CARA LESLIE ALEXANDER, et al.,
OF INVESTIGATION, et al.,
) Civil No. 96-2123/97-1288 (RCL)
JOHN MICHAEL GRIMLEY, et al.,
OF INVESTIGATION, et al.,
PLAINTIFFS' OPPOSITION TO MOTION OF NON-PARTY D. CRAIG LIVINGSTONE
FOR PARTIAL RECONSIDERATION OF THE COURT'S MEMORANDUM
AND ORDER OF JULY 27, 1998 AND CROSS-MOTION
FOR ATTORNEYS FEES AND COSTS
Plaintiffs, by counsel, respectfully submit this Opposition to Motion of Non-Party D. Craig Livingstone for Partial Reconsideration of the Court's Memorandum and Order of July 27, 1998 and cross-moves for attorneys fees and costs.
After initially having to ask the Court to order the U.S. Marshal's Office to serve D. Craig Livingstone with a summons and complaint, Plaintiffs have been attempting to obtain a full production of documents from Mr. Livingstone for more than seven months. They served a subpoena on Mr. Livingstone on January 13, 1998. Mr. Livingstone served objections to Plaintiffs' subpoena on January 23, 1998, and subsequently produced some documents and a privilege log to Plaintiffs on January 28, 1998. Because Mr. Livingstone's objections, document production and privilege log clearly were inadequate, Plaintiffs filed a motion to compel on March 31, 1998. Mr. Livingstone filed an opposition to Plaintiffs' motion on April 13, 1998. Due to the inadequacy of the privilege log, the Court ordered Mr. Livingstone to submit documents identified in his privilege log to the Court for in camera inspection on July 6, 1998.
Mr. Livingstone's production of documents to the Court proceeded in a troubling fashion. Documents were produced to the Court that had been redacted. A privilege log of documents Mr. Livingstone apparently attempted to withhold from a grand jury -- which was produced to the Court as part of Mr. Livingstone's in camera submission -- revealed the existence of yet other documents neither produced to Plaintiffs nor claimed as subject to any privilege.
On July 21, 1998, the Court ordered Mr. Livingstone to deliver unredacted copies of the documents to the Court and to explain the whereabouts of the documents identified in the grand jury privilege log. In response, Mr. Livingstone's counsel asserted that submission of the redacted documents was an oversight. Mr. Livingstone's counsel also asserted that the documents originally identified in the grand jury privilege log had not been produced to Plaintiffs because he had determined that they were not responsive to Plaintiffs' subpoena. Upon reexamining the documents, Mr. Livingstone's counsel apparently determined that seven pages of these additional documents were, in fact, responsive to Plaintiffs' subpoena. These documents were produced to Plaintiffs on July 22, 1998 in a supplemental production. Also on July 22, 1998, Mr. Livingstone apparently submitted the remaining documents identified in the grand jury privilege log to the Court for in camera review.
After this substantial effort to obtain the underlying documents for in camera review, as well as the additional, substantial effort of conducting the in camera review itself, the Court issued a lengthy and carefully-worded Memorandum and Order on July 27, 1998. In the Memorandum and Order, the Court required Mr. Livingstone to produce a substantial number of additional documents to Plaintiffs, including documents identified on Mr. Livingstone's grand jury privilege log, but neither produced to Plaintiffs previously nor identified on Mr. Livingstone's privilege log in this action. See July 27, 1998 Memorandum and Order at 22-23. In its Memorandum and Order, the Court expressed "dismay at the manner in which Mr. Livingstone's document production has proceeded thus far." Id., at 22.
Despite the Court's having ordered Mr. Livingstone to produce these additional documents, and despite the Court's obvious disapproval of the manner in which Mr. Livingstone and his counsel have conducted themselves, Mr. Livingstone has continued to withhold four documents -- consisting of some thirteen pages of materials -- from Plaintiffs. They now seek reconsideration of the Court's order compelling the production of these documents, as well as statement by the Court concerning the truthfulness and good faith of a representation made by Mr. Livingstone and his counsel in Mr. Livingstone's opposition to Plaintiffs' motion to compel. Because Mr. Livingstone and his counsel have provided the Court with no basis for further expending its limited time and resources on this matter, but inappropriately raise new arguments and factual claims about the production of these documents, the motion for reconsideration must, respectfully, be denied. The motion must also be denied with respect to the Court's statement about the truthfulness and good faith of Mr. Livingstone's and his counsel' representations to the Court.(1)
In a March 13, 1998 Memorandum and Order regarding a motion for reconsideration filed by third-party witness James Carville, the Court very clearly set forth the law on when motions for reconsideration are and are not proper. Specifically, the Court held:
A motion to reconsider is appropriate if the court has obviously misapprehended a party's position, the facts, or the applicable law, or if the party produces new evidence that could not have been obtained through the exercise of due diligence.
See March 13, 1998 Memorandum and Order at 4. The Court further stated:
In sum, a motion for reconsideration is not appropriate if the movant merely attempts to have the court consider or revisit issue already addressed or hear new arguments or supporting facts that could have been presented by the movant originally. A party who fails to present its strongest case in the first instance is not entitled to a second chance in the form of a motion to reconsider. The party must accept the consequences of its actions regardless of whether these consequences are caused by miscalculation, tactical error or sloth. Improper use of motions to reconsider "can waste judicial resources and obstruct the efficient administration of justice."
See March 13, 1998 Memorandum and Order at 13, quoting, United States ex rel. Houck v. Folding Carton Administration Committee, 121 F.R.D. 69, 71 (N.D. Ill. 1988).
Mr. Livingstone has not and cannot meet this burden. Consequently, the motion for reconsideration must, respectfully, be denied in its entirety, and attorneys fees and costs awarded to Plaintiffs for this unnecessary exercise, and for the original motion requesting the in camera review.
A. The Court Should Deny Reconsideration With Regard to the Production of Two, Allegedly Non-Responsive, Irrelevant Documents.
Mr. Livingstone makes the extraordinary claim that two of the documents produced in camera, DCL 159-63 and DCL 164-68, "are not responsive to Plaintiffs' subpoena and are irrelevant to any issue fairly contained in this litigation." Memo at 7. Because these documents were not produced to Plaintiffs, but were only produced to the Court in camera, Plaintiffs are at an obvious disadvantage in addressing their responsiveness. Apparently, however, the documents were among those identified on Mr. Livingstone's grand jury privilege log, but neither produced to Plaintiffs in Mr. Livingstone's January 28, 1998 production nor his July 22, 1998 supplemental production, nor identified to Plaintiffs on any privilege log prepared by Mr. Livingstone in this action.
In its July 27, 1998 Memorandum and Order, the Court specifically found that these documents were responsive to Request No. 10 of Plaintiffs' subpoena. July 27, 1998 Memorandum and Order at 21. Request No. 10 required the production of the following documents:
Any and all records, correspondence, notes, communications, and other documents concerning or relating to the appointment or hiring of D. Craig Livingstone to a position in the Clinton White House, his duties at the White House, his qualifications to perform those duties, including any job descriptions, duties, assignments or instructions.
See Subpoena Duces Tecum, attached to Mr. Livingstone's Motion as Exhibit 1. The documents at issue purportedly reflect Mr. Livingstone's activities the night and morning following Deputy White House Counsel Vince Foster's death. They thus clearly concern Mr. Livingstone's duties, assignments and/or instructions, as the Court found.(2)
In his motion for reconsideration, Mr. Livingstone does not argue that the Court has "obviously misapprehended a party's position, the facts or the applicable law." See March 13, 1998 Memorandum and Order at 4. Nor has Mr. Livingstone "produce[d] new evidence that could not have been obtained through the exercise of due diligence. Id. Rather, he baldly asserts that the documents are not responsive to Plaintiffs' subpoena, then claims that they should not be produced to Plaintiffs because they were "once-privileged" and that "improper" use of the documents could be made if they are made public in this litigation. See Mr. Livingstone's Motion at 7-8.
These "arguments" are baseless. Mr. Livingstone himself admits that he "does not assert (and never asserted in this litigation) that the attorney-client privilege continues to protect these documents from production to plaintiffs in this litigation." See Mr. Livingstone's Motion at 7-8, n. 3. Clearly, documents are not rendered exempt from disclosure because they may potentially be subject to a claim of privilege that has not been invoked, or because they were once subject to a privilege that has since been waived. Mr. Livingstone's claim that these documents should not be produced because they were "once-privileged" simply does not make any sense. Even if Mr. Livingstone had invoked the attorney-client privilege for these documents - and he admittedly has not - he has not established the basis for the privilege in any event.
Moreover, Mr. Livingstone, one of the individuals who violated Plaintiffs' privacy rights, cannot be heard to complain that these documents may be used "improperly" if made public in this litigation. Mr. Livingstone has never sought a protective order to prevent "improper" use of the documents -- whatever that may be -- if they are made public in this litigation. Nonetheless, because Mr. Livingstone never raised either of these "arguments" prior to filing his motion for reconsideration, it is not appropriate for him to raise them now. See March 13, 1998 Memorandum and Order at 4 and 13.
As to the issue of relevance, when Mr. Livingstone served his objections to Plaintiffs subpoena on January 23, 1998, he did not object - on relevancy or any other specific grounds - to the production of documents responsive to Request No. 10. Rather, he clearly stated that all non-privileged, responsive documents would be produced:
Subject to the general objections set forth above, Livingstone will produce non-privileged documents within his possession, custody or control that are responsive to these requests.(3)
See Craig Livingstone's Objections to January 13, 1998, Subpoena for Documents, attached to Mr. Livingstone's Motion as Exhibit 2, at 5-6.
Likewise, when Plaintiffs moved to compel Mr. Livingstone to produce further documents, Mr. Livingstone did not raise any argument that any of the documents Plaintiffs sought were irrelevant. In fact, Mr. Livingstone again asserted:
As Mr. Livingstone's Objections to Plaintiffs' Subpoena make clear, Mr. Livingstone has produced all non-privileged documents within his possession, custody or control that are responsive to Plaintiffs' subpoena. That is clearly stated in response to each Subpoena item.
See Memorandum in Opposition to Plaintiffs' Motion to Compel Craig Livingstone to Produce Documents at 4.
Clearly, any objection on the grounds of relevance was waived long ago. Any such objection should have been asserted in January, 1998, when Mr. Livingstone served his objections to Plaintiffs' January 13, 1998 subpoena. By claiming at this late date that these obviously responsive documents are irrelevant to any of the issues in this lawsuit, Mr. Livingstone is doing exactly what the Court proscribed in its March 13, 1998 Memorandum and Order -- raising new arguments that could have been raised long before, but were not. See March 13, 1998 Memorandum and Order at 13.
Nonetheless, Plaintiffs respectfully submit that the documents are relevant. The scope of Mr. Livingstone's job responsibilities and how he carried out those responsibilities are directly at issue in this lawsuit. Indeed, the issue of Mr. Livingstone's job responsibilities, and whether he was acting within them when he sought and obtained access to the FBI background investigation files of Plaintiffs and other Reagan and Bush administration appointees and employees, are directly related to whether he should be a defendant in this case, or whether the United States can be substituted for him properly.
B. The Court Should Deny Mr. Livingstone's Motion With Regard to the Production of Two, Allegedly Privileged Documents.
In its July 27, 1998 Memorandum and Order the Court found that Mr. Livingstone had entirely failed to meet his burden of proof regarding the existence of an attorney-client privilege:
Documents with the Bates stamped pages LIV-0524-26 are described in the privilege log as "[d]raft of document prepared by Craig Livingstone." The court concludes that there is absolutely no indication that these documents were properly withheld on the basis of the attorney-client privilege. There is no showing that the document relates to a communication between Livingstone and his counsel for the purpose of securing legal advice or services. While it is certainly conceivable that counsel assisted Livingstone in the preparation of these so-called drafts, "the party asserting attorney-client privilege bear the burden of proving the applicability of the privilege by way of affidavits or other competent evidence." Odone v. Croda Int'l PLC, 950 F. Supp. 10, 12 (D.D. C. 1997). In this regard, the party asserting the privilege must offer more than conclusory statements. Id. Livingstone has simply not sustained his burden with respect to these documents.
See July 27, 1998 Memorandum and Order at 18 (Emphasis original) (Footnote omitted).
After the Court expended substantial time and effort reviewing these documents, analyzing the parties' contentions and preparing its Memorandum and Order, Mr. Livingstone now belatedly presents the Court with two declarations attempting to establish the basis for his claim of attorney-client privilege. See Declarations of David S. Cohen and D. Craig Livingstone, attached to Mr. Livingstone's Motion as Exhibits 7 and 8. Mr. Livingstone has not even attempted to explain why the "facts" set forth in these affidavits were not or could not have been provided in his original privilege log, or, at the latest, in his opposition to Plaintiffs' motion to compel. The most likely reason for this telling omission is that there is no justifiable reason. Having "fail[ed] to present [his] strongest case in the first instance," Mr. Livingstone "is not entitled to a second chance in the form of a motion to reconsider." See March 13, 1998 Memorandum and Order at 13.
C. The Court Should Not, Respectfully, Reconsider Its Findings Concerning Mr. Livingstone's Withholding of Documents Pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure.
Mr. Livingstone and his counsel take issue with the Court's finding that certain representations in Mr. Livingstone's opposition to Plaintiffs' motion to compel were "not true" and could not have been made "in good faith." They attribute the findings to an "honest misunderstanding." See Mr. Livingstone's Motion at 9.
The opposition states that "Mr. Livingstone did not withhold from production any documents sought in Plaintiffs' subpoena solely because they may have been produced to the grand jury." See Memorandum in Opposition to Plaintiffs' Motion to Compel Craig Livingstone to Produce Documents at 7. In its July 27, 1998 Memorandum and Order, the Court found:
. . . a review of the privilege log submitted by Livingstone and the court's in camera inspection of the documents withheld by him demonstrates that this statement is not true. The court is simply unaware of how Livingstone can make such a statement in good faith as the privilege log specifically identifies six sets of documents as being withheld solely pursuant to Rule 6(e).
See July 27, 1998 Memorandum and Order at 12.
The "explanation" now offered by Mr. Livingstone and his counsel is equally, if not more troubling than the statement in the opposition. Mr. Livingstone and his counsel now would have the Court believe that they did not withhold the documents because the documents were produced to the grand jury, but because the documents produced to the grand jury were not responsive to Plaintiffs' subpoena. Mr. Livingstone and his counsel state:
These documents were not produced to plaintiffs in January solely because counsel considered them to be non-responsive, not because we asserted that Rule 6(e) protected the individual documents from disclosure.
See Mr. Livingstone's Motion at 11.
Plaintiffs cannot see how Mr. Livingstone and his counsel could make this statement in good faith either. All of the documents produced to the grand jury appeared on Mr. Livingstone's privilege log, albeit grouped together as Mr. Livingstone's July 18, 1996 and July 26, 1996 document productions to the grand jury. As the Court stated, "Once a party subpoenas certain documents, responsive, non-privileged documents should be produced." See July 27, 1998 Memorandum and Order at 22. Responsive documents that are claimed to be privileged must be identified in a privilege log. See, e.g., Fed.R.Civ.P. 26(b)(5). If the documents were not responsive, then there would not have been any reason to include them in the privilege log.
In addition, this "explanation" raises serious questions about whether all responsive documents were actually produced. The two document productions to the grand jury consisted of 136 pages of materials. Of this 136 pages, Mr. Livingstone and his counsel claimed that only 48 pages were responsive to Plaintiffs' subpoena.(4) According to Mr. Livingstone and his counsel, the remaining 88 pages of materials were non-responsive. See Mr. Livingstone's Motion at 3. The Court, in reviewing these same documents in camera, found that "almost all of these materials are clearly responsive to other, more specific requests for documents made by plaintiffs." See July 27, 1998 Memorandum and Order at 12. Ultimately, the Court ordered that 128 pages of responsive, non-privileged materials be produced to Plaintiffs.(5) Id.
If this "explanation" is to be accepted -- that the remaining 88 pages of materials were withheld not under a claim of privilege, but because, in the view of Mr. Livingstone and his counsel, they were not responsive to Plaintiffs' subpoena -- then there is a serious discrepancy between what Mr. Livingstone and his counsel consider responsive, and what the Court found to be responsive. As the Court declared in its Memorandum and Order, "Documents are not chameleonic. They are either responsive or they are not." See July 27, 1998 Memorandum and Order at 22. If these remaining 88 pages of materials were withheld because Mr. Livingstone and his counsel believed they were not responsive, then Mr. Livingstone's entire document production is called into question. It may well be that Mr. Livingstone has additional documents - not produced to the Court in camera - that are responsive to Plaintiffs' subpoena, but which have not been produced to Plaintiffs.
The "explanation" of Mr. Livingstone and his counsel simply does not make sense. If it is to be believed, then there would not have been any reason to include these documents in the privilege log. If it is true, however, then it would appear likely that all responsive documents in Mr. Livingstone's possession, custody and control have not been produced to Plaintiffs. In either case, reconsideration is not warranted, but Mr. Livingstone and his counsel should be required to clarify whether additional, responsive documents exist.
D. An Award of Attorneys Fees and Costs is Appropriate.
As this Court held in its July 10, 1998 Memorandum Opinion concerning other improper discovery conduct in this matter, an award of attorneys fees and costs is warranted under Fed.R.Civ.P 37(d) where a party's position in discovery is not substantially justified. See July 10, 1998 Memorandum Opinion at 42-43. Plaintiffs respectfully submit that the claims asserted by Mr. Livingstone and his counsel in their motion for reconsideration are not substantially justified, as they clearly do not meet the standards for such a motion as reiterated by the Court in its March 13, 1998 Memorandum and Order concerning Mr. Carville. As Mr. Livingstone and his counsel have participated substantially in this matter, they must be deemed to have been on notice of this standard, as well as the Court's admonition that "[i]mproper use of motions to reconsider 'can waste judicial resources and obstruct the efficient administration of justice.'" See March 13, 1998 Memorandum and Order at 13, quoting, United States ex rel. Houck v. Folding Carton Administration Committee, 121 F.R.D. 69, 71 (N.D. Ill. 1988). Thus, Mr. Cohen and his counsel have knowingly, unreasonably and vexatiously multiplied the cost of these proceedings to Plaintiffs such that an award of attorneys fees and costs also is warranted under 28 U.S.C. § 1927 and the Court's inherent powers, as well as under Fed.R.Civ.P. 37(d).
Mr. Livingstone and his counsel have provided the Court with no basis for reconsidering its July 27, 1998 Memorandum and Order. At the same time, the "explanation" offered for the representation the Court found troubling in Mr. Livingstone's opposition raises more suspicious questions than it answers. Thus, not only is reconsideration unwarranted, but Mr. Livingstone and his counsel must, respectfully, be required to clarify whether additional, responsive documents exist and to pay Plaintiffs' attorneys fees and costs.
JUDICIAL WATCH, INC.
Larry Klayman, Esq.
DC Bar No. 334581 501 School Street, S.W.
Washington, DC 20024
Attorneys for Plaintiffs
On August 24, 1998, I contacted counsel for D. Craig Livingstone, by telephone, to inquire whether Mr. Livingstone and his counsel would oppose Plaintiffs' Cross-Motion for Attorneys Fees and Costs, or if so, to narrow the areas of disagreement. Counsel advised me that the cross-motion would be opposed.
Paul J. Orfanedes, Esq.
I hereby certify that on August 24, 1998 a true and correct copy of the foregoing PLAINTIFFS' OPPOSITION TO MOTION OF NON-PARTY D. CRAIG LIVINGSTONE FOR PARTIAL RECONSIDERATION OF THE COURT'S MEMORANDUM AND ORDER OF JULY 27, 1998 AND CROSS-MOTION FOR ATTORNEYS FEES AND COSTS 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
Attorneys for D. Craig Livingstone:
Randall J. Turk, Esq.
David S. Cohen, Esq.
MILLER, CASSIDY, LARROCA & LEWIN, L.L.P.
2555 M Street, N.W.
Washington, DC 20037
Paul J. Orfanedes
1. This is not the first time that the veracity of Mr. Livingstone's counsel has been questioned. A report prepared by the U.S. House of Representatives Government Reform and Oversight Committee concerning "Filegate" found:
Another attorney for Livingstone, David Cohen, claimed that "neither Marceca nor Livingstone noticed at first that the lists [of individuals whose FBI files had been pulled] included so many names that should have been purged from them." Yet an undated memo, which appears to be from March, 1993, demonstrates that Livingstone clearly understood that there were some names on the Secret Service lists that needed to be removed and Livingstone knew that it was his job to remove them.
House Comm. on Government Reform and Oversight, Investigation into the White House and Department of Justidce on Security of FBI Background Investigation Files, Interim Report, H.R. No. 104-862,104th Cong., 2d Sess. at 93 (1996).
2. Mr. Livingstone does not assert any such objections for apparently very similar documents produced to Plaintiffs pursuant to the Court's July 27, 1998 Memorandum and Order. See LIV-0367-69.
3. Mr. Livingstone's "general objections" did not include an objection to relevance. See Craig Livingstone's Objections to January 13, 1998, Subpoena for Documents, attached to Mr. Livingstone's Motion as Exhibit 2, at 1-2.
4. Plaintiffs are also concerned about Mr. Livingstone's and his counsel's statement that these same 48 pages of documents already had been produced to Plaintiffs in the January 28, 1998 production. See Mr. Livingstone's Motion at 3 and 11. If this were the case, then there would be no reason to have the court expend its limited time and resources reviewing these same documents in camera for claims of privilege.
5. During her May 7, 1998 deposition, Ms. Mari Anderson, Mr. Livingstone's assistant, testified that she typed documents for Mr. Livingstone and stored these documents on a computer disk. See Anderson Depo. at 389-90; 40 2-03. Ms. Anderson also testified that these disks were stored in a safe, and she and Mr. Livingstone were the only persons who knew the combination to the safe. Id. at 403. Ms. Anderson further testified that Mr. Livingstone sometimes removed files from the office. Id. at 151-53. Because Ms. Anderson no longer knows the whereabouts of these computer discs (id. at 405-09), it is likely that Mr. Livingstone may have taken them with him when he left the White House. No disks were produced by Mr. Livingstone, and Plaintiffs are concerned that any such disks were not searched to determine whether they contained any material responsive to Plaintiffs' subpoena.