electronic frontier foundation cindy … frontier foundation cindy cohn (145997) [email protected] lee...

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ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997) [email protected] LEE TIEN (148216) [email protected] KURT OPSAHL (191303) [email protected] KEVIN S. BANKSTON (217026) [email protected] CORYNNE MCSHERRY (221504) [email protected] JAMES S. TYRE (083117) [email protected] 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436-9333 415/436-9993 (fax)

TRABER & VOORHEES BERT VOORHEES (137623) [email protected] THERESA M. TRABER (116305) [email protected] 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 Telephone: 626/585-9611 626/ 577-7079 (fax)

Attorneys for Plaintiffs

[Additional counsel appear on signature page.]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL and ERIK KNUTZEN, on Behalf of Themselves and All Others Similarly Situated,

Plaintiffs,

vs.

AT&T CORP., et al.

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

No. C-06-00672-VRW

CLASS ACTION

PLAINTIFFS’ OPPOSITION TO THE MOTION OF DEFENDANT AT&T CORP. TO COMPEL RETURN OF CONFIDENTIAL DOCUMENTS

Date: May 17, 2006 Time: 10:00 a.m. Courtroom: 6, 17th Floor Judge: Honorable Vaughn R. Walker

Case 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 of 26ase 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 Page 1 of 26'

1 ELECTRONIC FRONTIER FOUNDATIONCINDY COHN (145997)

2 cindy@eff. orgLEE TIEN (148216)

3 tien@eff orgKURT OPSAHL (191303)

4 kurt@eff orgKEVIN S. BANKSTON (217026)

5 bankston@eff org TRABER & VOORHEESCORYNNE MCSHERRY (221504) BERT VOORHEES (137623)

6 corynne@eff. org [email protected] S. TYRE (083117) THERESA M. TRABER (116305)

7 j styre@eff. org [email protected] Shotwell Street 128 North Fair Oaks Avenue, Suite 204

8 San Francisco, CA 94110 Pasadena, CA 91103Telephone: 415/436-9333 Telephone: 626/585-9611

9 415/436-9993 (fax) 626/ 577-7079 (fax)

10 Attorneys for Plaintiffs

11 [Additional counsel appear on signature page.]

12

UNITED STATES DISTRICT COURT13

NORTHERN DISTRICT OF CALIFORNIA14

15 TASH HEPTING, GREGORY HICKS, ) No. C-06-00672-VRWCAROLYN JEWEL and ERIK KNUTZEN, on)

16 Behalf of Themselves and All Others Similarly) CLASS ACTIONSituated, )

17 PLAINTIFFS' OPPOSITION TO THEPlaintiffs, ) MOTION OF DEFENDANT AT&T CORP.

18 TO COMPEL RETURN OFvs. CONFIDENTIAL DOCUMENTS

19

AT&T CORP., et al. Date: May 17, 200620 Time: 10:00 a.m.

Defendants. ) Courtroom: 6, 17th Floor21 Judge: Honorable Vaughn R. Walker

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Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=06eeb6a5-cde1-48e0-9762-4924a81cc48c

TABLE OF CONTENTS

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I. INTRODUCTION ...............................................................................................................1

II. ARGUMENT.......................................................................................................................3

A. Documents May Be Obtained Through Independent Investigation ........................3

1. Plaintiffs and Plaintiffs’ Counsel Acted Properly........................................4

a. There Was No Discovery Process to Circumvent When Mr. Klein Acquired the Documents........................................................5

b. Plaintiffs Obtained the Documents Innocently ................................7

c. AT&T’s Confidentiality Agreement with Non-Party Klein Cannot Be Used to Conceal AT&T’s Criminal Conduct.................9

B. The First Amendment Supports Plaintiffs’ Use of the AT&T Documents. ..........10

C. AT&T Is Attempting to Use the Court to Enforce a Contract to Shield Its Illegal Conduct from Public Scrutiny ....................................................................12

D. AT&T’s Concerns About Trade Secrets Can Be Adequately Addressed Through the Ordinary Rule 79-5 Procedures.........................................................13

E. The Relief Sought by AT&T Is Futile ...................................................................16

III. CONCLUSION..................................................................................................................17

Case 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 of 26aase 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 Page 2 of 26'

1 TABLE OF CONTENTS

2 Page

3 1. INTRODUCTION ... 1

4 II. ARGUMENT ... .3

5 A. Documents May Be Obtained Through Independent Investigation ... ..3

6 1. Plaintiffs and Plaintiffs' Counsel Acted Properly ... ..4

7 a. There Was No Discovery Process to Circumvent When Mr.Klein Acquired the Documents ... ..5

8b. Plaintiffs Obtained the Documents Innocently ... ..7

9c. AT&T's Confidentiality Agreement with Non-Party Klein

10 Cannot Be Used to Conceal AT&T's Criminal Conduct ... ..9

11 B. The First Amendment Supports Plaintiffs' Use of the AT&T Documents... 10

12 C. AT&T Is Attempting to Use the Court to Enforce a Contract to Shield ItsIllegal Conduct from Public Scrutiny ... 12

13

D. AT&T's Concerns About Trade Secrets Can Be Adequately Addressed14 Through the Ordinary Rule 79-5 Procedures ... 13

15 E. The Relief Sought by AT&T Is Futile ... 16

16 III. CONCLUSION ... 17

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TABLE OF AUTHORITIES

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CASES Aloe Vera of Am., Inc. v. United States,

376 F.3d 960 (9th Cir. 2004) .............................................................................................15 Bridge C.A.T. Scan Associates v. Technicare Corp.,

710 F.2d 940 (2d Cir. 1983)....................................................................................... passim Butterworth v. Smith,

494 U.S. 624 (1990)...................................................................................................7, 9, 13 Chambers v. Capital Cities/ABC,

159 F.R.D. 441 (S.D.N.Y. 1995) .......................................................................................11 Christian v. Mattel, Inc.,

286 F.3d 1118 (9th Cir. 2002) .............................................................................................5 Conn v. Superior Court,

196 Cal. App. 3d 774 (Ct. App. 2d 1987)........................................................................7, 8 Danebo Lumber Co. v. Koutsky-Brennan-Vana Co.,

182 F.2d 489 (9th Cir. 1950) .............................................................................................13 FMC Corp. v. Capital Cities/ABC, Inc.,

915 F.2d 300 (7th Cir. 1990) .....................................................................................6, 9, 18 Fayemi v. Hambrecht & Quist, Inc.,

174 F.R.D. 319 (S.D.N.Y. 1997) .....................................................................................7, 9 Funk v. United States,

290 U.S. 371 (1933)...........................................................................................................16 Furnish v. Merlo,

Civ. No. 93-1052-AS, 1994 U.S. Dist. LEXIS 8455 (D. Or. June 8, 1994) .......................................................................................................7, 8

George v. Indus. Maint. Corp.,

305 F. Supp. 2d 537 (D.V.I. 2002) ............................................................................4, 9, 18 Go-Bart Importing Co. v. United States,

282 U.S. 344 (1931).............................................................................................................2 Herbert v. Lando,

441 U.S. 153 (1979)...........................................................................................................16 Hi-Tek Bags. v. Bobtron Int'l, Inc.,

144 F.R.D. 379 (C.D. Cal. 1993) .......................................................................................15 In re EXDS, Inc.,

No. C05-0787 PVT, 2005 WL 2043020, (N.D. Cal. Aug. 24, 2005)....................................................................................4, 5, 10, 17


1 TABLE OF AUTHORITIES

2 Page

3 CASES

4 Aloe Vera of Am., Inc. v. United States,376 F.3d 960 (9th Cir. 2004) ... 15

5Bridge C.A. T Scan Associates v. Technicare Corp.,

6 710 F.2d 940 (2d Cir. 1983) ... . passim

7 Butterworth v. Smith,494 U. S. 624 (1990) ... .7, 9, 13

8Chambers v. Capital Cities/ABC,

9 159 F.R.D. 441 (S.D.N.Y. 1995) ... 11

10 Christian v. Mattel, Inc.,286 F.3d 1118 (9th Cir. 2002) ... .5

11

Conn v. Superior Court,12 196 Cal. App. 3d 774 (Ct. App. 2d 1987) ... ..7, 8

13 Danebo Lumber Co. v. Koutsky-Brennan-Vana Co.,182 F.2d 489 (9th Cir. 1950) ... 13

14

FMC Corp. v. Capital Cities/ABC, Inc.,15 915 F.2d 300 (7th Cir. 1990) ... .6, 9, 18

16 Fayemi v. Hambrecht & Quist, Inc.,174 F.R.D. 319 (S.D.N.Y. 1997) ... ..7, 9

17

Funk v. United States,18 290 U. S. 371 (1933) ... 16

19 Furnish v. Merlo,Civ. No. 93-1052-AS, 1994 U.S. Dist. LEXIS 8455

20 (D. Or. June 8, 1994) ... .7, 8

21 George v. Indus. Maint. Corp.,305 F. Supp. 2d 537 (D.V.I. 2002) ... ..4, 9, 18

22

Go-Bart Importing Co. v. United States,23 282 U. S. 344 (1931) ... .2

24 Herbert v. Lando,441 U. S. 153 (1979) ... 16

25

Hi-Tek Bags. v. Bobtron Intl, Inc.,26 144 F.R.D. 379 (C.D. Cal. 1993) ... 15

27 In re EXDS, Inc.,No. C05-0787 PVT, 2005 WL 2043020,

28 (N.D. Cal. Aug. 24, 2005) ... ..4, 5, 10, 17

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In re JDS Uniphase Corp. Sec. Litig.,

238 F. Supp. 2d 1127 (N.D. Cal. 2002) .......................................................................11, 13 In re Primus,

436 U.S. 412 (1978)...............................................................................................10, 11, 12 In re Shell Oil Refinery,

143 F.R.D. 105 (E.D. La. 1992).......................................................................................7, 9 In re Silicon Graphics Sec. Litig.,

183 F.3d 970 (9th Cir. 1999) ...............................................................................................5 Katz v. United States,

386 U.S. 954 (1967)...........................................................................................................15 Kirshner v. Uniden Corp. of America,

842 F.2d 1074 (9th Cir. 1988) .......................................................................................4, 18 L.A. News Serv. v. CBS Broad., Inc.,

305 F.3d 924 (9th Cir. 2002) ...........................................................................................4, 7 Lyn-Lea Travel Corp. v. American Airlines, Inc.,

283 F.3d 282 (5th Cir. 2002) .............................................................................................15 McCafferty's, Inc. v. Bank of Glen Burnie,

179 F.R.D. 163 (D. Md. 1998).............................................................................................8 McGrane v. The Reader's Digest Assoc., Inc.,

822 F. Supp. 1044 (S.D.N.Y. 1993)...................................................................................11 NAACP v. Button,

371 U.S. 415 (1963)...........................................................................................................11 O'Day v. McDonnell Douglas Helicopter Co.,

79 F.3d 756 (9th Cir. 1996) .............................................................................................7, 9 Pillsbury, Madison & Sutro v. Schectman,

55 Cal. App. 4th 1279 (Cal. App. 1st Dist. 1997)............................................................7, 9 Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.,

324 U.S. 806 (1945).....................................................................................................13, 14 Schlaifer Nance & Co. v. Estate of Warhol,

742 F. Supp. 165 (S.D.N.Y. 1990).............................................................................5, 9, 10 Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984)...............................................................................................................4 Smith v. Armour Pharmaceuticals Co.,

838 F. Supp. 1573 (S.D. Fla. 1993) .............................................................................7, 8, 9


1

2 Page

3In re JDS Uniphase Corp. Sec. Litig.,

4 238 F. Supp. 2d 1127 (N.D. Cal. 2002) ... 11,11,

13

5 In re Primus,436 U.S. 412 (1978) ... 10, 11, 12

6In re Shell Oil Refnery,

7 143 F.R.D. 105 (E.D. La. 1992) ... ..7, 9

8 In re Silicon Graphics Sec. Litig.,183 F.3d 970 (9th Cir. 1999) ... .5

9Katz v. United States,

10 386 U. S. 954 (1967) ... 15

11 Kirshner v. Uniden Corp. ofAmerica,842 F.2d 1074 (9th Cir. 1988) ... .4, 18

12

L.A. News Serv. v. CBS Broad., Inc.,13 305 F.3d 924 (9th Cir. 2002) ... .4, 7

14 Lyn-Lea Travel Corp. v. American Airlines, Inc.,283 F.3d 282 (5th Cir. 2002) ... 15

15

McCaferty's, Inc. v. Bank of Glen Burnie,16 179 F.R.D. 163 (D. Md. 1998) ... 8

17 McGrane v. The Reader's Digest Assoc., Inc.,822 F. Supp. 1044 (S.D.N.Y. 1993) ... 11

18

NAACP v. Button,19 371 U. S. 415 (1963) ... 11

20 O'Day v. McDonnell Douglas Helicopter Co.,79 F.3d 756 (9th Cir. 1996) ... .7, 9

21

Pillsbury, Madison & Sutro v. Schectman,22 55 Cal. App. 4th 1279 (Cal. App. 1st Dist. 1997) ... ..7, 9

23 Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.,324 U.S. 806 (1945) ... 13,

13,14

24Schlaifer Nance & Co. v. Estate of Warhol,

25 742 F. Supp. 165 (S.D.N.Y. 1990) ... .5, 9, 10

26 Seattle Times Co. v. Rhinehart,467 U.S. 20 (1984) ... .4

27Smith v. Armour Pharmaceuticals Co.,

28 838 F. Supp. 1573 (S.D. Fla. 1993) ... ..7, 8, 9

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Stamy v. Packer,

138 F.R.D. 412 (D.N.J. 1990)........................................................................................4, 18 System Operations, Inc. v. Scientific Games Development Corp.,

425 F. Supp. 130 (D.N.J. 1977) .........................................................................................16 Trammel v. United States,

445 U.S. 40 (1980).............................................................................................................16 United States v. Nixon,

418 U.S. 683 (1974)...........................................................................................................16 University of Pennsylvania v. EEOC,

493 U.S. 182 (1990)...........................................................................................................16 CONSTITUTIONS, STATUTES, RULES AND REGULATIONS

U.S. CONST. amend. I...................................................................................................................... passim amend. IV...........................................................................................................1. 12, 13, 15 18 U.S.C. §2510..................................................................................................................................14 §2511..................................................................................................................................15 §2702..................................................................................................................................15 §3121..................................................................................................................................14 47 U.S.C. §222....................................................................................................................................15 §605....................................................................................................................................15 50 U.S.C. §1801..................................................................................................................................15 Fed. R. Civ. Proc. Rule 26(b)(1)......................................................................................................................17 SECONDARY AUTHORITY RESTATEMENT (THIRD) OF UNFAIR COMPETITION §40 (1995) ..........................................................................................................................14 RESTATEMENT OF TORTS,

§757 (1939)........................................................................................................................15


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2 Page

3Stamy v. Packer,

4 138 F.R.D. 412 (D.N.J. 1990) ... ..4, 18

5 System Operations, Inc. v. Scientifc Games Development Corp.,425 F. Supp. 130 (D.N.J. 1977) ... 16

6Trammel v. United States,

7 445 U.S. 40 (1980) ... 16

8 United States v. Nixon,418 U. S. 683 (1974) ... 16

9University of Pennsylvania v. EEOC,

10 493 U. S. 182 (1990) ... 16

11

CONSTITUTIONS, STATUTES, RULES AND REGULATIONS12

U.S. CONST.13 amend. I ... . passim

amend. IV ... 1. 12, 13, 1514

18 U.S.C.15 §2510

...14

§2511 ... 1516 §2702

...15

§3121...

1417

47 U.S.C.18 §222

...15

§605...

1519

50 U.S.C.20 § 1801

...15

21 Fed. R. Civ. Proc.Rule 26(b)(1) ... 17

22

23 SECONDARY AUTHORITY

24 RESTATEMENT (THIRD) OF UNFAIR COMPETITION§40 (1995) ... ..14

25

RESTATEMENT OF TORTS,26 §757 (1939) ... 15

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I. INTRODUCTION

Plaintiffs allege that AT&T Corp. and AT&T Inc. (jointly “AT&T” or “defendants”) are

engaging, with the government, in a massive warrantless surveillance program directed by the

National Security Agency (“NSA”). Based upon statements by government officials, plaintiffs

further allege that this program of covert, suspicion less surveillance of the communications of

millions of people in the United States will continue indefinitely unless enjoined by this Court. This

wholesale interception of private communications violates the First and Fourth Amendments of the

U.S. Constitution, as well as numerous laws passed by Congress to protect Americans from such

unlawful intrusions into their private lives. The importance of this issue cannot be overstated; the

protections of the Fourth Amendment against suspicion less searches are fundamental to our scheme

of ordered liberty and have been jealously guarded by courts and citizens alike since the Founding.

“Since before the creation of our government, such searches have been deemed obnoxious to

fundamental principles of liberty.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 357

(1931).

Accordingly, plaintiffs moved for a preliminary injunction (Dkt. 30) to enjoin defendants’

illegal participation in the government’s suspicion less searches and seizures. Plaintiffs’ motion is

supported by, among other things, the declarations of Mark Klein (a retired AT&T employee)

(“Klein Decl.”) (Dkt. 31) and J. Scott Marcus (formerly Senior Advisor for Internet Technology to

the Federal Communications Commission) (Dkt. 32), and copies of three AT&T documents

reviewed by Mr. Klein in the course of his employment at AT&T. The motion, the two declarations,

and the three documents were all lodged with the Court pending its decision whether they should be

available to the public.

AT&T has moved to have all these documents sealed. See Motion of Defendant AT&T

Corp. to File Documents Under Seal (“Mot. to Seal”) (Dkt. 38). In addition, AT&T has moved the

Court to compel plaintiffs to return all copies of the three AT&T documents to AT&T, arguing that

the documents evidencing their unlawful conduct are proprietary and protected by a confidentiality

agreement, and were improperly obtained by plaintiffs. See Motion of Defendant AT&T Corp. to

Compel Return of Confidential Documents (“Mot. to Compel” or “Motion to Compel”) (Dkt. 41).


1 1. INTRODUCTION

2 Plaintiffs allege that AT&T Corp. and AT&T Inc. (jointly "AT&T" or "defendants") are

3 engaging, with the government, in a massive warrantless surveillance program directed by the

4 National Security Agency ("NSA"). Based upon statements by government officials, plaintiffs

5 further allege that this program of covert, suspicion less surveillance of the communications of

6 millions of people in the United States will continue indefinitely unless enjoined by this Court. This

7 wholesale interception of private communications violates the First and Fourth Amendments of the

8 U.S. Constitution, as well as numerous laws passed by Congress to protect Americans from such

9 unlawful intrusions into their private lives. The importance of this issue cannot be overstated; the

10 protections of the Fourth Amendment against suspicion less searches are fundamental to our scheme

11 of ordered liberty and have been jealously guarded by courts and citizens alike since the Founding.

12 "Since before the creation of our government, such searches have been deemed obnoxious to

13 fundamental principles of liberty." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357

14 (1931).

15 Accordingly, plaintiffs moved for a preliminary injunction (Dkt. 30) to enjoin defendants'

16 illegal participation in the government's suspicion less searches and seizures. Plaintiffs' motion is

17 supported by, among other things, the declarations of Mark Klein (a retired AT&T employee)

18 ("Klein Decl.") (Dkt. 31) and J. Scott Marcus (formerly Senior Advisor for Internet Technology to

19 the Federal Communications Commission) (Dkt. 32), and copies of three AT&T documents

20 reviewed by Mr. Klein in the course of his employment at AT&T. The motion, the two declarations,

21 and the three documents were all lodged with the Court pending its decision whether they should be

22 available to the public.

23 AT&T has moved to have all these documents sealed. See Motion of Defendant AT&T

24 Corp. to File Documents Under Seal ("Mot. to Seal") (Dkt. 38). In addition, AT&T has moved the

25 Court to compel plaintiffs to return all copies of the three AT&T documents to AT&T, arguing that

26 the documents evidencing their unlawful conduct are proprietary and protected by a confidentiality

27 agreement, and were improperly obtained by plaintiffs. See Motion of Defendant AT&T Corp. to

28 Compel Return of Confidential Documents ("Mot. to Compel" or "Motion to Compel") (Dkt. 41).

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The Court should deny AT&T’s Motion to Compel, which seeks to prevent this Court from

considering the evidence in the Klein and Marcus declarations that supports plaintiffs’ motion and to

obstruct plaintiffs from establishing defendants’ ongoing violations of constitutional and statutory

law. None of AT&T’s arguments or authority provides any basis for striking evidence or compelling

the return of the three documents.1

The documents at issue are properly before the Court. Mr. Klein obtained the documents

before his retirement from AT&T in May 2004, more than a year and a half before this litigation

began. They were not obtained or retained in anticipation of this litigation, nor did Mr. Klein obtain

them at the behest of plaintiffs or their counsel. Given the timing – of the acquisition of the

documents, the publication of the NSA wiretapping story, and the start of this litigation – there is no

rational argument that the acquisition of the documents from AT&T circumvented the discovery

process.

AT&T’s arguments that Mr. Klein acted wrongfully in acquiring the documents and

providing them to plaintiffs are irrelevant here. Mr. Klein is not a party to this action. This litigation

alleges the violation of the fundamental constitutional rights of millions of Americans by deliberate

government policy, facilitated by defendants; it is not a dispute over private contractual and statutory

rights between Mr. Klein and AT&T. Even if a confidentiality agreement arguably was violated,

plaintiffs are not parties to that agreement and cannot be bound by a contract they never entered and

which they did not even see until AT&T filed its motion. See Russell Declaration, Ex. A (Dkt. 42).

The Court should not, in any event, enforce a confidentiality agreement to conceal AT&T’s

criminal wrongdoing in a matter of significant public concern. Moreover, the First Amendment fully

protects plaintiffs’ right to have meaningful access to courts to put an end to the massive violation of

constitutional rights; attempting to prevent the use of legally acquired documents in the pursuit of

1 AT&T relies on the Declaration of James W. Russell (“Russell Declaration”) (Dkt. 42) in support of both this motion and its separate motion to file documents under seal (Dkt. 38). In connection with that motion, plaintiffs filed written evidentiary objections to the Russell Declaration (Dkt. 63). Plaintiffs incorporate those objections here by reference, and respectfully request that the Court rule on them prior to considering the two motions.


1 The Court should deny AT&T's Motion to Compel, which seeks to prevent this Court from

2 considering the evidence in the Klein and Marcus declarations that supports plaintiffs' motion and to

3 obstruct plaintiffs from establishing defendants' ongoing violations of constitutional and statutory

4 law. None of AT&T's arguments or authority provides any basis for striking evidence or compelling

5 the return of the three documents.'

6 The documents at issue are properly before the Court. Mr. Klein obtained the documents

7 before his retirement from AT&T in May 2004, more than a year and a half before this litigation

8 began. They were not obtained or retained in anticipation of this litigation, nor did Mr. Klein obtain

9 them at the behest of plaintiffs or their counsel. Given the timing - of the acquisition of the

10 documents, the publication of the NSA wiretapping story, and the start of this litigation - there is no

11 rational argument that the acquisition of the documents from AT&T circumvented the discovery

12 process.

13 AT&T's arguments that Mr. Klein acted wrongfully in acquiring the documents and

14 providing them to plaintiffs are irrelevant here. Mr. Klein is not a party to this action. This litigation

15 alleges the violation of the fundamental constitutional rights of millions of Americans by deliberate

16 government policy, facilitated by defendants; it is not a dispute over private contractual and statutory

17 rights between Mr. Klein and AT&T. Even if a confidentiality agreement arguably was violated,

18 plaintiffs are not parties to that agreement and cannot be bound by a contract they never entered and

19 which they did not even see until AT&T filed its motion. See Russell Declaration, Ex. A (Dkt. 42).

20 The Court should not, in any event, enforce a confdentiality agreement to conceal AT&T's

21 criminal wrongdoing in a matter of signifcant public concern. Moreover, the First Amendment fully

22 protects plaintiffs' right to have meaningful access to courts to put an end to the massive violation of

23 constitutional rights; attempting to prevent the use of legally acquired documents in the pursuit of

24

25i AT&T relies on the Declaration of James W. Russell ("Russell Declaration") (Dkt. 42) insupport of both this motion and its separate motion to fle documents under seal (Dkt. 38). In26connection with that motion, plaintiffs fled written evidentiary objections to the Russell Declaration(Dkt. 63). Plaintiffs incorporate those objections here by reference, and respectfully request that the27Court rule on them prior to considering the two motions.

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this goal is itself a misuse of the legal system that should not be permitted. The Court should not

allow AT&T to hide away evidence of its unlawful conduct behind flimsy claims of confidentiality

agreements and trade secrets.

II. ARGUMENT

The law here can be simply stated. Parties to litigation have a right to engage in independent

factual investigation outside of discovery, including the gathering of documents. The forced return

of documents may be appropriate only in very limited circumstances: when the documents were

wrongfully taken from defendants by a plaintiff or its agents for use in planned or pending litigation.

In such cases, a few courts have found that the plaintiff thus circumvented the discovery process.

Even when such circumstances exist, which they do not here, countervailing interests, particularly

the First Amendment, counsel against the suppression of evidence.

Accordingly, defendants’ Motion to Compel the return of certain documents is based on two

fallacies. First, they argue – with no basis whatever – that plaintiffs wrongfully obtained the

documents at issue. Second, they argue, based upon their argument that plaintiffs wrongfully

obtained the documents, that the Court should order the documents to be returned. Defendants are

wrong, both legally and factually.

A. Documents May Be Obtained Through Independent Investigation

Plaintiffs are entitled to search for evidence outside the formal discovery process. See L.A.

News Serv. v. CBS Broad., Inc., 305 F.3d 924, 933 (9th Cir. 2002). That evidence is obtained

outside the discovery process generally does not restrict its use in litigation. Id. In fact, the First

Amendment limits a trial court’s ability to restrict the disclosure of documents “gained through

means independent of the court's processes.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34

(1984); see also Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1081 (9th Cir. 1988) (district

court lacks the power to compel the return of documents not obtained in discovery in the case before

it); George v. Indus. Maint. Corp., 305 F. Supp. 2d 537, 542 (D.V.I. 2002) (limiting the use in the

litigation of documents obtained outside the discovery process on the basis of relevance only, and

stating that “the court lacks authority under the penumbra of this case to restrict other usage” of non-

discovery documents); Stamy v. Packer, 138 F.R.D. 412, 417 (D.N.J. 1990) (a court’s “order that


1 this goal is itself a misuse of the legal system that should not be permitted. The Court should not

2 allow AT&T to hide away evidence of its unlawful conduct behind fimsy claims of confidentiality

3 agreements and trade secrets.

4 II. ARGUMENT

5 The law here can be simply stated. Parties to litigation have a right to engage in independent

6 factual investigation outside of discovery, including the gathering of documents. The forced return

7 of documents may be appropriate only in very limited circumstances: when the documents were

8 wrongfully taken from defendants by a plaintiff or its agents for use in planned or pending litigation.

9 In such cases, a few courts have found that the plaintiff thus circumvented the discovery process.

10 Even when such circumstances exist, which they do not here, countervailing interests, particularly

11 the First Amendment, counsel against the suppression of evidence.

12 Accordingly, defendants' Motion to Compel the return of certain documents is based on two

13 fallacies. First, they argue - with no basis whatever - that plaintiffs wrongfully obtained the

14 documents at issue. Second, they argue, based upon their argument that plaintiffs wrongfully

15 obtained the documents, that the Court should order the documents to be returned. Defendants are

16 wrong, both legally and factually.

17 A. Documents May Be Obtained Through Independent Investigation

18 Plaintiffs are entitled to search for evidence outside the formal discovery process. See L.A.

19 News Serv. v. CBS Broad., Inc., 305 F.3d 924, 933 (9th Cir. 2002). That evidence is obtained

20 outside the discovery process generally does not restrict its use in litigation. Id. In fact, the First

21 Amendment limits a trial court's ability to restrict the disclosure of documents "gained through

22 means independent of the court's processes." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34

23 (1984); see also Kirshner v. Uniden Corp. ofAmerica, 842 F.2d 1074, 1081 (9th Cir. 1988) (district

24 court lacks the power to compel the return of documents not obtained in discovery in the case before

25 it); George v. Indus. Maint. Corp., 305 F. Supp. 2d 537, 542 (D.V.I. 2002) (limiting the use in the

26 litigation of documents obtained outside the discovery process on the basis of relevance only, and

27 stating that "the court lacks authority under the penumbra of this case to restrict other usage" of non-

28 discovery documents); Stamy v. Packer, 138 F.R.D. 412, 417 (D.N.J. 1990) (a court's "order that

PLFS' OPP TO AT&T CORP. MOT TO CMPL RET OF CONFIDENTIAL DOCS - C-06-00672-VRW -3



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prohibits disclosure of information obtained outside the court processes amounts to a prior restraint

of one's freedom of speech” and is, therefore, inherently suspect).

Attorneys have, not just a right, but “a duty prior to filing a complaint . . . to conduct a

reasonable factual investigation.” Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002).

The right to engage in independent investigation includes contacts with former employees;

“prohibiting attorneys from contacting an opponent’s former employees would unfairly hinder

litigants from investigating and pursuing factual evidence relevant to their case.” In re EXDS, Inc.,

No. C05-0787 PVT, 2005 WL 2043020, at *3 (N.D. Cal. Aug. 24, 2005) (citation omitted).

In some instances, courts will not even entertain cases without documentary evidence that

has, by definition, come to the plaintiff through channels other than formal discovery. See, e.g., In

re Silicon Graphics Sec. Litig., 183 F.3d 970 (9th Cir. 1999) (dismissing a claim under a heightened

pleading standard of the Private Securities Litigation Reform Act in part because plaintiffs did not

have adequate information about the defendant company’s internal documents).

As explained by the Second Circuit, “Rule 26 . . . is not a blanket authorization for the court

to prohibit disclosure of information whenever it deems it advisable to do so, but is rather a grant of

power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the

court's processes.” Bridge C.A.T. Scan Associates v. Technicare Corp., 710 F.2d 940, 944-945 (2d

Cir. 1983) (emphasis in the original) (citations omitted). Even where a non-party to the litigation has

breached a contract by providing documents to a party, the non-party’s actions provide no basis for

prohibiting the use of the documents by the party who innocently receives them, let alone for

ordering their return. Schlaifer Nance & Co. v. Estate of Warhol, 742 F. Supp. 165, 166 (S.D.N.Y.

1990).

1. Plaintiffs and Plaintiffs’ Counsel Acted Properly

AT&T argues that the documents should be returned under the Court’s inherent authority to

control the integrity of judicial proceedings, but neither the law nor the facts support this argument.

In fact, AT&T’s main authorities stand only for the proposition that return of documents may be

appropriate when the documents were wrongfully taken by a party or its agents, while litigation was

pending or planned.


1 prohibits disclosure of information obtained outside the court processes amounts to a prior restraint

2 of one's freedom of speech" and is, therefore, inherently suspect).

3 Attorneys have, not just a right, but "a duty prior to filing a complaint ... to conduct a

4 reasonable factual investigation." Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002).

5 The right to engage in independent investigation includes contacts with former employees;

6 "prohibiting attorneys from contacting an opponent's former employees would unfairly hinder

7 litigants from investigating and pursuing factual evidence relevant to their case." In re EXDS, Inc.,

8 No. C05-0787 PVT, 2005 WL 2043020, at *3 (N.D. Cal. Aug. 24, 2005) (citation omitted).

9 In some instances, courts will not even entertain cases without documentary evidence that

10 has, by definition, come to the plaintiff through channels other than formal discovery. See, e.g., In

11 re Silicon Graphics Sec. Litig., 183 F.3d 970 (9th Cir. 1999) (dismissing a claim under a heightened

12 pleading standard of the Private Securities Litigation Reform Act in part because plaintiffs did not

13 have adequate information about the defendant company's internal documents).

14 As explained by the Second Circuit, "Rule 26 ... is not a blanket authorization for the court

15 to prohibit disclosure of information whenever it deems it advisable to do so, but is rather a grant of

16 power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the

17 court's processes." Bridge C.A.T Scan Associates v. Technicare Corp., 710 F.2d 940, 944-945 (2d

18 Cir. 1983) (emphasis in the original) (citations omitted). Even where a non-party to the litigation has

19 breached a contract by providing documents to a party, the non-party's actions provide no basis for

20 prohibiting the use of the documents by the party who innocently receives them, let alone for

21 ordering their return. Schlaifer Nance & Co. v. Estate of Warhol, 742 F. Supp. 165, 166 (S.D.N.Y.

22 1990).

23 1. Plaintiffs and Plaintiffs' Counsel Acted Properly

24 AT&T argues that the documents should be returned under the Court's inherent authority to

25 control the integrity of judicial proceedings, but neither the law nor the facts support this argument.

26 In fact, AT&T's main authorities stand only for the proposition that return of documents may be

27 appropriate when the documents were wrongfully taken by a party or its agents, while litigation was

28 pending or planned.




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The facts relating to how the documents were obtained are that Mr. Klein reviewed the

contested documents in the course of his employment with AT&T and that he left AT&T in May

2004. Klein Decl., ¶¶6, 25, 28. A year and a half later, following the publication of the story that

the NSA was illegally wiretapping electronic communications without a warrant, Mr. Klein

contacted EFF for the first time. Declaration of Kevin Bankston in Support of Plaintiffs’ Opposition

to the Motion of Defendant AT&T Corp. to Compel Return of Confidential Documents (“Bankston

Decl.”), ¶¶2, 9. He told EFF what he knew of defendants’ involvement with the NSA and the

wiretapping capabilities, and showed EFF excerpts of the documents he had in his possession. Id.,

¶¶4-6. Following the filing of the complaint, Mr. Klein gave EFF copies of the documents in the

form lodged with the Court. Id., ¶7. There is nothing improper in either Mr. Klein’s or plaintiffs’

receipt of the documents.2

AT&T throws around the terms burglarized, converted, and “surreptitiously obtained,” but

acknowledges that Mr. Klein’s access to the documents was “in the course of his employment with

AT&T.” See Mot. to Compel at v n.1, 1, 3, 4, 7, 9, 11. There is no suggestion that Mr. Klein acted

at plaintiffs’ behest. Nor is there any basis for thinking that plaintiffs acted wrongfully in accepting

documents that Mr. Klein offered them.

a. There Was No Discovery Process to Circumvent When Mr. Klein Acquired the Documents.

At the time Mr. Klein acquired the documents, there was no litigation pending or planned.

He could not, therefore, have been circumventing any discovery process, as there was no discovery

or other process in place. See Bridge C.A.T. Scan, 710 F.2d at 944-45; Mot. to Compel at 1. The

2 Defendants baselessly assert numerous wrongs on Mr. Klein’s part. For example, defendants assert that Mr. Klein converted the documents. Mot. to Compel at v n.1, 9. There is no conversion under California law if the proper owner is not deprived of use of the documents. Thus, when copies – as opposed to originals – are taken, there is no conversion. FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300, 305 (7th Cir. 1990) (applying California law, finding that the taking of copies, rather than originals was not conversion as the owner was not deprived of use of the documents). Here, there is no reason to believe the documents Mr. Klein received were originals rather than copies.

Case 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 of 26C se 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 Page 10 of 26'

1 The facts relating to how the documents were obtained are that Mr. Klein reviewed the

2 contested documents in the course of his employment with AT&T and that he lef AT&T in May

3 2004. Klein Decl., ¶¶6, 25, 28. A year and a half later, following the publication of the story that

4 the NSA was illegally wiretapping electronic communications without a warrant, Mr. Klein

5 contacted EFF for the first time. Declaration of Kevin Bankston in Support of Plaintiffs' Opposition

6 to the Motion of Defendant AT&T Corp. to Compel Return of Confidential Documents ("Bankston

7 Decl."), ¶¶2, 9. He told EFF what he knew of defendants' involvement with the NSA and the

8 wiretapping capabilities, and showed EFF excerpts of the documents he had in his possession. Id.,

9 ¶¶4-6. Following the filing of the complaint, Mr. Klein gave EFF copies of the documents in the

10 form lodged with the Court. Id., ¶7. There is nothing improper in either Mr. Klein's or plaintiffs'

11 receipt of the documents.2

12 AT&T throws around the terms burglarized, converted, and "surreptitiously obtained," but

13 acknowledges that Mr. Klein's access to the documents was "in the course of his employment with

14 AT&T." See Mot. to Compel at v n. 1, 1, 3, 4, 7, 9, 11. There is no suggestion that Mr. Klein acted

15 at plaintiffs' behest. Nor is there any basis for thinking that plaintiffs acted wrongfully in accepting

16 documents that Mr. Klein offered them.

17 a. There Was No Discovery Process to Circumvent WhenMr. Klein Acquired the Documents.

18

At the time Mr. Klein acquired the documents, there was no litigation pending or planned.19

He could not, therefore, have been circumventing any discovery process, as there was no discovery20

or other process in place. See Bridge C.A.T Scan, 710 F.2d at 944-45; Mot. to Compel at 1. The21

22

23

2 Defendants baselessly assert numerous wrongs on Mr. Klein's part. For example, defendants24assert that Mr. Klein converted the documents. Mot. to Compel at v n. 1, 9. There is no conversionunder California law if the proper owner is not deprived of use of the documents. Thus, when copies25- as opposed to originals - are taken, there is no conversion. FMC Corp. v. Capital Cities/ABCInc., 915 F.2d 300, 305 (7th Cir. 1990) (applying California law, finding that the taking of copies,26rather than originals was not conversion as the owner was not deprived of use of the documents).Here, there is no reason to believe the documents Mr. Klein received were originals rather than27copies.

28




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acquisition of the AT&T documents outside the discovery process does not impact plaintiffs’ ability

to use them. L.A. New, 305 F.3d at 933.

None of defendants’ cases hold otherwise. Defendants’ cases involve situations where the

plaintiff or its agent took documents from defendants while litigation was planned or already

pending. Most of the cases cited involve a plaintiff who engaged in “self-help evidence gathering by

employees for use in contemplated litigation against their soon-to-be former employers.” Pillsbury,

Madison & Sutro v. Schectman, 55 Cal. App. 4th 1279, 1287 (Cal. App. 1st Dist. 1997); see also

O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 758 (9th Cir. 1996) (employee took

documents from employer for use in a wrongful termination case against his employer); Fayemi v.

Hambrecht & Quist, Inc., 174 F.R.D. 319, 321-322 (S.D.N.Y. 1997) (employee copied employer’s

computer files for use in wrongful termination case against his employer); Furnish v. Merlo, Civ.

No. 93-1052-AS, 1994 U.S. Dist. LEXIS 8455 (D. Or. June 8, 1994) (involving employee who took

documents for use in an employment discrimination case against her employer); Conn v. Superior

Court, 196 Cal. App. 3d 774, 777-78 (Ct. App. 2d 1987) (involving employee who, believing he was

being constructively discharged, took documents for use in wrongful termination case against his

employer). The Pillsbury, Madison & Sutro court put particular emphasis on its concerns about

“self-help” by a “litigant or potential litigant.” 55 Cal. App. 4th at 1289.

Defendants’ remaining cases involve cases that were already in discovery at the time the

documents were taken from defendants. See In re Shell Oil Refinery, 143 F.R.D. 105 (E.D. La.

1992); Smith v. Armour Pharmaceuticals Co., 838 F. Supp. 1573, 1578 (S.D. Fla. 1993). In Adams,

the plaintiffs had a means of obtaining the documents: discovery. Yet, they took the documents and

did not disclose that they had them, thereby, according to the district court, gaining an “unfair

advantage.” 143 F.R.D. at 108. Similarly, the plaintiffs in Smith obtained a privileged document

from defendants not through ordinary discovery channels, although discovery was underway. Smith,

838 F. Supp. at 1575. Defendants in Smith did not know that the plaintiffs had the document, and

believed it was adequately protected from use or dissemination pursuant to a stipulation in a different

action, but counsel – representing plaintiffs in two separate but related actions – surreptitiously used


1 acquisition of the AT&T documents outside the discovery process does not impact plaintiffs' ability

2 to use them. L.A. New, 305 F.3d at 933.

3 None of defendants' cases hold otherwise. Defendants' cases involve situations where the

4 plaintiff or its agent took documents from defendants while litigation was planned or already

5 pending. Most of the cases cited involve a plaintiff who engaged in "self-help evidence gathering by

6 employees for use in contemplated litigation against their soon-to-be former employers." Pillsbury,

7 Madison & Sutro v. Schectman, 55 Cal. App. 4th 1279, 1287 (Cal. App. 1st Dist. 1997); see also

8 O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 758 (9th Cir. 1996) (employee took

9 documents from employer for use in a wrongful termination case against his employer); Fayemi v.

10 Hambrecht & Quist, Inc., 174 F.R.D. 319, 321-322 (S.D.N.Y. 1997) (employee copied employer's

11 computer files for use in wrongful termination case against his employer); Furnish v. Merlo, Civ.

12 No. 93-1052-AS, 1994 U.S. Dist. LEXIS 8455 (D. Or. June 8, 1994) (involving employee who took

13 documents for use in an employment discrimination case against her employer); Conn v. Superior

14 Court, 196 Cal. App. 3d 774, 777-78 (Ct. App. 2d 1987) (involving employee who, believing he was

15 being constructively discharged, took documents for use in wrongful termination case against his

16 employer). The Pillsbury, Madison & Sutro court put particular emphasis on its concerns about

17 "self-help" by a "litigant or potential litigant." 55 Cal. App. 4th at 1289.

18 Defendants' remaining cases involve cases that were already in discovery at the time the

19 documents were taken from defendants. See In re Shell Oil Refnery, 143 F.R.D. 105 (E.D. La.

20 1992); Smith v. Armour Pharmaceuticals Co., 838 F. Supp. 1573, 1578 (S.D. Fla. 1993). InAdams,

21 the plaintiffs had a means of obtaining the documents: discovery. Yet, they took the documents and

22 did not disclose that they had them, thereby, according to the district court, gaining an "unfair

23 advantage." 143 F.R.D. at 108. Similarly, the plaintiffs in Smith obtained a privileged document

24 from defendants not through ordinary discovery channels, although discovery was underway. Smith,

25 838 F. Supp. at 1575. Defendants in Smith did not know that the plaintiffs had the document, and

26 believed it was adequately protected from use or dissemination pursuant to a stipulation in a different

27 action, but counsel - representing plaintiffs in two separate but related actions - surreptitiously used

28




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it anyway. Id. These cases stand only for the proposition that once there is a discovery process,

parties should not affirmatively misrepresent or conceal what they have obtained from defendants.

Additionally, several of defendants’ cases involve a party gathering or retaining information

that was clearly not discoverable. See Furnish, 1994 U.S. Dist. LEXIS 8455, at **2-3 (involving the

wrongful taking of a memorandum identified as “attorney-client privileged”); Conn, 196 Cal. App.

3d at 777-83 (involving refusal to return privileged documents); McCafferty’s, Inc. v. Bank of Glen

Burnie, 179 F.R.D. 163, 165-66 (D. Md. 1998) (involving the taking and reconstruction of privileged

documents that had been torn into 16 pieces prior to being thrown away); Smith, 838 F. Supp. at

1575-76 (involving refusal to return inadvertently produced privileged documents).

In this case, Mr. Klein had the documents prior to leaving AT&T in May 2004. Klein Decl.,

¶¶6, 25, 28. He did not give them to plaintiffs until 2006. Bankston Decl., ¶¶2, 5, 7. He is not a

plaintiff in this action and he has not sued AT&T. There is no aspect of “self-help discovery” here.

Further, there was no pending or planned litigation when he acquired the documents, and thus there

was no discovery process to be circumvented. Nor are the documents at issue even arguably

privileged, and AT&T has not asserted any privilege over them.

b. Plaintiffs Obtained the Documents Innocently

Plaintiffs’ first contact with Mr. Klein and first awareness of the documents, was when Mr.

Klein walked into the office of Electronic Frontier Foundation (“EFF”) in January 2006 to provide

information regarding his work at AT&T and excerpts of the documents at issue here. Bankston

Decl., ¶¶2-7. The receipt of evidence from a witness is not improper; it is ordinary case

investigation. Absent evidence of wrongdoing by a party, a court generally has no power to prohibit

dissemination of even confidential information “if that information has been gathered independently

of judicial processes.” Bridge C.A.T. Scan Assocs., 710 F.2d at 946-47.

Defendants’ cases are inapplicable because they involve clear wrongdoing by the plaintiff or

plaintiff’s counsel. For example, in Furnish, the employee, in the final days before her termination,

and possibly shortly thereafter, unlocked her boss’ desk, photo-copied a memorandum marked

“attorney-client privileged” discussing reasons for terminating her that she found in her boss’ desk,

and copied other documents from files that were not her own. Furnish, 1994 U.S. Dist. LEXIS


1 it anyway. Id. These cases stand only for the proposition that once there is a discovery process,

2 parties should not affirmatively misrepresent or conceal what they have obtained from defendants.

3 Additionally, several of defendants' cases involve a party gathering or retaining information

4 that was clearly not discoverable. See Furnish, 1994 U.S. Dist. LEXIS 8455, at **2-3 (involving the

5 wrongful taking of a memorandum identified as "attorney-client privileged"); Conn, 196 Cal. App.

6 3d at 777-83 (involving refusal to return privileged documents); McCaferty's, Inc. v. Bank of Glen

7 Burnie, 179 F.R.D. 163, 165-66 (D. Md. 1998) (involving the taking and reconstruction of privileged

8 documents that had been torn into 16 pieces prior to being thrown away); Smith, 838 F. Supp. at

9 1575-76 (involving refusal to return inadvertently produced privileged documents).

10 In this case, Mr. Klein had the documents prior to leaving AT&T in May 2004. Klein Decl.,

11 ¶¶6, 25, 28. He did not give them to plaintiffs until 2006. Bankston Decl., ¶¶2, 5, 7. He is not a

12 plaintiff in this action and he has not sued AT&T. There is no aspect of "self-help discovery" here.

13 Further, there was no pending or planned litigation when he acquired the documents, and thus there

14 was no discovery process to be circumvented. Nor are the documents at issue even arguably

15 privileged, and AT&T has not asserted any privilege over them.

16 b. Plaintiffs Obtained the Documents Innocently

17 Plaintiffs' first contact with Mr. Klein and first awareness of the documents, was when Mr.

18 Klein walked into the office of Electronic Frontier Foundation ("EFF") in January 2006 to provide

19 information regarding his work at AT&T and excerpts of the documents at issue here. Bankston

20 Decl., ¶¶2-7. The receipt of evidence from a witness is not improper; it is ordinary case

21 investigation. Absent evidence of wrongdoing by a party, a court generally has no power to prohibit

22 dissemination of even confidential information "if that information has been gathered independently

23 of judicial processes." Bridge C.A.T Scan Assocs., 710 F.2d at 946-47.

24 Defendants' cases are inapplicable because they involve clear wrongdoing by the plaintiff or

25 plaintiff's counsel. For example, in Furnish, the employee, in the final days before her termination,

26 and possibly shortly thereafter, unlocked her boss' desk, photo-copied a memorandum marked

27 "attorney-client privileged" discussing reasons for terminating her that she found in her boss' desk,

28 and copied other documents from files that were not her own. Furnish, 1994 U.S. Dist. LEXIS




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8455, at **2-3. The facts of the taking of documents in Pillsbury, Madison & Sutro are not in the

opinion, but the court noted that they “most closely resemble Furnish v. Merlo.” Pillsbury, Madison

& Sutro, 55 Cal. App. 4th at 1287. Similarly, in O’Day, the plaintiff, following the denial of a

requested promotion, came back to his office after business hours and obtained evidence of what he

considered to be actionable age discrimination by “rummaging through his supervisor’s desk.”

O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 758 (9th Cir. 1996). In Fayemi, the

plaintiff, after being told not to return to work, went to his boss’ office on a Sunday morning and

printed off confidential compensation documents from his boss’ computer. Fayemi, 174. F.R.D. at

322-23. In Smith, an attorney received a privileged document in one case, stipulated not to use it or

disseminate it, and then used it in a different case. 838 F.Supp. at 1575. In Adams, the attorney used

documents in developing his case but then refused to identify what the documents were when

directly asked to do so in an interrogatory. 143 F.R.D. at 107.

Here, plaintiffs and plaintiffs’ counsel are not accused of any wrongdoing. AT&T admits

that plaintiffs did not “break[] into AT&T and convert[] the documents.” Mot. to Compel at 9. The

only purported wrong defendants argue that plaintiffs or their counsel have committed is accepting

documents provided by someone that defendants claim acted improperly. Id. Contrary to

defendants’ argument, plaintiffs’ innocent receipt of the documents does indeed change the analysis.

See George, 305 F. Supp. 2d at 540-41 (“a crucial difference between those cases and the instant one

is that, in those cases, the documents were wrongfully procured by the plaintiff or the attorney”);

Schlaife, 742 F. Supp. at 166. Indeed, the Fayemi court specifically found the plaintiff’s wrongful

conduct in acquiring the information was, along with First Amendment concerns, the relevant

distinction between Fayemi and Bridge C.A.T. Scan Associates, in which plaintiffs were not

compelled to return documents. Fayemi, 174 F.R.D. at 324-25. Plaintiffs’ receipt of documents

from a witness is not a sufficient basis for the extraordinary relief of suppressing evidence relevant

to the case.

Finally, even where documents are improperly obtained by a party, the party need not return

all copies of the documents when the First Amendment is implicated. FMC Corp. v. Capital

Cities/ABC, Inc., 915 F.2d 300, 305 (7th Cir. 1990) (“in the name of the First Amendment,”


1 8455, at **2-3. The facts of the taking of documents in Pillsbury, Madison & Sutro are not in the

2 opinion, but the court noted that they "most closely resemble Furnish v. Merlo."Pillsbury, Madison

3 & Sutro, 55 Cal. App. 4th at 1287. Similarly, in O'Day, the plaintiff following the denial of a

4 requested promotion, came back to his office after business hours and obtained evidence of what he

5 considered to be actionable age discrimination by "rummaging through his supervisor's desk."

6 O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 758 (9th Cir. 1996). In Fayemi, the

7 plaintiff, afer being told not to return to work, went to his boss' office on a Sunday morning and

8 printed off confidential compensation documents from his boss' computer. Fayemi, 174. F.R.D. at

9 322-23. In Smith, an attorney received a privileged document in one case, stipulated not to use it or

10 disseminate it, and then used it in a different case. 838 F. Supp. at 1575. In Adams, the attorney used

11 documents in developing his case but then refused to identify what the documents were when

12 directly asked to do so in an interrogatory. 143 F.R.D. at 107.

13 Here, plaintiffs and plaintiffs' counsel are not accused of any wrongdoing. AT&T admits

14 that plaintiffs did not "break[] into AT&T and convert[] the documents." Mot. to Compel at 9. The

15 only purported wrong defendants argue that plaintiffs or their counsel have committed is accepting

16 documents provided by someone that defendants claim acted improperly. Id. Contrary to

17 defendants' argument, plaintiffs' innocent receipt of the documents does indeed change the analysis.

18 See George, 305 F. Supp. 2d at 540-41 ("a crucial difference between those cases and the instant one

19 is that, in those cases, the documents were wrongfully procured by the plaintiff or the attorney");

20 Schlaife, 742 F. Supp. at 166. Indeed, the Fayemi court specifically found the plaintiff's wrongful

21 conduct in acquiring the information was, along with First Amendment concerns, the relevant

22 distinction between Fayemi and Bridge C.A.T Scan Associates, in which plaintiffs were not

23 compelled to return documents. Fayemi, 174 F.R.D. at 324-25. Plaintiffs' receipt of documents

24 from a witness is not a sufficient basis for the extraordinary relief of suppressing evidence relevant

25 to the case.

26 Finally, even where documents are improperly obtained by a party, the party need not return

27 all copies of the documents when the First Amendment is implicated. FMC Corp. v. Capital

28 Cities/ABC, Inc., 915 F.2d 300, 305 (7th Cir. 1990) ("in the name of the First Amendment,"

PLFS' OPP TO AT&T CORP. MOT TO CMPL RET OF CONFIDENTIAL DOCS - C-06-00672-VRW - 8



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allowing ABC to keep and disseminate FMC’s documents that ABC had converted); EXDS, 2005

WL 2043030, at *10 (return of documents not appropriate when, among other things, documents

were copies, not originals). The First Amendment protection of the dissemination and use of

documents is not limited to the media. Bridge C.A.T. Scan Assocs., 710 F.2d at 946. As discussed

in greater detail below, litigation to vindicate constitutional rights – such as this litigation – is

entitled to the fullest protection of the First Amendment. In re Primus, 436 U.S. 412, 424 (1978).

c. AT&T’s Confidentiality Agreement with Non-Party Klein Cannot Be Used to Conceal AT&T’s Criminal Conduct

Defendants object to Mr. Klein’s acquisition or disclosure of the documents, saying that he

was bound by a confidentiality agreement.3 But Mr. Klein is not a party to this litigation; he is

merely a witness. And plaintiffs are not parties to the purported confidentiality agreement, and they

cannot be bound by confidentiality provisions of a contract they did not enter and whose terms they

did not know until AT&T filed its motion. Plaintiffs did not induce Mr. Klein’s actions, neither his

acquisition of the documents nor his provision of them to plaintiffs. See Schlaifer, 742 F. Supp. at

166, (citing Conmar Products Corp. v. Universal Slide Fastener Co., 172 F.2d 150, 156-57 (2d

Cir.1949)) (“Having acquired the secrets innocently, they were entitled to exploit them till they

learned that they had induced the breach of the contract.”). Plaintiffs and plaintiffs’ counsel did not

know Mr. Klein until more than a year and a half after he acquired the documents, and Mr. Klein

initiated the contact. See Bankston Decl., ¶¶2-9. There is, in short, no reason to find that Mr.

Klein’s wrong, if any, taints plaintiffs’ possession and use of the documents.

More importantly, the confidentiality agreement should be deemed unenforceable in

circumstances like that of this litigation. Where an employer seeks to cover up its own wrongs

through the enforcement of a confidentiality agreement, courts “‘are increasingly reluctant to enforce

secrecy arrangements where matters of substantial concern to the public – as distinct from trade

3 AT&T falsely asserts that Mr. Klein disclosed “matters that he filed in this Court under seal.” Mot. to Compel at v n.1. Mr. Klein is not a party and has not filed anything in this Court, let alone under seal.


1 allowing ABC to keep and disseminate FMC's documents that ABC had converted); EXDS, 2005

2 WL 2043030, at *10 (return of documents not appropriate when, among other things, documents

3 were copies, not originals). The First Amendment protection of the dissemination and use of

4 documents is not limited to the media. Bridge C.A.T Scan Assocs., 710 F.2d at 946. As discussed

5 in greater detail below, litigation to vindicate constitutional rights - such as this litigation - is

6 entitled to the fullest protection of the First Amendment. In re Primus, 436 U.S. 412, 424 (1978).

7 c. AT&T's Confidentiality Agreement with Non-PartyKlein Cannot Be Used to Conceal AT&T's Criminal

8 Conduct

9 Defendants object to Mr. Klein's acquisition or disclosure of the documents, saying that he

10 was bound by a confidentiality agreement.3 But Mr. Klein is not a party to this litigation; he is

11 merely a witness. And plaintiffs are not parties to the purported confidentiality agreement, and they

12 cannot be bound by confidentiality provisions of a contract they did not enter and whose terms they

13 did not know until AT&T filed its motion. Plaintiffs did not induce Mr. Klein's actions, neither his

14 acquisition of the documents nor his provision of them to plaintiffs. See Schlaifer, 742 F. Supp. at

15 166, (citing Conmar Products Corp. v. Universal Slide Fastener Co., 172 F.2d 150, 156-57 (2d

16 Cir. 1949)) ("Having acquired the secrets innocently, they were entitled to exploit them till they

17 learned that they had induced the breach of the contract."). Plaintiffs and plaintiffs' counsel did not

18 know Mr. Klein until more than a year and a half after he acquired the documents, and Mr. Klein

19 initiated the contact. See Bankston Decl., ¶¶2-9. There is, in short, no reason to find that Mr.

20 Klein's wrong, if any, taints plaintiffs' possession and use of the documents.

21 More importantly, the confidentiality agreement should be deemed unenforceable in

22 circumstances like that of this litigation. Where an employer seeks to cover up its own wrongs

23 through the enforcement of a confidentiality agreement, courts "`are increasingly reluctant to enforce

24 secrecy arrangements where matters of substantial concern to the public - as distinct from trade

25

263 AT&T falsely asserts that Mr. Klein disclosed "matters that he filed in this Court under seal."Mot. to Compel at v n. 1. Mr. Klein is not a party and has not filed anything in this Court, let alone27under seal.

28




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secrets or other legitimately confidential information – may be involved.’” In re JDS Uniphase

Corp. Sec. Litig., 238 F. Supp. 2d 1127, 1136 (N.D. Cal. 2002) (quoting McGrane v. The Reader's

Digest Assoc., Inc., 822 F. Supp. 1044, 1052 (S.D.N.Y. 1993). Indeed, “[d]isclosures of wrongdoing

do not constitute revelations of trade secrets which can be prohibited by agreements binding on

former employees.” Id. (citation omitted); see also Chambers v. Capital Cities/ABC, 159 F.R.D.

441, 444 (S.D.N.Y. 1995) (“it is against public policy for parties to agree not to reveal, at least in

the limited contexts of depositions or pre-deposition interviews concerning litigation arising under

federal law, facts relating to alleged or potential violations of such law”).

Plaintiffs have alleged that defendants assisted the NSA in eavesdropping, without a warrant,

on millions of private communications. The documents AT&T claims are protected by its purported

confidentiality agreement with Mr. Klein are evidence of this massive constitutional violation. The

Court should not allow a confidentiality agreement, particularly one with a non-party, to prevent

public scrutiny of such criminal conduct.

B. The First Amendment Supports Plaintiffs’ Use of the AT&T Documents.

Civil litigation, particularly public-interest litigation, is protected by the First Amendment.

See, e.g., NAACP v. Button, 371 U.S. 415 (1963); Primus, 436 U.S. 412. In Button, the Supreme

Court held that “the First Amendment also protects vigorous advocacy, certainly of lawful ends,

against governmental intrusion.” 371 U.S. at 429 (citations omitted). The Court held that litigation

is not merely “a technique of resolving private differences” for the public interest organizations like

the NAACP; rather it is a “means for achieving the lawful objectives” and “a form of political

expression” that may well be “the sole practicable avenue open to a minority to petition for redress

of grievances.” 371 U.S. at 429, 435-37 (holding that right to expression includes right to persuade

others through litigation). By organizing around certain specific expressive goals, such as

vindicating constitutional rights through litigation, public interest organizations make a “distinctive

contribution . . . to the ideas and beliefs of our society.” Id. at 430-31 (refusing to “subsume such

activity under a narrow, literal conception of freedom of speech, petition or assembly”).


1 secrets or other legitimately confidential information - may be involved."' In re JDS Uniphase

2 Corp. Sec. Litig., 238 F. Supp. 2d 1127, 1136 (N.D. Cal. 2002) (quoting McGrane v. The Reader's

3 DigestAssoc., Inc., 822 F. Supp. 1044, 1052 (S.D.N.Y. 1993). Indeed, "[d]isclosures of wrongdoing

4 do not constitute revelations of trade secrets which can be prohibited by agreements binding on

5 former employees." Id. (citation omitted); see also Chambers v. Capital Cities/ABC, 159 F.R.D.

6 441, 444 (S.D.N.Y. 1995) ("it is against public policy for parties to agree not to reveal, at least in

7 the limited contexts of depositions or pre-deposition interviews concerning litigation arising under

8 federal law, facts relating to alleged or potential violations of such law").

9 Plaintiffs have alleged that defendants assisted the NSA in eavesdropping, without a warrant,

10 on millions of private communications. The documents AT&T claims are protected by its purported

11 confidentiality agreement with Mr. Klein are evidence of this massive constitutional violation. The

12 Court should not allow a confidentiality agreement, particularly one with a non-party, to prevent

13 public scrutiny of such criminal conduct.

14 B. The First Amendment Supports Plaintifs' Use of the AT&TDocuments.

15

Civil litigation, particularly public-interest litigation, is protected by the First Amendment.16

See, e.g., NAACP v. Button, 371 U.S. 415 (1963); Primus, 436 U.S. 412. In Button, the Supreme17

Court held that "the First Amendment also protects vigorous advocacy, certainly of lawful ends,18

against governmental intrusion." 371 U. S. at 429 (citations omitted). The Court held that litigation19

is not merely "a technique of resolving private differences" for the public interest organizations like20

the NAACP; rather it is a "means for achieving the lawful objectives" and "a form of political21

expression" that may well be "the sole practicable avenue open to a minority to petition for redress22

of grievances." 371 U.S. at 429, 435-37 (holding that right to expression includes right to persuade23

others through litigation). By organizing around certain specific expressive goals, such as24

vindicating constitutional rights through litigation, public interest organizations make a "distinctive25

contribution ... to the ideas and beliefs of our society." Id. at 430-31 (refusing to "subsume such26

activity under a narrow, literal conception of freedom of speech, petition or assembly").27

28




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The Supreme Court subsequently recognized that “‘collective activity undertaken to obtain

meaningful access to the courts is a fundamental right within the protection of the First

Amendment.”’ Primus, 436 U.S. at 426 (citations omitted). The Court again held that vindicating

constitutional rights through litigation is “a form of political expression” and “‘political

association.’” Id. at 428 (citation omitted). The right to pursue redress for violations of

constitutional rights “comes within the generous zone of the First Amendment protection reserved

for associational freedoms.” Id. at 424.

These core First Amendment principles apply here as well. Plaintiffs brought this case in

order to protect the public and its ability to communicate without fear of unlawful and

unconstitutional surveillance, rights protected by the Constitution, recognized by the Supreme Court,

and implemented by Congress in the federal wiretap statute. The documents lodged with the Court

are significant evidence of a wrong being carried out by defendants and the government – a wrong

that defendants and the government seek to conceal from the public. Plaintiffs seek to bring the

judicial branch’s critical attention to bear on AT&T’s continuing illegal and unconstitutional actions.

Further, contrary to AT&T’s assertion, the fact that this litigation is a suit for, among other

things, money damages, does not lessen the public-interest aspect of this case or its protection under

the First Amendment. See Primus, 436 U.S. at 428 (“We find equally unpersuasive any suggestion

that the level of constitutional scrutiny in this case should be lowered because of a possible benefit to

the ACLU.”). The size of the damages sought is determined statutorily, in increments of $100 or

$1000 per violation. Amended Complaint for Damages, Declaratory and Injunctive Relief, ¶¶99,

109, 118, 125, 132. AT&T’s assertion that damages are in the “trillions of dollars” is a function only

of the enormity of the statutory and constitutional violations defendants are committing. See Mot. to

Compel at 10.

Plaintiffs’ public discussion of the case and of the fact that documents have been sealed –

though not the contents of the sealed documents – is, as recognized by the Supreme Court in Primus,

activity that is protected by the First Amendment. Primus, 436 U.S. at 424. While AT&T would

undoubtedly prefer that the public not understand the scope of its participation in the government’s

unconstitutional domestic wiretapping, the public has a right to this information and the plaintiffs


1 The Supreme Court subsequently recognized that "` collective activity undertaken to obtain

2 meaningful access to the courts is a fundamental right within the protection of the First

3 Amendment."' Primus, 436 U.S. at 426 (citations omitted). The Court again held that vindicating

4 constitutional rights through litigation is "a form of political expression" and "`political

5 association."' Id. at 428 (citation omitted). The right to pursue redress for violations of

6 constitutional rights "comes within the generous zone of the First Amendment protection reserved

7 for associational freedoms." Id. at 424.

8 These core First Amendment principles apply here as well. Plaintiffs brought this case in

9 order to protect the public and its ability to communicate without fear of unlawful and

10 unconstitutional surveillance, rights protected by the Constitution, recognized by the Supreme Court,

11 and implemented by Congress in the federal wiretap statute. The documents lodged with the Court

12 are significant evidence of a wrong being carried out by defendants and the government - a wrong

13 that defendants and the government seek to conceal from the public. Plaintiffs seek to bring the

14 judicial branch's critical attention to bear on AT&T's continuing illegal and unconstitutional actions.

15 Further, contrary to AT&T's assertion, the fact that this litigation is a suit for, among other

16 things, money damages, does not lessen the public-interest aspect of this case or its protection under

17 the First Amendment. See Primus, 436 U.S. at 428 ("We find equally unpersuasive any suggestion

18 that the level of constitutional scrutiny in this case should be lowered because of a possible beneft to

19 the ACLU."). The size of the damages sought is determined statutorily, in increments of $100 or

20 $1000 per violation. Amended Complaint for Damages, Declaratory and Injunctive Relief ¶¶99,

21 109, 118, 125, 132. AT&T's assertion that damages are in the "trillions of dollars" is a function only

22 of the enormity of the statutory and constitutional violations defendants are committing. See Mot. to

23 Compel at 10.

24 Plaintiffs' public discussion of the case and of the fact that documents have been sealed -

25 though not the contents of the sealed documents - is, as recognized by the Supreme Court in Primus,

26 activity that is protected by the First Amendment. Primus, 436 U.S. at 424. While AT&T would

27 undoubtedly prefer that the public not understand the scope of its participation in the government's

28 unconstitutional domestic wiretapping, the public has a right to this information and the plaintiffs




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have a right to disseminate it. Butterworth v. Smith, 494 U.S. 624, 632 (1990) (finding that a witness

could not, under the First Amendment, be prevented from disseminating information obtained

outside of discovery relating to alleged governmental misconduct).

Litigation in pursuit of respect for constitutional rights is a fully protected First Amendment

right. The use of evidence is necessary to make the access to the court meaningful. Defendants

cannot evade the questions of their culpability in the widespread violation of constitutional rights by

claiming that documents were obtained outside the formal discovery procedures.

C. AT&T Is Attempting to Use the Court to Enforce a Contract to Shield Its Illegal Conduct from Public Scrutiny

AT&T seeks to have the Court order the return of the documents, based upon a boilerplate

confidentiality agreement it requires departing employees to sign, in order to obstruct plaintiffs’

efforts to obtain justice. Plaintiffs allege that AT&T is helping the NSA eavesdrop on massive

quantities of private communications in violation of the First and Fourth Amendments and numerous

statutes. A significant part of the basis for the allegations is the declaration of Mr. Klein and the

documents provided by him to plaintiffs. AT&T’s clear object is to conceal critical evidence of its

civil and criminal violation of the rights of millions of Americans.

One who seeks equitable relief must do so with “clean hands.” Precision Instrument Mfg. Co.

v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945). A court acting in equity is “a vehicle for

affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal

on [the court’s] part to be ‘the abettor of iniquity.’” Id. (citation omitted). Where, as here, public

interests are at issue, the doctrine of unclean hands “not only prevents a wrongdoer from enjoying

the fruits of his transgression but averts an injury to the public.” Id. at 815. The court must not

allow a party with unclean hands to use contract law to recoup what it has lost by enforcing a

contract that violates public policy and enables criminal activity. Danebo Lumber Co. v. Koutsky-

Brennan-Vana Co., 182 F.2d 489, 492 (9th Cir. 1950). While a confidentiality agreement does not

necessarily violate public policy, it does where it is used to cover up wrongdoing. See JDS

Uniphase, 238 F. Supp. 2d at 1136.


1 have a right to disseminate it. Butterworth v. Smith, 494 U. S. 624, 632 (1990) (finding that a witness

2 could not, under the First Amendment, be prevented from disseminating information obtained

3 outside of discovery relating to alleged governmental misconduct).

4 Litigation in pursuit of respect for constitutional rights is a fully protected First Amendment

5 right. The use of evidence is necessary to make the access to the court meaningful. Defendants

6 cannot evade the questions of their culpability in the widespread violation of constitutional rights by

7 claiming that documents were obtained outside the formal discovery procedures.

8 C. AT&T Is Attempting to Use the Court to Enforce a Contract to ShieldIts Illegal Conduct from Public Scrutiny

9AT&T seeks to have the Court order the return of the documents, based upon a boilerplate

10

confidentiality agreement it requires departing employees to sign, in order to obstruct plaintiffs'11

efforts to obtain justice. Plaintiffs allege that AT&T is helping the NSA eavesdrop on massive12

quantities of private communications in violation of the First and Fourth Amendments and numerous13

statutes. A significant part of the basis for the allegations is the declaration of Mr. Klein and the14

documents provided by him to plaintiffs. AT&T's clear object is to conceal critical evidence of its15

civil and criminal violation of the rights of millions of Americans.16

One who seeks equitable relief must do so with "clean hands." Precision Instrument Mg. Co.17

v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945). A court acting in equity is "a vehicle for18

affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal19

on [the court's] part to be `the abettor of iniquity. "' Id. (citation omitted). Where, as here, public20

interests are at issue, the doctrine of unclean hands "not only prevents a wrongdoer from enjoying21

the fruits of his transgression but averts an injury to the public." Id. at 815. The court must not22

allow a party with unclean hands to use contract law to recoup what it has lost by enforcing a23

contract that violates public policy and enables criminal activity. Danebo Lumber Co. v. Koutsky-24

Brennan-Vana Co., 182 F.2d 489, 492 (9th Cir. 1950). While a confidentiality agreement does not25

necessarily violate public policy, it does where it is used to cover up wrongdoing. See JDS26

Uniphase, 238 F. Supp. 2d at 1136.27

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Plaintiffs have moved for a preliminary injunction to stop AT&T from violating the Fourth

Amendment and the federal Wiretap Act, 18 U.S.C. §§2510, et seq., by providing the government

with direct access to the domestic and international Internet communications of millions of its

customers.

The government has admitted that the NSA is conducting covert, warrantless surveillance of

communications of people in the United States. The three documents that AT&T seeks to suppress,

along with the Klein and Marcus Declarations (Dkts. 31–32), demonstrate that defendants have

given the NSA direct access to its domestic telecommunications facilities so that it may engage in

massive, general surveillance of private Internet communication of plaintiffs and potentially millions

of Americans.

To allow AT&T to use a confidentiality agreement to suppress evidence of its illegal and

unconstitutional wiretapping would be to become an “‘abettor of iniquity.’” Precision, 324 U.S. at

814 (citation omitted). The court should not allow AT&T to use its confidentiality agreement with a

non-party to suppress evidence of defendants’ criminal misconduct.

D. AT&T’s Concerns About Trade Secrets Can Be Adequately Addressed Through the Ordinary Rule 79-5 Procedures

AT&T argues that the possibility of revelation of its trade secrets justifies the extraordinary

measure of compelling the return of its documents. Mot. to Compel at 7-8. But the protection of

trade secrets and similar confidential materials is precisely what the lodging and sealing procedures

of Rule 79-5(d) were established to accomplish. And plaintiffs have taken great care to ensure that

potentially confidential information within plaintiffs’ control did not reach the public prior to the

Court’s decision on whether it should be sealed. Plaintiffs disclosed their possession of the

documents to defendants before lodging the documents with this Court under Local Rule 79-5(d),

and promptly gave copies to both defendants and the Government. Although plaintiffs do not

believe the documents are sealable, they lodged the documents with this Court so that it can decide

the proper handling of the information.

Plaintiffs have discussed the case with the media, mentioning the existence of the sealed

documents, but have not disclosed the non-public information about which defendants, through the


1 Plaintiffs have moved for a preliminary injunction to stop AT&T from violating the Fourth

2 Amendment and the federal Wiretap Act, 18 U.S.C. § §2510, et seq., by providing the government

3 with direct access to the domestic and international Internet communications of millions of its

4 customers.

5 The government has admitted that the NSA is conducting covert, warrantless surveillance of

6 communications of people in the United States. The three documents that AT&T seeks to suppress,

7 along with the Klein and Marcus Declarations (Dkts. 31-32), demonstrate that defendants have

8 given the NSA direct access to its domestic telecommunications facilities so that it may engage in

9 massive, general surveillance of private Internet communication of plaintiffs and potentially millions

10 of Americans.

11 To allow AT&T to use a confidentiality agreement to suppress evidence of its illegal and

12 unconstitutional wiretapping would be to become an "`abettor of iniquity."' Precision, 324 U.S. at

13 814 (citation omitted). The court should not allow AT&T to use its confidentiality agreement with a

14 non-party to suppress evidence of defendants' criminal misconduct.

15 D. AT&T's Concerns About Trade Secrets Can Be AdequatelyAddressed Through the Ordinary Rule 79-5 Procedures

16

AT&T argues that the possibility of revelation of its trade secrets justifies the extraordinary17

measure of compelling the return of its documents. Mot. to Compel at 7-8. But the protection of18

trade secrets and similar confidential materials is precisely what the lodging and sealing procedures19

of Rule 79-5(d) were established to accomplish. And plaintiffs have taken great care to ensure that20

potentially confidential information within plaintiffs' control did not reach the public prior to the21

Court's decision on whether it should be sealed. Plaintiffs disclosed their possession of the22

documents to defendants before lodging the documents with this Court under Local Rule 79-5(d),23

and promptly gave copies to both defendants and the Government. Although plaintiffs do not24

believe the documents are sealable, they lodged the documents with this Court so that it can decide25

the proper handling of the information.26

Plaintiffs have discussed the case with the media, mentioning the existence of the sealed27

documents, but have not disclosed the non-public information about which defendants, through the28




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Russell Declaration, express concern. Defendants do not assert otherwise, nor can defendants point

to any rule or law that – in letter or spirit – requires plaintiffs not to disclose the fact that documents

have been filed under seal. Instead, defendants cite to cases where a party directly violated court

orders not to disclose confidential information. See Aloe Vera of Am., Inc. v. United States, 376 F.3d

960, 965 (9th Cir. 2004) (affirming district court’s finding that party violated court order restricting

disclosure of confidential information to attorneys to the parties); Hi-Tek Bags. v. Bobtron Int’l, Inc.,

144 F.R.D. 379, 380 (C.D. Cal. 1993), vacated, 887 F. Supp. 230 (C.D. Cal. 1993) (involving

violation of court order authorizing dissemination only to “plaintiff, counsel’s in-firm staff, and to

court reporters”); Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282, 290 (5th Cir. 2002)

(involving violations of three protective orders by quoting confidential documents).

Here, there are no court orders in place, nor have plaintiffs disclosed any of what defendants

claim is confidential information. Defendants simply object to plaintiffs having made public the

existence of (1) a “confidentiality issue” and (2) sealed documents. Mot. to Compel at 7. There is

nothing objectionable in this. Defendants, like plaintiffs, have publicly filed notices that documents

are being filed under seal. See, e.g., Notice of Manual Filing of James W. Russell, Dkt. 42. Indeed,

court rules require that the public be informed when a party seeks to seal a document. See Local

Rule 79-5(b) (1) & (c) (1) (requiring that the party seeking to lodge a document under seal file an

administrative motion to that effect).

Even if the court finds that the documents contain trade secrets, the court retains the ability to

find that the documents should not be concealed from the public in this lawsuit. This case implicates

important public policy issues beyond the ordinary lawsuit. Plaintiffs are defendants’ customers,

entitled to basic privacy in their phone conversations and their use of the Internet. See U.S. CONST.

amends. I and IV; Katz v. United States, 386 U.S. 954 (1967); 18 U.S.C. §§2511, et seq.; 50 U.S.C.

§§1801, et seq.; 47 U.S.C. §222; 47 U.S.C. §605; 18 U.S.C. §2702; 18 U.S.C. §§3121, et seq.

Trade-secret law recognizes that “the disclosure of another's trade secret for purposes other than

commercial exploitation may implicate the interest in freedom of expression or advance another

significant public interest.” RESTATEMENT (THIRD) OF UNFAIR COMPETITION §40 (1995). The right

to ‘“disclose or use another’s trade secret may arise from the other’s . . . conduct on his part by


1 Russell Declaration, express concern. Defendants do not assert otherwise, nor can defendants point

2 to any rule or law that - in letter or spirit - requires plaintiffs not to disclose the fact that documents

3 have been filed under seal. Instead, defendants cite to cases where a party directly violated court

4 orders not to disclose confdential information. See Aloe Vera ofAm., Inc. v. United States, 376 F.3d

5 960, 965 (9th Cir. 2004) (affirming district court's fnding that party violated court order restricting

6 disclosure of confidential information to attorneys to the parties); Hi-TekBags. v. Bobtron Int'l, Inc.,

7 144 F.R.D. 379, 380 (C.D. Cal. 1993), vacated, 887 F. Supp. 230 (C.D. Cal. 1993) (involving

8 violation of court order authorizing dissemination only to "plaintiff, counsel's in-firm staff, and to

9 court reporters"); Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282, 290 (5th Cir. 2002)

10 (involving violations of three protective orders by quoting confdential documents).

11 Here, there are no court orders in place, nor have plaintiffs disclosed any of what defendants

12 claim is confidential information. Defendants simply object to plaintiffs having made public the

13 existence of (1) a "confdentiality issue" and (2) sealed documents. Mot. to Compel at 7. There is

14 nothing objectionable in this. Defendants, like plaintiffs, have publicly fled notices that documents

15 are being filed under seal. See, e.g., Notice of Manual Filing of James W. Russell, Dkt. 42. Indeed,

16 court rules require that the public be informed when a party seeks to seal a document. See Local

17 Rule 79-5(b) (1) & (c) (1) (requiring that the party seeking to lodge a document under seal file an

18 administrative motion to that effect).

19 Even if the court fnds that the documents contain trade secrets, the court retains the ability to

20 find that the documents should not be concealed from the public in this lawsuit. This case implicates

21 important public policy issues beyond the ordinary lawsuit. Plaintiffs are defendants' customers,

22 entitled to basic privacy in their phone conversations and their use of the Internet. See U. S. CONST.

23 amends. I andIV; Katz v. United States, 386 U.S. 954 (1967); 18 U.S.C. §§2511, etseq. ; 50 U.S.C.

24 §§1801, et seq.; 47 U.S.C. §222; 47 U.S.C. §605; 18 U.S.C. §2702; 18 U.S.C. §§3121, et seq.

25 Trade-secret law recognizes that "the disclosure of another's trade secret for purposes other than

26 commercial exploitation may implicate the interest in freedom of expression or advance another

27 signifcant public interest." RESTATEMENT (THIRD) OF UNFAIR COMPETITION §40 (1995). The right

28 to "`disclose or use another's trade secret may arise from the other's ... conduct on his part by




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which he is estopped from complaining. A privilege to disclose may also be given by the law,

independently of the other’s consent, in order to promote some public interest.’” System Operations,

Inc. v. Scientific Games Development Corp., 425 F. Supp. 130, 136 (D.N.J. 1977) (quoting

RESTATEMENT OF TORTS, §757, comment d at 9 (1939)) (emphasis in original). Defendants’ conduct

in assisting the government in violating the First and Fourth Amendment rights, as well as numerous

statutorily created rights, of millions of Americans falls squarely within this carve-out to the

protection of trade secrets.

Against this important interest, AT&T raises only the specter of harm – harm only vaguely

described by Mr. Russell and which has not occurred during Mr. Klein’s already long possession of

the documents. The courts have long recognized that “[t]he fundamental basis upon which all rules

of evidence must rest – if they are to rest upon reason – is their adaptation to the successful

development of the truth.” Funk v. United States, 290 U.S. 371, 381 (1933). Given the heavy

burden that they place on the search for truth, “[e]videntiary privileges in litigation are not favored,

and even those rooted in the Constitution must give way in proper circumstances.” Herbert v.

Lando, 441 U.S. 153, 175 (1979); see United States v. Nixon, 418 U.S. 683, 708-710 (1974) (“The

very integrity of the judicial system and public confidence in the system depend on full disclosure of

all the facts . . . ”). Thus, courts construe the scope of such privileges narrowly. See University of

Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990). AT&T simply has not shown that depriving the

plaintiffs of the use of these documents will serve a “‘public good transcending the normally

predominant principle of utilizing all rational means for ascertaining truth.’” Trammel v. United

States, 445 U.S. 40, 50 (1980) (citations omitted).

Moreover, AT&T has failed to show how the procedures under Local Rule 79-5 fail to

adequately protect any confidential information while the case proceeds. This Court deals with

hundreds of cases every year that involve proprietary trade secrets and technical information used to

prove legal violations between competitors. In those cases the Court typically protects this

information under Local Rule 79-5 and via an appropriate protective order. The same procedures

should apply to any specific portion of the documents the Court deems confidential here, especially

in light of the fact that plaintiffs and their counsel do not compete with AT&T in the field of


1 which he is estopped from complaining. A privilege to disclose may also be given by the law,

2 independently of the other's consent, in order to promote some public interest. "' System Operations,

3 Inc. v. Scientifc Games Development Corp., 425 F. Supp. 130, 136 (D.N.J. 1977) (quoting

4 RESTATEMENT OF TORTS, §757, comment d at 9 (1939)) (emphasis in original). Defendants' conduct

5 in assisting the government in violating the First and Fourth Amendment rights, as well as numerous

6 statutorily created rights, of millions of Americans falls squarely within this carve-out to the

7 protection of trade secrets.

8 Against this important interest, AT&T raises only the specter of harm - harm only vaguely

9 described by Mr. Russell and which has not occurred during Mr. Klein's already long possession of

10 the documents. The courts have long recognized that "[t]he fundamental basis upon which all rules

11 of evidence must rest - if they are to rest upon reason - is their adaptation to the successful

12 development of the truth." Funk v. United States, 290 U.S. 371, 381 (1933). Given the heavy

13 burden that they place on the search for truth, "[e]videntiary privileges in litigation are not favored,

14 and even those rooted in the Constitution must give way in proper circumstances." Herbert v.

15 Lando, 441 U.S. 153, 175 (1979); see United States v. Nixon, 418 U.S. 683, 708-710 (1974) ("The

16 very integrity of the judicial system and public confidence in the system depend on full disclosure of

17 all the facts . . . "). Thus, courts construe the scope of such privileges narrowly. See University of

18 Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990). AT&T simply has not shown that depriving the

19 plaintiffs of the use of these documents will serve a "`public good transcending the normally

20 predominant principle of utilizing all rational means for ascertaining truth."' Trammel v. United

21 States, 445 U.S. 40, 50 (1980) (citations omitted).

22 Moreover, AT&T has failed to show how the procedures under Local Rule 79-5 fail to

23 adequately protect any confidential information while the case proceeds. This Court deals with

24 hundreds of cases every year that involve proprietary trade secrets and technical information used to

25 prove legal violations between competitors. In those cases the Court typically protects this

26 information under Local Rule 79-5 and via an appropriate protective order. The same procedures

27 should apply to any specific portion of the documents the Court deems confidential here, especially

28 in light of the fact that plaintiffs and their counsel do not compete with AT&T in the field of




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telecommunication services but rather seek redress for AT&T’s illegal conduct. Defendants have

had the opportunity to show the Court what facts contained within the documents they consider to be

truly confidential and deserving of concealment from the public and have refused to provide any of

the “narrow tailoring” required by Local Rule 79-5. See Defendant AT&T Corp.’s Memorandum in

Support of Filing Documents Under Seal (Dkt. 51). Yet properly applied sealing procedures and

argument are the appropriate avenue for dealing with questions of whether information should be

kept from public scrutiny.

E. The Relief Sought by AT&T Is Futile

AT&T seeks an Order compelling plaintiffs to return all of plaintiffs’ copies of the three

documents to AT&T and to exclude all references to them, including those in plaintiffs’ preliminary

injunction motion and the Klein and Marcus declarations, from this action until the documents can

be obtained through discovery.

As a practical matter, such an order will serve no legitimate purpose and will needlessly

delay plaintiffs’ attempts to seek preliminary relief. The documents are likely to lead to the

discovery of other admissible evidence and are not privileged, and thus are plainly subject to

discovery under the federal rules. Fed. R. Civ. Proc. 26(b)(1). If the Court were to grant AT&T’s

motion, plaintiffs would seek them again immediately through formal discovery. See EXDS, 2005

WL 2043030, at *10 (“requiring Defense counsel to turn over the documents would only create

unnecessary work for all concerned, since Defendants would be entitled to seek production of the

documents to the extent the information is relevant to this action”).

Moreover, as recognized by AT&T, plaintiffs do not possess or control all copies of the

documents. Mr. Klein has the documents. He has given documents to the New York Times.

According to an article in the New York Times, the newspaper gave Mr. Klein’s documents to its

experts. Mot. to Compel at 7; Ex. I to the declaration of Bruce Ericson in Support of Defendant

AT&T Corp.’s Motion to Compel Return of Confidential Documents (Dkt. 39). Plaintiffs do not

know whether the documents Mr. Klein provided to the New York Times are the same documents

provided to plaintiffs. Assuming they are the same documents, even if the Court were to order

plaintiffs to return the documents, AT&T would still not control all copies of the documents. Mr.


1 telecommunication services but rather seek redress for AT&T's illegal conduct. Defendants have

2 had the opportunity to show the Court what facts contained within the documents they consider to be

3 truly confidential and deserving of concealment from the public and have refused to provide any of

4 the "narrow tailoring" required by Local Rule 79-5. See Defendant AT&T Corp.'s Memorandum in

5 Support of Filing Documents Under Seal (Dkt. 51). Yet properly applied sealing procedures and

6 argument are the appropriate avenue for dealing with questions of whether information should be

7 kept from public scrutiny.

8 E. The Relief Sought by AT&T Is Futile

9 AT&T seeks an Order compelling plaintiffs to return all of plaintiffs' copies of the three

10 documents to AT&T and to exclude all references to them, including those in plaintiffs' preliminary

11 injunction motion and the Klein and Marcus declarations, from this action until the documents can

12 be obtained through discovery.

13 As a practical matter, such an order will serve no legitimate purpose and will needlessly

14 delay plaintiffs' attempts to seek preliminary relief. The documents are likely to lead to the

15 discovery of other admissible evidence and are not privileged, and thus are plainly subject to

16 discovery under the federal rules. Fed. R. Civ. Proc. 26(b)(1). If the Court were to grant AT&T's

17 motion, plaintiffs would seek them again immediately through formal discovery. See EXDS, 2005

18 WL 2043030, at *10 ("requiring Defense counsel to turn over the documents would only create

19 unnecessary work for all concerned, since Defendants would be entitled to seek production of the

20 documents to the extent the information is relevant to this action").

21 Moreover, as recognized by AT&T, plaintiffs do not possess or control all copies of the

22 documents. Mr. Klein has the documents. He has given documents to the New York Times.

23 According to an article in the New York Times, the newspaper gave Mr. Klein's documents to its

24 experts. Mot. to Compel at 7; Ex. Ito the declaration of Bruce Ericson in Support of Defendant

25 AT&T Corp.'s Motion to Compel Return of Confidential Documents (Dkt. 39). Plaintiffs do not

26 know whether the documents Mr. Klein provided to the New York Times are the same documents

27 provided to plaintiffs. Assuming they are the same documents, even if the Court were to order

28 plaintiffs to return the documents, AT&T would still not control all copies of the documents. Mr.




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Klein, the New York Times and the New York Times’ experts are not before the Court and the Court,

thus, has no authority within the scope of this litigation to order them to return the documents. See

Kirshner, 842 F.2d at 1081 (court cannot compel return of documents in discovery obtained in a

separate action); George, 305 F. Supp. 2d at 542 (court has no authority to limit the use outside of

litigation of documents not obtained through discovery); Stamy, 138 F.R.D. at 417 (First

Amendment protects use of documents not obtained through the discovery process). If AT&T were

to seek the return of the documents from the New York Times, a court could not order their return

without violating the First Amendment. FMC, 915 F.2d at 305. Thus, contrary to AT&T’s

assertion, the relief sought through its motion cannot accomplish its goal of returning AT&T to the

position it would be in if Mr. Klein had not acquired the documents and eventually shown them to

plaintiffs. Because of the futility of defendant’s request and AT&T’s failure to adequately safeguard

the confidentiality of these documents, this Court should deny AT&T’s motion.

III. CONCLUSION

For the foregoing reasons, the Motion of Defendant AT&T Corp. to Compel Return of

Confidential Documents should be denied.

DATED: May 1, 2006 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP REED R. KATHREIN JEFF D. FRIEDMAN SHANA E. SCARLETT MARIA V. MORRIS

/s/ MARIA V. MORRIS MARIA V. MORRIS

100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: 415/288-4545 415/288-4534 (fax)


1 Klein, the New York Times and the New York Times' experts are not before the Court and the Court,

2 thus, has no authority within the scope of this litigation to order them to return the documents. See

3 Kirshner, 842 F.2d at 1081 (court cannot compel return of documents in discovery obtained in a

4 separate action); George, 305 F. Supp. 2d at 542 (court has no authority to limit the use outside of

5 litigation of documents not obtained through discovery); Stamy, 138 F.R.D. at 417 (First

6 Amendment protects use of documents not obtained through the discovery process). If AT&T were

7 to seek the return of the documents from the New York Times, a court could not order their return

8 without violating the First Amendment. FMC, 915 F.2d at 305. Thus, contrary to AT&T's

9 assertion, the relief sought through its motion cannot accomplish its goal of returning AT&T to the

10 position it would be in if Mr. Klein had not acquired the documents and eventually shown them to

11 plaintiffs. Because of the futility of defendant's request and AT&T's failure to adequately safeguard

12 the confidentiality of these documents, this Court should deny AT&T's motion.

13 III. CONCLUSION

14 For the foregoing reasons, the Motion of Defendant AT&T Corp. to Compel Return of

15 Confidential Documents should be denied.

16 DATED: May 1, 2006 LERACH COUGHLIN STOIA GELLERRUDMAN & ROBBINS LLP

17 REED R. KATHREINJEFF D. FRIEDMAN

18 SHANA E. SCARLETTMARIA V. MORRIS

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21 /s/ MARIA V. MORRISMARIA V. MORRIS

22100 Pine Street, Suite 2600

23 San Francisco, CA 94111Telephone: 415/288-4545

24 415/288-4534 (fax)

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LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP ERIC ALAN ISAACSON 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax)

ELECTRONIC FRONTIER FOUNDATION CINDY COHN LEE TIEN KURT OPSAHL KEVIN S. BANKSTON CORYNNE MCSHERRY JAMES S. TYRE 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436-9333 415/436-9993 (fax)

TRABER & VOORHEES BERT VOORHEES THERESA M. TRABER 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103 Telephone: 626/585-9611 626/577-7079 (fax)

LAW OFFICE OF RICHARD R. WIEBE RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: 415/433-3200 415/433-6382 (fax)

Attorneys for Plaintiffs T:\CasesSF\AT&T Privacy\MOT00030504_OppCmpl.doc


1LERACH COUGHLIN STOIA GELLER

2 RUDMAN & ROBBINS LLPERIC ALAN ISAACSON

3 655 West Broadway, Suite 1900San Diego, CA 92101

4 Telephone: 619/231-1058619/231-7423 (fax)

5ELECTRONIC FRONTIER FOUNDATION

6 CINDY COHNLEE TIEN

7 KURT OPSAHLKEVIN S. BANKSTON

8 CORYNNE MCSHERRYJAMES S. TYRE

9 454 Shotwell StreetSan Francisco, CA 94110

10 Telephone: 415/436-9333415/436-9993 (fax)

11

TRABER & VOORHEES12 BERT VOORHEES

THERESA M. TRABER13 128 North Fair Oaks Avenue, Suite 204

Pasadena, CA 9110314 Telephone: 626/585-9611

626/577-7079 (fax)15

LAW OFFICE OF RICHARD R. WIEBE16 RICHARD R. WIEBE

425 California Street, Suite 202517 San Francisco, CA 94104

Telephone: 415/433-320018 415/433-6382 (fax)

19 Attorneys for Plaintiffs

20 T:\CasesSF\AT&T Privacy\MOT00030504_OppCmpl.doc

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CERTIFICATE OF SERVICE

I hereby certify that on May 1, 2006, I electronically filed the foregoing with the Clerk of the

Court using the CM/ECF system which will send notification of such filing to the e-mail addresses

denoted on the attached Electronic Mail Notice List, and I hereby certify that I have mailed the

foregoing document or paper via the United States Postal Service to the non-CM/ECF participants

indicated on the attached Manual Notice List.

/s/ Maria V. Morris MARIA V. MORRIS

LERACH COUGHLIN STOIA GELLER

RUDMAN & ROBBINS LLP 100 Pine Street, Suite 2600 San Francisco, CA 94111 Telephone: 415/288-4545 415/288-4534 (fax) E-mail:[email protected]


1 CERTIFICATE OF SERVICE

2 I hereby certify that on May 1, 2006, I electronically filed the foregoing with the Clerk of the

3 Court using the CM/ECF system which will send notification of such filing to the e-mail addresses

4 denoted on the attached Electronic Mail Notice List, and I hereby certify that I have mailed the

5 foregoing document or paper via the United States Postal Service to the non-CM/ECF participants

6 indicated on the attached Manual Notice List.

7 /s/ Maria V. MorrisMARIA V. MORRIS

8LERACH COUGHLIN STOIA GELLER

9 RUDMAN & ROBBINS LLP100 Pine Street, Suite 2600

10 San Francisco, CA 94111Telephone: 415/288-4545

11 415/288-4534 (fax)E-mail: mariamklerachlaw. com

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Mailing Information for a Case 3:06-cv-00672-VRW

Electronic Mail Notice List

The following are those who are currently on the list to receive e-mail notices for this case.

Kevin Stuart Bankston [email protected]

Bradford Allan Berenson [email protected] [email protected]

Cindy Ann Cohn [email protected] [email protected];[email protected]

Anthony Joseph Coppolino [email protected]

Bruce A. Ericson [email protected]

Jeff D Friedman [email protected] [email protected]

Eric A. Isaacson [email protected]

Reed R. Kathrein [email protected] [email protected];[email protected]

Edward Robert McNicholas [email protected] [email protected]

Corynne McSherry [email protected]

Maria V. Morris [email protected] [email protected];[email protected]

Kurt Opsahl [email protected]

Shana Eve Scarlett [email protected] [email protected];[email protected]

Jacob R. Sorensen [email protected]

Andrew H Tannenbaum

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Case 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 of 26CAND-ECF Page 1of 2

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Mailing Information for a Case 3:06-cv-00672-VRW

Electronic Mail Notice List

The following are those who are currently on the list to receive e-mail notices for this case.

• Kevin Stuart [email protected]

• Bradford Allan [email protected] [email protected]

• Cindy Ann Cohncindy@eff org wendy@eff org;barak@eff org

• Anthony Joseph Coppolinotony. coppolino@usdoj .gov

• Bruce A. Ericsonbruce. ericson@pillsburylaw. com

• Jef D [email protected] [email protected]

• Eric A. [email protected]

• Reed R. [email protected] [email protected];[email protected]

• Edward Robert [email protected] [email protected]

• Corynne Mc Sherrycorynne@eff. org

• Maria V. [email protected] [email protected];[email protected]

• Kurt Opsahlkurt@eff org

• Shana Eve [email protected] [email protected];[email protected]

• Jacob R. Sorensenj ake. s orensen@pillsburylaw. com

• Andrew H Tannenbaum

https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?109542021341325-L 701 0-1 5/ 1/2006


[email protected]

Tze Lee Tien [email protected]

Theresa M. Traber, Esq [email protected]

James Samuel Tyre [email protected] [email protected]

Marc Van Der Hout [email protected]

Bert Voorhees [email protected]

Richard Roy Wiebe [email protected]

Manual Notice List

The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients.

David W. Carpenter Sidley Austin Brown & Wood LLP Bank One Plaza 10 South Dearborn Street Chicago, IL 60600 David L. Lawson Sidley Austin Brown & Wood 172 Eye Street, N.W. Washington, DC 20006

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Case 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 of 26CAND-ECF Page 2 of 2

Case 3:06-cv-00672-VRW Document 99 Filed 05/01/2006 Page 26 of 26'

[email protected]

• Tze Lee [email protected]

. Theresa M. Traber, Esqtmt@tvlegal. com

. James Samuel Tyrej styre@j styre. com j styre@eff org

• Marc Van Der Houtndca@vblaw. com

• Bert [email protected]

• Richard Roy [email protected]

Manual Notice List

The following is the list of attorneys who are not on the list to receive e-mail notices for this case (whotherefore require manual noticing). You may wish to use your mouse to select and copy this list intoyour word processing program in order to create notices or labels for these recipients.

David W. CarpenterSidley Austin Brown & Wood LLPBank One Plaza10 South Dearborn StreetChicago, IL 60600

David L. LawsonSidley Austin Brown & Wood172 Eye Street, N.W.Washington, DC 20006

https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?109542021341325-L 701 0-1 5/1/2006
