Case 9:08-cv-80736-KAM Document 129 Entered on FLSD Docket 12/05/2011 Page 1 of 5
Case No. 08-80736-Civ-Marraaoluison
JANE DOE #1 and JANE DOE #2
v.
UNITED STATES
JANE DOE #1 AND JANE DOE #2'S RESPONSE TO GOVERNMENT'S SEALED
MOTION TO STAY
COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and
through undersigned counsel, to respond to the Government's Motion to Stay Discovery. The
Government's belated motion alleging a lack of jurisdiction appears to be nothing but a delaying
tactic, designed to prevent the victims from establishing the facts surrounding the Government's
violation of their CVRA rights. The Court should accordingly simply deny the motion, thereby
mooting any further request for a stay of discovery until the motion can be resolved. The Court
should also order the Government to respond to the victims' discovery requests within 14 days of
the Court's denial of the motion to dismiss.
As the Court is well aware, the victims filed this case alleging Government violations of
the CVRA in July 2008. More than three years later, the Government suddenly decided to file a
motion alleging that this Court does not possess subject matter jurisdiction over the case. The
date on which the Government filed its motion is, coincidentally, exactly the same date on which
the Government's responses to the victims' document requests were due!
EFTA00304737
Case 9:08-cv-80736-KAM Document 129 Entered on FLSD Docket 12/05/2011 Page 2 of 5
Delay appears to be the Government's motivation for filing the motion to dismiss. As the
Court will recall, the victims have repeatedly asked the Government to stipulate to undisputed
facts in this case. The Government has repeatedly declined. Accordingly, the victims filed their
Motion for Finding of Violations of the Crime Victims' Rights Act and Request for a Hearing on
Appropriate Remedies (DE 48) (the victims' "summary judgment motion") along with a Motion
to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts
(DE 49).
On September 26, 2011, the Court denied the victims' motion to have their facts accepted
(DE 99 at 11). At the same time, however, the Court has ordered discovery to develop the
factual record concerning the summary judgment motion (DE 99 at 11).
The Court reserved
ruling on the victims' motion for an order directing the Government not to suppress relevant
evidence (DE 99 at II).
On September 28, 2011, the victims requested that the Government voluntarily provide
documents concerning this case. The Government declined to provide even a single document.
Accordingly, on October 3, 2011, the victims filed 25 requests for document production for
information directly relevant to their pending summary judgment motion. Rather than provide
even a single document pursuant to that request, the Government filed the pending motion to
dismiss and concurrent motion for a stay of discovery.
This sequence of events strongly suggests that the reason the Government filed the
motion to dismiss is to simply delay the day on which it will have to produce to the victims
documents showing how and why the Government conspired to violate their rights under the
CVRA's Act. Moreover, as a practical matter, the Government's motion has had the desired
2
EFTA00304738
Case 9:08-cv-80736-KAM Document 129 Entered on FLSD Docket 12/05/2011 Page 3 of 5
effect of delay: While its motion remains pending, the victims have been effectively denied any
ability to obtain discovery from the Government.
The Government's delaying tactics have gone on long enough. The victims simply
request that the Court promptly deny the Government's motion to dismiss for the reasons laid out
in their responses to the Government's motion. At the time it denies the motion to dismiss, the
Court should enter an order directing the Government to begin providing discovery to the
victims. In particular, the victims request that the Court direct the Government to produce the
following within 14 days of the Court's denial of the motion to dismiss:
(1)
The Government's initial disclosures pursuant to Fed. R. Civ. P. 26(a)(I); I
(2)
Answers to all of the victims' requests for admission;
(3)
All documents, correspondence, and other information that the Government
distributed to persons or entities outside of the federal Government or received from persons or
entities outside of the federal govemment;2 and
(4)
All documents, correspondence, and other information covered by the victims'
discovery request that is not subject to a claim of privilege.
With respect to all documents, correspondence, and other information for which the
Government is asserting privilege, within those 14 days the Court should order the Government
to provide a "privilege log" consistent with Local Rule 26.1(g), including a description a
document that is consistent with Local Rule 26.1(g)(3)(B). The privilege log should include the
The victims made their initial disclosures to the Government more than seven months
ago.
2
The Government cannot plausible raise any kind of "privilege" argument to non-
confidential materials shared with persons or entities outside of the federal government or
received from such persons or entities.
3
EFTA00304739
Case 9:08-cv-80736-KAM Document 129 Entered on FLSD Docket 12/05/2011 Page 4 of 5
type of document, general subject matter of the document, date of the document, and author and
addressee of the document or correspondence.
Because the exact procedures the victims should follow to secure compliance with their
pending discovery requests; are unclear, the victims are concurrently with this pleading filing a
protective motion to compel requesting the same relief.
CONCLUSION
The Court should deny the Government's motion to dismiss, thereby mooting the
Government's request for a stay. The Court should also order the Government to comply with
the victims' discovery requests within 14 days of the denial of its motion to dismiss.
DATED: December 5, 2011
Respectfully Submitted,
s/ Bradley J. Edwards
Bradley J. Edwards
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
Telephone (954) 524-2820
Facsimile (954) 524-2822
Florida Bar No.: 542075
E-mail:
[email protected]
and
Paul G. Cassell
Pro Hac Vice
S.J. Quinney College of Law at the
University of Utah
332 S. 1400 E.
Salt Lake City, UT 84112
3 Last week, the victims also served on the Government requests for admission.
4
EFTA00304740
Case 9:08-cv-80736-KAM Document 129 Entered on FLSD Docket 12/05/2011 Page 5 of 5
Telephone: 801-585-5202
Facsimile: 801-585-6833
E-Mail:
[email protected]
Attorneys for Jane Doe #1 and Jane Doe #2
The foregoing document was served on December 5, 2011, on the following using US Mail:
Dexter Lee
A. Marie Villafaila
Assistant U.S. Attorneys
500 S. Australian Ave., Suite 400
West Palm Beach, FL 33401
(561) 820-8711
Fax: (561) 820-8777
E-mail:
[email protected]
E-mail: ann.marie.c.villafanaeusdo' gov
Attorneys for the Government
Roy Black, Esq.
Jackie Perczek, Esq.
Black, Srebnick, Kornspan & Stumpf, P.A.
201 South Biscayne Boulevard
Suite 1300
Miami, FL 33131
(305) 37106421
(305) 358-2006
Martin G. Weinberg, P.C.
20 Park Plaza
Suite 1000
Boston, MA 02116
(617) 227-3700
(617) 338-9538
5
EFTA00304741