney-client or work product privilege when you served your response to request thirtyeight? And I think the answer is 'no' if this response is
reprinted accurately in the joint stipulation. MR. FREEBORNE: Your Honor, our general objections -Our general
I'm sorry, I misunderstood your Honor's question.
objections interposed all of the requisite privileges. THE COURT: I wondered about that. So you had
general objections to the document requests on grounds of attorney-client privilege? MR. FREEBORNE: Yes, among other things, Privacy Act,
the moving papers, your general objections. MR. FREEBORNE: Upon reflection, your Honor, we
67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should have put that in there. the general objections. I apologize for not putting in
All of the issues though that are now
in dispute are either in our general objections or in the specific objections. THE COURT: Okay. So with respect to thirty-eight,
the defensibility memorandum is essentially a memorandum signed by Janet Reno, then attorney general, saying this 'don't askdon't tell' policy is going to be more constitutionally defensible, we feel, than the existing policy. I know there's
a lot more to it than that, but that's the gist of what the memorandum says? MR. FREEBORNE: THE COURT: consumption? MR. FREEBORNE: THE COURT: It is publicly available, your Honor. So to the extent that was an I believe so, your Honor, yes.
And that's been exposed to public
Right.
attorney-client privilege communication, the privilege has been waived by the disclosure of the memorandum? MR. FREEBORNE: No, your Honor. I mean in terms of
drafts or things of that nature, or the deliberations that went into that memorandum, those have not been waived. THE COURT: Well, separate out the deliberative Don't
process privilege from the attorney-client privilege.
you ordinarily waive the attorney-client privilege by producing the attorney-client communication? And isn't the waiver not
68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 necessarily strictly limited to the communication itself? MR. FREEBORNE: Your Honor, this defensibility With respect to any
memorandum is publicly available.
attorney-client communications that preceded that memorandum -THE COURT: Which drafts are prior versions. Right. Those would be; those And also the
MR. FREEBORNE:
communications would be subject to the privilege.
deliberative process privilege and, to the extent any case was discussed, potentially work product. THE COURT: And are you -- I guess you're not
withholding specific documents in response to request thirtyeight because you say you don't have the drafts or prior versions? MR. FREEBORNE: outside of DOD. Your Honor, we have not searched
Our position is that the only appropriate
search here is within DOD. THE COURT: So DOD does not have possession, custody
or control of any drafts or prior versions of the defensibility memorandum? MR. FREEBORNE: I don't believe so, your Honor. I'll
have to check on that, your Honor; I don't know that off the top of my head. But I don't believe any of those documents
have been logged -THE COURT: Is the answer 'you don't know' or is the
answer that 'DOD does not have any such'?

69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FREEBORNE: The truthful answer is I don't know,
your Honor, and I don't have the privilege log in front of me. THE COURT: Would the privilege log cover this? Well, if DOD had --
Would the privilege log that you've
served cover this document? MR. FREEBORNE: If the documents were within the
custody and control of the Department of Defense, the privilege log would cover it, your Honor. THE COURT: I thought the privilege log was limited
to documents withheld -- No, strike that. All right. MR. FREEBORNE: Your Honor, I can conceive of a
search situation in which these documents made their way over to DOD, that relate to this defensibility memorandum. If those
documents were within DOD, then those would have been captured as part of our search and properly logged. I'm making the
distinction between DOD and DOJ and other governmental entities or, as your Honor noted, Congress, et cetera. THE COURT: Have you served a log that includes
documents withheld under claim of attorney-client or work product privilege? MR. FREEBORNE: THE COURT: We have, your Honor.
But you don't happen to know whether the
log includes documents responsive to request thirty-eight?

70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FREEBORNE: THE COURT: I don't, your Honor.
The Personnel Security Research and
Education Center reports, those were from the late 1980s? MR. FREEBORNE: They were, your Honor, and that's why
I noted those reports don't opine on the unit cohesion rationale, if you will. The report specifically said that that So in other words, they
is an issue for study for another day.
don't have any connection to the issues in this case. THE COURT: What do they concern? The security clearance. Under the
MR. FREEBORNE:
previous policy, so-called Carter policy, and predecessor policies, a security clearance, gay and lesbian service members were deemed to be a security risk, and so that study was examined in the context of the PERSREC report. was not. THE COURT: The idea of the deliberative process Unit cohesion
privilege is that if some protection isn't accorded to decision makers in their considerations and deliberations, then the decision makers might not have a full and candid exchange and communication of their thought processes in leading up to making a decision. Doesn't that policy somewhat become less
compelling when so much time has passed since the deliberations? In other words, is it realistic or is it just
now illegal fiction to suggest that the people who were involved with the reports in the 1980s, had they known that
71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 twenty years or more later what they committed to paper concerning their deliberations might see the light of day in civil lawsuits, is it realistic to suggest that they would have behaved materially differently in their deliberations had they had that knowledge? MR. FREEBORNE: Yes. I mean that is, as your Honor
explained, that is the purpose of the deliberative process privilege. We don't want to freeze frank discussions among And that concern has particular application
policy members.
now in which, as both parties have informed the Court, the policy is undergoing review. These same types -- or And Judge Phillips, at
deliberations -- are ongoing right now.
the last status conference, noted that and recognized that that may present somewhat of a political question in how we should proceed through discovery. So it's not an issue that is
isolated to the eighties or the nineties; it's in fact a very ripe issue. THE COURT: Well, my question has to do with whether
the deliberative process privilege would have more force with respect to deliberations that are going on currently than deliberations that happened twenty years ago that maybe you're saying 'No, you don't think that there's any difference to be drawn'. MR. FREEBORNE: I don't think there's any difference
to be drawn just because the same policy rationale applies

72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regardless of time; that people will not be as candid in their exchange of ideas if they know that the underlying documents are revealed in the context of civil litigation. the privilege exists. As your Honor notes, it is a qualified privilege. can be balanced against the needs of the parties. We don't It That is why
believe that that balance strikes in favor of the -- or weighs in favor of the plaintiff here, A, because we've properly supported the privilege through an agency head declaration; and B, these particular reports, the PERSREC reports, don't impact or don't have any relationship to the underlying issues in this case. With respect to the regulations which, I just want to be clear, we have also withheld those, those are sought because the plaintiff wants to probe the motivations of the executive in promulgating and implementing regulations. That's not even
a question of privilege; that's just improper under Ninth Circuit and Supreme Court authority. THE COURT: Contemporaneous statements made by the
decision makers can be relevant to the constitutional analysis, can't it? MR. FREEBORNE: Well, your Honor, in terms of And if you're
explaining the purposes of the statute, yes.
alluding to the Colin Powell statements, I think the Colin Powell statements would fall within that category.
There are
73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 public statements before the Senate Armed Services Committee, for example. THE COURT: (Pause) THE COURT: I just found what I was referring to. I Just a moment, please.
was referring to Village of Arlington Heights versus Metropolitan Housing Development Corporation, where the U.S. Supreme Court said that contemporary statements by members of a decision-making body, minutes of its meetings or reports may be highly relevant. MR. FREEBORNE: But footnote eighteen of that case,
your Honor, specifically recognizes that seeking to probe the motivations of Congress or the executive is inappropriate. THE COURT: Well, it says that putting a decision-
maker on the stand is usually to be avoided, but we're not talking about that, we're talking about discovery. MR. FREEBORNE: Well, in the context of a, for And with
example, a 30(b)(6), you run into that issue though.
respect to these documents, I think the proposition could be stated more generally because all the cases that we cite recognize that it's improper to seek to probe an elicit motive by Congress or the executive. And Mr. Woods made very clear what his purpose was at the July 6th status conference, and it was to probe animus on the part of the Congress and the executive. He stated to Judge
74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Phillips that he was going to come at discovery from both ends; one was to probe animus through this type of discovery, and then B, how, you know, the policy has been applied on a going forward basis, which has formed the debate that we had at the status conference. THE COURT: for admission. three. Let me ask you about some of the requests
I'd like to ask you about request for admission
It says: 'Admit that DADT does not contribute to our You object saying that the request does
national security.'
not call for facts, the application of law to fact or an opinion about facts or the application of law to facts. MR. FREEBORNE: seeking to do -THE COURT: But it seems to the Court that it does. Correct, your Honor. What they're
Are you saying that this request calls for a pure legal opinion? MR. FREEBORNE: Well, it's not a question of fact. I
mean what they're seeking to do -THE COURT: An application of law to fact? We don't believe it falls into any of
MR. FREEBORNE: those categories. THE COURT:
An opinion about fact? It does not.
All right. It's --
MR. FREEBORNE:
75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a fact. THE COURT: Doesn't it ask for an opinion that, as a
matter of fact, the policy does not contribute to our national security? MR. FREEBORNE: Your Honor, what they seek to do is
juxtapose President Obama's statements on the one hand, which we acknowledge, and use that to form the basis for an admission that the policy somehow runs afoul -- or is either unlawful or unconstitutional. THE COURT: I understand that. But regardless of
whether these were President Obama's words or not, to the extent the discovery is relevant, they're entitled to ask for requests for admissions on the basis of it. And your objection
is that it's not a fact, it's not an opinion about a fact; it appears to the Court that it is. That's why I'm asking.
You're not suggesting it's a legal conclusion? MR. FREEBORNE: Well, what I'm suggesting is it's not
What they're seeking to do is use President Obama's
policy statement -THE COURT: Regardless of their probing, their intent
to set up some juxtaposition, they may well have that intent. And to the extent the only purpose served by these requests would be to attempt to put the defense in an embarrassing conflict of fact, that would not be a legitimate purpose of discovery. But to the extent that these requests are material
to their claims, then it is not a proper objection to them to

76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 books. THE COURT: Not at all. If the request is admit now, say they may have some subjective motive that we don't like. Let me go on with regard to the response because I don't understand the last part of the response either, just like I didn't understand the first part of the response. The
last part of this response is: To the extent a further response is required, defendants note the responses to requests for admission one and two, supra, but deny this request because it was rationale for Congress to have concluded at the time the statute was enacted in 1993 that DADT was necessary in the unique circumstances of military service. Beginning with the word 'because', that appears to the Court to be a non sequitur in the context of this response. The request is not asking about 1993 or a national basis; it's asking whether the policy does or does not contribute to national security. MR. FREEBORNE: And we responded we believe it's
appropriate to respond based upon the considerations that were before Congress in 1993 because -THE COURT: Not at all. -- that's the statute that's on the
MR. FREEBORNE:
you may not say we deny it because of something that happened in 1993. You must give an unqualified admission or denial. MR. FREEBORNE: And your Honor, but respect, the
77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statute is on the books. That 1993 determination remains on
the books, and so that's how we've responded. THE COURT: Well, that just gets back to you want me
to rule some way in opposition to what Judge Phillips concluded; they're just not entitled to any such discovery. But let's move on because I think we've exhausted request three. Let me ask you about request eighty-one. That's the
one that begins this series of requests about the experience -No, I'm sorry, the policy of other countries with regard to permitting openly gay and lesbian service members to enlist and serve in their armed forces. Put aside your objection to the Doesn't the Department of
term 'openly gay and lesbian'.
Defense have knowledge concerning whether other countries permit openly gay and lesbian service members to enlist and serve in their armed forces? MR. FREEBORNE: reports issued on this. Your Honor, there have been GAO But, as Mr. Woods pointed out, that
question is bound up on legal issues -THE COURT: I'm sorry, what? Mr. Woods noted that that would be
MR. FREEBORNE:
susceptible to expert opinion as to what the laws of these various countries are and what they allow. I also think it's
bound up in the objection because this whole term 'openly gay and lesbian' has been a big -EXCEPTIONAL REPORTING SERVICES, INC
78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 side. MR. FREEBORNE: issue, that -THE COURT: Well, maybe you can't put it to the side. But I think it's bound up in this THE COURT: I asked you to put that objection to the
Do you have any objection other than that? MR. FREEBORNE: THE COURT: Well, we have the objection, we --
Because the objection I read, 'that you
haven't conducted your own independent study' is again a non sequitur. You don't have to have conducted your own
independent study to have some knowledge on the subject sufficient to permit you to admit or deny. MR. FREEBORNE: Well, and Admiral Mullen has said As
that that is -- that type of review is what's ongoing now. of -THE COURT: Again, it doesn't matter.
Whether you've
decided to make a review such that you'll have better information nine months from now, you still have to answer discovery requests on a basis of existing information. MR. FREEBORNE: THE COURT: But if --
Now it may be, contrary to what it seems
to me as a matter of, I'm not sure, common sense, it may be that the entire Department of Defense has no knowledge whatsoever concerning whether Australia permits openly gay and lesbian service members to enlist and serve in its armed
79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 briefly? you. THE COURT: Thank you, sir. forces. truth. That would be very surprising to me but it may be the I don't know. MR. FREEBORNE: Well, what I can say is that Admiral
Mullen said, and Secretary Gates said at the February 2nd hearing that they are studying this issue. our current knowledge -THE COURT: But they didn't say, however, they were And so based upon
wholly ignorant of the issue. MR. FREEBORNE: He said that it's worthy of formal
study, which they are undertaking. THE COURT: Well, again, so that the point is clear
because you're likely to be ordered to admit or deny some of these requests for admissions, you have to admit or deny based upon the information that you have currently. And let me now offer to you the same offer I made earlier to Mr. Woods. I understand I'm intrusive of your
argument in my questioning if there is anything we haven't covered that you would like to argue, please do so now. MR. FREEBORNE: I have nothing, your Honor. Thank
Mr. Woods, do you have anything in rebuttal, just If you do, please. MR. WOODS: I just want to correct a couple of things I believe counsel said that the
that counsel said, your Honor.
80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 government has produced fifty thousand pages of documents. That is not correct. We have received approximately seven
thousand pages of documents. Counsel is also incorrect to suggest that our expert witnesses are not addressing Colin Powell's views about privacy or the sexual tension issue, because they are. THE COURT: deposed yet? MR. WOODS: No, some of the ones who have been Which experts? The ones who haven't been
deposed and some of those who haven't been deposed. THE COURT: MR. WOODS: All right. The Ramirez case that counsel mentioned
actually supports our position in this case about the waiver issue. The Court correctly realized that there was no specific
attorney-client objection to request to produce number thirtyeight and that the privilege as to that document that may once upon a time ever existed has been waived. And to the extent that the Department of Defense hasn't searched for documents, it also must search for documents within the possession, custody or control of its agents or employees and people of that sort, so that can -THE COURT: MR. WOODS: What do you mean by that distinction? On that particular document, your Honor,
I believe that the Justice Department and the Attorney General's office acting on behalf of the Department of Defense
81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are possibly in possession of relevant, responsive documents. THE COURT: Oh, so you're saying that the Department
of Justice is acting as the agent of the Department of Defense? MR. WOODS: THE COURT: Yes. In connection with only, what, the
defensibility memorandum or something else? MR. WOODS: Honor, yes. I think that's what I would say, your
I wouldn't say it applies to every request for
production necessarily, but that's one where it clearly would apply. And with respect to the distinction that you and counsel were discussing between contemporaneous statements and seeking to probe the motivation, your Honor, what we're trying to get are the documents that may conceivably show what people were saying at the time. Now, these documents that we have not seen may show, your Honor, that, in your example, the government did not want any blond-haired -- naturally blond-haired -- people in the military, or something equivalent in our context. Those are
the documents that the government seems to be withholding from us by claiming that we are somehow trying to get at the motivation of the people involved. THE COURT: I think you're asking also for a
government witness to hold forth on these topics, so you are asking to probe into the government decision makers' bases for
82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
this policy. MR. WOODS: Well, what we're trying to do in the
30(b)(6) is, also, your Honor, to get information about what documents exist, don't exist, and what statements were or were not made. So there we are. But other than that, your Honor, I don't have anything else to add to what we've already said. And we
appreciate the time and thorough consideration you've given to these important issues. THE COURT: All right, thank you. Thank you both. I
appreciate the arguments that you've made. The matters are submitted. need for expedition. I understand there's a
I will rule as soon as I can, but I want
to reflect further on all of the issues in light of your arguments. Thank you.
(This proceeding was adjourned at 12:04 p.m.)
83 CERTIFICATION
I certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the aboveentitled matter.
March 19, 2010 Signed Dated
TONI HUDSON, TRANSCRIBER

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Case 2:04-cv-08425 Document 135 Filed 03/26/10 3 Pages

Case 2:04-cv-08425 Document 135-1 Filed 03/26/10 6 Pages

Defendants respectfully submit that the responses to Request Nos. 3, 4, and

Dated: March 26, 2010

Case 2:04-cv-08425 Document 135-2 Filed 03/26/10 1 Page

3 LOG CABIN REPUBLICANS,

6 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 7 Defense, 8 9 10 11 12 Defendants.

Defendants responses to Request for Admissions Nos. 3, 4 and 5 are in

Case 2:04-cv-08425 Document 135-3 Filed 03/26/10 46 Pages

Case 2:04-cv-08425 Document 135-4 Filed 03/26/10 84 Pages

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Appearances: Court Reporter: Courtroom Deputy: Transcribed by:

Proceedings recorded by electronic sound recording; transcript produced by transcription service.

EXCEPTIONAL REPORTING SERVICES, INC

EXCEPTIONAL REPORTING SERVICES, INC

time of the regulation's issuance?

At the time of the At some other time? At

regulation's instructions reissuance? all of those times? MR. WOODS:

EXCEPTIONAL REPORTING SERVICES, INC

may require something of a preamble.

Well, in the Lawrence case, your Honor,

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towards homosexuals. THE COURT:

Well, it doesn't have to be static.

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were concealed from Congress. We believe that the evidence

not here to debate the wisdom of the policy.

It didn't specify each of the objections

we indicated in our papers.

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13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Whether they thought they had adequately

Which is why I asked you about the

interpretation of the scope of, for example, Request 39, which

I want to ask you about some more

Well, I think, your Honor, the fact of

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cutoff date were going to be continued. We had, as you know, a

Let me interrupt you for a second,

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wholly unprepared Rule 30(b)(6) witness? Would you do nothing

The case was before

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EXCEPTIONAL REPORTING SERVICES, INC

I see in your supplemental memorandum that you at one

The problem we have is that even after we,

deposition, we never got the notice? MR. WOODS:

At some point they said that they had not

received the notice, even though it was mailed to the correct

They filed their objections on the 29th,

We actually withdrew one of the We sent them a letter on

categories in the 30(b)(6) notice.

Let me ask you something about your

Excuse me just a moment.

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "This notice names a government agency as the deponent." What

That's the Defendants' choice.

And your notice mentions Robert Gates,

Some of the items in the notice, frankly, Item

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Numbers 9 and 10, I'm not clear on what you

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27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the issues in the case that I can describe as follows. Despite