Case 2:04-cv-08425 Document 121 Filed 03/10/10 10 Pages

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TONY WEST Assistant Attorney General ANDR BIROTTE, Jr. United States Attorney VINCENT M. GARVEY PAUL G. FREEBORNE W. SCOTT SIMPSON RYAN B. PARKER U.S. Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8460 E-mail: paul.freeborne@ usdoj.gov Attorneys for Defendants United States of America and Secretary of Defense UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LOG CABIN REPUBLICANS, ) ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA AND ) ROBERT M. GATES, Secretary of ) Defense, ) ) Defendants. ) ) ) ) ) Case No. CV04-8425 (VAP)(Ex) DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR AN ORDER THAT CERTAIN REQUESTS FOR ADMISSION BE DEEMED ADMITTED OR FOR FURTHER RESPONSES Discovery Cutoff: Mar. 15, 2010 Pretrial Conference: June 7, 2010 Trial: June 14, 2010

DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR ORDER COMPELLING DEFENDANTS TO COMPLY WITH RULE 30(b)(6) DEPOSITION NOTICE

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INTRODUCTION Prompted again by the Courts March 4, 2010 order declining to extend the discovery deadline, Plaintiff seeks yet more ex parte relief. On Friday, Plaintiff applied ex parte for an order compelling Defendants to comply with its 30(b)(6) deposition Notice. And now, on Monday, it applied for ex parte relief regarding Defendants responses to certain requests for admission. The Court should reject the application out of hand. Plaintiff persists in failing to point out that the parties met on February 18, 2010 and discussed all of Plaintiffs discovery motions, including Plaintiffs contemplated motion regarding requests for admission. Recognizing that all such motions were ripe for review, undersigned counsel suggested that all such motions be consolidated into one brief and that the parties jointly move for an extension of the discovery deadline to allow for orderly briefing on all issues. Counsel for Plaintiff objected to such an approach and appeared ready to file discovery motions on all issues pursuant to the deadlines set forth in L.R. 37-1. For reasons only Plaintiff knows and for which it alone is responsible, Plaintiff failed to do so with regard to the 30(b)(6) deposition Noticeand with respect to the requests for admission. Plaintiff alone is responsible for its delay in bringing timely motions; its persistent use of ex parte procedures to remedy Plaintiffs self-made emergencies is contrary to the letter and spirit of the local rules, and should not be tolerated. But even if the application is considered, Plaintiff is unable to show any irreparable harm that would result. The requests for admission Plaintiff seeks to have admitted are improper on their face. Requests 3, 4, 5, 10, 13, 14, and 15 seek to juxtapose the Presidents remarks regarding his intent to seek a repeal of the Dont Ask, Dont Tell statute and whether the statute satisfies review under the rational basis test. Such an attempt is improper and is appropriately subject to the objections lodged by the Government. While Defendants have admitted that the
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President made the remarks attributed to him, it is Congress determination in 1993 that the Court must look to in determining the constitutionality of the statute. And with respect to the requests pertaining to the experience of foreign militaries, which form the remainder of Plaintiffs application, the Government has appropriately objected to the term openly gay and lesbian service members because, as acknowledged by the reports Plaintiff references, very few service members reveal their sexual orientation to colleagues and supervisors, even though permitted to do so. The connection Plaintiff seeks to draw between whether service members are permitted to reveal their sexual orientation and unit cohesion is thus a false connectionand one properly subject to objection. Plaintiff cannot therefore show that it would be irreparably harmed if its motion is not heard; the challenged responses to the requests are wholly proper. BACKGROUND The procedural history of this issue follows what has become an all too familiar pattern in this case: Plaintiff failed to bring a timely motion and now seeks ex parte relief. On January 28, 2010, Defendants served Plaintiff with objections and responses to Plaintiffs first set of Requests for Admission (RFAs). Plaintiff sent Defendants a letter, on February 11, disputing certain of Defendants RFA responses. On February 18, the Court held a status conference in this matter. Following the Conference, Defense counsel approached Plaintiffs counsel and proposed that the three discovery issues that would require motion practicethe disputes concerning the document requests, the 30(b)(6) notice, and the RFAs -be consolidated into one motion. Defense counsel also suggested that the parties ask the Court to extend the discovery deadline to allow for orderly briefing. Plaintiffs counsel rejected Defense counsels proposal, stating that Plaintiff wanted instead to complete discovery by the Courts March 15 deadline. Yet Plaintiffs counsel did not take the actions necessary for the 30(b)(6) deposition
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Notice or RFA disputes to be resolved by the discovery deadline. Rather, it did nothing on either of the disputes until March 3rd, when Plaintiff sent Defendants its portion of a joint stipulation regarding the 30(b)(6) Notice. On March 4, the Court announced that it would not extend the discovery deadline or trial date in this case. Later that same day, Plaintiffs counsel wrote to Defense counsel that Plaintiff intended to seek ex parte applications regarding the 30(b)(6) deposition Notice and RFA disputes. Plaintiff responded with a letter objecting to Plaintiffs misuse of the ex parte process. On the evening of Friday, March 5, Plaintiff filed its ex parte application concerning the 30(b)(6) notice, and on Monday, March 8, Plaintiff filed the ex parte application concerning the RFA responses that is currently before the Court. II. Standard for Ex Parte Relief As already noted by the Government, see Dkt. 120, at 6, Judge Phillips strictly counsels that ex parte applications [are to be used] solely for extraordinary relief, Dkt. 68, at 5, and that counsel are to be guided by Mission Power Engineering Co. v. Continental Casualty, Co., 883 F.Supp. 488 (C.D. Cal. 1995). Because of the abuses in cases such as this, the Court in Mission Power set forth a stringent standard for obtaining ex parte relief. The party seeking relief must establish that it is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect. Id. at 492. And if it is able to make that showing, the party must then show that its cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures. Id at 492. Neither exists here. A. Plaintiff Created this Crisis by Failing to Bring a Timely Motion On February 18, 2010, Defense counsel informed Plaintiffs counsel that the parties dispute over the RFAs would have to be decided on motion and

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proposed combining the motion with the parties other pending discovery disputes. Plaintiff counsel rejected Defense counsels suggestion but took no action concerning the RFAs until filing this ex parte application on March 8, one week before the discovery deadline. Plaintiff attempts to excuse its delay by shifting the blame to Defendants. But Plaintiffs allegation that Defendants kept it from filing a timely motion is unfounded and unsupported by the procedural history and Local Rules. On February 18, following the Courts status conference, counsel for the parties discussed by telephone the pending discovery disputes, including the dispute concerning the RFAs. The conversation that counsel for the parties had on February 18 satisfied the meet-and-confer requirement found in Local Rule 37-1. Rule 37-1 requires the moving party to provide a letter setting forth its position, as Plaintiff did on February 11. It does not, however, require a letter from the non-moving party. The non-moving partys responsibility, rather, is to confer in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. L.R. 37-1. Defense counsel fulfilled this requirement during the parties telephone conversation, and Plaintiffs suggestions to the contrary are false. In addition, even if Plaintiffs counsel felt that Defense counsel had not satisfied the meet-and-confer requirement during the February 18th telephone conversation, Plaintiffs counsel had a responsibility to inform Defense counsel of its concern in a timely manner, rather than wait three weeks to spring the issue on Defense counsel in a last minute ex parte application. Plaintiffs counsel appears to have made the decision to put off initiating motions concerning the 30(b)(6) notice and RFAs based on a mistaken belief that

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the Court would extend the discovery deadline. But Plaintiff counsels mistake does not entitle Plaintiff to ex parte relief. Because this is a situation of Plaintiffs own making, the ex parte application should be denied on this ground alone. III. Denying Plaintiff Ex Parte Relief Will Not Cause Irreparable Harm But even if the application were considered, Plaintiff cannot show that it would be irreparably harmed if its motion is not heard. Defendants objections and responses to the challenged requests for admission are in accord with Rule 36: A. Requests for Admission 3, 4, 5, and 10 The above-referenced requests for admission follow a sequence of requests that ask the Government to admit that President Obama in fact made a series of comments expressing his intent to seek repeal of the DADT statute. The Government has admitted that the President in fact made the statements. The above-referenced requests then attempt to use the Presidents statements to suggest that the DADT statute is somehow legally invalid or unconstitutional. While acknowledging the Presidents statements in each response, the Government objected to each request as improper, noting that the Presidents statements are not to be interpreted in any way as a judgment about the legality of the policy. The responses properly asserted that the constitutionality of the law must be determined at the time of enactment, by noting that it was rational for Congress to have concluded at the time the statute was enacted in 1993 that DADT was necessary in the unique circumstances of military service, 10 U.S.C. 654(a)(13). See Appendix A to Pls Ex Parte App., at 2. And it is the judgment of Congress in 1993 that determines whether the statute has a rational basis. Absent a repeal of the DADT statute, the statute must be reviewed at the time of enactment and is not subject to challenge on the ground of changed circumstances.

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DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR ORDER COMPELLING DEFENDANTS TO COMPLY WITH RULE 30(b)(6) DEPOSITION NOTICE

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See, e.g., United States v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 1996); MontalvoHuertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989); United States v. Teague, 93 F.3d 81, 84 (2d Cir. 1996). Indeed, courts have found that even where Congress has determined that a previous enactment is no longer necessary, that finding does not render the statute unconstitutional. See Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir. 2005); Howard v. U.S. Dept. of Defense, 354 F.3d 1358, 1361-62 (Fed. Cir. 2004). Moreover, Fed. R. Civ. P. 36 requires that requests be drafted in a manner that are simple and direct . . . and limited to singular relevant facts. Safeco of America v. Rawstron, 181 F.R.D. 441, 446 (C.D. Cal. 1998) (quoting S.E.C. v. Micro-Moisture Controls, 21 F.R.D. 164, 166 (S.D.N.Y. 1957). Interjecting vague and subjective phrases such as national security, essential, contribute, and weakens into these requests violates the purpose of the rule. Defendants objections and responses to requests 3, 4, 5, and 10 are entirely appropriate.1 B. Requests for Admission 81-117, 119 Requests 81-117 ask the Government to admit that openly gay and lesbian service members do not harm unit cohesion in those countries that permit gay and lesbian service members to acknowledge their sexual orientation. Defendants objected to the term openly gay and lesbian as vague and ambiguous. Plaintiff asserts that [t]he government cannot claim the terms to be vague and ambiguous Plaintiffs application also states that Defendants objections and responses to requests 13, 14, and 15 are also improper, see Pls Ex Parte App., at 4, but fails to explain the basis for its claim. Each of these requests is premised upon the mistaken assumption that the DADT statute somehow prohibits gay and lesbian service members from serving in the military, when the statute allows service by gay and lesbian service members. See Appendix A to Pls Ex Parte App., at 4. The Government objected and corrected this mistaken premise in its response.
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when 10 U.S.C. 654 uses those very terms to define homosexual and homosexual acts. Pls Ex Parte App., at 6. But Plaintiff is wrong; nowhere in either of those definitions is there any reference made to openly gay and lesbian. The truth is that term is susceptible to a variety of meanings. Indeed, plaintiffs expert, Robert J. MacCoun, who authored the chapter on unit cohesion in the 1993 RAND study referenced by Plaintiff, Pls Ex Parte App., at 9, states that [w]ith respect to the hypothesized threat posed to military cohesion, an appropriate operational definition of openness is the extent to which someones homosexual orientation is acknowledged by the individual, and known by a majority of the individuals colleagues and by supervisors. Robert J. MacCoun, Sexual Orientation and Military Cohesion: A Critical Review of the Evidence (1996). Plaintiff references a Government Accounting Office (GAO) Report issued in 1993, entitled Homosexuals in the Military, Policies and Practices of Foreign Countries, which studied the experience of Canada, Germany, Israel, and Sweden. But that report found that even though gay and lesbian service members in those countries were permitted to acknowledge their sexual orientation to colleagues and supervisors, service members were reluctant to openly admit their sexual orientation for a variety of reasons. Id. at 3. The 1993 RAND study, which studied Canada, France, Germany, Israel, the Netherlands, and Norway, similarly found that in all countries, openly homosexual service members were appropriately circumspect in their behavior while in military situation; they did not call attention to themselves[.] RAND Study, at 103. That study also found that a change in policy permitting gay and lesbian service members to reveal their sexual orientation produced little real change in practice because almost no service members or candidates for service revealed a homosexual orientation. Id.

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at 104. There is, in short, no uniform understanding of what it means to be openly gay and lesbian in this context, and Defendants objections are thus entirely proper. Moreover, even with respect to the impact of allowing openly gay and lesbian service members to serve in foreign militaries, as noted in its response, the Government is without sufficient information to admit or deny such requests based upon the GAO, RAND, or other studies that it is aware of on this subject. As the Court is aware and as has been public announced, the Department of Defense is currently conducting a 9-month review of the policy, but that process is just getting underway, and has not produced any study of the kind that would permit Defendants to admit or deny Plaintiffs requests. The Governments responses to the Requests for Admission posed by Plaintiff were thus entirely proper. CONCLUSION Plaintiffs ex parte application should thus be denied. Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, Jr. United States Attorney VINCENT M. GARVEY Deputy Branch Director

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Dated: March 10, 2010

/s/ Paul G. Freeborne PAUL G. FREEBORNE W. SCOTT SIMPSON RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 [email protected] Attorneys for Defendants United States of America and Secretary of Defense

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DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR ORDER COMPELLING DEFENDANTS TO COMPLY WITH RULE 30(b)(6) DEPOSITION NOTICE