* Although the corrections to the Stephen Little transcript are not actually work-product or attorney-client — they are corrections to the transcript (in the nature of addendum) — USAMRIID is free to redact the changes made that it doesn’t want anyone to see
Posted by DXer on December 15, 2013
CASE CLOSED ... what really happened in the 2001 anthrax attacks? 
DXer said
Jeffrey Miller. USAMRIID’s counsel, urged Mr. Little to read his deposition to ensure its accuracy. See page 63.
MR. SCHULER: I have no further questions, Mr. Little. You have the right to read and sign this deposition or you can waive the reading and signing. One hundred percent record so far, batting a thousand, everybody wants to read so you probably do too.”
MR. MILLER: And we want you read the deposition to be able to make sure of its accuracy.”
Now John Peterson, the top dog overseeing the compliance with FOIA, wants to redact — black out — all the corrections on the grounds of attorney-client/ work product privilege.
Neither privilege actually applies. The page represents corrections to Mr. Little’s sworn testimony. It does not — should not — represent counsel’s work product. Counsel cannot coach the deponent or substantively change his testimony. The process permits the deponent to avoid transcription errors. Many deponents, such as Dr. Friedlander, used the opportunity to add clarity to expression. Natural speech, when transcribed, sometimes is hard to follow, especially when the flow is interrupted by the questioner or when the deponent restarts a thought. Using a form, Dr. Adamovicz corrected the occasional mistranscribed number etc.
But I have assured Mr. Peterson, who I enjoy immensely when he is not withholding documents that the public would benefit from seeing, that I will not administratively appeal or litigate the blacking out of the corrections page on the grounds of work product and attorney-privilege. My main interest is in having the full civil deposition of Mr. Little — to which no protective order applies — uploaded to the USAMRIID Electronic Reading Room. If John P. really thinks that the work-product and/or attorney-client privilege applies, then given that the counsel is acting as counsel for USAMRIID, he can just ask Attorney Miller to explain whether the privilege applies
I merely took great offense at the whopper of the false claim that USAMRIID did not have a copy of Mr. Little’s deposition given that the USAMRIID employee had a copy — as does the in-house lawyer advising him and the FOIA personnel. In a multi-million dollar lawsuit involving numerous deaths, the in-house lawyer has a file where he keeps copies of the civil depositions containing the sworn statement of the agency employees. That’s just how those things roll. A lawyer is only as good as his files and the resources he can bring to bear on an issue. If that they are not entered into the USAMRIID “index”, then that is a problem for USAMRIID FOIA to mull over — not a reason for withholding the document John and Sandra have in front of them.
In an effort to get on the same page and comply with FOIA, USAMRIID should acknowledge the depositions they have and then withhold them on the basis of whatever exemptions Mr. Peterson thinks apply. I threw in a request for Ezzell when I meant Jahrling — my mistake.
But falsely saying that no responsive documents were located is not an option and will result in USAMRIID paying attorneys fees.
The Frederick News-Post
http://m.fredericknewspost.com/archive/military-intelligence-usamriid-makes-the-onion/article_f1b6fe25-8357-5527-b77a-04405258d592.html?mode=jqm
“Tuesday, U.S. District Court proceedings will take place at 521 Fraim St. starting at 9 a.m.”
DXer said
As I recall, there are 7 three-line “corrections” that Mr. Peterson wants to redact.
If you want to understand what USAMRIID does not want you to see, see
http://www.amerithrax.wordpress.com
DXer said
All the corrections are in Stephen’s handwriting so to suggest that they are attorney work product or attorney client privilege is especially unfounded.
DXer said
Hoping to resolve the impasse over production of Mr. Little’s civil deposition and avoid the need for litigation over USAMRIID’s false claim it does not have a copy of the Little civil deposition, I have written the counsel.
Attorney Miller,
Last month, I was discussing with Mr. Peterson, who has a supervisory role and oversight over FOIA production issues, the last page of corrections in Stephen Little’s deposition.
Mr. Peterson had ventured that about 7 3-line corrections by Mr. Little, in his handwriting, would be subject to redaction on the grounds of attorney-client and work-product privilege.
At page 63, you had pointed out that he would want to review the deposition for accuracy (as had all the prior USAMRIID employees deposed to date).
I do not understand the redactions to be attorney client privileged or work product privilege. They were just made by all the deponents for the usual reasons — for example, Dr. Friedlander edited for clarity of expression and Dr. Adamovicz made such corrections relating to mistranscription.
Being a big fan of USAMRIID’s mission and its scientists, I want to be flexible and accommodating as to any pages or words or lines that you , Stephen or others want redacted.
I’m confident Mr. Little wants only whatever counsel and ‘RIID wants.
Can you help John, Sandra and I work through the impasse in an attempt to avoid litigation on this issue of production of the Little civil depo? DOJ has advised USAMRIID FOIA that it is not subject to any protective order.
My aim is to have the civil deposition uploaded to the USAMRIID Electronic Reading Room so that people can understand that Dr. Ivins DID have a reason to be in the lab that critical first week of October 2001 in connection 52 rabbits that were challenged on October 2, 2001. They had been shipped from Covance on September 23 [sic – should be September 24] and immediately moved to biocontainment 3 — protocols contemplated that they go to B3 one week prior to challenge in order to acclimatize themselves being challenged.
The reporter (Gore Brothers) today confirmed that I could not purchase the transcript — it is available only to parties.
I know John and Sandra pretty well — they have persistently sought to implement a principled implementation of the FOIA statute — which also is a privacy statute.
Sometimes given the complexities of the statute people need to put their heads together to work out the correct application of the statute in a particular fact scenario.
Having participated at the deposition (with Major Maloney participating by telephone), I am hoping looping you in will help get people on the same page.
[DXer –
p.s. I know Lew and he gets cranky when we are told to go to DOJ after AUSA Lieber told me by email that we could go fly a kite — that we were never going to get anything more under FOIA about the rabbits.]
Al Qaeda, Anthrax and Ayman Zawahiri: The Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
John responded in a very well-worded but firm letter and refused to produce Mr. Little’s civil deposition. I have asked him (and Jeffrey) to admit that USAMRIID also has copies because it is relevant to how the precedent gets applied. (You will just have to trust me that they do).
Not only does John (or rather USAMRIID FOIA) refuse to allow the room where the mice were kept in late September 2001, USAMRIID refuses to let you hear about the rabbits in the sworn statement made by the employees paid by taxpayers. So if you are wondering why people are not on the same page, understand that it is because gatekeepers have prevented it. They redact and they withhold to suit their own purposes. Sometimes it is per agreement over a cigar on the Truman balcony — sometimes it is at the direction of people in a bureaucracy who just don’t get it.
Rather than consulting with Mr. Kovakas under the contemplated procedure, John refers requesters who want a copy of the civil depositions to the black hole known as DOJ FOIA.
Attorney General Holder’s memo at the start of his tenure was just for show. There has been less transparency under this Administration than any other. We’ve seen DOJ FOIA in action before on these very issues. Indeed, AUSA Lieber specifically vowed in writing we would never get anything more under FOIA about the 52 rabbits and her assurances have been proven out.
As a matter of law, the fact that another agency has the document in no way avoids USAMRIID’s obligation to produce the document.
In any event, the contact info JP provided was:
James M. Kovakas
Freedom of Information/Privacy Act Office
Civil Division Room 8020
1100L Street, N.W.
Department of Justice
Washington, DC 20530
OFFICE: (202) 514-3319
Email: Civil.Routing.FOIA@USDOJ.gov
Lew Weinstein said
How can this not be called “COVER-UP?”
DXer said
I called James who seems the consummate professional. (As the Army FOIA personnel always have seemed). He promptly returned the call and knew what we were talking about so he made me set forth my understanding of the Little depo and the form that USAMRIID had it in. He says the civil division attorney is on vacation for the next 8 days. Which brings us to Christmas Eve. And nothing gets done inside the beltway in the legal world between Christmas and New Years.
So even though DOJ sent USAMRIID FOIA a copy of the deposition and advised the Army it was not subject to a protective order, anyone who wants a copy can take a number, commit to paying fees, and then bring in 2014 without a copy of the civil deposition.
If the FOIA was operating as it should, Sandra would have been authorized to shoot over the civil depo by email. (There can be no search costs or copying costs for an electronic document waiting in the FOIA person’s inbox).
James may not recall that it was contact with him many moons ago that has led to me still not having copies of the civil depositions. It was at the time, perhaps, that internal Army emails showed that there was no reason to produce a particular iG report. But then McClatchy’s FOIA request was denied. When I posted the internal emails, the parties then moved the court to eliminate the protective order that they had decided in their infinite wisdom was unnecessary.
There is no protective order governing the Little civil deposition and analysis is much simpler. The failure to produce the 2013 is unwarranted. In failing to produce USAMRIID has violated FOIA just as it did in refusing to eliminate the redaction of the room number where the animals were kept. The room number and civil deposition is needed so that Dr. Ivins’ key card entries could be understood and the “alibi” tested. Under the public interest in knowing the room number, it should have been disclosed under a balancing of (b)(2).
Both the issue of that room number and the related issue of USAMRIID’s withholding of the Little civil depo has now been exhausted by my correspondence with JP. Attorneys fees are warranted on both issues.
Rule of thumb: Bring suit against USAMRIID. DOJ Civil will submit affidavits on the issue of “agency records” without raising an improper party defense. (Army’s JP was silly when he suggested the draft and attorney client privilege and James knows it although he didn’t admit it).
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