IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA



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CARA LESLIE ALEXANDER, et al.,

   Plaintiffs,

   vs.

FEDERAL BUREAU
OF INVESTIGATION, et al.,

   Defendants.
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)   Civil No. 96-2123/97-1288 (RCL)
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JOHN MICHAEL GRIMLEY, et al.,

   Plaintiffs,

   vs.

FEDERAL BUREAU
OF INVESTIGATION, et al.,

   Defendants.
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PLAINTIFFS' MOTION TO COMPEL FURTHER DEPOSITION

TESTIMONY OF TERRY W. GOOD

AND FOR SANCTIONS



Plaintiffs, by counsel and pursuant to Fed.R.Civ.P. 37, respectfully submit this Motion to Compel Further Deposition Testimony of Terry W. Good and for Sanctions. As grounds therefor, Plaintiffs state as follows:

MEMORANDUM OF LAW

I. Introduction.

On June 30, 1998 and July 2, 1998, Plaintiffs deposed Mr. Terry W. Good, Director of the Office of Records Management ("ORM") in the Clinton White House. At his deposition, Mr. Good provided important evidence that revealed a wholesale disregard for The Privacy Act by the Clinton White House. At the same time, Mr. Good, upon instruction by counsel from the Clinton Justice Department, refused to answer key questions about potential violations of the privacy rights of Ms. Kathleen Willey and Ms. Monica Lewinsky.

In addition, throughout the deposition, Mr. Good professed to have substantial difficulty remembering many important details. Near the end of the deposition, Mr. Good revealed, in an apparent "slip of the tongue," that he had been "coached" to say "I do not recall" whenever he did not have a precise recollection of facts that would answer a question posed to him:

[By Mr. Good] It's my understanding under these circumstances, that if I don't remember something for sure, my - the correct answer is I do not recall. I do not remember.



[By Plaintiffs' Counsel] But if I ask you whether you think you know, are you saying you will not answer that question?



[By Mr. Good] It's my understanding that is not an appropriate answer under this environment.



[By Plaintiffs' Counsel] So when I have asked you questions up to this point in time, you may have thought you knew, but if you weren't sure, you told me you didn't remember.



[By Mr. Good] I believe that's correct.



Depo. at 245; see also Depo. at 216. Mr. Good also revealed that he had spent approximately three (3) hours with Clinton Justice Department counsel and White House counsel preparing for his deposition. Depo. at 60. The only logical conclusion to be drawn from Mr. Good's revelations is that the Clinton Justice Department and the White House Counsel's Office,(1) in yet another attempt to frustrate Plaintiffs' legitimate discovery efforts, improperly instructed Mr. Good to answer "I do not remember" whenever he was less than absolutely certain about answering a question Plaintiffs posed to him.

Consequently, not only should Mr. Good be compelled to respond to questions the Clinton Justice Department instructed him not to answer, but Plaintiffs should be allowed to continue Mr. Good's deposition to requestion him about any answer in which he professed to have a lack of memory. Plaintiffs should also be awarded attorneys fees and costs for having to prepare this motion and for having to reconvene Mr. Good's deposition.

II. Legal and Factual Background.

The protections afforded by the Privacy Act take effect whenever a federal agency maintains a "system of records" containing information on individuals "from which information is retrieved by the name of the individual or by some identifying number, symbol or other identifying particular assigned to the individual." 5 U.S.C. 552a(a)(5). Importantly, agencies must "maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President." 5 U.S.C. 552a(e)(1). They also must maintain only information that is accurate, timely and complete. 5 U.S.C. 552a(e)(5). Agencies are specifically prohibited from maintaining records that describe "how any individual exercises rights guaranteed by the First Amendment, unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity."(2) 5 U.S.C. 552a(e)(7).

Each agency maintaining records on individuals must publish, at least annually in the Federal Register, notice of the existence of each system of records it maintains. By law, this notice must also include information about the system, including its name and location of the system, categories of individuals on whom records are maintained in the system, categories of documents maintained in the system, each routine use of records contained in the system, policies and practices regarding storage, retrievability, access controls, retention and disposal, the title and business address of the official who is responsible for the system of records, procedures whereby an individual can be notified at his request if the system contains a record pertaining to him, procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system and how he can contest its contents, and categories of sources of records in the system. 5 U.S.C. 552a(e)(4).

There is to be no disclosure of any record about individuals maintained in a system of records "except pursuant to a written request by, or with the prior written consent of," the subject. 5 U.S.C. 552a(b). Importantly, a disclosure need not be public to be unlawful; an "intra-agency" disclosure may also violate the Privacy Act where the disclosure is made to officers or employees who have no need for the record in the performance of their official duties. Parks v. U.S. Internal Revenue Service, 618 F.2d 677, 680-81 & n. 1 (10th Cir. 1980); 5 U.S.C. 552a(b)(1).

There are limited exceptions to this general rule of non-disclosure, the most important of which is the "routine use" exception. 5 U.S.C. 552a(a)(7). Each type of "routine use" must, however, be published at least annually in the Federal Register. 5 U.S.C. 552a(e)(4)(D). Agencies are required to keep an accounting of disclosures. 5 U.S.C. 552a(c).

Finally, the Privacy Act provides for civil and criminal sanctions. Any officer or employee who willfully discloses subject material in any manner to a person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000. 5 U.S.C. 552a(i)(1). Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) also shall be guilty of a misdemeanor and fined not more than $5,000. 5 U.S.C. 552a(i)(2).

In this context, Plaintiffs sought to elicit information from Mr. Good about how files are maintained at the White House. Importantly, Mr. Good testified that the Clinton White House does, in fact, maintain systems of records that can be retrieved by reference to the names of individuals. Depo. at 262-64. Specifically, Mr. Good's office, ORM, maintains the central records management system for the White House. Depo. at 21-23. ORM receives records from the various offices in the White House, then organizes them in a manner that allows them to be accessed upon request:

[By Mr. Good] The duties and responsibilities of the office then, as they are now and as they were prior to that, involved receiving records from any office in the White House, filing them, being prepared to provide information from them, being prepared to return them to the office or offices that might need them, at the end of the administration being responsible for seeing that they were boxed up and transferred to the National Archives.



Depo. at 19. Use of ORM's central document storage function is optional, however. Depo. at 23; 25. If the various offices in the White House choose to retain their own records, they may do so. Depo. at 23.

As an important part of its central record management function, ORM maintains an extensive computer database. Records collected from the various offices within the White House are either abstracted and entered onto the database, or are optically scanned into ORM's computer. Depo. at 27-28; 31-33; 142; 176-79; 260-61. ORM is then able to search the data base by name for records concerning any particular individual:

[By Plaintiffs' Counsel] But your system has a way to retrieve documents with regard to an individual?



[By Mr. Good] We would go into our system and type in the name of the person, the organization, the subject matter, whatever you care to choose, and we will get it from our computer database, all of those cases in which those words appeared.'



[By Plaintiffs' Counsel] So your computer system has the capability of searching for documents by the name of an individual?



[By Mr. Good] That's correct, to the extent that name was entered into our computer database.

Depo. at 262.

Mr. Good testified that, upon request of the White House Counsel's office, ORM searched its computer database by name for records concerning Linda Tripp, Kathleen Willey and Monica Lewinsky, and retrieved records on all three (3) individuals. Depo. at 226-27; 257; 273-74; 277; 279; 282-85. He specifically recalled that among the records located by searching the computer database using Ms. Willey's name was a handwritten letter(s) Mrs. Willey wrote to the President. Depo. at 189; 226-227; 257; 265-66. The letter(s) was then provided to the White House Counsel's Office, as were documents concerning Ms. Tripp and Ms. Lewinsky. Depo. at 257; 273-74; 277-81; 284-85. It cannot be disputed that certain records concerning Ms. Willey, namely handwritten letter from Ms. Willey to President Clinton, made their way to the media. Indeed, the release was discussed by President Clinton and his agent and chief "hatchet man," James Carville.

Importantly, this is not the only records filing system in the White House. Individuals can and do maintain their own filing systems. Depo. at 23; 25. Mr. Good testified:

[By Plaintiffs' Counsel] During the course of your time working in the White House, have you ever seen files with the names of individuals labeled on the file?



[By Mr. Good] Of course.



[By Plaintiffs' Counsel] During your course of time in working at the White House, have you ever seen files provided to the Office of Records Management by legal counsel with the names of individuals on the file?



[By Mr. Good] Obviously, we receive files from the counsel's office. We do receive files from the counsel's office that relate to individuals.

Depo. at 183-84. Mr. Good testified that the Office of Legislative Affairs maintains files on members of Congress. Depo. at 186. Mr. Good testified that even he keeps his own "subject" files. Depo. at 234-36. After personally searching the database for records concerning Ms. Lewinsky, Mr. Good located "probably less than two dozen" responsive records on Ms. Lewinsky and created a file for them labeled "Monica Lewinsky." Depo. at 282-85. However, when asked whether he had seen files on a long list of individuals, Mr. Good repeatedly responded "I do not recall." Depo. at 185-198. Mr. Good's admittedly incomplete and inaccurate answers, combined with Clinton Justice Department counsel's refusal to allow him to answer key questions, requires that his deposition be continued and that he be compelled to provide further testimony.





III. Discussion.

A. Mr. Good's Deposition Must Be Continued to Allow Plaintiffs to Obtain Complete and Accurate Answers.



Mr. Good's deposition established that the Clinton White House maintains numerous systems of records on individuals. ORM's computerized database, which can search for records maintained by ORM by entering an individual's name, is perhaps the best example of such a system of records. Other files labeled with the names of individuals, including such files in the White House Counsel's Office, Office of Legislative Affairs, and Mr. Good's own files, also constitute systems of records. Plaintiffs have searched the Federal Register, but have not been able to locate a single notice published by Defendant Executive Office of the President ("EOP") or any relevant sub-office that identifies any of the information required by the Privacy Act to be published at least annually any time a system of records is maintained. 5 U.S.C. 552a(e)(4). Not only does this failure demonstrate a complete disregard for the Privacy Act, but it likely constitutes a crime.(3)

In order to discover information about the scope of these systems of records -- and the scale of Defendant EOP's misconduct -- Plaintiffs asked Mr. Good if he had ever seen records on a long list of prominent individuals who might be perceived to be adversaries of the President, Mrs. Clinton, and the Clinton Administration. Depo. at 185-98. The Court has already declared that information on the misuse of information in government files is relevant. See, e.g., Transcript of June 30, 1998 Hearing at 23.

Mr. Good's repeated response to Plaintiffs' questions was "I do not recall." Depo. at 185-198. He also responded "I do not recall" to a wide variety of other questions. Incredibly, minutes after a court hearing necessitated by Clinton Justice Department counsel's obstructionist conduct, Mr. Good even claimed that he could not recall whether he had just had a conversation about Kathleen Willey:

[By Plaintiffs' Counsel] During the time we took an intermission to go see the court and during the time that it took to come back and reconvene this deposition, have you discussed Katherine Willey with anyone?



[By Mr. Good] . . . I don't recall any discussions about Kathleen Willey in either the cab going over or coming back.



[By Plaintiffs' Counsel] Are you saying there were no such discussions?



[By Mr. Good] I do not recall.



[By Plaintiffs' Counsel] Now these cab rides occurred within the last hour didn't they?



[By Mr. Good] That's correct.



[By Plaintiffs' Counsel] Are you saying your memory's so bad you can't remember something that has occurred within the last hour?



[By Clinton Justice Department Counsel] Object to the form and the implication of the question.



[By Mr. Good] I've answered your question, Larry.

Depo. at 210-14. Even Clinton Justice Department counsel claimed he could not remember whether such a conversation took place:

[By Plaintiffs' Counsel] Are you willing to proffer to us what was discussed concerning Kathleen Willey, you, James Gilligan?



[By Clinton Justice Department Counsel] I will state as an officer of the court that I can recall no conversations involving Kathleen Willey in the cab over to the courthouse or back.



[By Plaintiffs' Counsel] You're saying no such conversation occurred?



[By Clinton Justice Department Counsel] Not that I can recall.



Depo. at 215.

Near the end of his deposition, Mr. Good admitted that whenever he testified he did not recall something, it did not necessarily mean that he had no recollection. It only meant that he did not have a clear and precise recollection. Depo. at 244-25; see also Depo. at 216. Mr. Good's admission, along with his telling statement that he had spent approximately three (3) hours with counsel for the Clinton Justice Department and White House Counsel before his deposition, clearly demonstrates that he was "coached" to provide incomplete and inaccurate responses to Plaintiffs' questions.

Clearly, Plaintiffs are entitled to all information known to Mr. Good, regardless of whether he is one hundred percent certain about whether he saw a file on a particular individual, where a particular records came from, or who in the White House Counsel's Office may have requested a record search on a particular individual. Even a witness who is not absolutely certain about a recollection may provide important leads that can be confirmed through other witnesses, as discovery encompasses not only all relevant evidence, but that which may lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). By instructing Mr. Good to answer "I do not recall" whenever he believed his memory was less that one hundred percent accurate, Clinton Justice Department counsel deprived Plaintiffs of the opportunity to develop such evidence. Consequently, Mr. Good's entire deposition must be retaken and Clinton Justice Department counsel must be severely sanction for this latest discovery abuse.

Moreover, Defendant EOP should not be able to rely on Mr. Good's blanket assertion, during questioning by Clinton Justice Department Counsel on the second day of his deposition, that he has no further recollection of any matter to which he responded "I do not recall." Depo. at 403-404. In light of Mr. Good's previous statement that he testified "I do not recall" whenever he did not have a precise recollection, Mr. Good's denial of any further knowledge appears dubious and suspect. Plaintiffs must, respectfully, be allowed to test this convenient denial in a continued deposition. See, e.g., Memorandum and Order of June 15, 1998 at 7 ("Plaintiffs should be afforded the opportunity to probe more specifically into the extent of [Mr. Larry Potts'] knowledge." ). Indeed, Mr. Good's extraordinary admission calls into question the truthfulness and completeness of every government witness who has testified at a deposition in this matter that he or she did not recall an answer to a question posed by Plaintiffs. If these witnesses received the same instruction Mr. Good received -- and Clinton Justice Department counsel and White House counsel should be required to identify each such instance where this is the case -- those witnesses' deposition will have to be retaken at Clinton Justice Department counsel's expense.

B. Mr. Good Must Be Compelled to Answer Questions About Documents Concerning Ms. Monica Lewinsky.

The Clinton Justice Department refused to allow Mr. Good to answer questions about documents concerning Ms. Lewinsky.(4) When Plaintiffs asked Mr. Good if he had ever searched ORM's computer database for documents concerning Ms. Lewinsky, Mr. Good responded that he had, in fact, searched for such documents and located "probably less than two dozen." Depo. at 279-86. Mr. Good testified that the White House Counsel's Office had requested the search, and that he released the fruits of his search to the White House Counsel's Office. Depo. at 279; 285.

Importantly, Mr. Good did not testify that the White House Counsel's Office's request for records concerning Ms. Lewinsky was for purposes of a grand jury subpoena. Depo. at 281-82. It was Clinton Justice Department counsel, not Mr. Good, who improperly injected this claim, which Mr. Good was not able to confirm:

[By Clinton Justice Department Counsel] I'm just going to state for the record, so it's understood, that request Mr. Good was talking about was made pursuant to a Grand Jury subpoena from the Independent Counsel, Mr. Starr. If you want to contact Mr. Starr's office right now and get their okay to discuss the nature of the matters and documents requested, we're happy to give you that information, but short of the ability to consult with Mr. Starr, we're not prepared to get into specifics of what documents the Independent Counsel requested regarding Ms. Lewinsky. (5)



[By Plaintiffs' Counsel] This is the first time you've been advised from any source that this request was pursuant to a Grand Jury subpoena?



[By Mr. Good] I don't remember whether or not I was told the nature and the reason for it, but I think that was fairly public, was it not?



[By Plaintiffs' Counsel] You don't have any information that this request came pursuant to Grand Jury subpoena, do you?



[By Mr. Good] I don't recall that.



[By Plaintiffs' Counsel] You don't recall seeing any documentation to that effect, do you?



[By Mr. Good] I'm not sure that the counsel's office memo that came out on this made reference to that. It may have.



Depo. at 281-82; see also Depo. at 331-32. The Court has repeatedly warned Clinton Justice Department counsel about the use of such improper "speaking" objections to tip off a witness or otherwise color a witness's testimony. Mr. Good, however, did not "take the bait" and testify as Clinton Justice Department counsel and White House counsel obviously wanted him to testify.(6)

The mere fact that these records on Ms. Lewinsky were being kept in a "system of records," without the requisite publication of an annual notice in the Federal Register, constitutes a violation of the Privacy Act.(7) However, Plaintiffs also were attempting to discover facts about any unlawful "intra-agency" or public disclosure of information concerning Ms. Lewinsky. Parks, 618 F.2d at 680-81 & n. 1; 5 U.S.C. 552a(b). It is likely that an unlawful "intra-agency" disclosure would be the first step toward an unlawful, public disclosure, much like Ms. Willey's handwritten letters apparently were disseminated to the public after being requested by the White House Counsel's office.(8) Depo. at 250. Information about Ms. Lewinsky has been made public by government officials, one of which incredibly and illegally revealed that her FBI background investigation file, which the official had apparently reviewed, contained no derogatory information! See "Lewinsky: Two Coasts, Two Lives, Many Images," The Washington Post, January 24, 1998, attached as Exhibit 3.

Accordingly, Plaintiffs attempted to question Mr. Good about the original sources of the documents at issue, as well a their subject-matter:

[By Plaintiffs' Counsel] Where in the White House did the Linda Tripp documents come from originally? Where did they originate?



* * *



[By Plaintiffs' Counsel] Same question with regard to Lewinsky?



[By Mr. Good] The came from a variety of offices.



[By Plaintiffs' Counsel] What offices did they come from? What's the problem. Why do you have to interrupt my question here?



[By Clinton Justice Department Counsel] I didn't interrupt your question, but I want to consult with my client because we may have an issue about Grand Jury matters here, same as we've had before.



[By Plaintiffs' Counsel] Again, your suggesting an answer to the client. Certify it.



[By Clinton Justice Department Counsel] Excuse me, for a moment while I consult with my client.

* * *



[By Mr. Good] I don't remember all of the documents that were found, so I can't give you an answer in regard to where all of these files came from, but I do remember --



[By Clinton Justice Department Counsel] In instruct the witness not to name a particular office. Do you remember, yes or no, any particular office that any of the documents came from? Yes, you do?



[By Mr. Good] Yes sir.



[By Clinton Justice Department Counsel] I'll direct the witness not to answer the question one because we don't understand the relevance of that at all because there's never been an allegation of Privacy Act allegations (sic) vis-a-vis Monica Lewinsky. Second of all, as earlier stated, the answer to the question could tend to reveal Grand Jury matters and we would want consultation from Mr. Starr to give him an opportunity to assert any interest he may have in the secrecy of these matters before an answer is given in the public record.



[By Plaintiffs' Counsel] First of all, the judge has made it very clear that we're entitled to take discovery on issues with regard to gathering of information kept in government files, the use of information in government files, the release of information in government files. This is in that context. Information has been released from the White House that's been reported concerning Monica Lewinsky. . . .



Depo. at 331-34.

[By Plaintiffs' Counsel] Mr. Good, did any of these documents that were obtained on Lewinsky that were called up involve providing gifts to Monica Lewinsky?



[By Clinton Justice Department Counsel] Objection. I direct the witness not to answer that question on the two bases just stated.



Depo. at 339-40. Plaintiffs were prevented from obtaining answers to these and other related questions, such as who else in the Clinton White House was given access Ms. Lewinsky's records, that they would have asked but for the obstreperous conduct of Clinton Justice Department counsel. Clearly, however, such information is relevant to a pattern of misuse of information in government files by the Clinton Administration. See, e.g., Transcript of June 30, 1998 Hearing at 23.

In addition, the requested information is not subject to any grand jury or law enforcement privilege. Rule 6(e) of the Federal Rules of Criminal Procedure imposes a general rule against disclosure of "matters occurring before the grand jury." Fed.R.Crim.P. 6(e). The law enforcement privilege protects against the disclosure of the contents of law enforcement investigatory files. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 19898). However, Plaintiffs are not attempting to learn about matters occurring before the grand jury; nor are they seeking access to documents in the investigatory files of the Office of Independent Counsel. Plaintiffs are only attempting to obtain information about what records ORM might possess concerning Ms. Lewinsky and to whom these records were disclosed inside and outside the White House as part of a campaign to smear and destroy perceived adversaries of the President, Mrs. Clinton, and the Clinton Administration.

In a recent Memorandum and Order concerning Plaintiffs' motion to compel the production of documents Craig Livingstone produced to the grand jury pursuant to a subpoena, this Court declared:

. . . documents are not cloaked with secrecy merely because they are presented to a grand jury. Indeed, requests for documents that have been subpoenaed by a grand jury necessitate different and less exacting considerations than requests for grand jury transcripts, especially where such documents were in existence prior to the inception of the grand jury investigation. Documents generated independently of grand jury investigations typically are more likely to fall outside the framework of the protections afforded by Rule 6(e) than those generated explicitly for grand jury proceedings. When documents are sought for their sake and not to learn what transpired before the grand jury, and the release of such documents would not compromise the grand jury proceedings, Rule 6(e) should not be construed to preclude their disclosure. In sum, the issue of whether Rule 6(e) applies to prohibit disclosure requires a determination of whether "some affirmative demonstration of a nexus between disclosure and revelation of a protected aspect of the grant jury's investigation can be demonstrated.



July 27, 1998 Memorandum and Order at 8 (Citations omitted). After an in camera review, the Court compelled Mr. Livingstone to produce a substantial number of these documents to Plaintiffs.

The facts requiring disclosure of the requested information are even more compelling here. Unlike in the case of Mr. Livingstone, Plaintiffs are not requesting that they be provided with documents that were provided to the grand jury. Plaintiffs do not seek to know what documents were sought by the grand jury either. In fact, Plaintiffs would not have even known that there was any grand jury involvement at all if Clinton Justice Department counsel had not improperly interjected this claim at Mr. Good's deposition, then asserted it again in declarations from White House Counsel Charles F. C. Ruff and Deputy Independent Counsel Solomon L. Wisenberg. Plaintiffs only seek information about the search and dissemination of records concerning Ms. Lewinsky at the White House. Under these circumstances, the information Plaintiffs seek cannot be protected from disclosure. In the alternative, any privilege that might have existed has been waived by reason of the Clinton Justice Department's own disclosure that the documents Mr. Good searched for and located concerning Ms. Lewinsky were provided to the grand jury eventually. Mr. Good must, respectfully, be compelled to answer these and other, related questions.

C. Mr. Good Must Be Compelled to Answer Questions About Documents Concerning Ms. Kathleen Willey.



Clinton Justice Department Counsel also refused to allow Mr. Good answer questions about whether he was instructed by the White House Counsel's Office not to release a handwritten letter from Ms. Willey to the President until permission for the release was obtained from Ms. Willey:

[By Plaintiffs' Counsel] When the Kathleen Willey letters were retrieved and provided to the counsel's office, was there any instruction on the counsel's office not to release them unless they got the permission of not Kathleen Willey?



[By Clinton Justice Department Counsel] I object to any inquiry into communications between the witness and the counsel's office . . . The witness is instructed not to answer any question about his communication with the counsel's office.



Depo. at 266-67. Clinton Justice Department counsel's instruction not to answer this question on the purported grounds of the attorney-client privilege is not well-founded.

At a hearing during Mr. Good's deposition, the Court expressly held that Plaintiffs could inquire into the circumstances surrounding the disclosure of documents relating to Ms. Willey:

The government's objections are overruled. I'm going to authorize the plaintiffs to make the inquiry into the Willey file and how the Willey documents were maintained, and whether they were in fact in files that were subject to the Privacy Act and what this witness knows about the documents that he's seen on Ms. Willey and how they were compiled, released, and what he knows about them is all proper inquiry for the plaintiffs to go into.



Transcript of June 30, 1998 Hearing at 23. In addition, the Privacy Act generally prohibits disclosure "except pursuant to a written request by, or with the prior written consent of," the subject. 5 U.S.C. 552a(b). Clearly, this line of questioning is relevant.

As the party asserting the privilege, Defendant EOP bears the burden of demonstrating its applicability. Importantly, however, the attorney-client privilege does not protect an attorney's mental impressions or conclusions. In Hickman v. Taylor, a landmark case on attorney-client privilege, the U.S. Supreme Court held:

Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his clients case; and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories.



Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed.451 (1947). It is only when professional advice given by an attorney discloses information provided by the client that communications from the attorney may be subject to the privilege:

[T]he privilege extends to communications between a lawyer and his or her client -- both information provided to the lawyer by the client and professional advice given by an attorney that discloses such information.



In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir. 1992) (Emphasis added). In fact, the party asserting the privilege "must demonstrate with reasonable certainty that the lawyer's communication rested in significant and inseparable part on the client's confidential disclosure." In re Sealed Cases, 737 F.2d 94, 99 (D.C. Cir. 1984).

Here, there has been simply no demonstration that confidential information was provided to the White House Counsel's office concerning the release of Ms. Willey's records, or that any advise rendered by the White House Counsel's Office would reveal such confidential information.

Moreover, it is well-established that, where an attorney-client communication is made with an intent to further an unlawful act, the attorney-client privilege will not prevent its disclosure. U.S. v. White, 887 F.2d 267, 271-72 (D.C. Cir. 1989). It cannot be said that Mr. Good or the White House Counsel's Office were unfamiliar with the Privacy Act. Mr. Good had read parts of the Privacy Act, and had read about "about" it as well. Depo. at 51-52. The White House Counsel's Office, along with the Department of Justice, had advised ORM on the Privacy Act with regard to records of the President's and Mrs. Clinton's Health Care Task Force. Depo. at 55-57; 386-387. This cannot be described a situation in which a "client has gone to his attorney in good faith, seeking an opinion as to the legality of certain conduct in an area where legal boundaries may be difficult for the layman to discern." White, 887 F.2d at 272, quoting, In re Doe, 551 F.2d 899, 902 (2d Cir. 1977). The only reasonable conclusion to be drawn is that, if the White House Counsel's Office was consulted before Ms. Willey's documents were made public, it was in furtherance of a criminal act. Consequently, the attorney-client privilege does not apply.

Finally, as the District of Columbia Court of Appeals recently held in In re Bruce Lindsey, No. 98-3060 (D.C. Cir. July 27, 1998), a copy of which is attached as Exhibit 4, there are substantial differences between the attorney-client privilege as asserted by a private or personal lawyer, and the attorney-client privilege as asserted by a government lawyer. Opinion at 6. The duty of government attorneys is not to defend client against criminal charges, and it is not to protect wrongdoers from public exposure. Opinion at 7. Rather:

Unlike a private practitioner, the loyalties of a government lawyer . . . cannot and must not lie solely with his or her client agency. . . . The obligation of a government lawyer to uphold the public trust reposed in him or her strongly militates against allowing the client agency to invoke a privilege to prevent the lawyer from providing evidence of a possible commission of criminal offenses within the government.



Opinion at 7. Under this much-reduced standard for government lawyers, and in light of the likely criminal nature of the repeated violations of Privacy Act rights at issue in this litigation, Plaintiffs respectfully submit that the attorney-client privilege simply does not apply. Consequently, Mr. Good must, respectfully, be compelled to provide this information as well.

D. An Award of Attorneys Fees and Costs is Appropriate.

As this Court held in its July 10, 1998 Memorandum Opinion concerning Plaintiffs' motion to compel further testimony from Mr. Clifford Bernath, an award of attorneys fees and costs is warranted under Fed.R.Civ.P. 37(d) where opposition to a motion is not substantially justified. July 10, 1998 Memorandum Opinion at 42-43. Plaintiffs respectfully submits that the claims asserted by Clinton Justice Department counsel on behalf of Defendant EOP were not substantially justified when raised and cannot be substantially justified in this opposition. In addition, Plaintiffs respectfully submit that the Clinton Justice Department's apparent "coaching" of Mr. Good to answer "I do not recall" whenever he did not have a precise recollection, its continued improper use of speaking objections - this time with regard to grand jury materials -- and its inappropriate assertion of attorney-client privilege, unreasonably and vexatiously multiplied the costs of these proceedings to Plaintiffs such that an award of attorneys fees and costs is warranted under 28 U.S.C. 1927 and the Court's inherent powers.

WHEREFORE, Plaintiffs respectfully request that the Court compel Mr. Good to be redeposed so that he may provide complete and accurate responses to Plaintiffs' questions to the fullest extent of his recollection and that he be required to answer questions Clinton Justice Department counsel instructed him not to answer. In addition, Plaintiffs also respectfully request that Clinton Justice Department counsel be sanctioned by requiring them to pay the attorneys fees and costs Plaintiffs were force to incur in preparing this motion and the attorneys fees and costs they will be forced to incur in retaking Mr. Good's deposition, as well as any other relief the Court deems just and proper, given the nature of Clinton Justice Department counsel and White House counsel's substantial misconduct.

Respectfully submitted,



JUDICIAL WATCH, INC.





__________________________

Larry Klayman, Esq.

DC Bar No. 334581





__________________________

Paul J. Orfanedes, Esq.

DC Bar No. 419716



501 School Street, S.W.

Suite 725

Washington, DC 20024

(202) 646-5172



Attorneys for Plaintiffs

LOCAL RULE 108(m) CERTIFICATE OF COUNSEL



On August 5, 1998, I contacted Clinton Justice Department Counsel, by telephone, to inquire whether Defendant Executive Office of the President would oppose the relief requested herein or, if so, to narrow the areas of disagreement. Clinton Justice Department Counsel advised me that Defendant Executive Office of the President would the relief sought by Plaintiffs.







__________________________

Paul J. Orfanedes, Esq.



CERTIFICATE OF SERVICE



I hereby certify that on August 18, 1998 a true and correct copy of the foregoing PLAINTIFFS' MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY OF TERRY W. GOOD AND FOR SANCTIONS was served by first class U.S. mail on the following:



Attorneys for Defendants Federal Bureau of Investigation and Executive

Office of the President:

James J. Gilligan, Esq.

Elizabeth Shapiro, Esq.

U.S. DEPARTMENT OF JUSTICE

P.O. Box 883

Washington, DC 20044



Attorneys for Defendant Hillary Rodham Clinton:



David E. Kendall, Esq.

Paul Gaffney, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005







__________________________

Paul J. Orfanedes

1. In her statement to the media after concluding her grand jury testimony, Ms. Tripp implicated the White House Counsel's Office, where she used to work, in a continuing course of unlawful conduct: "As a result of simply trying to earn a living, I became aware between 1993 and 1997 of actions by high government officials that may have been against the law. For that period of nearly five years, the things I witnesses concerning several different subjects made me increasingly fearful that this information was dangerous, very dangerous, to possess." See "Text of Linda Tripp's Remarks," reprinted in The Washington Post, Wednesday July 29, 1998, attached as Exhibit 1.

2. A record maintained in violation of this prohibition need not even be kept in a "system of records." Boyd v. Secretary of the Navy, 709 F.2d 684, 687 (11th Cir. 1983); Clarkson v. IRS, 678 F.2d 1368, 1373-77 (11th Cir. 1982); Albright v. United States (I), 631 F.2d 915, 918-20 (D.C. Cir. 1980).

3. Mr. Good cannot claim a lack of familiarity with the requirements of the Privacy Act. He admitted to have read "parts" of it, and also admitted to having read "about" it. Depo. at 51-52. In addition, Mr. Good admitted that White House Counsel's office and Department of Justice briefed ORM on the Privacy Act regarding records of the President's and Mrs. Clinton's Health Care Task Force. Depo. at 55-57; 386-387.

4. In a transparent attempt to justify its improper refusal, Clinton Justice Department counsel file a motion for a protective order on July 23, 1998, twenty-one (21) days after Mr. Good's deposition. This motion is as untimely as it is meritless, and Plaintiffs have objected to it. See July 17, 1998 letter from Larry Klayman, attached as Exhibit 2.

5. It should be noted that the Clinton Justice Department counsel only made this "objection" after the Court rejected their specious objections to Plaintiffs' questions on the grounds of relevance. Having lost on one obstructionist tactic, the Clinton Justice Department was forced to try another.

6. It was only in declarations from White House Counsel Charles F. C. Ruff and Deputy Independent Counsel Solomon L. Wisenberg that Defendant EOP confirmed the documents were retrieved in response to a grand jury subpoena. In all due respect, Mr. Wisenberg has no way of knowing this and Mr. Ruff's representations are suspect given his obvious conflict of interest, since his office would have participated in the allegedly illegal acts.

7. Ironically, Mr. Ruff's declaration confirms that ORM's maintains a system of records that can be searched by name for documents concerning specific individuals: "The Counsel's Office has made on request to ORM for documents relating to Monica Lewinsky by name, specifically, a request to 'provide all records or documents (whether in hard copy or computer form) or any other items of any kind relating to or referring in any way to Monica Lewinsky from June 1, 1995 through January 20, 1998 [emphasis in original].'" Declaration of Charles F. C. Ruff at 3.

8. Mr. Good testified, "Publicity surrounding this was the kind of publicity that would generally occur, and that would trigger a request for the counsel's office." Depo. at 250. Thus, it would appear that the White House Counsel's office made a practice of having White House files searched for information on adversaries whenever President, Mrs. Clinton and the Clinton Administration received adverse publicity.