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.
7/9/97 - Favish v. OIC
Mandatory Status Conference
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE WILLIAM D. KELLER, JUDGE PRESIDING
ALLAN J. FAVISH,
OFFICE OF THE INDEPENDENT COUNSEL,
REPORTER'S TRANSCRIPT OF PROCEEDINGS
LOS ANGELES, CALIFORNIA
WEDNESDAY, JULY 9, 1997
DAVID M. LEE, CSR 9543, RPR
OFFICIAL COURT REPORTER
1653 UNITED STATES COURTHOUSE
312 NORTH SPRING STREET
LOS ANGELES, CALIFORNIA 90012
APPEARANCES OF COUNSEL:
ON BEHALF OF PLAINTIFF:
LAW OFFICES OF REEVES & HANLON
BY: ALLAN J. FAVISH, ESQ.
Two North Lake Avenue
Pasadena, California 91101
ON BEHALF OF DEFENDANT:
OFFICE OF THE UNITED STATES ATTORNEY
NORA M. MANELLA
BY: JAN L. LUYMES
ASSISTANT UNITED STATES ATTORNEY
1100 Civic Center Plaza
600 West Santa Ana Boulevard
Santa Ana, California 92701
WEDNESDAY, JULY 9, 1997, LOS ANGELES, CALIFORNIA
THE CLERK: Item number four, civil 97-1479-WDK, Allan J. Favish versus Office of the Independent Counsel.
MR. FAVISH: Good afternoon, your Honor. Allan Favish for the plaintiff, from the Law Offices of Reeves & Hanlon.
THE COURT: All right. Good afternoon.
MS. LUYMES: And Jan Luymes representing the defendant, your Honor.
THE COURT: Okay. Good afternoon. Will you be seated please, Ms. Luymes.
Mr. Favish, we were debating whether it was "Favish" or "Favish." We opted for "Favish," and I told her if she called it that way, it would surely be "Favish."
MR. FAVISH: It's "Favish," like "lavish," but not as extravagant.
THE COURT: Ah. Okay, Mr. Lavish.
Mr. Favish, all joshing aside, tell me about your lawsuit. I see your complaint, but let's hear about it, please. It's something about a gun and some photographs, so give me the background, will you, please.
MR. FAVISH: This is a federal Freedom of Information Act lawsuit against the OIC, seeking photographs that were taken in connection with the death of Vincent Foster. Most of the photographs that I am requesting are right here, already published by the U.S. Senate Banking Committee.
THE COURT: When you say "right here," we don't have a record of what you're referring to. What are you referring to?
MR. FAVISH: I am referring to the hearings before the Committee on Banking, Housing and Urban Affairs of the United States Senate, 103rd Congress, volumes one and two, on the death of Vincent W. Foster Junior, dated July 29, 1994. That's when the hearings were conducted.
The photographs that I'm seeking were released by Kenneth Starr's predecessor, Robert Fiske, for release to the Department of Interior, under which the park police function; the park police were one of the main investigating bodies into the death. They released, back in July of 1995, a bunch of photographs to the Senate Banking Committee. And most of those photographs that I'm seeking were actually published, albeit in very poor and distorted versions.
There are some photographs that I'm seeking which were not published. Those will be the most difficult legal issues as we proceed, but I believe that the legal issues are a lot clearer for those that have already been released with the consent of Robert Fiske and the Department of Interior, and the U.S. Senate Banking Committee.
THE COURT: You don't have to give a reason, Mr. Favish, but if you're so inclined, why do you want these photographs?
MR. FAVISH: I have since -- since the tragic death, I began looking into it, to the best of my ability, through the general public media, and I've followed it. I have concluded that there are serious questions that were not answered by Robert Fiske.
It's my personal belief that there has been obstruction of justice, and just as a private citizen, I'm looking to do what I can to try to get some answers to some things. That's all.
THE COURT: All right. You've obviously examined what's referred to as FOIA, the acronym. Are there any problems with FOIA as far as you're concerned?
MR. FAVISH: Well --
THE COURT: Basically have you talked with Ms. Luymes and said "Why do we have to litigate? Why can't you get me the photographs?"
MR. FAVISH: Yes. They have raised --
THE COURT: And if so, what she said is that --
MR. FAVISH: They have raised two -- there are two exemptions in the FOIA that they have raised. One has to do with privacy, and that's the (7)(C) exemption. My personal belief is that privacy rights of an individual cease when he dies, and we are not dealing with Vincent Foster's privacy rights as I understand it.
From what I can understand of their claim anyway, they are claiming the privacy rights of his survivors, his family, and I don't see any legal basis for that. I don't see that as a right of privacy.
Perhaps they want to protect the sensibilities of the family, who may not want photographs released, some of which have already been published, and others that haven't been published; namely, photographs of the body. The other --
THE COURT: Are you asking for that, too?
MR. FAVISH: Yes. The ones that I mentioned that are unpublished are photographs of the body; okay? That certainly is where the (7)(C) privacy argument will really be focused.
THE COURT: The question is who holds the privacy privilege, if you will, or the exemption. That's the issue.
MR. FAVISH: I believe that "privacy" is the right to control information about yourself. Vincent Foster had a privacy right --
THE COURT: I understand. I understand your theory, but I don't know the answer.
What's the other --
MR. FAVISH: The second exemption that they are raising is that of (7)(A), which is that they are claiming that release of the photographs would -- can reasonably be expected to interfere with an ongoing investigation.
THE COURT: See, that's another ball game. You probably -- probably, I don't know this finally -- but you probably have the problem with the former, but the latter, you've got to take it on their word.
What's going to happen, in all likelihood, is you're going to get an in camera filing from them, which is going to say "There is an ongoing investigation, and here is our input." And if there appears to be indeed an ongoing investigation which relates to this, then you have a problem.
MR. FAVISH: Well, I believe that that's not totally correct. I believe you would have to find, after an in camera inspection, that disclosure can reasonably be expected to interfere -- and that's the key word, "interfere" -- with an ongoing investigation.
And I believe if they make the case to you in camera showing you the photographs that have already been published, and make a case that it would reasonably interference with their ongoing investigation to release what has already been released, then I go away without photographs. I totally understand that.
THE COURT: Okay. I understand your view.
Okay. Ms. Luymes, you can sit there if you want, but I just want to hear you.
MS. LUYMES: That's okay. Sometimes it feels better to stand up. I've been down as a result of my first exposure with a herniated disk, and I recommend that it not happen to other people.
THE COURT: I'll keep that in mind, Ms. Luymes.
MS. LUYMES: Basically our position is as follows:
First, I should indicate that we have no information that the Independent Counsel appointed by Janet Reno, Mr. Fiske, has disclosed the information, as has been suggested by plaintiff's counsel. And in point of fact, there is no indication that there has been an official disclosure by the Executive branch of these documents.
There is case law that holds that materials provided to Congress do not constitute an official disclosure. Clearly the policy behind that is if that were not the case, you would have no communications between the Executive branch and the Legislative branch. So, you know, if we get to that point and we have to address that, I'm just kind of giving you a heads up of where we're coming from.
Basically at this point in time, the only exemption that we are asserting right now is a (b)(7)(A). And as counsel has correctly noted, those are records or information compiled for law enforcement purposes, but only to the extent that the production could reasonably be expected to interfere with enforcement proceedings.
The Court may wish to know that there have been actually several cases involving various types of evidence associated with the death of Mr. Foster. In a decision by the D.C. District Court, Western Journalism Center v. Office of Independent Counsel, at 926 F.Supp 189, that's a May 6th, 1996 reported decision, the Court there found that --
THE COURT: Who was the court?
MS. LUYMES: Stanley Sporkin.
-- found that the information that was requested there, which included autopsy photos, other types of evidence, physical evidence, certain kinds of files, and they wanted access to Mr. Foster's shoes, all clearly fell within (7)(A).
So this is not the first time that a judicial officer has been faced, at this juncture, with whether or not there is an ongoing enforcement proceeding, and whether the information reasonably could be expected to interfere with an enforcement proceeding.
I had suggested to plaintiff's counsel that perhaps rather than proceeding to prepare a Vaughn index -- because in our expectation, what would happen at this time, if plaintiff wishes to go forward at this time, is as follows:
We would be preparing a Vaughn index that would address just the (7)(A) issue, because in point of fact, the task of the Independent Counsel is not over. And until such time as there has been either -- one of two things happens: Either there is going to be some kind of criminal indictments brought, and then you have a judicial process to resolve that, alternatively, the Independent Counsel could be filing a report to the Special Division of the District of Columbia.
Once the report, to whatever extent -- if that is what were to happen -- were to be released by the Special Division, then at that point we would then re-examine the documents to assert a (7)(C).
I should also tell you that it's my understanding that in other cases, the Foster family has intervened to also assert their privacy interest in the documents. That occurred with regard to a litigation involving Vince Foster's suicide note.
I've had no personal contact with the Foster family, although I'm aware that the Foster family has contacted the Office of the Independent Counsel, my client, and has been interested in knowing what the status of this litigation is. With regard to the (b)(7)(C) -- well, let me backtrack just for a moment.
So we can go ahead and litigate the issue, once again, in my view, of whether (7)(A) is applicable with regard to the specific documents, the photographs that are at issue in this case. But once the (7)(A) -- I mean and then the Court obviously is going to resolve that, in defendant's view.
Once either one of those two scenarios that I have pointed out to the Court, either criminal prosecutions or the special report being finalized by the -- not the special report, but the report by the Special Division, at that point we would go ahead, then, and assert (7)(C), as it may be appropriate.
THE COURT: And then move for what, summary judgment?
MS. LUYMES: Again move for summary judgment on the grounds of (7)(C).
And I should indicate to the Court that there are several cases that hold that family members have privacy interests that are covered by (7)(C). The case that comes to mind most readily, for example, is the Challenger accident, in which the Court -- and I don't remember --
Forgive me, your Honor. I don't remember whether it was a D.C. Circuit or the Second Circuit who held that the actual voice -- you know, the recording of the voices, releasing that information would be too prejudicial, and that the families had privacy interests.
There are other cases involving autopsies, oftentimes arising in, like, aircraft accident cases involving the Air Force, for example, where autopsy photographs and other things relating to autopsy and very graphic evidence, family members have also been found to have (7)(C) interest.
So in terms of where we're headed here, I think that -- I don't -- it's not only that I think, but the case law clearly is there to support a finding of (7)(C) on behalf of the family members.
THE COURT: Have I talked to Mr. Favish about all this? Have you explained to him your position?
Because on the one hand, I understand Mr. Favish wanting to get to the bottom of this, which is the essence of what he is saying, and on the other hand I understand the concerns that are apparent, which are at least two:
One there is an ongoing investigation; and number two, it has been found in the past -- and for a preview for Mr. Favish, it may well be found in this case -- that there is going to be some privacy interests, and they are going to intervene, and somebody is not going to be pouring over autopsy pictures, period. So just understand that.
MS. LUYMES: The answer to your question, though, is yes. We have discussed all --
THE COURT: Mr. Favish seems reasonable.
And I'm only giving you a response, Mr. Favish.
I'm not there as regards an answer, but it's kind of -- to me, it's helpful as an attorney, sometimes, to get a little sense of where the Judge is. I'm sensitive to what you want, I'm sensitive to the needs of the public, but I'm also sensitive to the needs of the bereaved.
I'm sensitive to the needs, if you will, this being baseball season, of the designated hitter. And the designated hitter is the Office of the Independent Counsel, not Mr. Favish. That's basically where I'm coming from, so there you are.
There is a 30-day meet and confer rule. And what I'm hearing here is that if you can't resolve it amongst yourselves --
I don't know if there is some photographs you can give him that have been published, as witnessed by what Mr. Favish demonstrated to the Court here today. If you could help him get the copies of those photographs, that might resolve this without further litigation, I don't know. It might be something you would consider.
MS. LUYMES: Well, I'll certainly bring it back to my client. I would quite -- to be frank, your Honor, I would be surprised, primarily because we haven't made an official disclosure.
You know, sometimes Congress takes things that are provided in a sensitive fashion, and does things with them that are contrary to what other people might think they should have been doing. But in any event, basically, you know, if this matter is not going to be stayed while we wait for the enforcement proceedings to resolve themselves one way or the other, then the next step --
THE COURT: Enforcement proceedings?
MS. LUYMES: Right. Another -- that's the language of the statute, but basically --
THE COURT: The investigation?
MS. LUYMES: Right. In other words, it's ongoing right now. It ultimately will go in one of two paths: either criminal indictments, or a report to the Special Division of the District of Columbia.
THE COURT: What happens, by way of a preview, if you assume that the Independent Counsel, as it relates to the Foster aspect of the things, determines that there was and is nothing criminal afoot and closes it, the report. What's your position regarding photographs at that point in time?
MS. LUYMES: Then we would go through all the documents, and where appropriate, assert a (7)(C).
THE COURT: I'm sorry?
MS. LUYMES: We would go through all of the photographs, all the requested documents, and where appropriate, assert a (7)(C).
THE COURT: Well, but I'm saying it may be that certainly a good part of one of your -- absent the privacy aspect of things, the investigation prong, if you will, has been resolved; i.e., there is no investigation of a criminal nature. Now under those circumstances, is it discoverable or not under the Freedom of Information Act?
MS. LUYMES: That's what I'm saying, your Honor. We would no longer, at that point, assert a (7)(A), we would assert a (7)(C).
THE COURT: See, you're using these terms, and you may labor in the FOIA vineyard with some frequency, but I don't. I've seen it from time to time.
What you're telling me is you then fall back on privacy?
MS. LUYMES: That's correct, your Honor. I apologize.
THE COURT: Okay. I've got it. I've got it.
And Mr. Favish, what you're saying is "I don't want to wait until this is all over because I don't think somebody is doing their job now; ergo, I want to have a look at it."
Is that a fair statement?
MR. FAVISH: Not exactly.
THE COURT: If it's not a fair statement then I'll stay it.
MR. FAVISH: Let me respond.
THE COURT: So you've got one of two choices:
You either want to proceed with it, which is your prerogative, or you say "You know, I'll wait until the Independent Counsel concludes his investigation. I'll await the outcome, and at that point I'll make a determination. In the meantime, I'm agreeable to the matter being stayed."
What's your position, yes or no?
MR. FAVISH: I definitely want to proceed right now.
THE COURT: Fine and dandy.
MR. FAVISH: And your Honor, if I could take just a couple minutes to clarify a couple --
THE COURT: That's about what you have. I don't want to be impolite, but really.
MR. FAVISH: Okay. One thing is none of my requests have to do with autopsy photos. I am not requesting autopsy photos. The photos of the body that I requested were taken of the body as it laid in Fort Marcy Park.
With regard to the Stanley Sporkin decision in the Western Journalism Center case she cited, in that case my understanding is that Judge Sporkin did not -- I underline "did not" -- conduct an in camera inspection of the documents that were being requested. I am asking you to conduct that in camera inspection, to determine whether or not these photos will reasonably be expected to interfere with an ongoing investigation.
Number two, it appears to me that Judge Sporkin was not dealing with the photos that I specifically requested in this case, as far as I can tell.
Number two, with regard to the cases that she talked about with regard to the privacy exemption, I believe some of those cases were wrongly decided, and there are other cases that go the other way, and that's what we'll deal with later.
Basically all I'm asking now is that certainly with regard to the photos that were released -- oh, let me add one other thing.
On page 2455 of the Senate hearing volumes that I cited, which is Senate hearings 103-889, there was a letter dated July 8th, 1994, from an attorney named Timothy S. Elliott, who is the Deputy Associate Solicitor, the Division of General Law, with the United States Department of the Interior. He wrote this letter to William Codinha and Michael Chertoff, who are special counsel for the Committee on Banking in the Senate.
In that letter he enclosed most of the park police file. Those photographs that I'm requesting, with regard to the ones that were published, were in that file. Let me quote from that letter one sentence. Quote: "In addition, be advised we are protecting certain information from release to the public under the Freedom of Information Act," close quote.
The photos that were published that I am requesting were not being withheld pursuant to the Freedom of Information Act; okay? They had no objection to those being made public, the ones that were published, which are the bulk of those that I am requesting.
That's all. Thank you.
THE COURT: All right. Then liaison with Ms. Luymes and explain that to her, and maybe she will give them to you.
MR. FAVISH: I have, and we have reached an impasse, your Honor.
Basically I would like you to look at the photos in camera, and decide whether they would reasonably be expected to interfere with an ongoing investigation. If you deem that they are, that's the end of it. But if you deem that some of them aren't, then we can go on to the privacy issues with those that you deem -- especially those that were already published.
THE COURT: Is there any reason to believe that this case is going to go to trial, as contrasted with being resolved on summary judgment motion?
MS. LUYMES: No, your Honor. I have no reason to believe that this case will go to trial.
THE COURT: Are you a FOIA specialist, Ms. Luymes?
MS. LUYMES: Yes, I am, and all of them in the office are, or are supervised by people who are.
THE COURT: Okay. And you agree, Mr. Favish, that it looks like it's a summary judgment resolution?
MR. FAVISH: It depends -- since I haven't gotten any -- I don't know any of their reasoning as to why these photos -- release of these photos could reasonably be expected to interfere with the investigation. I don't know yet what claims they are going to make, so I can't tell you.
THE COURT: Well, I'm going to set it for -- it will be no more than a one-day bench trial. It's a bench trial, isn't it? Bench trial, injunctive release?
MS. LUYMES: Oh, absolutely, your Honor.
THE COURT: Okay. Set it for a one-day bench trial, please.
And if you can resolve it, Ms. Luymes, I want you to. Don't come back here with FOIA all over the courtroom; okay? See if you can resolve it.
MS. LUYMES: I hear what you're saying, your Honor.
We had proposed a -- on the bottom of page 2 and the top of page 3, the parties could not agree to a briefing schedule for motions for summary judgment.
THE COURT: How long do you need?
MS. LUYMES: We are going to be filing our Vaughn index on the 15th of August, and we had suggested our motion for summary judgment to be filed and served no later than September 15th, with oppositions filed and served no later than October 6th, with replies no later than October 20th, and a hearing on November the 3rd.
THE COURT: That's all right with me.
MR. FAVISH: Your Honor, obviously I would like it sooner than that.
THE COURT: I can't do it, practically speaking. Truly.
MR. FAVISH: Okay. I can respect that.
THE COURT: Give them the dates, will you, please, Amalia.
THE CLERK: The one-day bench trial will commence on December 30th, 1997, at 9:30 a.m.
The pretrial conference will be on December 15th, 1997, at 2:00 p.m.
All dispositive motions must be heard by November 24th, 1997.
All discovery must be completed by October 20th, 1997.
All expert witnesses must be designated by September 8th, 1997.
Motions to amend pleadings to join other parties must be filed by September 9th, 1997.
In order to assist the Court in monitoring his calendar, counsel are requested to jointly advise the Court in writing of any motion that has been under submission in excess of 30 days.
Absent exceptional circumstances, motions in limine must be filed by December 16, 1997.
Oppositions to motions in limine must be filed by December 22nd, 1997.
The hearing on the motions in limine will be on the first day of trial.
MR. FAVISH: Your Honor, can I ask a question?
THE COURT: Yes.
MR. FAVISH: Is there a Vaughn index, then, to be filed no later than August 15th, as they requested?
THE COURT: Yes.
MR. FAVISH: Oh, one other thing, your Honor.
The other dates that she suggested by the motions for summary judgment, are we bound by those?
THE COURT: No. You have the dates that were just given here.
MR. FAVISH: Okay. Thank you, your Honor.
THE COURT: Thank you.
MS. LUYMES: I wanted to indicate to the Court that we're going to try to abide by the -- the defendant is -- by that schedule, so it all will be done --
THE COURT: That's fine with me, just notice it accordingly. You just have the outside parameters right now; okay?
MS. LUYMES: Sure. Thank you.
MR. FAVISH: Thank you.
(The proceedings adjourned at 2:10 p.m.)
I hereby certify that pursuant to Section 733, Title 28, United States Code, the foregoing is a true and correct transcript of the stenographically recorded proceedings in the above matter.
David M. Lee, CSR 9543, RPR
Official Court Reporter