FOR THE DISTRICT OF COLUMBIA
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JUDICIAL WATCH,
INC., et al., Plaintiffs, v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP, et al., Defendants. --------------------------------------------- SIERRA CLUB, Plaintiff, v. VICE PRESIDENT RICHARD B. CHENEY, et al., Defendants. |
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Civil Action
No.: 01-1530 (EGS) |
Pursuant to this Court’s order of July 11, 2002, plaintiffs submit this proposed Discovery Plan.
Subjects of Discovery
Plaintiffs intend to take initial discovery on the following subjects:[1]
A. The structure of the Task Force and its working groups, sub-groups, staff, and personnel; e.g., how many sub-groups exist, their roles, staff, meetings, location of meetings, and other proceedings. See Judicial Watch, Inc. v. National Energy Policy Development Group, Civ. No. 01-1530, Slip Op. (July 11, 2002) (“Mem.”) at 70 (noting importance of “determining who participated in the deliberations of the NEPDG and the alleged Sub-Groups,” and “whether in fact those Sub-Groups existed”); American Ass’n of Physicians & Surgeons v. Clinton, 997 F.2d 898, 915 (D.C. Cir. 1993) (noting importance of “purpose, structure, and personnel of the group” in “determin[ing] whether [Federal Advisory Committee Act] applies”).
B. Private parties’ communications with, and participation in the activities of, the Task Force and/or Task Force sub-groups, working groups, staff and personnel; e.g., who attended Task Force meetings and their role at these meetings, which private parties communicated with the Task Force, the contents of these communications, etc. See Mem. at 70 (noting importance of determining “who interacted with the private individuals involved, the role played by private individuals, and the number of meetings and interactions”). See also Clinton, 997 F.2d at 915 (“If a [private party] regularly attends and fully participates in working group meetings as if he were a ‘member,’ he should be regarded as a member.”).
C. The relationship between the agency defendants, the Task Force and/or any other advisory groups that included private individuals; e.g., whether these other advisory group(s) were established and/or utilized by the Task Force or agency defendants, and whether these other group(s) were formed in the interest of advising an agency or the Task Force. See 5 U.S.C. App. II § 3(2) (advisory committee must be established or utilized by President or agency in order for FACA to apply). See California Forestry Ass’n v. U.S. Forest Service, 102 F.3d 609, 612 (D.C. Cir. 1996) (where “circumstances of [group’s] genesis support an inference that [group] was in fact established ‘in the interest’ of advising an agency,” group is subject to FACA”). See also Mem. at 25 (“If these Sub-Groups did in fact exist, who made the decision to establish them?”).
II. Anticipated Discovery
Plaintiffs’ first draft set of interrogatories and first draft set of requests for production are attached hereto as Exhibits A and B, respectively. Following timely receipt of responses to this initial discovery, plaintiffs intend to notice appropriate depositions, and may also seek additional written discovery.
Pursuant to this Court’s order of May 29, 2002, the Sierra Club has also served subpoenas on seven private parties, intended to ensure the preservation of discoverable documents in those parties’ possession. Depending upon the defendants’ responses to the Sierra Club’s initial discovery, to the extent such evidence is not otherwise available the Sierra Club may request production of relevant documents or testimony from these or other third parties.
Respectfully submitted,
______________________
Patrick Gallagher (CA Bar No.146105)
Alex Levinson (CA Bar No.135307)
Sanjay Narayan (CA Bar No. 183227)
Sierra Club
85 Second Street
San Francisco, CA 94104
(415) 977-5696
Email: pat.gallagher@sierraclub.org
David Bookbinder (DC Bar No. 455525)
Sierra Club
Washington, DC 20002
(202) 548-4598
Email: david.bookbinder@sierraclub.org
Roger Adelman (DC Bar No. 056358)
Law Offices of Roger Adelman
1100 Connecticut Avenue, N.W.
Washington, DC 20036
(202) 822-0600
Email: Adelmarm@erols.com
Attorneys for plaintiff Sierra Club
__________________________
Larry Klayman (DC Bar No. 334581)
Paul J. Orfanedes
Judicial Watch, Inc.
501 School Street, SW
Suite 725
Washington, DC 20024
Attorneys for plaintiff Judicial Watch, Inc.
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JUDICIAL WATCH,
INC., et al., Plaintiffs, v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP, et al., Defendants. --------------------------------------------- SIERRA CLUB, Plaintiff, v. VICE PRESIDENT RICHARD B. CHENEY, et al., Defendants. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
Civil Action
No.: 01-1530 (EGS) |
plaintiffs’ first Set of Interrogatories
Plaintiffs Sierra Club and Judicial Watch hereby request, pursuant to Federal Rule of Civil Procedure 33, that defendants respond to the interrogatories below by ______, 2002.
DEFINITIONS AND INSTRUCTIONS
A. “Person” means and refers to, without limitation, any individual, corporation, partnership, joint venture, limited partnership, association, trust, trustee, group, organization, government or government agency, office, bureau, department, or entity, and all divisions, subdivisions, bureaus, branches, offices or other units thereof, and includes the present and former officers, executives, partners, brokers, employees, agents and all other persons acting or purporting to act on behalf of them, and any of their present or former parent corporations, subsidiaries, affiliates, divisions, predecessors and successors in interest.
B. “Meeting” means and refers to any use of any mode of conveying meaning or information such as, but not limited to, speech, telephone, telegraph, e-mail, other computer-generated or transmitted information, letter, and any written or spoken language for the purpose of transferring information from one person or place to another. When applied to the Task Force or any Sub Group, the term “meeting” includes all meetings of two or more persons where Task Force or Sub Group activities were discussed.
C. “Communication” includes, without limitation, any oral, written or electronic transmission of information including, without limitation, meetings, discussions, conversations, telephone calls, memoranda, telecopies, telexes, conferences, facsimiles, seminars, messages, notes, or memoranda.
D. “Participate” means any form of presence, observation, communication, or other involvement, including without limitation by use of telephone, computer, or video-conference, and including without limitation the submission of letters, reports, memoranda, or opinions.
E. “Any” shall be understood to encompass “all.”
F. The “Task Force,” means and refers to the National Energy Policy Development Group, as described in President George W. Bush’s memorandum dated on or about January 29, 2001.
G. The “Report” means and refers to the Report of the National Energy Policy Development Group, titled “Reliable, Affordable, and Environmentally Sound Energy for America’s Future,” and published on or about May 16, 2001, or any draft of this report.
H. “Sub-Group(s)” means and refers to any working groups, including without limitation the Task Force Working Group chaired by Andrew Lundquist, the working groups established by each agency, and all committees, sub-committees, teams or other sub-groups that participated in the activities of the Task Force or the preparation of the Report, including without limitation working groups, sub-committees, team, or other sub-groups within any federal agency or entity.
I. “Identify” means, with respect to an individual, state that person’s full name, title, and last known business address and phone number.
J. Defendants are required to provide all information available to them at the time of their responses, regardless of whether the information is known to defendants, their representatives, agents, investigators or attorneys.
K. Pursuant to Rule 26(e) F. R. Civ. P., these interrogatories should be considered continuing, and defendants are required to update them if new information becomes available to them after their initial response.
L. If you object to responding to any interrogatory on the basis of privilege, please state the factual and legal basis for such objection.
INTERROGATORIES
1. Please state the dates, times, locations of, and identify all persons who were present at each meeting of the Task Force.
2. For each Task Force member, please provide a description of the member’s role in the preparation of the Report and the activities of the Task Force;
3. Please identify all Task Force staff, personnel, consultants, employees, and all other persons who participated, in any manner, in the activities of the Task Force or the preparation of the Report.
4. For each person listed in response to Interrogatory 3, above, please provide:
a) A description of the person’s role in the activities of the Task Force and in preparation of the Report.
b) A list of all meetings relating to the preparation of the Report and/or the activities of the Task Force in which the person participated, including the date and time of the meeting and identity of all persons who participated at the meeting.
5. Please list all federal agencies, offices, or other entities that participated, in any manner, in Task Force activities or preparation of the Report.
6. For each agency, office, or entity listed in response to Interrogatory 5, above, please:
a) Provide a description of the agency’s, office’s, or entity’s participation in the activities of the Task Force and/or the preparation of the Report;
b) Identify all persons who were involved with the agency’s, office’s, or entity’s participation in the activities of the Task Force and/or the preparation of the Report;
i) For each person listed in response in Interrogatory 6(b), above, describe the person’s role in of the agency’s, office’s, or entity’s participation in the activities of the Task Force and/or the preparation of the Report;
ii) For each person listed in response to Interrogatory 6(b), above, please provide a list of all meetings relating to the agency’s, office’s, or entity’s participation in the activities of the Task Force and/or the preparation of the Report, in which the person participated, including the date and time of the meeting and the identity of all persons who participated in the meeting;
7. Please list all Sub-Groups that participated, in any manner, in the activities of the Task Force and/or the preparation of the Report.
8. For each Sub-Group listed in response to Interrogatory 7, above, please:
a) describe the role or function of the Sub-Group in the activities of the Task Force and/or the preparation of the Report;
b) identify all persons who participated in the activities of the Sub-Group;
c) list all meetings of the Sub-Group, including the date and time of the meeting and the identity of all Persons who participated at the meeting.
9. For each Person listed in response to Interrogatory 8(b), above, please:
a) Describe the person’s role in the preparation of the Report, the activities of the Task Force, and/or the activities of Sub-Group(s).
b) list all meetings relating to the preparation of the Report, the activities of the Task Force, and/or the activities of Sub-Group(s), in which the person participated, including the date and time of the meeting and the identity of all persons who participated in the meeting.
Respectfully submitted,
______________________
Patrick Gallagher (CA Bar No.146105)
Alex Levinson (CA Bar No.135307)
Sanjay Narayan (CA Bar No. 183227)
Sierra Club
85 Second Street
San Francisco, CA 94104
(415) 977-5696
Email: pat.gallagher@sierraclub.org
David Bookbinder (DC Bar No. 455525)
Sierra Club
Washington, DC 20002
(202) 548-4598
Email: david.bookbinder@sierraclub.org
Roger Adelman (DC Bar No. 056358)
Law Offices of Roger Adelman
1100 Connecticut Avenue, N.W.
Washington, DC 20036
(202) 822-0600
Email: Adelmarm@erols.com
Attorneys for plaintiff Sierra Club
__________________________
Larry Klayman (DC Bar No. 334581)
Paul J. Orfanedes
Judicial Watch, Inc.
501 School Street, SW
Suite 725
Washington, DC 20024
Attorneys for plaintiff Judicial Watch, Inc.
|
JUDICIAL WATCH,
INC., et al., Plaintiffs, v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP, et al., Defendants. --------------------------------------------- SIERRA CLUB, Plaintiff, v. VICE PRESIDENT RICHARD B. CHENEY, et al., Defendants. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
Civil Action
No.: 01-1530 (EGS) |
plaintiffs’ first request for production of
documents
Plaintiffs hereby request, pursuant to Rule 34 of the Federal Rules of Civil Procedure, that defendants identify and produce the documents described below at the offices of the Sierra Club, 85 Second St. 2d Fl., San Francisco, California, 94104, on ________, 2002, at 10:00 a.m. for inspection and copying.
Instructions
1. The documents shall be produced by category as designated in this request, and each document shall be produced in such a fashion as to indicate clearly the identity of the file in which it was located. All documents are to be produced as they are kept in the usual course of business, so that plaintiff can ascertain the files in which they were located, their relative order in the files, and how the files were maintained.
2. This document request extends to all documents in the possession, custody, or control of defendant and its agents, including, without limitation, documents located in all offices of defendants that were involved in the activities of the National Energy Policy Development Group or preparation of the National Energy Policy Report.
3. If you object to the production of any of the requested documents on the basis of privilege, you shall submit for each document, in lieu of it, a written description that:
a. identifies the date of the document;
b. identifies the author or source of the document;
c. briefly describes the nature of the document (e.g., letter, memorandum, handwritten note etc.) and the general subject matter of the contents of the document;
d. identifies the Person to whom the document was addressed, and each Person who received a copy of it; and
e. lists any objection raised or privilege claimed and its basis.
If any portion of a document for which you claim a privilege contains non-privileged information, you must produce the document but you may redact any allegedly privileged portion.
4. Any document, notation, or marking appearing on any document, and not a part of the original, is to be considered a separate document, and any draft, preliminary form, or superseded version of any document is also to be considered a separate document.
5. If any document required to be produced by this Request for Production has been destroyed, identify such document by:
a. author or preparer;
b. addressee and all other recipients
c. indicated or blind copies;
d. date;
e. subject matter(s);
f. number of pages;
g. attachments or appendices;
h. all persons to whom it was distributed, provided, shown or explained;
i. date of destruction;
j. manner of destruction;
k. reasons for destruction;
l. person authorizing destruction; and
m. person destroying the document.
6. If any document required to be produced by this Request for Production is withheld because it is stored electronically, identify the subject matter of the document and the place or places where the information contained in the document is maintained or stored.
7. Whenever the word “and” appears, the word shall include “or” and shall be the logical inclusive of “and/or.”
8. The singular includes the plural, and the plural includes the singular.
9. Pursuant to Rule 34(b), F. R. Civ. P., these requests are continuing in nature and defendants are required to produce all responsive materials that come into their possession, custody or control after the date of their initial response.
definitions
L. “Document” means and refers to, without limitation, all written, typed, or otherwise preserved communications including any letter, memorandum, diary, log, test, analysis, study, projection, check, invoice, receipt, bill, purchase order, shipping order, contract, lease, agreement, work paper, calendar, envelope, paper, telephone message, tape, computer tape, computer disc, computer card, other electronic media, electronic data active files, electronic data archived files, electronic data backup files, electronic file fragments, recording, videotape, film, microfilm, microfiche, drawing, account, ledger, statement, financial data, and all other writings or communications including all non-identical copies, drafts, and preliminary sketches no matter how produced or maintained in your actual or constructive possession, custody or control or of which you have knowledge of the existence, and whether prepared, published or released by you or by any other person or entity. Without limitation, the term “document(s)” shall include any copy that differs in any respect from the original or other versions of the document, such as, but not limited to, copies containing notations, insertions, corrections, marginal notes, or emendations.
M. “Person” means and refers to, without limitation, any individual, corporation, partnership, joint venture, limited partnership, association, trust, trustee, group, organization, government or government agency, office, bureau, department, or entity, and all divisions, subdivisions, bureaus, branches, offices or other units thereof, and includes the present and former officers, executives, partners, brokers, employees, agents, and all other persons acting or purporting to act on behalf of them, and any of their present or former parent corporations, subsidiaries, affiliates, divisions, predecessors and successors in interest.
N. “Communication” means and refers to any use of any mode of conveying meaning or information such as, but not limited to, speech, telephone, telegraph, e-mail, other computer-generated or transmitted information, letter, and any written or spoken language for the purpose of transferring information from one person or place to another. The term “Communication” shall include, without limitation, any oral, written or electronic transmission of information including, without limitation, meetings, discussions, conversations, telephone calls, memoranda, telecopies, telexes, conferences, facsimiles, seminars, messages, notes, or memoranda.
O. “Any” encompasses “all.”
P. “Concerning” means and includes referring to, relating to, alluding to, responding to, connected with, commented upon, in respect of, about, regarding, discussing, involving, showing describing, reflecting, and constituting.
Q. The “Task Force,” means and refers to the National Energy Policy Development Group, as described in President George W. Bush’s memorandum dated on or about January 29, 2001.
R. The “Report” means and refers to the Report of the National Energy Policy Development Group, titled “Reliable, Affordable, and Environmentally Sound Energy for America’s Future,” and published on or about May 16, 2001.
S. “Sub-Group(s)” means and refers to Any working groups, including without limitation the Task Force Working Group chaired by Andrew Lundquist, the working groups established by each agency, and all committees, sub-committees, teams or other sub-groups that participated in the activities of the Task Force or the preparation of the Report, including without limitation working groups, sub-committees, team, or other sub-groups within any federal agency or entity.
REQUESTS
FOR PRODUCTION
1. All documents identifying or referring to any staff, personnel, contractors, consultants or employees of the Task Force.
2. All documents establishing or referring to any Sub-Group.
3. All documents identifying or referring to any staff, personnel, contractors, consultants or employees of any Sub-Group.
4. All documents identifying or referring to any other persons participating in the preparation of the Report or in the activities of the Task Force or any Sub-Group.
5. All documents concerning any communication relating to the activities of the Task Force, the activities of any Sub-Groups, or the preparation of the Report, between any person (excluding full-time federal employees) and
(b) the Task Force;
(c) any member of the Task Force;
(d) any staff or personnel of the Task Force;
(e) any Sub-Groups.
(f) any members of any Sub-Groups
(g) any staff or personnel of any Sub-Groups.
6. All documents concerning any communication relating to the activities of the Task Force, the activities of Sub-Groups, or the preparation of the Report between any person (excluding full-time federal employees) and
(a) the Department of Energy, or any employee or agent of the Department of Energy;
(b) the Department of Commerce, or any employee or agent of the Department of Commerce;
(c) the Department of Agriculture, or any employee or agent of the Department of Agriculture;
(d) the Department of Interior, or any employee or agent of the Department of Interior;
(e) the Department of Treasury, or any employee or agent of the Department of Treasury;
(f) the Department of Transportation, or any employee or agent of the Department of Transportation;
(g) the Environmental Protection Agency, or any employee or agent of the Environmental Protection Agency.
7. All documents concerning activities of the Task Force after September 30, 2001 and its related persons and entities.
8. All documents concerning matters discussed in the Janaury 3, 2002 letter from David Addington, counsel to the Vice President, to Henry Waxman, including but not limited to the October 10, 2001 meeting between a Task Force staff member and representatives of Enron Corporation.
Respectfully submitted,
______________________
Patrick Gallagher (CA Bar No.146105)
Alex Levinson (CA Bar No.135307)
Sanjay Narayan (CA Bar No. 183227)
Sierra Club
85 Second Street
San Francisco, CA 94104
(415) 977-5696
Email: pat.gallagher@sierraclub.org
David Bookbinder (DC Bar No. 455525)
Sierra Club
Washington, DC 20002
(202) 548-4598
Email: david.bookbinder@sierraclub.org
Roger Adelman (DC Bar No. 056358)
Law Offices of Roger Adelman
1100 Connecticut Avenue, N.W.
Washington, DC 20036
(202) 822-0600
Email: Adelmarm@erols.com
Attorneys for Plaintiff
__________________________
Larry Klayman (DC Bar No.334581)
Paul J. Orfanedes
Judicial Watch, Inc.
501 School Street, SW
Suite 725
Washington, DC 20024
Attorneys for plaintiff Judicial Watch, Inc.
[1] Drafts of plaintiffs’ First
Set of Interrogatories and First Request for the Production of Documents are
attached hereto as Exhibits A and B, respectively.