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EXHIBIT 4
Case 4:07-cv-04894-SBA
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EXHIBIT 4(a)
Case 4:07-cv-04894-SBA
Document 59-5 Department of Justice U.S. Filed 06/27/2008 Page 3 of 24 Ur~itecl States Attor~zey Nor-tlzer-I? District of Calfor-~zia
May 30,2008
vicr f,rcsinrile mrd U.S. 111aiI
James E. Heffi~er Reed Smith LLP TWO Elnbarcadero Center Suite 2000 San Fra~lcisco, 941 1 1-3922 CA Re:
K e a ~ i e a1. \I. R/lcMullen, et al. et C 07 4894 SBA
Dear Mr. Heffiler: We address herein two issues: (1) plaintiffs' subpoena dated May 16,2008 to the United States Drug Ellforcernellt Administratioll and (2) the Federal Defendant's Motion for Sumnary Judgment.
The - Subpoena
Your cover letter to rile states that it ill be served on third parties." III this regard, we wish to ~nake explicit the obvious i~llplicatio~l your letter; i.e., that senrice to the uildersig~leddoes not of constitute service on the agency. Further, this also will confil-111that the undersigned has not been assigned to represent the agency segardinc ailv response to the subpoena. Typically, subpoellas are assigned to an attorney when it is properly served.
III addition, this will serve to assert on behalf of the individual defendants, the following objections to the subpoena:
(1)
The subpoeila is so overbroad as to be unduly burdensome.
(A)
Preliminarily, please note that as exanlples of the subpoena's overbreadth the defillitioils therein- including the defillitio~is the tenns "You," "person," "document," "all for docuun~ents,""relates to," and "all comn~unications"- are so broad and over-inclusive as to require the agency to search for and review an extraordinary number of documents; the subpoe~la'requests doculnents that are not reaso~lably calculated to result in the discovery of admissible evidence;
(B)
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Letter to Sallies Heffilel.
M a y 30, 2008 Pace 2
(C)
Request No. 1 seelts all doc~mlents "relate" in any way to any policy or any that procedure govenling criminal procedures- there is no lilnitation to, for example, a pa~ticulas time or place; it is apparent that ally attempt by this large federal agency to collect such a ~nassive amount of documents would not be practicable and would be, in any case, unnecessary given the issues presented in this case;
(D) similarly, Request No. 2 seeks all documellts that relate in any way to any policy
or any procedure "for obtaining search walrants and arrest wal-rants;" there is no linlitatioll in the request that the agency lilllit its search for documents that relate to, for example, any particular time or place and here again, any attempt by the federal agency to collect such a massive amount of documents would not be practicable alid would be unnecessary given the issues presented in this case;
(E)
Request Nos. 4 and 5 also identify an extraordinarily wide range of documents for production and fail to have any reasonable limitations regarding the scope of described documents.
(3)
(3)
Conlpliance with the subpoena would require disclosure of documents protected from disclosure by the Privacy Act. This is particularly true of Request Nos. 5 , 6 and 7. Compliance with the subpoena would require disclosure of docurnellts protected fsorn disclosure by the attol~ley-client privilege and work product doctrine. Broadly construing the subpoena, this is true of each one of your requests. Even construi~lg subpoena in the calls for disclosure of documents in the 111ost narrow way, the doculllent u~lnecessarily Request Nos. 5, 6, 7, 8, 9, 10, 11 and 12. Conlpliance with the subpoena would require disclosure of documents protected fi-orn disclosure by law enforcement privileges.
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Should you decide to serve the subpoena, please let us lu-low so that w e can decide whetliei-to take steps to prevent disclosure of protected documents. At a minimum, we will seek to inform the attonley handling the subpoena of the objections asserted by the Federal Defendants.
Defendants' Motion For Summan1 Judgment
We previously have infornled you that the Federal Defendants intend to file a lnotiorl for summary judgment. Judge Ai-~llstrong'sstanding orders and the pretrial order in this case both require that Federal Defendants meet and confer before filing the motion. Also, in the event that a motion is necessary, the pretrial order also I-equisesthat we attempt in good faith to detelmine the facts about which there is no reasonable dispute. This attempts to address both requirements.
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1.etter to James Heffiler May 30,200s JJace 3
Generally, this case deals with both (1 ) the investigation prior to the arrest bf ~ e a n and e the searcli of his residence as well as (2) allegations of excessive force during the execution of search and an'est warsants. We are hopef~llPlaintiffs will concede that even if this case should be permitted to move forward, it should nlove forward on fewer issues than are now asserted in the First Amended Complaint. First, only Special Agent McMullen even was responsible for the procurement of the wal-rants, thus no other defenda~lts eve11 should be part of the "investigation" aspect of the case. Moreover, Special Officer McMulle~l made no material omissions in his affidavit requesting the wal-sants and there is no evidence of any other inlproper conduct in the procurement of the ar-sest and search wallants. Additionally, the wal-sants were not so defective on their face that the other officers all were entitled to rely on the wan-ants as a basis for probable cause. For these reasons, if thls case is peimitted to move forward, it should do so on the basis of Plaintiffs allegations of excessive force. If Plaintiffs are aware of facts or authority that would justify holding all these officers liable for other aspects of the investigatioll or for the decision to execute the warrants, please provide them before we file the motion for sumnary judgment so that we may evaluate thenl in accordance with the Court's orders. Second, the Federal Defendants are entitled to qualified immunity with respect to all the allegations in the conlplaint except, on a showing from plaintiffs, the allegations that (1) Keane's handcuffs were applied too tightly, (2) Keane iniproperly was lifted from the floor by his handcuffs, and (3) McMullen put his boot on Strange's head. Federal Defendants were entitled to execute the assest and search warrants by entering Keane's home with their guns drawn. This is standard procedure and is justified whenever executing a drug-related search warrant of a private home. If Plaintiffs can produce evidence that (1) Keane's l~andcuffs were applied too tightly, (2) ICeane improperly was lifted fioni the floor by his handcuffs, and (3) McMullen put his boot on Strange's head, these facts, if proven, would be relevant to liability. Nevertheless, please confi~m Plaintiffs acknowledge that the remainder of the allegations, even if proven, that would not establish liability against the Federal Defendants. Third, even if we are not able, for some reason, to agree that the Federal Defendants are entitled to judglllent with respect to the clainls described above, Plaintiffs should identify ally of the 48 facts on the attached list about which these is a dispute. These, by and large, are the same facts presented in Federal Defendants' previous nlotions and is nothing new. Conclusion Please let us know if and when you decide to serve the subpoena attached to your letter dated May 16, 2008. In addition, if you have senled the subpoena, please let us know if you have been contacted by the agency (and if so, by whom) so that we may serve notice of these objections to the agency as well.
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Letter to James Heffiler May 30,2008 I'aee 4
Finally, please il1fo1-m us whetl~er are willing to stipulate to dislniss any part of you Plaintiffs' case in light of the facts stated above. Alte~natively, please let us h o w wlietlier you dispute any of the 48 facts on the attached list and, if so, on what basis. We seelc to file a motion next week if we are unable to reach an agreement with you, so your pronipt reply would be appreciated. Sincerely, Joseph P. Russolliello United States Attorney
ABRAHAM A SlMMONS Assistant United States Attonley
enc.: Facts about which there is no reasonable dispute cc: Tricia Hines
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Attachment to May 30, 2008 letter to Janles Hefiler FACTS ABOUT WHICH THERE IS NO REASONABLE DISPUTE
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Seth McMulle~l a Special Agent with the Santa Rosa Resident Office (SRRO) of the is United States Drug Enforcement Agency, an agency of the United States Govel-~lment.
On November 29,2006, Sergeant .Tim Stephenson, a member of the Petalulna Police Department, contacted Special Agent McMullen by telephone and reported that he had received infoilnation regarding an attempt to deliver a controlled substance.
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I to lllail marajuana fso~omPetaluma to New Jersey.
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( McGuigan, the owner of Mail Depot in Petaluma reported that a custon~er attenlpted
Stephenson related his conversatioll with McGuigan wherein she reported that earlier the same day a person left with her a ~vrapped pacltage for mailing. Maureen McGuigail described the person as a white male years old, 5'6" tall, 150 pounds, with brown hair and wearing sunglasses.
I Sergeant Sill1 Stepllellsoll reported to Special Agent McMullen that Maureen
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Maureen M c G u i g a ~ ~ reported the man clainled he wanted to deliver the package to his 'niece', Ker-ry Keane in Brick, New Jersey. McGuigan stated that she becanle co~lceliled when she found his behavior suspicious and aslted the man if the package contailled marijuana. The lnail denied that the contents of the package were illegal dl-ugs, stated that it coiltailled clothing for his niece and left.
1 McGuigan discovered the package contained three packages of marijuana.
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the package to the Petalulna Police Depar-tment and discussed the with Stephenson. Stephenson stated that alnong the things he did after he took custody of the package was to call Special Agent McMullen.
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McMullen stated that he wo~lld retrieve tile package and open a11 investigation. Novel~lber 30,2006, Special Agent McMullen and Special Agent Jeff Hoyt met Sergeant Stephenson, took custody of the package, and transported it back to back to the SRRO. The package bore a sending address of "C. Keane," 307 North Femdale Avenue, Mill Valley, California, 94941. Special Agent McMullen conducted research using conlputer databases and verified both that the address was valid and that Plaintiff Robert Carl Patrick Keane used the address as a residence.
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Special Agent McMullen conducted f~i-ther research and obtained a photogsapll of Mr. Iceane as well as other identifying infolmation. Later the same day, the agents ret~uned the Mail Depot, showed to photogsaph of Iceane (identifying hill1 as a "possible suspect") and asked whetl~er the person in the photograph resembled the person who attenlpted to deliver the pacltage.
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McGuigao that 1I 18 11 the packageconfinliedbefore.the photograph depicted the person who had dropped off the day Special Agent McMullen all-anged to have the package shipped and delivered under controlled circumstances.
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On Decenlber 1, 2006, the pacltage was delivered by officers of the Brick Township Police Department.
McMullen was infolmed by the Brick Township law enforce~nent Brian Willianl that Iceane and Susanne ICeane were arrested for talting possession of the n~arajuana.At the time, neither Brian Keane 110s Susanne Keane admitted to lulowing the contents of the package. Among McMullen7sconcenls regarding the fur-tl~er investigation was the fact that once the controlled delivery was made to the New Jersey address, and subsequellt law enforcelllent activity likely would be conlnlunicated to persons in Califonlia which would result in the spoliation of evidence in California. Special Agent McMullen decided to pursue a warrant to search the Keane residence. Special Agent McMullen chose to use procedures available in state, rather than federal, court in light of the amount of marajuana involved. Special Agent McMullen retained responsibility for conducting the investigation and drafting the documents necessary to obtain a warrant.
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Fronl Deceniber 1, 2006 tlvougl~ Decenlber 15,2006, Special Agent McMullen prepared a six-page Search Warrant and Affidavit that consisted of (1) a oneparagraph affidavit for signature by Special Agent McMullen and a deputy district attonley, (2) a two-and-a-half-page search warsant for signature by a Supel-ior Cour-t Judge for the County of Sonoma, (3) a seven-paragsap11staten~ellt expertise and (4) of a ten-paragraph statement of probable cause.
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The affidavit attests to Special Agent McMullen7sbelief that the facts expressed in the Search Wall-ant and Affidavit are true and col-sect and that he has probable cause to believe that the items sought are lawfully seizable.
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The affidavit is signed by Special A ~ e n McMullen. Below McMullen's signature is a t statenlent that the document was "[p]repal.ed with the assistance of or reviewed by" the deputy district attollley on the case. Scott Jamar, a deputy district attonley for the Sonoma County District Attorney's Offfice, signed the preparation or review statement. The search wall-ant indicates that Special Agent McMullen had probable cause to believe the lawf~llly seizable items were either used as the means of conlmitting a felony, were possessed by a person with intent to use it as a means of committing a public offense or is evidence tending to show that a felony has been committed. The search wall-ant identified ICeane's address as the residence that is authorized to be search for nunlerous items including "deposit searched. The search wall-ant pel~nits slips," utility colllpany receipts, legal documents and "other receipts." Anlong the topics described in Special Agent McMullen's state of expertise were his experience and training in the field of narcotics, his experience in preparing and executing state and federal warrants, and his experience in narcotics investigations.
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The statement of probable cause included an account of the facts that had been communicated to, and investigated by, Special Agent McMullen up until the date the affidavit was signed, December 15,2006. The statenlent disclosed that McGuigan was shown "a photo of a possible suspect" and that she positively identified Keane. There was no suggestion in the statement that McGuigan was subjected to a line-up.
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The concluding paragraph of the affidavit stated Special Agent McMullen's belief that Iceane and Brian Iceane were related. The concluding paragraph of the affidavit stated: 10. ~ ~ e nbelieve that Robert Carl Patrick KEANE and Carl or Carl t s Patrick KEANE is the same person. Also, the shipping label of the six poullds of nlarijuana sent to New Jersey for the controlled delivery had C. ISEANE, 307 Noi-th Fermdale Avenue, Mill Valley, California as the sending address. When Brian KEANE was arrested, he gave 39 Sandy Point Drive, Brick, New Jersey, as his address, and (732) 262-8875 as was his telephone number. All of this info~ll~ation contained on the shipping label. Agents also believe that Robert Carl Patrick ISEANE and Brian KEANE are possibly related due to the same last aanles and a physical reselnblallce of both.
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/Special Agent McMullen also prepared an arrest warsant for Keane's arrest. Both the arrest wan-ant and the search wan-ant were reviewed by Sononla County District Attonley Scott Janlar and submitted to Solloma Cou~lty Superior COLII-t Judge Robert S. Boyd.
Judge Boyd signed and issued both wall-ants.
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To prepare for the execution of the search and al-sest wan-ants, McMullen requested that a I<-9 unit be deployed to assist with the search. McMullen also contacted the local authorities, the Marin County Sheriffs Department, and invited them to have a representative attend the execution of the search wan-ant. The Marin County Sheriffs Department were represented by Officers Mike Brovelli, Brian Caboud and Steve De La 0.
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On December 19, 2006, McMullen participated along with the Masin Coullty officers, Tasli Officer Silva, and t h e e other DEA officers in the execution of the search and al-sest warrants.
The other officers included Defendant Paul Acconlero who, with his dog, conlprised the K-9 unit from Petaluma. McMullell wore a DEA-issued unifolm. The front door of the ICeane residence was unlocked and Special Agent McMullen entered without using force. Special Agent McMullell denies that he put his boot on anyone's head, denies that he put on Keane's handcuffs too tight and denies that he lifted Keane from his wrists or in any way to cause ICeane damage.
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Keane was adn~onished regarding the purpose of the I<-9 unit and the likely reaction should the dog be alerted to the presence of dmgs. The admonitions were audio taped. Special Agent McMullen searched ICeane's residence and seized a Wells Fargo deposit slip and a telephone bill.
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Suecial Agent McMullen served the alrest warrant on Keane and arrested him.
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Mti Comnunication Report u 1
MAY-30-2008 03:45 PM FRI
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U.S. Department of Justice United States Attorney Northern District of California 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94 102 Telephone Number: 4151436-7200 Fax Number: 4151436-6748
To James E. Heffner, Esq. PH: 415.546.8700 FX: 415.391.8269
From
FAX
cc: Tricia L. Hynes, Esq. PH: 510.808.2000 FX: 510.444.1 108
Tina Louie, Legal Assistant to Abraham A. Simmons, AUSA (415) 436-7213 Fax (415)436-7169
Phone
Date: May 30,2008
Page(s): [9] including cover
Re: Keane. et al. V. McMullen. et al. C 07-4894 SBA
ATTACHMENT: -Ltr from A. Simmons to J. Heffher dated 5130108 with enclosures MESSAGE: Original will follow by mail.
CONFIDENTIAL U.S. ATTORNEY FACSIMILE COMMUNICATION
The information contained in this facsimile message, and any and all accompanying documents constitutes confidential mformation. This information is the property of the U.S. Attorney's Office. If you are not the intended recipient of this information, any disclosure, copying, distribution, or the taking of any action in reliance on this information is strictly prohibited. If you received t h s message in error, please notify us immediately at the above number to make arrangements for its return to us.
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EXHIBIT 4(b)
Case 4:07-cv-04894-SBA
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Simmons, Abraham (USACAN)
From: Sent: To: Cc: Subject:
Foster, Christopher C. [[email protected]] Tuesday, June 03,2008 1 5 4 PM Simmons, Abraham (USACAN) Peters, Matthew T. Meet and Confer
Dear Mr. Simmons,
I am in receipt of your letter to James Heffner dated May 30,2008 regarding the DEA subpoena and your forthcoming motion for summary judgment in Keane v. McMullen. James got married over the weekend and is presently out of the office on his honeymoon. We will have a response to your letter prepared as promptly as possible, likely towards the end of this week or early next week.
Regards,
Christopher C. Foster
41 5.659.5666
cfoster~,reedsmith.com Reed Smith LLP
Two Embarcadero Center San Francisco, CA 94111 41 5.543.8700 Fax 41 5.391.8269
This E-mail, along with any attachments, is considered confidential and may well be legally privileged. If you have received it in error, you are on notice of its status. Please notify us immediately by reply e-mail and then delete this message from your system. Please do not copy it or use it for any purposes, or disclose its contents to any other person. Thank you for your cooperation. ** To ensure compliance with Treasury Department regulations, we inform you that, unless otherwise indicated in writing, any U.S. Federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or applicable state and local provisions or (2) promoting, marketing or recommending to another party any tax-related matters addressed herein.
Disclaimer Version RS.US. 1.01.03 pdc l
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Case 4:07-cv-04894-SBA
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ReedSmith
Christopher C. Foster Direct Phone: + I 415 659 5666 Email: [email protected]
Reed Smith LLP Two Embarcadero Center Suite 2000 San Francisco, CA 941 11-3922 +I 4155438700 F a x + I 415391 8269 reedsmith.com
June 5,2008
VIA FACSIMILE AND U.S. MAIL
Abraham A. Simmons Assistant United States Attorney 9th Floor, Federal building 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94 102
Re: Keane et al. v. McMullen et al., C-07-4894
Dear Mr. Simmons: This responds to your letter of May 30,2008 and e-mail of June 4,2008. In your letter, you make several requests. You ask that we (I) advise you if and when we decide to serve the May 16,2008 subpoena on thc TJnited States Drug Enforcement Administration; (2) indicate whether we are willing to dismiss any part of our case; and (3) set forth our basis for disputing any of the 48 purported facts attached to your letter. We address each request in turn.
Service of DEA Subpoena
We attempted service of the DEA subpoena on May 16,2008, but DEA informed our process server it would not accept service. In other words, DEA is stonewalling. This of course does not reflect favorably on the federal government and hardly serves well your attempt to accelerate a summary judgment motion (which we address separately below). To date, the modus operandi of the federal government in this case is to delay and evade, except of course when a different tact suits its strategic bent (again, see summary judgment discussion below). In all events, we will press on with service attempts, including, if necessary, seeking judicial intervention, but suggest you consider intervening to eliminate the barrier so the parties can actually focus on the merits of the controversy.
Dismissal of All or Part of Plaintiffs' Claims
We continue to believe that the claims pled in the Amended Complaint are well-founded. Your letter does not persuade us otherwise. Accordingly, plaintiffs will not dismiss any part of their case.
Plaintiff's ~ i s p u t e the 48 Facts Attached to Your Letter of
In a purported attempt to "meet and confer" regarding an anticipated motion for summary judgment, your letter includes a list of 48 facts entitled "facts about which there is no reasonable dispute." It should be no surprise that we endorse .the earlier observations of the Court that the factual disputes in this case are tailor-made for jury resolution. Nonetheless, as a preliminary matter, a motion
NEW YORK OAKLAND + MUNICH + ABU DHABI + PRINCETON + NORTHERN VIRGINIA + WILMINGTON +BIRMINGHAM
+ LONDON + HONG KONG + CHICAGO + WASHINGTON, D.C. + BElJlNG +PARIS + LOS ANGELES + SAN FRANCISCO + PHILADELPHIA + PITTSBURGH + DUBAl + CENTURY CITY + RICHMOND + GREECE
DOCSSFO-125173Cil.l-MTPETERS 6/5/08 332 PM
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Abraham A. Simmons June 5,2008 Page 2
ReedSmith
for summary judgment in this case is premature. Discovery has barely begun. For example we have had virtually no opportunity to request and review documents from parties and non-parties and, critically, no opportunity at all to depose third-party and party witnesses. Until that occurs, it is patently unreasonable to ask us to provide meaningful responses to the vast majority of the 48 facts you style as "undisputed." For example, request number 22 inquires into Defendant Seth McMullen's personal "concerns" regarding the investigation at issue. We fail to see how Plaintiffs can offer an informed response to this request without examining McMullen under oath. We are confident that the Court will deny your motion, if filed before meaningful discovery takes place, on this basis alone. We thus request that you reconsider your plan to file the motion next week so that the parties may proceed unabated with discovery. We believe this request is consistent with the Court's observation that discovery should proceed unimpeded and that a dispositive motion at this early stage will likely be viewed with disfavor. We do not begrudge your clients the right to file a dispositive motion. But we are mystified that, after what the Court has told the parties about unrestricted discovery and the general prospects of a summary judgment motion, you will not await the completion of important discovery before presenting such a motion to the Court. We respectfully urge you to reconsider the timing of the motion and to cooperate fully to achieve timely and complete discovery in this case.
cc: Tricia L. Hynes
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Case 4:07-cv-04894-SBA
Document 59-5 Departmr ' of Justice 19 of 24 U.S. Filed 06/27/2008 Page
U~zitecl Stcrtes Attorrzey Nortlzer-lz District of Cnliforrzia
9/11 Floor; Fcrlernl B~lilrlitrg 450 Golrlc~rG N ~Averrrrc, Box 36055 C Snt~finrrcisco. Cnli/orrrin 941 02
Christopher C. Forster Rectl Smith LLP Two Embarcadero Center Suite 2000 San Francisco, CA 941 11-3922 Re: I
Dear Mr. Foster: This follows up with'the undersigned's letter to James Heffi~er dated May 30, 2008 and respo~lds lo your letter dated .Tulle 5,2008. Sel-vice of Plaintiff's Subpoena on the DEA
III OLIS letter, we objected to various aspects of the subpoena and aslted that you iafoi-111 us if and cvhen you were to serve the subpoena. III your J ~ m e 5,2008, response, youwrote that you already had atlelllpted to serve the subpoena but had been ~mable do so. Specifically, you stated that "DEA to i~~folmed process sewer it would not accept ser-vice." You went on to explain the modus operandi of 011s rl~e "federal governme~~tll",well as how "this" reflects ~lpon federal govemrment. You then as the e requested tliat the undersigned "consider intervening to elilninate the b a ~ ~ isor the parties can actually focus 011the nlerits of the controversy."
As an initial matter, please observe that we hope to conduct this litigation with a ~ l l i ~ l i ~ nofn l u unnecessary grousing. We believe effective lawyering in this case will not have to contain invective nor acl holllillunl attacks. To this end, we will do what we can to maintain cordial correspondence- even \vIien we disagree on the nlerits of the arguments or procedures that should be used. With respect to your request that we assist with the service of the subpoena, we will attempt to fiiicl the appropriate attomey'who can receive the subpoena. We also will folward to the attorney your req~~est ally additional procedures be waived so that the subpoena call be processed as soon as that possible. If there is nlore you are requesting of us, please let us lulow so that we can deterlnine whether it maltes sense to meet your requests. For the record, this office was unaware that you all-eady had altempted to serve the DEA with the subpoeila or how you were ~naltillg such efforts. Now that we ltnow what you are trying to do, we do think we can be llelpful and will get back to you as soon as possible (hopef~~lly, the end of the day tomo~-row). by
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1,etlel 10 Christopher C. Foster June 12, 2008 I'ave 2
I11 the meantime, we request that you let us know whether you are willing to ( I ) redraft (especially with regard to the time franles and the subpoena so as to provide reasonable li~nits offices that are being asked to respond) and (2) enter into a stipulation requesting a protective oi.cIer in the event that doculllents responsive to your request are protected by privileges, ~~rolective doctrines or the Iilte. We do not nleall to suggest that your fo~wardillg info~ination this LO us is a prerequisite for providing the assistance described in the previous paragraph. Nevertheless, please note that in our experience, having these issues addressed before service o f this sort of subpoena nlay actually accelerate the actual production of docunlents. F~u~ther, the f ~ ~ t u rif ,you have problenls figuring out how to serve documents on in e clivisions of the federal govelmnellt or on federal employees, please just call the undersigned and he will do what he can to help. Although AUSA Sinlnlons represents only the two federal defendants in this litigation, we recogilize the procedures in the Federal Rules of Civil Procedure and the Code of Federal Regulations often can be difficult to understand or to follow; we do not and, of have a problem being h e l p f ~ ~ l in the appropriate case, assisting with the eli~nination the procedures when such procedures are not necessary to k s u r e a fair and efficient resolution to j~lnintiffs'claims.
Dismissal of All
01-
Part of Plaintiffs' Claims
Thank you for advising us regarding your position on this issue. We wish to nlalte one more effort to solicit fi-om you any additional facts or law that you ~l believe would justify the investigation-related allegations. After c a r e f ~review o f the Amended Con111laint and the Joint Case Management Statement, we believe there are simply insufficient facts to support the claims being made by plaintiffs regarding the inadequacy of Seth McMullen's investigatioll and request for arrest and search warrants. Please accept this as a final request for any additional facts or law that would substantiate this claim. Similarly, it appears to be undisputed that Jolul Silva was not present in the ICeane residence until after the plaintiffs were in handcuffs and the residence was secured. He also made no decisions regarding whether to seek a warrant, how and when to request search and arrest: warrants or whether the w a ~ ~ a nshould be signed by the S ~ p e r i o Court Judge and District ts r 1 Attorney. I 1 this regard, it appears there are several clainls pending against Officer Silva that you sho~~lcl ~lilling dismiss. be to Please review these requests with as much care as possible as they are nlade in an effort 10 ob,tain your colllplia~lce with Judge Ainstrong's standing order and the pretrial order,entered in. this case. Although we understand y o ~ u botto~ll line, our experience and review. of Judge Arll~strong'sorders suggests the "meet and confer" obIigations in the judge's orders should be ~r addressed with more substance than the paragraph provided in y o ~ June 5,2008, letter.
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Letler lo C111.istophe1. Foster C. June 12, 2003
The 48 Facts Aboot Wiiicli Tliere SIlolild Be No Dispute
We have requested that you identify any of the facts on the list that you believe are in dispute. We have tried to identify facts that you have 110 basis for disputing and, in most cases, that you would have little or 110 interest in disputing. This can be seen as an 4te1-native to serving requests for admission or i~sing othes discovery devices. You have respollded that it is not seasonable for defendants to "aslc us to provide meaningf~~l responses to the vast lllajority of the 48 facts . . .." We would lilte to encourage you to respond substa~ltively the request. We believe tile to wholesale r e f ~ ~ stol address the issue is not in Iteeping with the meet and confer obligatio~ls a in Judge Allllstrong's orders. Additionally, identifying facts that plaintiffs will agsee are ur~disputedshould not be viewed as unreasonable- even if no lllotio~l filed. There may be facts about which the parties is lllay stipulate in order to avoid discovery altogether. If any of the facts on the list are facts about which you have no legitilllate dispute, please let us lu~ow.
Defendant's Decision to File A Motion
You haveexpressed considerable concell1 that our tentative decision to file a lnotioll is not co~lsistellt wit11 Judge A~-~~-~strong's co~lllne~lts during the case management conference. We, with the judge's colllmellts and talte seriously the court's preference that only too, are concer~led "good" ~llotio~ls filed. In this regard, we offer the following: be The Judge also requested that the parties meet and confer before any such ~notioll filed. is We are attenlpting to do so, in part to assess the propriety of filing a motion. To date, w e have no1 seceived from you a basis for disputing ally facts and w e have not received fi-om you any citations suggesting a motion would be improper. We do not believe Judge Ar~llstrong'sco~lllllellts were lllore than a request to b e careful when filing-a motion. A properly supported motion for summary judgment based on the defense of iinm~unityis properly brought as soon as it can be heard. The policy justifying qualified immunity lllotions atthe earliest possible stage is to protect officers against the burden o f discovery and pretrial motiops. See Behr-ens v. Pelletier., 516 U.S. 299, 308, 116 S.Ct. 834, 133 L.Ed.2cl 773 (1 996). Indeed, until the tlu-eshold inl~llullity ~ e s t i o n resolved, discovery should q is not: be allowed. HCLI-~OI,~ v. Fitzgernld, 457 U.S. 800, 808 (1982). Here, there are several issues that sl~ould decided before discovery and other pretrial be p~.ocedures f~llly are unde~way.For example, The deterinination of wllether tlle facts alleged coi~lcl siupport a reasonable belief in the existence of probable cause is also a question o f law to
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Letter to Cluistopher C. Foster June 12, 2008 I1nye 4
be cletermined by the cou1-t. See Act Up!/Portk(~i~d Bagley, 988 F.2d 868, 873 (9"' Cir. 1993). v. issue of fact in dispute should be These and other questions about which there is not n~aterial resolved before discovery is conducted.
Please let us lu~ow whether you have additional concerns regarding serving the subpoena. In the meantime, we will attenlpt to locate a lawyer to whom you can deliver the document. Also, please let us lcnow whether you are willing to adjust the scope of the subpoena and/or to enter into a protective order to prevent public disclosure of protected documents. Please let us lu~ow which particular facts on our list of 48, if any, you call accept as ~rndisputed provide us with the basis for the dispute. and If you have any basis for f~u-ther disputes or wish to enhance the efforts to meet and confel- that you have made to date, please do so as soon as possible. Sincerely, Joseph P. Russoniello United States Attorney
Assistant United States Attorney
cc: Tricia Hines
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Mu1ti Communication Report
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EXHIBIT 4(e)
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