Transcript of October 13, 2000, Hearing

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE WILLIAM D. KELLER

UNITED STATES DISTRICT COURT JUDGE

ALLAN J. FAVISH,

PLAINTIFF,

VS.

OFFICE OF THE INDEPENDENT COUNSEL,

DEFENDANT.

CASE NO. CV97-1497-WDK

REPORTER'S TRANSCRIPT OF PROCEEDINGS

HEARING: FILING AND SPREADING-REVERSAL/REMAND

LOS ANGELES, CALIFORNIA

FRIDAY, OCTOBER 13, 2000

MICHELE C. MCKAY, CSR OFFICIAL REPORTER PRO TEM

429-U.S. COURTHOUSE

312 NORTH SPRING STREET LOS ANGELES, CA 90012 (213) 894-6052

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1 APPEARANCES OF COUNSEL:

2 IN BEHALF OF THE PLAINTIFF:

3 ALLAN J. FAVISH ATTORNEY AT LAW

4 18645 HATTERAS STREET #289 TARZANA, CALIFORNIA 91356-1802

5 (818) 342-2389

6 IN BEHALF OF THE DEFENDANT:

7 ASSISTANT UNITED STATES ATTORNEYS OFFICE BY: JAN L. LUYMES

8 ASSISTANT UNITED STATES ATTORNEY

411 WEST FOURTH STREET, SUITE 8000

9 SANTA ANA, CALIFORNIA 92701 (714) 338-3500

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1 FRIDAY, OCTOBER 13, 2000; LOS ANGELES, CALIFORNIA

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3 THE CLERK: ITEM NO. 2, CV97-1497-WDK,

4 ALLAN J. FAVISH V. OFFICE OF THE INDEPENDENT COUNSEL.

5 PLEASE STATE YOUR APPEARANCES.

6 MS. LUYMES: GOOD MORNING, YOUR HONOR.

7 JAN LUYMES, FROM THE U.S. ATTORNEYS OFFICE REPRESENTING THE

8 OFFICE OF INDEPENDENT COUNSEL.

9 THE COURT: GOOD MORNING.

10 MR. FAVISH: GOOD MORNING, YOUR HONOR.

11 ALLAN FAVISH. I AM THE PLAINTIFF.

12 THE COURT: GOOD MORNING, MR. FAVISH.

13 MR. FAVISH AND MS. LUYMES, I HAVE BEFORE ME THE

14 OPINION -- WELL, FIRST OF ALL, BEFORE I GET TO THAT, I

15 SUPPOSE IT'S BACK HERE SO THE MANDATE IS AN ORDER OF FILE

16 AND SPREAD.

17 NUMBER TWO, THE ISSUE IS HAVE YOU RESOLVED THIS

18 AMONGST YOURSELVES?

19 MS. LUYMES: NO, YOUR HONOR.

20 THE COURT: OKAY. SO YOU NEED ME TO RESOLVE IT.

21 NOW, I LOOK AT THIS OPINION -- AND EXCERPTING A

22 PORTION OF IT AND LOOKING AT PAGE 7947, IT SAYS, QUOTE,

23 "WE HOLD AS A MATTER OF LAW THAT THE PERSONAL PRIVACY AND

24 THE STATUTORY EXEMPTION EXTENDS TO THE MEMORY OF THE

25 DECEASED HELD BY THOSE TIED CLOSELY TO THE DECEASED BY

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1 BLOOD OR LOVE, AND THEREFORE, THAT THE EXPECTABLE INVASION

2 OF THEIR PRIVACY CAUSED BY THE RELEASE OF RECORDS MADE FOR

3 LAW ENFORCEMENT MUST BE BALANCED AGAINST THE PUBLIC PURPOSE

4 TO BE SERVED BY DISCLOSURE."

5 NOW, THEY HAVE IDENTIFIED PREVIOUSLY IN THE

6 OPINION AT PAGE 7946, THE PEOPLE WHO SEEMINGLY ARE WITHIN

7 THE PENUMBRA OF COVERAGE HERE, AND THEY ARE SHEILA FOSTER

8 ANTHONY, THE DECEDENT'S SISTER, HIS MOTHER, HIS CHILDREN,

9 AND HIS WIDOW. NOW, HAVING IN MIND THE PEOPLE TO BE

10 PROTECTED, HAVING IN MIND THE GUIDANCE THAT THE COURT HAS

11 GIVEN US, I THEN MOVE TO PAGE 7948, AND THEY SAY, QUOTE,

12 "WE DO NOT, HOWEVER, HAVE BEFORE US ALL OF THE RELEVANT

13 FACTS. THE OIC REPRESENTS THAT THE TEN WITHHELD

14 PHOTOGRAPHS ARE 'GRAPHIC, EXPLICIT AND EXTREMELY

15 UPSETTING.'"

16 "THAT DESCRIPTION IS NOT TRUE OF THE PHOTO

17 ALREADY PUBLISHED IN TIME AND ON TELEVISION SHOWING A HAND

18 HOLDING A GUN. IT MAY BE TRUE OF THE REMAINING NINE

19 PHOTOS, BUT NO COURT HAS EVER SEEN THEM. THE DISTRICT

20 COURT HAS DISCRETION TO DECIDE UNDER FOIA THE BASIS OF

21 AFFIDAVITS, AND AFFIDAVITS ARE IN SOME CASES SUFFICIENT. IN

22 CAMERA" -- EXCUSE ME -- EXCERPTING. "BUT WHEN THE AGENCY

23 AFFIDAVITS ARE INSUFFICIENTLY DETAILED, IN-CAMERA REVIEW IS

24 APPROPRIATE."

25 BOTTOM LINE, "JUDGE, YOU'VE GOT NINE PHOTOS.

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1 YOU TAKE A LOOK AT THEM. YOU TELL ME. YOU DO THE

2 BALANCING," RIGHT, MR. FAVISH?

3 MR. FAVISH: YES, SIR. AND I SEE THAT IT'S

4 APPLYING TO THE ORIGINAL PRISTINE PHOTOGRAPHS THAT YOU MUST

5 LOOK AT.

6 THE COURT: WHEN YOU SAY "ORIGINAL PRISTINE," WHAT

7 ARE YOU TALKING ABOUT?

8 MR. FAVISH: THESE ARE POLAROID PHOTOGRAPHS. AND

9 AS I UNDERSTAND THE 9TH CIRCUIT'S ORDER, YOU SHOULD BE

10 LOOKING AT THE ORIGINAL POLAROIDS NOT COPIES OF THE

11 ORIGINALS.

12 THE COURT: WELL, I WOULD BE INCLINED TO THINK YOU

13 ARE CORRECT.

14 MS. LUYMES, WHAT'S YOUR RESPONSE?

15 MS. LUYMES: FIRST, YOUR HONOR, I KNOW THAT THE

16 FAMILY IS QUITE CONCERNED ABOUT --

17 THE COURT: SPEAK UP, PLEASE.

18 MS. LUYMES: EXCUSE ME, YOUR HONOR.

19 I KNOW THAT THE FAMILY IS QUITE CONCERNED ABOUT AN

20 OFFICIAL DISCLOSURE OF THE PHOTOGRAPH SHOWING A HAND

21 HOLDING A GUN. THAT PHOTOGRAPH WAS NEVER OFFICIALLY

22 DISCLOSED EITHER BY MY CLIENT OR BY THE UNITED STATES

23 GOVERNMENT. IT WAS LEAKED SOMEWHERE.

24 THE COURT: WAIT A SECOND. LET'S NOT MUCK AROUND

25 WITH THE THING THAT'S ALREADY OUT THERE. LET'S LOOK AT THE

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1 NINE PHOTOS THAT ARE IN ISSUE. NINE PHOTOS ARE IN ISSUE.

2 DO YOU HAVE THE ORIGINALS HERE TODAY?

3 MS. LUYMES: NO, YOUR HONOR. ONCE MORE, WE DO

4 HAVE COLOR COPIES PREPARED. I AM PICKING THEM UP,

5 ACTUALLY, IN D.C. NEXT WEEK, AND WE WILL BE ABLE TO BRING

6 ALL TEN OF THEM BACK.

7 I MUST TELL YOU THAT FROM THE PERSPECTIVE OF NOT

8 ONLY THE FAMILY BUT MY CLIENT AS WELL, WE VIEW IT AS TEN

9 PHOTOGRAPHS WHICH ARE PROPERLY BEFORE THIS COURT.

10 THE COURT: THE TENTH BEING THE HAND WITH THE GUN?

11 MS. LUYMES: ABSOLUTELY.

12 THE COURT: THAT'S ALREADY IN THE PUBLIC DOMAIN.

13 MS. LUYMES: BUT NOT OFFICIALLY DISCLOSED. AND

14 THERE IS A WHOLE BODY OF LAW, YOUR HONOR -- AND I WOULD BE

15 HAPPY TO BRIEF IT -- THAT STANDS FOR TWO POINTS; ONE

16 WRITTEN ACTUALLY BY JUDGE O'SCANNLAIN WHO WAS ON THE PANEL

17 THAT TALKS ABOUT IF THERE IS NO OFFICIAL DISCLOSURE, WE'RE

18 NOT REQUIRED -- NO GOVERNMENT AGENCY IS REQUIRED TO BE

19 PRODUCING SOMETHING THAT HAS NOT BEEN OFFICIALLY DISCLOSED.

20 AND, SECONDLY, THERE IS A CONCEPT, WHICH I BELIEVE

21 JUDGE O'SCANNLAIN ALSO RECOGNIZED, OF --

22 THE COURT: JUDGE O'SCANNLAIN DIDN'T WRITE THE

23 OPINION. NOONAN WROTE THE OPINION AND O'SCANNLAIN

24 SUBSCRIBED TO IT AND PREGERSON SUBSCRIBED/DESCENDED.

25 SO, HEY, LOOK IT, LET'S GET ON WITH IT. I DON'T

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1 WANT TO BE ALL MORNING WITH THIS.

2 NUMBER ONE, HE WANTS THE ORIGINAL PHOTOGRAPHS. HE

3 DOESN'T WANT COPIES. HE'S RIGHT. HE GETS THE ORIGINALS.

4 YOU HAND-CARRY THE ORIGINALS OR HAVE THEM SENT OUT HERE.

5 I'VE GOT TO TELL YOU --

6 MS. LUYMES: EXCUSE ME.

7 THE COURT: I'VE GOT TO TELL YOU GRATUITOUSLY,

8 I'VE GOT A PROFOUND DISINTEREST -- AS A MATTER OF FACT, IT

9 GOES BEYOND THAT. I DON'T WANT TO LOOK AT THE PHOTOGRAPHS.

10 OKAY? BUT I GET TO LOOK AT THEM. NOW, I HAVE TO LOOK AT

11 THEM. THEY HAVE TO PASS MUSTER PER THIS OPINION HERE.

12 I THINK MR. FAVISH IS CORRECT, THEY HAVE TO BE THE ORIGINAL

13 PHOTOGRAPHS.

14 NOW, LET ME -- JUST AS A PREVIEW, WHAT ARE

15 THESE -- WHAT ARE THE SUBJECTS OF THESE OTHER NINE

16 PHOTOGRAPHS? WHAT ARE THEY? CAN YOU TELL ME?

17 MS. LUYMES: THEY ARE ALL -- AND WERE DESCRIBED IN

18 THE VAUGHN INDEX -- ALL DEATH SCENE PHOTOGRAPHS OF

19 MR. FOSTER.

20 THE COURT: OF THE BODY?

21 MS. LUYMES: YES.

22 THE COURT: WELL, YOU KNOW --

23 MS. LUYMES: MAY I MAKE A --

24 THE COURT: JUST A SECOND, MS. LUYMES.

25 MS. LUYMES: SORRY.

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1 THE COURT: IT DIDN'T LOOK LIKE I STOPPED, DID IT?

2 YOU KNOW, THE PHOTOGRAPHS AS YOU DESCRIBE THEM,

3 ARE EXTRAORDINARILY SENSITIVE, OKAY, BUT -- AND NEEDLESS TO

4 SAY, IS SOMETHING THAT I DON'T WANT TO LOOK AT. BUT THE

5 ANSWER IS "I DON'T CARE WHETHER YOU WANT TO LOOK AT IT,

6 JUDGE, THAT'S YOUR JOB." OKAY. IT'S MY JOB. I'LL LOOK AT

7 IT. I DON'T WANT THE COPIES. I WANT THE ORIGINALS.

8 IF YOU WILL, PRESENT THE TEN. I DON'T SEE AN

9 ISSUE ON THE GUN. I DON'T KNOW WHY YOU'RE MAKING A POINT

10 ABOUT THE GUN PHOTO THAT'S ALREADY BEEN, AS I SAID, IN THE

11 PUBLIC DOMAIN. WHAT DO YOU CARE?

12 MS. LUYMES: OH, THE FAMILY CARES A GREAT DEAL.

13 THE FAMILY CARES A GREAT DEAL.

14 THE COURT: OKAY. I TELL YOU WHAT. HERE'S WHERE

15 WE ARE. YOU STILL HAVE THE SAME TEST, MS. LUYMES, WHETHER

16 THE TENTH PHOTOGRAPH, WHICH I'M REFERRING TO, THAT BEING

17 THE HAND WITH THE GUN, IS RELEASED OR NOT IS -- AGAIN, I

18 CAN TREAT IT -- I CAN TREAT IT THE SAME WAY THAT I WAS

19 PREPARED TO TREAT THE ORIGINAL NINE PHOTOGRAPHS, I.E., I

20 LOOK AT THOSE TEN PHOTOGRAPHS IN CAMERA, AND I DETERMINE

21 WHETHER -- USING THIS BALANCING TEST THAT'S SET FORTH IN

22 THE OPINION -- WHETHER THE PHOTOGRAPHS ARE DISCOVERABLE

23 UNDER FOIA.

24 AND AT THAT POINT IN TIME, I CAN MAKE THE ORDER,

25 OR I CAN GIVE YOU TEN DAYS TO FILE A NOTICE OF APPEAL IF

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1 YOU DIFFER FROM ME IF, INDEED, I ORDER IT RELEASED. I

2 DON'T KNOW THAT I'M GOING TO, QUITE FRANKLY, BUT I'VE GOT

3 TO LOOK AT THE PHOTOS.

4 SO WHAT I THINK WE NEED IS AN ORDER TO THIS

5 EFFECT, THE TEN ORIGINAL PHOTOS, WHICH ARE THE ONLY PHOTOS

6 AT ISSUE NOW -- FAIR STATEMENT, BOTH OF YOU?

7 MS. LUYMES: THAT'S FROM MY -- THAT'S AS FAR AS I

8 KNOW.

9 MR. FAVISH: I DISAGREE, YOUR HONOR. NINE PHOTOS

10 ARE AT ISSUE. AS YOU READ FROM THE 9TH CIRCUIT OPINION,

11 THE 9TH CIRCUIT HAS RULED THAT THE GUN-IN-HAND PHOTO IS NOT

12 GRAPHIC AND EXPLICIT AND EXTREMELY UPSETTING, WHICH IS THE

13 SOLE BASIS FOR THEIR CLAIM. THAT TENTH PHOTO SHOULD BE

14 ORDERED RELEASED NOW.

15 THE COURT: I'M TELLING YOU, I'M NOT RELEASING IT

16 NOW. I'M GOING TO TUCK THIS ALL INTO ONE RULING, BUT IT'S

17 GOING TO BE PRETTY CLOSE TO NOW BECAUSE SHE'S GOING TO GET

18 A SHORT REIGN ON HAVING THOSE PHOTOS HERE, AND I'M GOING TO

19 LOOK AT IT.

20 AND PRELIMINARILY, MR. FAVISH, I AGREE WITH YOU,

21 THAT TENTH PHOTO IS THE SUBJECT OF DISCOVERY, IF YOU WILL.

22 BUT I'M GOING TO LOOK AT IT FIRST. IT'S A KIND OF A --

23 WHAT I'M DOING IS BUTTRESSING THE RECORD, ALL RIGHT. THEY

24 WANT TO MAKE SOME OTHER ISSUE, WHICH IS THEIR PREROGATIVE.

25 GO AHEAD AND MAKE IT. I'M GOING TO HAVE LOOKED AT IT, AND

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1 I'M GOING TO MAKE A DECISION, HAVING IN MIND WHAT THE COURT

2 OF APPEALS HAS SAID.

3 NOW, I'M TELLING YOU, THE CHANCES ARE VERY GOOD,

4 PARENTHETICALLY VERY GOOD, THAT YOU'RE GOING TO BE LOOKING

5 AT THAT ONE PHOTOGRAPH. NOW, THESE OTHER ONES, I DON'T

6 KNOW.

7 NOW, WHAT TIME -- HOW MUCH TIME DO YOU NEED TO GET

8 THE TEN ORIGINAL PHOTOGRAPHS HERE?

9 MS. LUYMES: YOUR HONOR, I AM BACK IN D.C. FOR

10 OTHER PURPOSES ALL OF NEXT WEEK. I WILL BE RETURNING TO

11 THIS OFFICE, THIS BUILDING, OR ACROSS THE STREET, ON

12 OCTOBER 24TH. I CAN BRING THOSE OVER AT THAT TIME.

13 THE COURT: WHY DO YOU HAVE TO HAND-CARRY THEM?

14 WHY CAN'T THEY?

15 MS. LUYMES: IF THEY ARE THE ORIGINALS -- I HAD A

16 DISCUSSION WITH THEM YESTERDAY. THEY ARE VERY, VERY

17 CONCERNED --

18 THE COURT: OKAY.

19 MS. LUYMES: -- ABOUT THE INTEGRITY.

20 ESPECIALLY, I MEAN, THEY WERE CONCERNED ABOUT THE INTEGRITY

21 OF COPIES AND NOW WE'RE TALKING ORIGINALS.

22 THE COURT: EXCUSE ME. LET'S MOVE ON.

23 THE QUESTION IS THIS, MS. LUYMES. DON'T YOU HAVE

24 SOME OTHER PEOPLE FROM YOUR OFFICE WHO ARE BACK AND FORTH

25 OR SOME OF THESE DEPARTMENT TYPES COMING OUT HERE THAT

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1 COULD BRING IT OUT SOONER?

2 MS. LUYMES: THE SHORT ANSWER IS I DON'T KNOW THAT

3 ANYBODY IS GOING BACK THERE. I KNOW THAT I AM GOING BACK

4 THERE, AND I'M GOING TO MAKE A POINT OF GOING TO THE OFFICE

5 OF INDEPENDENT COUNSEL TO RETRIEVE THEM, AS WELL AS A CLEAN

6 COPY OF THE OFFICE OF INDEPENDENT COUNSEL'S REPORT, WHICH

7 THIS COURT NEVER HAD BEFORE IT, AND I THINK WOULD BE

8 HELPFUL TO THE COURT IN TERMS OF BALANCING THE PUBLIC

9 INTEREST AND TO DETERMINE WHETHER OR NOT THERE IS, INDEED,

10 ANY PUBLIC INTEREST IN THESE PHOTOGRAPHS. BECAUSE THAT IS,

11 INDEED, AS I UNDERSTAND THE 9TH CIRCUIT'S DECISION AND AS

12 THE COURT WELL UNDERSTOOD FROM OUR PRIOR BRIEFING, THAT WAS

13 THE ISSUE BEFORE THE COURT.

14 THE COURT: I UNDERSTAND WHAT THE ISSUE IS. OKAY.

15 MR. FAVISH?

16 MR. FAVISH: YOUR HONOR, IF I MAY --

17 THE COURT: YES.

18 MR. FAVISH: I CERTAINLY UNDERSTAND THE CONCERN

19 ABOUT MAINTAINING THE INTEGRITY OF THE ORIGINAL

20 PHOTOGRAPHS. HOW THE COURT WISHES TO VIEW THEM, I DEFER TO

21 THE COURT, WHETHER THE COURT WANTS TO VIEW THEM OUT HERE,

22 OR FOR SECURITY REASONS, GO BACK TO THE OFFICE OF

23 INDEPENDENT COUNSEL ON THE EAST COAST AND VIEW THEM TO KEEP

24 THEM SAFE.

25 THE COURT: YOU WANT ME TO GO?

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1 MR. FAVISH: NO. NO. I DIDN'T SAY I WANT YOU TO.

2 IT'S TOTALLY UP TO YOU, BUT I'M SAYING OBVIOUSLY --

3 THE COURT: I KNOW WHO I WANT TO SEND TO

4 WASHINGTON THESE DAYS, AND IT'S NOT ME.

5 MR. FAVISH: BUT MY CONCERN IS FOR THE INTEGRITY

6 OR THESE ORIGINAL PRISTINE PHOTOGRAPHS, AND I DON'T WANT TO

7 HEAR LATER THAT THEY WERE LOST ON A PLANE FLIGHT COMING

8 ACROSS THE COUNTRY.

9 THE COURT: MS. LUYMES IS NOT GOING TO LOSE THEM.

10 SO THE ANSWER IS THE PHOTOGRAPHS WILL BE BROUGHT TO

11 LOS ANGELES. ALL RIGHT?

12 MR. FAVISH: YES. AND I HAVE ONE OTHER POINT.

13 THE COURT: WHAT'S THAT?

14 MR. FAVISH: I PLAN TO FILE A MOTION TO ASK THE

15 COURT TO COMPEL TESTIMONY FROM TWO FORMER EMPLOYEES OF THE

16 OIC REGARDING ALLEGATIONS OF ILLEGAL TAMPERING WITH ONE OR

17 MORE OF THESE SUBJECT PHOTOGRAPHS. THE TWO FORMER

18 EMPLOYEES ARE MIGUEL RODRIGUEZ, WHO IS CURRENTLY AN

19 ASSISTANT U.S. ATTORNEY IN SACRAMENTO, AND HIS FORMER

20 ASSISTANT AT THE OIC, LUCIA RAMBUSH. I KNOW UNDER THE

21 LOCAL RULE 7.41, I HAVE TO HAVE A CONFERENCE WITH

22 MS. LUYMES.

23 THE COURT: YOU ARE CONFERRING RIGHT -- WELL, I

24 THINK YOU BETTER CONFER FURTHER BECAUSE IT MAY BE --

25 MS. LUYMES, THIS AREA IS A -- TO SAY THE LEAST -- A

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1 SENSITIVE AREA. IF MR. FAVISH IS OF THE OPINION THAT THERE

2 IS THE POTENTIAL THAT SOMEBODY IN SOME MANNER COMPROMISED

3 THESE PHOTOGRAPHS, THEN I THINK AS A PART OF THE DISCOVERY

4 ASSOCIATED WITH THIS LAWSUIT, PRIOR TO MY RULING OR

5 ASSOCIATED WITH MY RULING, HE NEEDS TO BE ABLE TO TAKE

6 THOSE DEPOSITIONS. THAT WOULD BE MY PRELIMINARY RULING.

7 MR. FAVISH: NOW, ONE OTHER THING --

8 THE COURT: WAIT A SECOND. I'M LOOKING AT HER.

9 WHAT DO YOU THINK, MS. LUYMES?

10 MS. LUYMES: GENERALLY SPEAKING, YOUR HONOR, THERE

11 ISN'T DISCOVERY IN A FOIA REQUEST. I MEAN, I HAVE SEEN

12 THESE PHOTOS. THERE IS NO EVIDENCE TO MY EYE -- AND IF WE

13 NEED TO CALL THE FBI IN SINCE THEY HAD ORIGINAL CUSTODY OF

14 THE PHOTOS, THEN MAYBE I NEED TO HAVE THE FBI TAKE A LOOK

15 AT THEM AND SEE WHETHER THERE'S BEEN ANY EVIDENCE OF

16 TAMPERING.

17 AS YOU KNOW FROM YOUR DAYS OF BEING U.S. ATTORNEY,

18 IF YOU'RE GOING TO TRY AND TAKE THE DEPOSITIONS OF

19 ASSISTANT UNITED STATES ATTORNEYS OR OTHER EMPLOYEES,

20 LAWYERS WITHIN THE DEPARTMENT OF JUSTICE, YOU'VE GOT TO

21 FOLLOW PART 16 AND DEMONSTRATE. YOU'VE GOT SOME HOOPS TO

22 OVERCOME. AND I DON'T SEE THAT -- TO ME THIS IS JUST A

23 TOTAL FISHING EXPEDITION.

24 THE COURT: HEY, LOOK IT, I DIDN'T COME UP WITH

25 THIS STATUTE. I DIDN'T COMMENT ON THE WISDOM OF THE

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1 STATUTE. THE STATUTE IS THE STATUTE, SO LET'S NOT GO

2 FURTHER WITH THAT.

3 NOW, THE ANSWER IS PRELIMINARILY HE IS ENTITLED TO

4 THOSE DEPOSITIONS. HOW YOU ARRANGE IT, IT'S UP TO YOU. YOU

5 MEET AND YOU FIGURE IT OUT. AND I AM GIVING YOU A LITTLE

6 BIT OF PROMPTING, I.E., I AM FAVORABLY INCLINED TO ISSUE AN

7 ORDER TO THE EFFECT THAT THE TWO DEPOSITIONS WILL BE TAKEN.

8 OKAY?

9 MS. LUYMES: I UNDERSTAND THAT, YOUR HONOR.

10 HOWEVER, WOULD IT BE -- WE WOULD LIKE TO PROVIDE

11 THE COURT WITH SOME POINTS AND AUTHORITIES ADDRESSING THIS

12 ISSUE.

13 THE COURT: I SAID "PRELIMINARILY." DID I SAY

14 "FINALLY"?

15 MS. LUYMES: NO. I HEARD YOU.

16 THE COURT: WHY DO YOU THINK I SAID

17 "PRELIMINARILY" FOR?

18 MS. LUYMES: WELL, BECAUSE YOU ALSO TALKED ABOUT

19 AN ORDER, AND I WAS CONCERNED THAT WE WOULDN'T EVEN HAVE AN

20 OPPORTUNITY TO BRIEF.

21 THE COURT: HERE'S THE THING. IF YOU CAN'T

22 AGREE -- IF YOU CAN'T AGREE -- ONE WOULD HOPE YOU WOULD --

23 I JUST GAVE YOU PREVIEW RULING, OKAY, NOT A FINAL RULING, A

24 PREVIEW RULING CALLED A PRELIMINARY RULING.

25 THE PRELIMINARY RULING IS GIVEN THE NATURE OF THE

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1 STATUTE, GIVEN THE NATURE OF THE SUBJECT MATTER, GIVEN THE

2 BACKGROUND IN THIS CASE WITH IT GOING TO THE COURT OF

3 APPEALS, THE ANSWER IS THAT IT SEEMS TO ME THAT MR. FAVISH

4 IS ENTITLED UNDER HIS THEORY OF THE CASE -- ALBEIT VERY

5 SPECULATIVE, ONE COULD ARGUE -- ENTITLED TO LIMITED

6 DISCOVERY, I.E., "WHO ARE YOU? DID YOU HAVE THESE

7 PHOTOGRAPHS? DID YOU EVER DO ANYTHING TO THEM?" THE MAN

8 SAYS "NO." THAT'S JUST ABOUT IT. THE DEPOSITION IS OVER.

9 IT ISN'T A VERY LONG DEPOSITION. OKAY?

10 NOW, I'M NOT ARGUING IT ANY FURTHER. I'M JUST

11 TELLING YOU THAT'S WHERE YOU ARE.

12 NUMBER TWO, THAT THE PHOTOGRAPHS, YOU LODGE THEM

13 WITH THE COURT.

14 AND, MR. FAVISH, I'M GOING TO BE OUT OF TOWN THE

15 24TH. THAT'S WHY I WANTED TO GET THEM NEXT MONDAY OR

16 TUESDAY. I CAN'T GET THEM.

17 MS. LUYMES: YOUR HONOR --

18 THE COURT: WAIT A SECOND, MR. FAVISH. JUST A

19 SECOND. OKAY?

20 I WILL GET TO THEM, THOUGH, WITHIN THE WEEK, SO

21 YOU WILL HAVE ME LOOKING AT THE PHOTOS. IF THERE'S A

22 FURTHER HEARING REGARDING THE NEED -- IF I NEED TO DISCUSS

23 IT FURTHER WITH YOU, I'LL NOTICE A HEARING. AS I RECALL,

24 YOU'RE OUT IN PASADENA, MR. FAVISH?

25 MR. FAVISH: I'M IN TARZANA, SAN FERNANDO VALLEY.

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1 THE COURT: WERE YOU PREVIOUSLY? WERE YOU THERE

2 WHEN YOU FILED YOUR MOTION?

3 MR. FAVISH: I WAS IN PASADENA.

4 THE COURT: WHEN YOU FILED THE LAWSUIT?

5 MR. FAVISH: YES.

6 THE COURT: I AM GOING TO SAY THAT I CAN'T

7 REMEMBER SOME LAW, BUT I CAN REMEMBER, BELIEVE IT OR NOT --

8 AND I HAVE NOT LOOKED IT UP HERE -- ALL I HAVE IS THE

9 OPINION THAT YOU WERE FROM PASADENA, AND THAT WAS MY

10 RECOLLECTION. WHEN DID YOU FILE THIS LAWSUIT -- '98? IT

11 WASN'T THAT LONG AGO.

12 MS. LUYMES: YOUR HONOR --

13 THE COURT: AT ANY RATE, SO HERE WE ARE THEN.

14 I'LL LOOK AT THEM. AND IF I NEED FURTHER HEARING IN VIEW

15 OF THE IN-CAMERA REVIEW, I'LL TELL YOU. IF I DON'T, I'LL

16 RULE. AND ASSOCIATEDLY, IF YOU WANT TO PURSUE SOME TYPE OF

17 DISCOVERY, DISCOVERY TO THE EFFECT OF, "WELL, WHAT YOU'RE

18 LOOKING AT, JUDGE, ISN'T REALLY WHAT WAS ORIGINALLY

19 PHOTOGRAPHED, I.E., IT'S BEEN DOCTORED OR ALTERED," YOU CAN

20 TAKE THE -- YOU CAN TAKE THE DISCOVERY.

21 AS I TALK IT OUT, I THINK THE BETTER WAY TO DO

22 THIS IS THAT YOU PROCEED WITH MY MAKING A RULING ON THE

23 PHOTOGRAPHS.

24 WAIT A SECOND, MR. FAVISH.

25 FOR THE RECORD FAVISH IS GOING TOWARD THAT

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1 MICROPHONE.

2 JUST WAIT A SECOND, MR. FAVISH.

3 OKAY. NOW, I'LL MAKE THE RULING. THE RULING WILL

4 BE YES OR NO. IF IT'S A "NO," THEN YOUR BACK-UP ARGUMENT

5 IS "WAIT A SECOND, JUDGE. YOU KNOW, WHAT YOU LOOKED AT

6 WASN'T THE ORIGINAL. I WANT A DEPOSITION." UNDER THOSE

7 CIRCUMSTANCES, SUBJECT TO BRIEFING, I THINK YOU'RE ENTITLED

8 TO IT.

9 ON THE OTHER HAND, IF I RELEASE ALL OF THE

10 PHOTOGRAPHS AND YOU LOOK AT IT, YOU MAY -- WHAT YOU HAVEN'T

11 SEEN -- YOU MAY SAY, "I DON'T NEED THE DEPOSITION." SO I

12 THINK THE DEPOSITION LOGICALLY COMES AFTER MY RULING.

13 FOLLOW ME? OKAY.

14 SO THAT'S THE WAY WE'RE GOING TO DO IT. I'LL MAKE

15 MY RULING AND THEN YOU'RE GOING TO HAVE YOUR RULE UMPTY-UM

16 MEETING, SEVEN OR WHATEVER IT IS. YOU HAVE YOUR MEETING.

17 AND IF YOU CAN'T AGREE ON IT, THEN YOU NOTICE YOUR

18 DEPOSITION, BUT DO SO AFTER I'VE MADE THE RULING ON THE TEN

19 PHOTOGRAPHS. OKAY?

20 MS. LUYMES: YOUR HONOR, MAY I BE HEARD AS TO ONE

21 MATTER, PLEASE?

22 THE COURT: YES.

23 MS. LUYMES: I KNOW FROM TALKING WITH MY CLIENT

24 THAT THEY ARE VERY CONCERNED ABOUT ME LODGING THE

25 PHOTOGRAPHS IN THE CLERK'S OFFICE. THEY HAVE NO PROBLEM

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1 WITH ME BRINGING THEM TO CHAMBERS. WOULD IT BE ACCEPTABLE

2 TO THE COURT THAT I CONTACT YOUR DEPUTY CLERK OR YOUR

3 SECRETARY TO FIND OUT A CONVENIENT TIME SO THAT I COULD

4 BRING THEM DIRECTLY TO CHAMBERS?

5 THE COURT: YES.

6 MS. LUYMES: THANK YOU.

7 THE COURT: ANYTHING ELSE? OKAY. THANK YOU.

8 MR. FAVISH: YOUR HONOR, MY CONCERN IS THE TIMING

9 OF MY MOTION, WHICH I'VE ACTUALLY PREPARED AND I'M --

10 THE COURT: THE DEPOSITION MOTION?

11 MR. FAVISH: YES, TO ASK THE COURT TO --

12 THE COURT: I JUST TOLD YOU. HOLD IT UNTIL I GIVE

13 YOU THE RULING. THAT'S THE LOGICAL WAY. PUT A NOTE IN THE

14 FILE. OKAY?

15 MR. FAVISH: ALL RIGHT, YOUR HONOR. THANK YOU.

16 THE COURT: IT WILL HELP YOU, BELIEVE ME. OKAY.

17 THANK YOU.

18 (END OF ITEM NO. 2.)

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1 C E R T I F I C A T E

2

3 I HEREBY CERTIFY THAT THE FOREGOING IS A TRUE AND CORRECT

4 TRANSCRIPT OF THE STENOGRAPHICALLY RECORDED PROCEEDINGS IN

5 THE ABOVE MATTER.

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8 _______________________________ ____________

9 MICHELE C. MCKAY, CSR DATE

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