AJF street

Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation.  A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.

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Reporter's Official Transcript of Summary Adjudication/Summary Judgment Motions

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CV 97-1479-WDK






(213) 626-5583

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18645 Hatteras Street, Suite 289
Tarzana, California 91356-1802


1100 Civic Center Plaza
600 West Santa Ana Boulevard
Santa Ana, California 92701

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2 4:30 P.M.

3 * * *

4 THE COURT: Okay. The record will reflect

5 Mr. Favish is present, as well as the government's

6 attorney. Thank you for your patience.

7 You've seen the preliminary ruling, Mr. Favish.

8 Effectively it goes against you for the reasons stated.

9 I certainly will listen to you regarding any points that

10 you wish to address that I have preliminarily ruled

11 upon, Mr. Favish.

12 MR. FAVISH: Thank you, your Honor.

13 By the way, I liked the part about the color

14 photographs. That was okay.

15 THE COURT: The best I can do, I think,

16 Mr. Favish.

17 MR. FAVISH: Well, I'm still wondering how we

18 can cite the Fiske and Starr reports, when Mr. Foster's

19 body was dead in the park, according to the best

20 evidence we have, and his car was not in the park,

21 between 4:30 and shortly before 6:00 p.m.

22 THE COURT: I'm sorry. How do you differ with

23 my view? What is it that's wrong here?

24 MR. FAVISH: Well, on page 6 at the bottom --

25 THE COURT: Yes.

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1 MR. FAVISH: -- in the paragraph right under

2 that headnote section 3, you cite the Fiske report, you

3 cite Starr's report, and you talk about this matter

4 already being the subject of exhaustive investigations.

5 And as I point out in my papers, those investigations

6 are just totally untrustworthy.

7 I mean here you have a report that says that

8 Mr. Foster drove himself to the park in his grey car,

9 parked it in the parking lot, walked into the woods and

10 killed himself. The best evidence we have is that he

11 was certainly dead by 4:30 that afternoon. It was a

12 Tuesday afternoon. There are at least four known

13 witnesses who were in that parking lot between 4:30 and

14 just before 6:00 p.m., at a time when Mr. Foster was

15 dead, according to the best evidence we have. None of

16 them saw a grey car in that parking lot; they saw a

17 brown car. End of issue, as far as I'm concerned, with

18 regard to the trustworthiness of these records.

19 Mr. Starr tells us that the first of these

20 witnesses reported seeing a brown car. As to the next

21 three witnesses, Mr. Starr doesn't tell us what color

22 car they reported seeing. But we have those documents,

23 the underlying FBI, park police, so that's my problem,

24 your Honor. I'm just dealing with the facts and the

25 law, and that's all I want to guide this determination.

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1 And I'd love to hear an adequate explanation,

2 even from Mr. Starr. Were all these four people

3 mistaken and they really saw the grey car, and just

4 thought it was brown? Mr. Starr doesn't even make that

5 claim.

6 So I put forth everything I know on the

7 subjects that I wrote about, and I don't know that we're

8 going to reverse anything here, but I just highlighted

9 that one point. But I like the part about the color

10 photographs, and that's all I can tell you.

11 THE COURT: Well, I'll tell you something,

12 Mr. Favish: The law clerk and I, he came into my

13 chambers a couple of days ago, and he said, "You know,

14 I'm looking over this case," "the Favish case" I think

15 is the way he probably put it, and he said "I'd like to

16 talk with you about it for a while." I don't know how

17 long we sat there and talked about the case, and engaged

18 in what I'll call the balancing, which is actually the

19 essence of what drives the resolution in this case.

20 But it's clear to me in the first instance that

21 there most assuredly is a privacy interest, not just on

22 the part of a living person, but on the part of the

23 survivors. And depending upon the nature of the case

24 and what the subject is of the proposed FOIA discovery,

25 because that's all you're dealing with, the interests

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1 may be some -- the privacy interests may become somewhat

2 heightened; for instance, a corpse, and all of the

3 gruesome nature of things. So the kin of Mr. Foster

4 most assuredly have a privacy interest, and a very

5 significant one.

6 Now, contrariwise, most assuredly there is a

7 public interest. And the public interest is not, as I

8 think I basically put in here, as simplistic as I think

9 the government identified in its filing. Instead, the

10 public interest --

11 My recollection is they talked in terms of the

12 manner in which Mr. Foster undertook his duties. Well,

13 maybe I misunderstand their position, but that's what I

14 understood it to be, as set forth in page 6 of the

15 preliminary ruling. Instead, the public interest is in

16 the circumstances, as I said, surrounding Foster's death

17 and the attendant OIC investigation.

18 Now, when I look at the OIC investigation, this

19 OIC investigation, and the investigation that took place

20 prior to their entry onto the scene, and the

21 investigation undertaken by enumerable of the media, is

22 all or was all directed at finding something awry.

23 Something wrong. And that, I think, to a degree,

24 informs the Court.

25 In other words, this isn't something where the

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1 two special counsel, Fiske and Starr, were disinclined

2 to find the facts. If anything, they were driven to

3 find the facts, and driven to find negative facts, if

4 they were there. Similarly, the people who investigated

5 the case independently, and the people out there in the

6 park service, all were driven to find a negative aspect

7 of things, not just Mr. Foster dispatching himself. And

8 despite their demonstrated inclination, they didn't come

9 up with anything.

10 Now, you want one more look, and the question

11 becomes, when you're in a one-more-look stage in the

12 context such as we have here, how does that measure up

13 against the interests of the family? And my answer is

14 that it measures up as I stated in the opinion. You

15 lose on balance.

16 Now, I want to tell you something, just as an

17 aside, and I have decided against it:

18 We thought long and hard as to whether to

19 basically let you view the pictures only, just view

20 them, but not make a copy of them and not be able to

21 take them with you, which is a kind of middle ground.

22 And then, if you could turn something up, to come back

23 to me.

24 I was persuaded, after a good deal -- a good

25 deal -- of thought, let me tell you, to determine that

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1 my role here is indeed to identify the respective

2 interests of the parties, and to weigh them. Once

3 weighed, effectively, as one of these cases says that we

4 quoted and cited in the preliminary order -- and I can't

5 tell you which case it is now -- as one of them said,

6 you know, basically I lose jurisdiction. I can't cobble

7 together some analysis that says, "Well, you know, even

8 though I don't think you have the interests" --

9 Here it is. It isn't just one of these courts,

10 it happens to be the Supreme Court. Department of

11 Justice v. Tax Analysts, 492 U.S. at 142:

12 "The FOIA confers jurisdiction" -- note

13 that word "jurisdiction" -- "on the

14 district courts 'to enjoin the agency from

15 withholding agency records and to order

16 the production of any agency records

17 improperly withheld.' Under this

18 provision, 'federal jurisdiction'" --

19 underscore that again -- "'is dependent on

20 a showing that an agency has,'" et cetera.

21 It goes on to say: "Unless each of these

22 criteria is met, a district court lacks

23 jurisdiction to devise" -- which is what I

24 was talking about -- "remedies to force an

25 agency to comply with FOIA's disclosure

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1 requirements."

2 It isn't right on, but it's awfully close. And

3 I can't sit here and -- the mandate is, first of all,

4 analyze the respective interests. Having analyzed the

5 respective interests, who prevails and for what reasons?

6 I told you who prevails and for what reasons, and I

7 don't think that I can get into "Well, the government

8 prevails, but I'm going to give you a remedy and then

9 let you revisit it." I don't think I can do that.

10 If you want to go to the Circuit and try to

11 make some law to that effect, you can, because that's

12 where I was thinking of going; namely, I briefly thought

13 of -- not so briefly, actually. I thought of finding

14 that the government prevailed on a balancing of the

15 interests, privacy interests, but I thought what's the

16 harm, having made that decision, in structuring an

17 arrangement that would nevertheless give Mr. Favish

18 limited access to the photographs, which access would be

19 to visualize the photographs, and to then come back, if

20 indeed there was something there, according to

21 Mr. Favish. Then we go through the balancing once again

22 is the problem.

23 Well, attendant with that, quite obviously, is

24 there is no finality, because predictably you're going

25 to be back here. But more importantly, much more

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1 importantly is that's not my role. My role is to make a

2 decision. Having made the decision, I then, in my view,

3 lack the jurisdiction.

4 So as I seek to articulate the position, even

5 if I didn't lack the jurisdiction, I think that there

6 has to be finality. I believe I've engaged in the

7 analysis that is absolutely the proper analysis.

8 I suppose, if you had a different fact

9 scenario -- not "I suppose." I know that if you had a

10 different fact scenario, where you had people who were

11 disinclined to seek the truth, and then that could be

12 demonstrated -- which has not been demonstrated in any

13 way to my satisfaction, not even close. But if you were

14 able to demonstrate a lack or a disinclination to seek

15 the truth, then you're talking a different situation.

16 But quite the contrary, there were just literally scores

17 of people out there trying to prove your points; namely,

18 something was amiss here, something was rotten, and none

19 of them did.

20 Now that isn't dispositive, but it does weigh

21 into the balancing aspect of things, and as a

22 consequence, I'm going to finalize my ruling granting

23 summary judgment for the government as regards the FOIA

24 issue, and telling them that they have to give you the

25 color pictures.

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1 MR. FAVISH: And could I briefly respond to

2 what you just said?

3 THE COURT: Even though I've finalized it, yes,

4 I'll permit you to respond.

5 MR. FAVISH: This is even with regard to the

6 photo that I'm requesting that doesn't include any part

7 of Mr. Foster's body? His eyeglasses on --

8 THE COURT: You're talking about the glasses.

9 MR. FAVISH: Yes, the eyeglasses. You're

10 finding the same level of privacy interest outweighs the

11 public's interests with regard to eyeglasses, which

12 appear broken in another photo of the glasses that was

13 taken in the lab, apparently, and where Dr. Henry Lee,

14 as quoted in the Starr report, apparently found some

15 blood on them and so forth?

16 THE COURT: What's the interest in the -- the

17 government's interest in the glasses? What's the

18 privacy interests in the glasses?

19 MS. LUYMES: Because of where they were

20 located. Where they were located, next to his body.

21 THE COURT: So what?

22 MS. LUYMES: It doesn't take a great deal of

23 lack of imagination to imagine how it is that those

24 glasses got exactly where they were in the condition

25 they were in.

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1 THE COURT: The extrapolation argument I think

2 is a bit tenuous.

3 (Court confers with law clerk.)

4 MS. LUYMES: May I add one other thing, your

5 Honor?


7 MS. LUYMES: Thinking back to what the

8 plaintiff has identified at the outset of his argument,

9 about the color of the car and what the color of the car

10 was, it has no bearing whatsoever on the glasses. In

11 fact, the report says what it says. He wants to see the

12 glasses, but it has nothing to do with anything that has

13 to do with any wrongdoing by the Office of the

14 Independent Counsel with regard to the performance --

15 you know, and I'm using the Court's analysis of the

16 public interest here -- how the Office of the

17 Independent Counsel performed its duties.

18 In the defendant's reply in support of its

19 motion for summary judgment, in footnote 7 we bring to

20 the Court's attention that in Schiffer v. FBI, a Ninth

21 Circuit case, which this Court has cited in your

22 preliminary ruling in other places, the Ninth Circuit

23 indicates that in that case, Schiffer's arguments failed

24 because there's no evidence suggesting that the FBI

25 engaged in wrongdoing; the FBI being the agency involved

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1 in that case. It's beyond understanding how the glasses

2 located next to Mr. Foster's body could shed any light

3 on how -- whether it's Mr. Foster, or whether the Office

4 of Independent Counsel performed its job.

5 THE COURT: I really don't think whether

6 Mr. Foster performed his job is the issue.

7 MS. LUYMES: May I add one --


9 MS. LUYMES: I'm sorry. Were you in mid breath

10 there, your Honor?

11 THE COURT: No, go ahead.

12 MS. LUYMES: Okay. You had asked with regard

13 to taking something up to the Ninth Circuit. Let me

14 just indicate that there was a case that I was involved

15 in called Spurlock v. FBI, which has been cited, and in

16 that case, which arose out of this district, once Judge

17 Real had found that the documents fell within the

18 exemptions, he ordered the FBI to do something else, and

19 the Ninth Circuit said "No, you have no jurisdictions to

20 do that." So the Court's instincts in this regard, in

21 my view, in defendant's view, are absolutely correct.

22 I actually think that there is a reported case,

23 I can visualize, you know, a discussion on the

24 right-hand side of the page, but I could -- if you

25 needed the citation, I would be happy to look it up and

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1 provide it to the Court, where in fact a district court

2 judge did analyze this very idea of whether it would be

3 possible to make photos available to a requester just

4 for that requester to look at, and the courts -- either

5 that court or the reviewing court said "No, you can't do

6 that." So the Court has come out in the right way, in

7 my view, with regard to that.

8 With regard to the color copies, I know it's

9 going to be difficult for the OIC to do this, just

10 because of the facilities and the pressures they're

11 working under. I have been actually to the OIC on two

12 occasions --

13 THE COURT: They have reasonable time. They

14 can go ahead with their investigation.

15 Now there's an investigation; okay?

16 MS. LUYMES: As long as we have some period of

17 time to get this undertaken, my understanding is that

18 the paralegal who did the photocopying, to produce the

19 documents in the Vaughn index that the Court has before

20 it, spent hours doing that. She is no longer there.

21 She is with the Brookings Institution now, so it's going

22 to take some time, but --

23 THE COURT: Some little time.

24 I was just saying from the OIC to the Brookings

25 Institution, that's quite an axis, I'll tell you.

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1 Go ahead.

2 MS. LUYMES: In any event, as long as and

3 assuming the agency doesn't have any problem, I will

4 communicate with them. As long as we have a reasonable

5 time to comply, assuming --

6 THE COURT: How much time do you want?

7 MS. LUYMES: At least 30 days; would that be

8 all right?

9 THE COURT: I'll give you 90 days.

10 MS. LUYMES: Okay.

11 THE COURT: But I think you're going to have to

12 give him the picture of those glasses, so I'm going to,

13 if you'll excuse the expression or form of expression,

14 reframe this, so that the glasses, a picture of the

15 glasses is -- you have to produce that.

16 The rest of it stands, and I'm doing it on two

17 bases: One, on the balance; and two, that I don't have

18 jurisdiction, but they're alternative; okay?

19 Thank you very much.

20 MS. LUYMES: Thank you, your Honor.

21 MR. FAVISH: Thank you, your Honor.

22 (The proceedings adjourned at 4:52 p.m.)




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3 I hereby certify that pursuant to Section 733,

4 Title 28, United States Code, the foregoing is a true

5 and correct transcript of the stenographically recorded

6 proceedings in the above matter.



David M. Lee, CSR 9543, RPR

9 Official Court Reporter

















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