The FBI has prohibited Supervisory Special Agent Dr. Drew C. Richardson of the FBI Laboratory from providing expert testimony in Mr. Tenenbaum's suit. In this answer to Defendant's motion to quash subpoena directed to Drew Richardson, Mr. Tenenbaum's attorneys explain that:
Dr. Richardson is primarily being asked to give an opinion about whether there is scientific validity to the means, methods and conclusions rendered by Albert Snyder with reference to the polygraph examination given to David Tenenbaum on February 13, 1997. Plaintiffs are asking Dr. Richardson to review the scientific validity of the methodology, question formulation and the scientific control, if any, associated with that formulation.
(In 1997, Dr. Richardson testified before a subcommittee of the Senate Committee on the Judiciary that polygraph screening "is completely without any theoretical foundation and has absolutely no validity.")
Dr. Richardson is "ready, willing, and able" to provide the requested testimony. But the FBI and its general counsel's office have prohibited Dr. Richardson from reviewing evidence in Mr. Tenenbaum's case and have prohibited him "from having any documentary contact between himself and plaintiff's counsel."
Why is the FBI denying Dr. Richardson his 1st Amendment rights, and denying Mr. Tenenbaum access to relevant, expert testimony?
If you have information that may be relevant to this case, or have shared a similar experience that would help to establish a pattern of governmental wrongdoing, please contact David Tenenbaum.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID AARON TENENBAUM and
MADELINE GAIL TENENBAUM,
Plaintiffs,
Case No. 98-CV-74473-DT
vs.
HONORABLE ROBERT H. CLELAND
LT. COL. JOHN SIMENINNI; ALBERT D.
SNYDER; JACK PARKS; ED JACKOVICH;
MARK P. YOURCHOCK; ROBERT M. RILEY,
Individually and in their Representative Capacities
as Employees for the Various Federal Agencies
that Employ Them; and THE UNITED STATES
OF AMERICA,
Defendants.
_____________________________________/
JUAN A. MATEO (P33156) GEORGE LA PLATA (P16416)
JAMES C. HOWARTH (P15179) Co-Counsel for Plaintiffs
Attorneys for Plaintiffs 370 East Maple
2000 Penobscot Building Birmingham, MI 48009
Detroit, MI 48226 (248) 644-8910
(313) 962-3500
WILLIAM L. WOODARD (P27404)
Assistant U. S. Attorney
211 W. Fort Street, Suite 2001
Detroit, MI 48226
(313) 226-9786
PLAINTIFFS' ANSWER TO DEFENDANTS' MOTION TO
QUASH SUBPOENA DIRECTED TO DREW RICHARDSON
Plaintiffs DAVID AARON TENENBAUM and MADELINE GAIL TENENBAUM, by their counsel, JUAN A. MATEO, JAMES C. HOWARTH and GEORGE LAPLATA, hereby respond to Defendants' Motion to Quash Subpoena Directed to Drew Richardson and request this Court deny same for the reasons indicated in the attached Memorandum in Support of Answer as well as the record established in Plaintiffs' Response to Defendants' Motion to Dismiss Case No. 00-70309, which is incorporated by reference.
Respectfully submitted,
______________________________
JUAN
A. MATEO (P33156)
2000
Penobscot Building
Detroit,
MI 48226
(313)
962-3500
Dated: 24/07/00
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID AARON TENENBAUM and
MADELINE GAIL TENENBAUM,
Plaintiffs,
Case No. 98-CV-74473-DT
vs.
HONORABLE ROBERT H. CLELAND
LT. COL. JOHN SIMENINNI; ALBERT D.
SNYDER; JACK PARKS; ED JACKOVICH;
MARK P. YOURCHOCK; ROBERT M. RILEY,
Individually and in their Representative Capacities
as Employees for the Various Federal Agencies
that Employ Them; and THE UNITED STATES
OF AMERICA,
Defendants.
_____________________________________/
JUAN A. MATEO
(P33156) GEORGE
LA PLATA (P16416)
JAMES C. HOWARTH (P15179) Co-Counsel
for Plaintiffs
Attorneys for
Plaintiffs 370
East Maple
2000 Penobscot
Building Birmingham,
MI 48009
Detroit, MI
48226 (248)
644-8910
(313) 962-3500
WILLIAM L. WOODARD (P27404)
Assistant U. S. Attorney
211 W. Fort Street, Suite 2001
Detroit, MI 48226
(313) 226-9786
MEMORANDUM IN SUPPORT OF PLAINTIFFS' ANSWER TO DEFENDANTS' MOTION TO QUASH SUBPOENA DIRECTED TO DREW RICHARDSON
COUNTER-STATEMENT OF FACTS
Plaintiff DAVID TENENBAUM is an Orthodox Jew, speaks Hebrew and is the son of a Holocaust survivor. He has been employed at TACOM since 1984. Unknown to plaintiff until this litigation, he has been the subject of multiple United States Army Intelligence and FBI investigations since at least 1992. He has also been the subject of various anti-Semitic remarks and attitudes not only from the defendants but also from various personnel at TACOM and government officials.
Contrary to the government's Statement of Facts, plaintiff was not subjected to a background investigation to review his special access program clearance and to upgrade his clearance from secret to top secret. Plaintiff was investigated by various agencies of government for espionage and false swearing and was ultimately polygraphed regarding those two crimes on February 13, 1997, by polygraph examiner and Defense Investigative Agent, Albert D. Snyder.
Over the years members of the 902nd Military Intelligence Group, a counter-intelligence unit of the Department of Army, located at Selfridge Air Force Base and Lt. Col. John Simonini, Director of Intelligence and Counter-Intelligence at TACOM, have goaded the FBI into conducting investigations of David Tenenbaum. Specifically, in 1996 these individuals suggested to the FBI that David Tenenbaum was involved in espionage activities for the State of Israel, which led to a four month preliminary inquiry regarding Tenenbaum by Special Agent James Gugino of the FBI for the time period of May through September 25, 1996.
At the conclusion of this preliminary inquiry, Special Agent James Gugino concluded there was no possibility that David Tenenbaum had committed an act of espionage.
Notwithstanding such a finding, on October 21, 1996, members of the 902nd Military Intelligence Group and Lt. Col. John Simonini briefed TACOM officials and accused plaintiff before the hierarchy of the TACOM base of being involved in espionage activities for Israel. A decision was reached to eliminate plaintiff's access to special access programs (SAP) (these are special classified projects), which decision was officially implemented on November 12, 1996. Paul Barnard testified on October 14, 1999, that plaintiff had not had any access to special access programs since at least October, 1995. (Exhibit A, Paul Barnard, October 14, 1999 dep, pp 62-63). According to plaintiff, even though he may have had access to these programs, he effectively had not worked on a SAP program since 1992.
With this background, at least three government agencies agreed to conduct an investigation into the "possible questionable relationship between Mr. Tenenbaum and Government of Israel officials," under the guise of a routine single-scope background investigation (SSBI) (Exhibit B). As of December 10, 1996, the FBI had already agreed to conduct a full investigation and, along with the Defense Investigative Service and the 902nd Military Intelligence Group, schemed to have Tenenbaum interviewed and polygraphed.
Bureaucratically, none of this could have been done without TACOM officials requesting such an investigation. Jack Parks made such a request in a memo dated November 8, 1996, (Exhibit C) which requested that Tenenbaum undergo a periodic reinvestigation to increase his security clearance from secret to top secret. Mr. Parks has acknowledged in his deposition that he knew that Mr. Tenenbaum was being accused of spying for Israel and was present at the October 21, 1996 briefing. Furthermore, the Parks memo, which refers to Tenenbaum being taken off SAP programs, demonstrates another error in the factual sequence and the pretextual investigation. In fact, Tenenbaum was not read off those programs until November 12, 1996. Paul Barnard confirms that the Parks memo raises questions about its honesty. (Exhibit A, October 14, 1999 dep, p 53). Mr. Barnard acknowledges that common sense dictates plaintiff would not get an increase in clearance after he has been labeled a security risk. (Exhibit A, Barnard dep, October 14, 1999, p 44).
The FBI, the DIS and the 902nd Military Intelligence Group worked together throughout the SSBI. Tenenbaum was required to undergo a six-hour interview on February 3, 1997. No evidence of criminal conduct was obtained during this interrogation.
Well before Tenenbaum was interviewed and underwent a polygraph examination, according to the testimony of Agent Riley (DIS) and his report, the FBI had already committed to conducting a criminal investigation. (Exhibit D, Riley dep, pp 208, 210). FBI Agents Gugino and his supervisor, Roger Pendenza, claimed that the FBI investigation was initiated because of the alleged deception and confessions made by plaintiff during the polygraph. (Exhibit E, Pendenza dep, p 42).
On February 13, 1997, Tenenbaum underwent a polygraph examination. As a result of the comments attributed to Tenenbaum by polygraph examiner Albert Snyder and Snyder's conclusion that plaintiff was deceptive, the FBI executed the search warrant at plaintiff's home, and plaintiff's personal effects were also confiscated by TACOM personnel from his office.
Agent Snyder claims that plaintiff confessed to spying for Israel and the specific claims of this espionage activity are reflected in the FBI search warrant affidavit. (See Exhibit F). None of these claims have ever been corroborated. In fact, after a thirteen-month extensive investigation into plaintiff's and his family's life and background, the FBI and Paul Barnard have concluded that plaintiff was not passing classified information to the Israelis, nor has he ever been involved in improper conduct with the Israelis. (Exhibit G, FBI memo dated February 3, 1998; Exhibit A, Barnard dep, October 14, 1999, pp 90-91).
Plaintiffs' counsel has received information regarding Dr. Drew Richardson, Supervisory Special Agent of the FBI. Dr. Richardson is uniquely qualified to render opinion testimony about the validity of using a polygraph to screen government employees on issues of espionage, and how the polygraph process impacts human physiology.
Plaintiffs believe that Dr. Richardson is ready, willing and able, not only to repeat sworn testimony he had provided to the United States Senate on September 27, 1997, but also to review various materials and render an opinion if and how Agent Snyder may have manipulated the process and whether the evidence suggests Snyder fabricated the admission/confession he attributes to David Tenenbaum. Dr. Richardson also has various documents which he has provided to Donald Kerr, Deputy Director and Director of the FBI Crime Lab, which he hopes would be provided (but have not been) to plaintiffs' counsel. It is plaintiffs' counsel's understanding that this information is further evidence that would support plaintiff's position in this case.
It is the FBI and its general counsel's office which have prohibited Dr. Richardson from reviewing these materials and prohibited Dr. Richardson from having any documentary contact between himself and plaintiff's counsel. Dr. Richardson has informed plaintiffs' counsel that the FBI has instructed him not to sign any declarations nor have any communication with plaintiffs' counsel. Dr. Richardson also indicated that he has, in the past, through the Crime Lab, assisted counsel throughout this country in various other areas of forensic science, but the FBI refuses to allow him to do so with regard to the polygraph issue.
ARGUMENT
I. THE UNITED STATES, AND IN PARTICULAR, THE FBI, HAS MISREPRESENTED THE TASK DR. RICHARDSON IS BEING ASKED TO DO BY PLAINTIFFS' COUNSEL.
Dr. Richardson is primarily being asked to give an opinion about whether there is scientific validity to the means, methods and conclusions rendered by Albert Snyder with reference to the polygraph examination given to David Tenenbaum on February 13, 1997. Plaintiffs are asking Dr. Richardson to review the scientific validity of the methodology, question formulation and the scientific control, if any, associated with that formulation.
It is Dr. Richardson's understanding of human physiology as it applies to the polygraph issue that makes him the unique scientist that he is. He has corresponded with Donald Kerr, Assistant Director of the FBI and Director of the Crime Laboratory, providing him with information regarding the lack of validity of the polygraph.
Dr. Richardson is not being asked to verify whether the examiner has performed that which is normal and customary of a Defense Investigative Service polygraph examiner. Although that task might be properly performed by a polygraph examiner, Dr. Richardson is being asked for a more rigorous scientific insight as to the polygraph process itself.
Plaintiff's counsel believes that no one in the FBI, including the FBI Polygraph Unit, the FBI General Counsel or any other agency within government has the scientific background credentials to challenge Dr. Richardson's ability to perform such a task. Dr. Richardson has a Ph.D. in physiology, which he obtained from George Washington Medical Center in 1991. He has also completed course work for a Ph.D. in pharmacology from the same school.
Dr. Richardson has been called on by the FBI to deal with specialized issues involving polygraphs. While employed by the Polygraph Research Unit of the FBI, a unit which is no longer in existence, Dr. Richardson conducted polygraph research. In one case he was requested in by a senior polygraph examiner to review the effects of drugs on polygraphs. For this work Dr. Richardson was given a commendation by then Director William Sessions. Dr. Richardson is a graduate of the Department of Defense Polygraph Institute, Basic Polygraph Examiners Course and a practitioner of the Controlled Question Test (CQT) used in polygraph examinations.
Dr. Richardson has been asked to speak to some of the leading polygraphers in the country. He was invited by the FBI, to speak two years in a row at the Federal Interagency Polygraph Symposium, a national meeting of federal polygraph examiners, a symposium put on by the FBI. He also has lectured before the Society of Psychophysiological Research as to polygraph related issues.
On September 27, 1997, Dr. Richardson provided testimony before the United States Senate Committee on the Judiciary, Subcommittee on Administrative Oversight, which was holding hearings on the FBI Crime Lab. During his testimony Dr. Richardson stated that regarding polygraph screening in the areas of counter-intelligence matters, espionage and lifestyle issues that:
It is completely without any theoretical foundation and has absolutely no validity. Although there is disagreement among scientists about the use of polygraph testing in criminal matters, there is almost universal agreement that polygraph screening is completely invalid and should be stopped. This type of testing is no more than that of astrology or tealeaf reading. ...Thus, I believe that there is virtually no probability of catching a spy with the use of polygraph screening techniques.
(Exhibit H).
Furthermore, and very germane to the issues in this case, Dr. Richardson has experienced and has knowledge of situations where the polygraph examiner claims, as he does in this case, that he obtained a confession from the subject. Dr. Richardson refers to these situations as "false admission/confession cases". In an effort to combat this problem, Dr. Richardson recommended to the Senate on September 27, 1997, that no polygraph test for screening should be conducted without video/audio recording. Furthermore, Dr. Richardson is aware of situations where less than scrupulous examiners may be inclined to fabricate an admission/confession, especially in situations where the polygraph examiner is rewarded for each confession that he gets, and that corroborates a deceptive reading. This is especially a problem, according to Dr. Richardson, where the polygraph examiner is aware that the subject will never know the results of the tests, i.e., job screening.
A. RELEVANCE
Federal Rule of Civil Procedure 26(b)(1) provides a broad definition of relevance. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, or which appears legally calculated to lead to discovery of admissible evidence.
The government argues that it is not relevant in this case to develop evidence regarding the use of polygraphs to screen government employees on issues of espionage, nor is it relevant to develop evidence regarding the validity of polygraph results. The government's position tests the outer bounds of logic and advocacy.
The government relies on the affidavit of Kendall W. Schull, Unit Chief for the Polygraph Unit of the Federal Bureau of Investigation. According to Mr. Schull, the FBI conducts thousands and thousands of polygraph examinations. The federal courts have rejected the admissibility of polygraphs on the basis that they are not scientifically reliable. See United States v Scheffer, 523 U. S. 303 (1998). Regardless of how many times polygraphs are used by the FBI, if experts within their own laboratory can provide sworn testimony that polygraphs used to screen individuals on issues of espionage are completely scientifically invalid, then it appears to be logical that the Rules of Civil Procedure and the Rules of Evidence would allow such testimony.
Furthermore, the claim that David Tenenbaum was not given a polygraph examination as part of an espionage screening process also belies logic and the record. The form used by the polygraph examiner refers to screening Tenenbaum specifically for espionage. (Exhibit I). The examiner asked Tenenbaum the following questions:
A: Have you provided classified information to any unauthorized person?
B: Are you involved in espionage?
C: Do you personally know anyone involved in espionage?
D: Have you ever been asked to provide classified information to unauthorized persons?
As Dr. Richardson has already testified, "There is virtually no probability of catching a spy with the use of polygraph screening techniques." As sworn testimony has revealed, the government has no evidence at all corroborating any acts of espionage by Mr. Tenenbaum. Accordingly, the polygraph process itself, including the alleged confession, becomes the essential cornerstone of this case. It is that process, according to the FBI, which was used to commence the criminal investigation and to authorize the search warrant.
Accordingly, if the truth is that the government has known all along that these
polygraph examinations are invalid, have no scientific reliability and no more scientific
than "astrology" or "tea leaf reading," then a jury can conclude that
the fabricated confession/admission of Mr. Snyder was not only his own act, but involved a
concerted effort with others in government to falsely accuse plaintiff Tenenbaum of
espionage.
II. THE UNITED STATES GOVERNMENT IS SUBVERTING DR. RICHARDSON'S ACADEMIC FREEDOM AND FIRST AMENDMENT RIGHTS.
The Laboratory Division/FBI and the Office of General Counsel, et al., have already established a track record for opposing academic freedom and freedom of speech, in particular, as it relates to polygraph matters and Dr. Richardson's opinions. See International Journal of Psychophysiology, 193 Vol. 15, 263-9, theCQT Polygraph Dilemma: Logical-Ethical Consideration for Psychophysiological Practitioners and Researchers. See Exhibit J. This paper was originally co-authored by Dr. Drew Richardson along with John J. Furedy of the University of Toronto. The FBI would not allow Dr. Richardson to have his name listed as a co-author. In the acknowledgement to the paper, Mr. Furedy indicates:
This paper was originally written by Dr. Drew C. Richardson, a Supervisory Special Agent in the Federal Bureau of Investigation (FBI), Member of the Society of Psychophysiological Research, Graduate of the Department of Defense Polygraph Institute, Basic Polygraph Examiners Course and finally, a practitioner of CQT in both simulated and field criminal investigations. It was on the basis of his reflections about his field polygraph experiences that we formulated the Polygraphers Dilemma and submitted this paper as a jointly-authored one. After acceptance of the paper for publication, the FBI requested Dr. Richardson remove his name from authorship. He has ceded to this request and has ceded me any intellectual property rights to any ideas we have discussed. ...I have reluctantly agreed to honor Dr. Richardson's request; but emphasize my great indebtedness to him for the ideas presented in this paper. ...Id. 263.
This paper raises the ethical concerns of polygraphers manipulating the tests in ways which include falsely reporting that a subject made a confession.
Here, the FBI and the government go far beyond simply squelching Dr. Richardson's academic freedom and association with publication regarding polygraphs. The government seeks to prohibit Dr. Richardson from formulating any opinions regarding the Tenenbaum matter by not allowing him access to any of the documentation which we have forwarded to Dr. Richardson and by prohibiting Dr. Richardson from providing plaintiff's counsel with documentation in the possession of the FBI Crime Laboratory, which we believe to be essential to David Tenenbaum's cause. The government's position is a Draconian prior restraint measure, that should not be tolerated in a democratic free society.
"Any system of prior restraint of expression comes to the court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v Sullivan, 372 U. S. 58, 70 (1963). The government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for the Better Austin v Keefe, 402 U. S. 415, 419 (1971); New York Times Company v Sullivan, 403 U. S. 713 (1971) (the Pentagon Papers case).
Plaintiffs have documentary evidence and an extensive array of sworn testimony supporting the fact that as of December 10, 1996, the FBI, the Defense Investigative Service and Army Intelligence had an agreement to have Mr. Tenenbaum undergo an investigation into his relationships with Israelis, where it was predetermined that Tenenbaum would undergo an interview and a polygraph. According to sworn testimony, including the testimony of Paul Barnard, polygraphs are not included in security clearance investigations, and Barnard, specifically, has never heard of anyone at TACOM being polygraphed under the guise of a single-scope background investigation. (Exhibit A, Barnard dep, September 30, 1999, pp 98-99 and October 14, 1999 dep, p 39).
Before the polygraph interview on January 23, 1996, the special agent in charge of the FBI investigation wrote in his report, "No evidence has been forthcoming regarding the possibility that he (Tenenbaum) has been involved in the compromise of restricted U. S. Army information through representatives of Israel." (Exhibit K, Gugino dep, August 19, 1999, p 79). Even after Tenenbaum was interrogated for six hours on February 3, 1996, there still was no evidence of any criminal wrongdoing that implicated him. Yet, according to agents of the Defense Investigative Service, prior to the polygraph the FBI was already committed to conducting a criminal investigation. (Exhibit D, Robert Riley dep, April 5, 2000, p 210). Now the FBI wants the federal courts to prohibit one of its own laboratory experts, who has already provided similar testimony before the United States Senate, from testifying, not only as to the lack of validity of the polygraph process that Tenenbaum was subjected to, but also as to his opinion regarding whether the polygraph examiner fabricated the alleged admission/confessions attributed to Tenenbaum.
During this testimony before the Senate, a senator indicated:
Dr. Richardson, you have rocked the boat. You sit up pretty clearly on this whole question of polygraphs.
Eventually Dr Richardson responded:
I am fairly comfortable with stating the truth and the protection with the truth.
(Exhibit H, Senate Hearing Transcript, p 33).
Here it is the FBI and the United States Government that is not comfortable with stating the truth.
A. THE GOVERNMENT HAS AN OBLIGATION NOT TO PREVENT ITS EMPLOYEES FROM EXERCISING FIRST AMENDMENT RIGHTS.
It is clear that a federal employee does not relinquish his First Amendment rights simply because he works for the government. While the government can, in some instances, restrain an employee from speaking on an issue, the courts have held that a balancing test must be struck which will take into account the interest of the employee as a citizen to comment on matters of public concern and the interest of the state as an employer. United States v National Treasurer Employee Union, 513 U. S. 454 (1995); Pickering v Board of Education, 391 U. S. 563 (1968).
The ultimate question of whether speech is protected is a matter of law. Meyers v City of Cincinnati, 934 F. 2d 726, 729 (6th Cir. 1991), citing Rankin v McPherson, 438 U.S., 378, 386 n. 9 (1987). Whether speech is a matter of public concern must be determined by "the content, form and context of a given statement as revealed by the whole record." Conick v Meyers, 461 U. S. 138, 147-148 (1983). The threshold of what constitutes "public concern" is not awesome. It was well defined in Dishnow v School District of Rib Lake, 77 F. 3d 194 (7th Cir. 1996):
When the Supreme Court, in its cases establishing and bounding the rights of public employees to exercise free speech limited those rights to speech on matters of "public concern", they did not mean matters of transcendent importance, such as the origins of the universe or the merits of constitutional monarchy; they meant matters in which the public might be interested, as distinct from wholly personal grievances -- which whether or not protected by the First Amendment are too remote from its central concerns to justify judicial interference with the employment relation -- and casual chitchat, which is not protected by the First Amendment at all. ...when Dishnow spilled the beans to the media about the school board's violation of state law, or wrote articles for a local newspaper on such topics as the sharing of household tasks by a working couple, he was participating in a public dialogue on matters of interest to the public, and no more was required to place his speech, prima facie, within the protection of the First Amendment. That the public was not large, that the issues were not of global significance, that Dishnow's participation was not (we mean no disrespect) vital to the survival of western civilization, did not place his speech outside the orbit of protection. We are troubled that the defendants appear not to accept or even understand this fundamental point about American civil liberties. Dishnow, supra at 197.
The federal courts should not tolerate the suppression of valuable testimony from a qualified expert simply because the government doesn't like its own expert's opinion.
B. THE SUBPOENA DUCES TECUM DIRECTED TO DR. RICHARDSON IS NOT UNDULY BURDENSOME.
The government claims that the subpoena is unduly burdensome, relying on Exxon Shipping Company v United States Department of Interior, 34 F. 3d 774 (9th Cir. 1994). There, a notice of taking a deposition was served with ten subpoenas for ten federal employees. Such a discovery maneuver may be considered to be unduly burdensome.
Here, there is no burden on the government. Federal Rule of Civil Procedure 45(c)(3) provides that a court may modify or quash a subpoena if it subjects a person to undue burden. (Emphasis supplied). Here, we presumably have a willing witness, who is charging no fee, who has already provided similar testimony before the United States Senate, and who could testify at no cost to the government or inconvenience to the government. Plaintiffs will pay for all costs of this deposition.
C. THE SUBPOENA DUCES TECUM DIRECTED TO DR. RICHARDSON DOES NOT PLACE DR. RICHARDSON IN A POSITION WHERE HE MAY REVEAL PRIVILEGED INFORMATION, NOR IS THE PRIVILEGE OBJECTION A BASIS TO QUASH A SUBPOENA.
Throughout this litigation the government has routinely raised the issue of privilege in order to prohibit plaintiff's access to relevant information. Plaintiffs have received literally thousands of pages of redacted documents, documents redacted so heavily that it is very difficult to discern what they mean or where they came from.
Now the government claims that Dr. Richardson may possibly reveal privileged information regarding the law enforcement privilege. The government cites to no specific case which sets forth how this privilege applies to issues of polygraph. Furthermore, the government appears to become ensnared in its own argument by, on the one hand, arguing Dr. Drew Richardson is not qualified to render the opinions which plaintiffs request, and on the other hand, arguing a concern that Dr. Richardson's opinions may reveal privileged law enforcement information.
It appears that the FBI and the government are simply confused. They confuse the revelation of embarrassing information as somehow being privileged information. In Wright v Jeep Corporation, 547 F. Supp. 871, (E.D. Mich. 1982), a defendant in a personal injury action appealed a magistrate's order to quash a subpoena duces tecum, which was directed to a non-party expert who was a vehicle crash researcher. District Judge Joiner stated:
First of all, to maintain the system of justice in this country, it is necessary that all evidence be made available for the resolution of dispute, unless there are public policy reasons for excluding evidence in specific situations. The public ... has a right to every man's evidence, except for those persons protected by constitutional, common law or statutory privilege.
Id. at 873 citing United States v Nixon, 418 U. S. 683, 709 (1973) (other citations omitted).
Judge Joiner compelled the testimony of the researcher, ruling "the administration of justice requires testimony of all persons unless reasons are established to the contrary. Id. p 874. Judge Joiner added:
Rule 26(b)(4) indicates that in the limited situations there described, expert witnesses are to be treated differently and provided specific procedures for those limited situations. Since Professor Snyder does not fit under Rule 26(b)(4) because the study was not developed in anticipation of litigation and because he was not retained by either party. This rule has nothing to do with his claim not to be required to testify. The material request is still relevant and can be compelled under Rule 26(b)(1). Rule 26(b)(4) only attempts to strike some balance between the interest of the parties in discovery of retained experts. It does not apply to this case.
Accordingly, the Federal Rules of Civil Procedure do not support the government's position in this case. Dr. Richardson has not been retained by either party but is someone who has relevant information to a matter of great importance in this litigation. No party should be in a position to prohibit the suppression of that testimony.
Finally, the government may not assert a claim of privilege if the subpoena is not quashed, as the grounds to quash a subpoena. See Ghandi v Police Department of the City of Detroit, 74 F.R.D. 115 (E.D. Mich. 1977). The government cites no case law that supports its position that simply because a privilege may be asserted if the evidence is produced that that is the basis to quash the subpoena. In fact, Federal Rule of Civil Procedure 45(d)(2) requires the government to demonstrate by a description of the nature of the documents, communication, things not produced in such a manner that will allow the plaintiff to contest her claim. Here, the government simply makes the broad-brush objection, claiming some of Dr. Richardson's testimony may lead to privileged information without providing any details. Plaintiffs are confident that none of the information that Dr. Richardson can testify to will violate any law enforcement privilege or any classified information maintained by the United States Government. Again, the government confuses embarrassing evidence with that evidence which may be protected by a privilege.
Respectfully submitted,
______________________________
JUAN
A. MATEO (P33156)
2000
Penobscot Building
Detroit,
MI 48226
(313)
962-3500
Dated: 24/07/00