Case 1:08-cv-01548-CKK Document 31 Filed 11/03/2008 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND :

ETHICS IN WASHINGTON, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 08-1548 (CKK)
:
THE HON. RICHARD B. CHENEY, et al., :
:
Defendants. :
____________________________________:

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR COSTS AND

ATTORNEYS’ FEES

Plaintiffs have requested that the Court order defendants to reimburse plaintiffs for the

costs they incurred as a result of the last-minute cancellation of the deposition of Nancy Kegan

Smith and their attorneys’ fees incurred in the filing of their motion. As plaintiffs demonstrated

in their opening brief, they incurred those costs because defendants ignored a subpoena

compelling Ms. Smith’s attendance at a deposition on October 1, 2008 until the eve of that

deposition and acted only after plaintiffs requested the Court’s assistance. Similarly, defendants

refused to cooperate in the scheduling of Ms. Smith’s deposition and, once the deposition was

scheduled, insisted that it be rescheduled for the date on which David Addington was compelled

to appear for his deposition. Further, as defendants’ eleventh-hour motion for a stay and

protective order confirmed, defendants never intended to produce either Ms. Smith or Mr.

Addington for a deposition, and instead stalled for time in order to prepare their appellate papers.

Defendants have now opposed plaintiffs’ motion for costs and fees based on a near-

complete distortion of the underlying facts and events, and ignore both the Federal Rules of Civil

Procedure and the legally binding effect of a valid subpoena compelling Ms. Smith’s attendance
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at her deposition. Defendants also raise red herrings that have no bearing on plaintiffs’ motion,

such as their objection to the place of the depositions. With no valid objection to the requested

relief before the Court, plaintiffs’ motion for costs and attorneys’ fees must be granted.

ARGUMENT

1. Defendants first argue that because the parties had not reached an agreement on a

deposition date sanctions are not appropriate, citing in support a single non-binding case, Taneff

v. Calumet Township, 2008 U.S. Distr. LEXIS 64742 (N.D. Ind. Aug. 21, 2008). Defendants

ignore several critical facts as well as critical differences between Taneff and this case.

Here the parties were facing a court-imposed discovery cut-off issued less than two

weeks before discovery was to close. Notwithstanding the clear urgency to schedule the

depositions promptly, defendants refused to cooperate in a timely manner and never suggested

October 1, 2008 was a bad date until after plaintiffs had issued a deposition subpoena

compelling Ms. Smith’s attendance at a deposition on October 1.1 Moreover, the subsequent

representation by defendants on September 26, 2008, that Ms. Smith was not available for a

deposition on October 1 was false; on the evening of September 29, defendants finally admitted

that they did not want the deposition to go forward on October 1 because NARA agency counsel

-- not Ms. Smith and not DOJ counsel who represents Ms. Smith in this matter -- was

unavailable to help with advance preparation for the deposition.

Defendants gloss over all these facts, suggesting instead that they “explained to

plaintiffs’ counsel” “[o]n at least five separate occasions” prior to October 1 that “October 1,

1
Thus, defendants’ latest claim that “from the outset” they had “made absolutely clear . .
. that October 1 was not available for a deposition of Ms. Smith,” Defendants’ Opposition to
Motion for Costs and Attorneys’ Fees (“Ds’ Oppos.”) at 5 n. 1, is patently false.

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2008 was not an acceptable date . . .” Ds’ Oppos. at p. 3. This assertion is simply false. Far

from explaining anything to plaintiffs, defendants simply insisted that the deposition go forward

on October 3, ignoring completely that Mr. Addington’s deposition was scheduled for that date.2

The reasons for defendants’ recalcitrant behavior became clear late in the day on

September 30, 2008, when defendants filed a motion for a stay of discovery based on their

mandamus petition, which argued that no discovery is appropriate. Clearly defendants’ refusal

to cooperate in scheduling the court-authorized discovery was part of an overall effort to stall

any depositions until they could draft and file their mandamus petition. The facts in this case,

involving court-authorized depositions, a fast-approaching discovery cut-off, and material

misrepresentations about the availability of a deponent, differ significantly from those in Taneff.3

Defendants’ contorted argument that the notice of deposition did not constitute “proper

notice” within the meaning of Rule 37(d)(1)(A)(ii) of the Federal Rules of Civil Procedure is

based on the same false claim that defendants “unambiguous[ly] and repeated[ly]” objected to a

deposition on October 1. See Ds’ Oppos. at 5. Defendants’ belated objections were shrouded in

ambiguity and proved in substantial part to be false, as Ms. Smith was available on October 1.

Even more significantly, plaintiffs did not simply notice Ms. Smith’s deposition, but commanded

her to appear on October 1 through a subpoena issued under the authority of the United States

District Court for the District of Columbia and Rule 45 of the Federal Rules of Civil Procedure.

2
Of note, defendants never advised plaintiffs of Mr. Addington’s availability, preferring
instead to pretend that it had not been noticed.
3
While declining to find defendants’ behavior sanctionable in Taneff, the court
nevertheless faulted the defendants for their unprofessional conduct in cancelling the scheduled
deposition at the last minute. 2008 U.S. Dist. LEXIS 64742, *5.

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In receipt of such a command, defendants were not free to ignore the subpoena or unilaterally

change its terms. Yet those are the rights defendants advance here. In short, both the notice of

deposition and the deposition subpoena provided “proper notice” that defendants were not free to

ignore.

2. Defendants also assert there was no “proper notice” here because the deposition of

Ms. Smith was to be conducted on “disputed terms,” specifically at the office of plaintiffs’

counsel and recorded by videotape. Ds’ Oppos. at 5. Claiming vindication by this Court’s

subsequent order that the depositions are not to be videotaped, defendants argue that their

disagreement with the manner and place of the deposition excuses their failure to promptly seek

a protective order, an inaction that caused plaintiffs to incur the late cancellation fee for which

they are now seeking reimbursement. This argument is equally without merit.

As this Court recognized, “Federal Rule of Civil Procedure 30(b)(3) provides that, as a

matter of ordinary course, the party noticing a deposition is automatically permitted to videotape

the deposition . . . .” Memorandum Opinion of October 5, 2008 (Document 27) at p. 25

(emphasis added). Moreover, a party seeking to videotape a deposition may do so unilaterally

“without first having to obtain permission of the court or agreement from other counsel.” Id. at

25 n.12, quoting Adv. Notes to Fed. R. Civ. P. 30. Thus, defendants’ mere stated objection to

the manner of recordation, standing alone, is of no effect and certainly does not excuse their lack

of compliance with a duly issued subpoena. As with the date of the deposition, defendants

sought to arrogate to themselves the right to dictate the manner in which the deposition was to be

recorded, ignoring completely the right afforded plaintiffs by Fed. R. Civ. P. 30(b)(3).

As to defendants’ objections to the place of Ms. Smith’s deposition, this Court’s order

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authorizing discovery was clear: while the Court had proposed that the parties conduct the

depositions at the courthouse, it was up to the parties to agree to this proposal and only upon

such agreement would the Court make the necessary arrangements. See Discovery Order of

September 24, 2008, p. 19 (Document 20). Again, defendants did not enjoy the unilateral right

to dictate that the deposition of Nancy Smith occur at the courthouse. Nor are defendants correct

in their claim that the Court’s subsequent order confirms that defendants’ objections were

“wholly justified.” Ds’ Oppos. at 7. As the Court’s Memorandum Opinion of October 5, 2008

notes expressly, the Court ordered the parties to conduct Ms. Smith’s deposition at the

Courthouse only upon “the Parties’ mutual agreement.” Mem. Op. at 24 n.11. In any event,

defendants’ mere objection to the place of the deposition does not justify their failure to timely

seek a protective order.

3. Defendants argue further that they should not have to bear the cost of the last-minute

cancelled deposition because in advance of the deposition they secured “a limited order, in

effect, staying discovery . . .”, Ds’ Oppos. at 6, and lodged their objections in advance of

October 1, id. at 7. This falsely characterizes the Court’s Minute Order of September 30, 2008,

ignores that it was plaintiffs, not defendants, who first sought the Court’s assistance in resolving

disputed issues concerning Ms. Smith’s deposition, and ignores the fact that the Court ultimately

refused to stay discovery.

First, this Court’s Minute Order of September 30 did not itself grant a stay of discovery,

but merely noted the need to resolve the pending discovery issues expeditiously. Indeed, had the

Order operated as a stay there would have been no need for the Court to conduct a conference

call the following morning, which the Court scheduled “to resolve issues relating to the court

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ordered discovery.” Minute Order of September 30, 2008.

Second, as the Court’s Minute Order notes, it was plaintiffs -- not defendants -- who

brought before the Court issues related to the court-ordered discovery. Plaintiffs could, of

course, have left the burden on defendants to seek judicial relief from the deposition subpoena,

which otherwise commanded Ms. Smith’s attendance at a deposition on October 1. Instead,

plaintiffs acted pro-actively in seeking the Court’s assistance and it was only then that

defendants revealed their game plan -- filing a mandamus petition literally on the eve of the first

scheduled deposition. Moreover, the Court ultimately denied the requested stay. Under these

circumstances, defendants cannot now point to their belatedly filed protective order as excusing

their liability for the costs plaintiffs incurred because of the last-minute cancellation of Ms.

Smith’s deposition.

4. Finally, defendants argue that plaintiffs’ request for fees should be rejected because it

was not accompanied by a specifically requested amount. Ds’ Oppos. at 8 n.2. Plaintiffs are

requesting reimbursement for their reasonable attorney fees in an amount to be subsequently

determined by the Court based on the totality of hours plaintiffs are required to expend on their

motion, including time spent on preparing this reply. Given that the issue is not yet resolved, the

most obvious course is for plaintiffs to submit their specific request following an order of the

Court, at which time defendants can lodge any specific objections they have.

CONCLUSION

For the foregoing reasons and those set forth in plaintiffs’ opening brief, plaintiffs’

motion for costs and attorneys’ fees should be granted.

Respectfully submitted,

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/s/
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Phone: (202) 408-5565
Fax: (202) 588-5020
David L. Sobel
(D.C. Bar No. 360418)
1875 Connecticut Avenue, N.W.
Suite 650
Washington, D.C. 20009
Phone: (202) 797-9009

Dated: November 3, 2008 Attorneys for Plaintiffs