1 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLUMBIA 3 -----------------------------X 4 ROGER HALL, ET AL, : Civil Action No. 04-0814 5 Plaintiff : 6 v. : 7 CENTRAL INTELLIGENCE AGENCY, : 8 ET AL, : Washington, D. C. 9 Defendant, : Wednesday, April 26, 2006 10 -----------------------------X 10:55 A.M. 10 11 TRANSCRIPT OF STATUS HEARING 11 BEFORE THE HONORABLE HENRY H. KENNEDY, JR. 12 UNITED STATES DISTRICT JUDGE 13 APPEARANCES: 14 For the Plaintiff: JAMES LESAR, ESQUIRE 14 1003 K Street, N.W., Suite 640 15 Washington, D.C. 20001 15 (202) 393-1921 16 17 For the Defendant: MERCEDEH MOMENI, ESQUIRE 17 Washington, D.C. 18 19 Court Reporter: ANNIE R. SHAW, RPR 19 U.S. District Courthouse 20 333 Constitution Ave., N.W. 20 Room 6820 21 Washington, D.C. 20001 21 (202) 289-9002 22 22 Proceedings recorded by mechanical stenography, transcript 23 produced by computer. 24 25 2 1 P R O C E E D I N G S 2 THE DEPUTY CLERK: Civil Action 04-814, Roger Hall, et 3 al versus the Central Intelligence Agency, et al. James Lesar 4 for the plaintiff, Mercedeh Momeni for the defendant. 5 MR. CLARKE: And John Clarke on behalf of plaintiff 6 Aim, Your Honor. 7 THE COURT: Good morning to everybody, including you 8 Mr. Lesar. I must tell you, every since I have had this case I 9 have been paying more attention to your writings in various 10 places. And that's it. 11 This case is here for a status hearing. Everybody can 12 be seated. 13 I'm going to -- basically what I want you to do is to 14 make a suggestion as to how to proceed. 15 I think I know what the status is. The Court ruled 16 not too long ago on some pending motions. And there have been 17 the filing of an amended complaint, and the filing of an 18 answer. And that tells me that it likely is the proper course 19 to basically set up a briefing schedule on motions for summary 20 judgment -- cross motions for summary judgment. That's what, 21 you know, that's my thinking at this point. But I'll hear from 22 each side as to how you suggest that the Court proceed. 23 First from counsel -- from plaintiff, Mr. Lesar. 24 MR. LESAR: Thank you, Your Honor. Well -- 25 THE COURT: And the Court of Appeals just ruled very 3 1 recently, I think last week, on the -- 2 MR. LESAR: Petition for rehearing, partial rehearing. 3 THE COURT: Well, -- 4 MR. LESAR: It ruled on the appeal. 5 THE COURT: On the appeal. 6 MR. LESAR: Yeah. About six weeks ago we filed a 7 motion for rehearing, but the motion for rehearing, the 8 petition for rehearing only asked that the Court remand the 9 case on the attorney fees issue. Because since documents were 10 provided and fees waived on the eve of oral argument in that 11 court, we contend that we are eligible for attorney's fees, and 12 that it should be remanded to that Court. Everything else is 13 before this court. 14 THE COURT: Okay. And that case is before Judge 15 Friedman. 16 MR. LESAR: Yes. 17 THE COURT: All right. 18 MR. LESAR: Right. 19 THE COURT: Okay. Well, again, how would -- what do 20 you suggest? 21 MR. LESAR: Well, first of all, counsel for the CIA 22 has met with myself and Mr. Clarke in the hallway prior to this 23 hearing and has outlined the government's position. And there 24 is some very good news. It seems that generally, although 25 there may be a caveat or a, you know, it's not absolutely 4 1 certain at this point, but it appears that the fee issue will 2 be over and that we will not have to raise the issue as to fee 3 waivers again, and that the CIA is going to be processing 4 documents. Although it is unclear at what pace that will 5 occur. 6 My principal concern at the moment is that it's been 7 nine months now since I wrote the CIA a letter saying that my 8 clients were entitled to two hours of free search time and 100 9 pages of free documents, and that we wanted that applied to 10 item six of the request. 11 Item six of the request has to do with the, the 12 documents pertaining to the costs of the searches that had been 13 set forth in Hall One. And we have had no response from that. 14 We have had varying positions that have been 15 represented to me orally. It was contended at one point that 16 they can't -- that that's not a searchable item, that they 17 can't search for their records pertaining to how they arrived 18 at the cost figures that they gave to the Court. I don't buy 19 it. 20 It's now asserted that because the fee waiver issue is 21 mooted, they are no longer relevant. Well, my client has asked 22 for them. The only thing that is relevant was whether or not 23 he has got them. So that is an issue that I want to put front 24 and center. Those records need to be produced, and produced 25 soon. 5 1 THE COURT: And how -- I hear you. How do you suggest 2 that the Court proceed in terms of -- 3 MR. LESAR: Well, I had previously filed a motion, I 4 think, to produce these, and I can refile the motion to have 5 them produced, if that's necessary. 6 THE COURT: I thought that I had ruled on every issue 7 that was before me at the time. 8 MR. LESAR: I'm -- I think that in your motion for 9 reconsideration you may -- at the same time you ruled on the 10 motion for reconsideration, I think you simply issued an order 11 denying the motion for reconsideration. That may have been a 12 ruling on that issue. 13 THE COURT: All right. 14 MR. LESAR: But you did deny the motion for an 15 accounting that we had also filed, which it relates to the same 16 concern. But if that ruling was tempered by some language 17 saying that it was premature at that time, that it might be 18 appropriate to raise it again later. If we have to raise it 19 again later, then I would now raise it because it seems to me 20 that the evidence becomes quite strong now with this continued 21 refusal to provide some rather basic documents that the CIA's 22 original estimate of $29,000 in search is later reduced to 23 $10,000 in search fees, was intended to dissuade plaintiff from 24 pursuing his request. That's a very grave assault on the 25 Freedom of Information Act, and we need to get to the bottom of 6 1 it. 2 THE COURT: Counsel. 3 MISS MOMENI: Morning, Your Honor. 4 THE COURT: Good morning. 5 MISS MOMENI: The plaintiff's amended complaint 6 contains seven questions. As Mr. Lesar mentioned, our client 7 has agreed to waive the fees with regarding to request number 8 three, which is the largest chunk of this, if I may use that 9 word. So that is very good news, we can all move on. 10 And I have informed counsel this morning, and actually 11 we had a lengthy telephone conversation either yesterday or the 12 day before, that this would probably, this search at no cost to 13 the plaintiffs, will probably produce tens of thousands of 14 pages, but they will have to be patient with us because it's 15 going to take some time. It involves 42 years worth of 16 documents, from 1960 to 2002, some of which has been produced, 17 a few years of which have been produced, so on and so forth. 18 At any rate, we are making progress. We are working 19 cooperatively to move this case forward, Your Honor. 20 THE COURT: Have you been able to at least give an 21 estimate as to the amount of time it will take to produce these 22 documents? 23 And let me just -- let me say this. At some point, at 24 some point if the parties aren't able to resolve this, the 25 Court is going to set a briefing schedule. 7 1 MISS MOMENI: Yes, Your Honor. 2 THE COURT: And that could be now, or it could be 3 sometime in the future after there has been a wiping away of, 4 resolving of those things that can be resolved, such as the fee 5 waiver issue. Apparently there is no question but that certain 6 of the requested documents, or at least portions of them, are 7 going to be released. 8 MISS MOMENI: At no cost to the plaintiffs, again. 9 THE COURT: I heard that. 10 MISS MOMENI: It's no big deal. 11 THE COURT: They also want to know why -- never mind. 12 So, again, at some point, you know, I'm going to set a 13 briefing schedule. The question is when. That when might be 14 influenced by what they receive. And so the question is, is 15 there a way of at least estimating how long it will be before 16 the government disclose the materials that it now will disclose 17 without cost, search fees, duplication fees, so on and so 18 forth. 19 MISS MOMENI: Right. If I could have about a minute 20 and-a-half of the Court's time I will be happy to explain why I 21 used the word -- I think I used the words "very lengthy" 22 before. It's going to be a lengthy process. I don't have an 23 exact -- we cannot give -- 24 THE COURT: Can't do -- 25 MISS MOMENI: We can't do an estimate, Your Honor, 8 1 because, again, these are 42 years of documents, 18 years of 2 which will require us to do manual search, because these 3 documents from 1960 to 1978 were not electronically available 4 in any form, shape or way. And we are very short staffed. We 5 don't have staff to actually do this. So we will have to have 6 -- first of all, formulate a strategy, because these documents 7 are not necessarily contained in one way or in one particular 8 place. So, first of all, we will have to formulate a strategy 9 as to how to go about finding them. We will have to search 10 through our archives to find them. Once they are found, we 11 will have to do manual searches. And that's why we are, 12 unfortunately, unable to turn things around more quickly. 13 But we will produce them, and we will produce them at 14 no cost. 15 And my client estimates that there will be tens of 16 thousands of documents that will probably be turned over. 17 THE COURT: I will ask you the same question that I 18 asked Mr. Lesar. What is it that you suggest that this Court 19 do at this point? 20 MISS MOMENI: Well, we are happy to set a briefing 21 schedule, because I think there is a difference of opinion as 22 to requests six and seven, and that, that we can brief. Our 23 position is that requests that are outlined in plaintiff's 24 amended complaint, paragraph six sub A, I'm sorry, sub one and 25 two have already been dealt with through Hall One, the 9 1 documents that were turned over. The documents have already 2 been turned over through litigation in Hall One. 3 Number three outlines the request we have just been 4 talking about, turning over these thousands of pages without 5 fee. 6 Number four deals with documents that are not our 7 documents. They belong to the Senate of the United States. 8 Number five, we are having some discussions. There 9 may need to be some briefing done on that. Perhaps the parties 10 can come together and narrow the issues as to not burden the 11 Court with 45 page briefs, and narrow them down to, you know, 12 20 page briefs instead. 13 THE COURT: You are a quick study. 14 MISS MOMENI: So we can narrow the issues. We will 15 be happy to do so. We initiated the conversations that have 16 been going on the past couple days and we are happy to continue 17 them to see how much further we can narrow the issues 18 cooperatively, and perhaps come to see you again in the near 19 future to set a briefing schedule, or perhaps even do it by 20 phone as to not take up the Court's official time in this way. 21 THE COURT: All the time is official. 22 MISS MOMENI: Yes, Your Honor. 23 THE COURT: I understand what you are saying. 24 MISS MOMENI: Yes. 25 THE COURT: Okay. Let me hear from Mr. Lesar or Mr. 10 1 Clarke. 2 MR. LESAR: Let me -- let me make one quick suggestion 3 as to what the Court should do. 4 THE COURT: Yes. 5 MR. LESAR: I think that the immediate thing is to set 6 a date to require the CIA to make a report as to the estimated 7 volume of the documents they intend to produce and an estimate 8 of the time that it will take for them to do so, the number of 9 people assigned to process the request. That basic information 10 is needed before we can make any progress, I think. 11 And it's probably something else just went through my 12 mind and disappeared. But I think that's basic, that we need 13 to set a deadline so we get some control over this. 14 I would just say that I understand that there may be 15 tens of thousands of pages of documents, but I once had a case 16 in front of this Court for CIA records that totaled about 17 300,000 pages, and they got through it. They were not 18 electronic records, they were as old or older than these 19 records, because they related to the assassination of President 20 Kennedy. So it is doable. 21 MR. CLARKE: Your Honor, if I may? 22 THE COURT: Yes. 23 MR. CLARKE: I was just going to make one more 24 suggestion. If the Court does ask for the CIA to produce some 25 sort of status report, or report as to when -- 11 1 THE COURT: The Court doesn't ask. 2 MR. CLARKE: No, no. If the Court asks anything of 3 the CIA, I would also -- 4 THE COURT: The Court orders. 5 MR. CLARKE: If the Court orders anything of the CIA, 6 I would suggest that it include whether or not there are 7 waivers for the balance of the requests. We have been talking 8 about the seven requests. The CIA was nice enough to give us a 9 fee waiver for request number three, but was unable to state 10 with any assurance whether or not it could waive the fees as to 11 the other request. So I would suggest that it include that in 12 its report. 13 And if, again, if fees were waived, of course, we 14 won't have to file a motion for a fee waiver. Thank you. 15 THE COURT: Who is this gentleman back here? Is this 16 -- 17 MR. LESAR: Your Honor, this is my client, Roger Hall. 18 THE COURT: Mr. Hall. 19 MR. HALL: Good morning, Judge Kennedy. 20 THE COURT: All right. 21 MISS MOMENI: Your Honor, just very quick point. 22 Mr. Lesar mentioned the 350,000 (sic) pages of documents that 23 the CIA turned over to his client in the Kennedy assassination 24 matter. Those may have all been contained in one place. What 25 we are dealing with here are documents that could be all over 12 1 the place in different forms. So, unfortunately, I cannot -- 2 the CIA at this point cannot give assurances that it will be 3 done by X date, and it will give them X number of pages. We 4 simply have no idea, forty-two years worth of documents that 5 are disbursed throughout various places in various archives in 6 various forms. So we would just respectfully remind the Court 7 that this may not be as easy as it seems on its face. But we 8 are going to do everything that we can to ensure that the 9 responsive documents are turned over at the earliest time 10 possible. We simply don't have people who do manual searches 11 of this sort on a regular basis. 12 THE COURT: Okay. 13 MISS MOMENI: But, again, we are happy to work 14 cooperatively to continue moving this case forward. 15 MR. LESAR: Now, I remember the other thing that I was 16 going to mention. I raised with Miss Momeni the question of 17 whether or not the CIA will be prepared to make interim 18 releases of these documents. And I think that that should be 19 included in the report too, that we need to do this on the 20 basis of interim -- it's going to take any amount of time, it 21 needs to be done on the basis of making interim releases. 22 THE COURT: That sounds right to me. 23 MISS MOMENI: I apologize, Your Honor. Interim 24 releases are made in certain situations, it just depends on the 25 classification of the documents. So we can't really commit one 13 1 way or another at this point, but happy to look into it. 2 THE COURT: One, it is my preference to resolve all 3 cases where motions for summary judgment are filed one time. 4 The idea of continuing to issue orders on basically partial 5 motions for summary justment, I can just tell you is not, from 6 the Judge's point of view, and, of course, I'm a public 7 servant, I serve you, I understand that -- but I'm going to 8 tell you, from my point of view it's quite a burden. So that 9 is my preference. Sometimes -- actually I'm learning more and 10 more my preference means nothing, and I can't do it. This may 11 very well be one of those times. As a matter of fact, from my 12 read of this, it probably is. 13 I would like, however, to keep down the number of 14 motions for partial summary judgment to rule, you know, this 15 month on this issue, this month on this issue, this month on 16 this issue. And I'm going to tell you, what happens is you 17 don't get as efficient a, you know, it just stretches things 18 out, which doesn't help anybody. So I just make that statement 19 to you. 20 What I'm going to do is require the parties to get 21 together, get together and see if you can resolve some of these 22 things. And put it all in writing. Put it all in writing so 23 that it's a matter of public record as to what the CIA at least 24 agrees to do, you know, and what it will do. 25 I understand just recently there has been some -- I 14 1 don't like to use the word "concession", lawyers don't like to 2 hear these words concessions -- there is a statement that at 3 least that the fee waiver issue with respect to this case is 4 resolved. 5 Well, let's put it in writing. Let's put it in 6 writing. 7 And see if you can come up with an agreement 8 concerning various things, such as what Mr. Lesar, you 9 Mr. Clarke have suggested on -- suggested that the Court order, 10 which is to order the -- to order the government to tell you 11 and the Court when it is that it will make these disclosures. 12 Well, I don't see any reason why before my 13 entertaining this request, you should just get together, and 14 perhaps you can agree on that. Perhaps you can agree that on 15 -- you can talk about it, and the government can say, well, I 16 mean -- and I hear you, counsel, you are Miss -- 17 MISS MOMENI: Momeni, Your Honor. 18 THE COURT: -- Momeni, I hear you say why you can't do 19 this now, given you are talking about, the number 300,000 20 sticks in my mind, over a certain number of years that these 21 documents have been collected. Well, I understand that. That 22 makes sense me. But at some point, at some point clearly, I 23 mean I think the Court and the parties have a right to know 24 what your best estimate is. And, of course, I, you know, would 25 expect you to, and presume that you do, you know, you say you 15 1 are going to do. 2 So, so this is it. The Court will schedule another 3 hearing, another status hearing in this case, in July. In the 4 meantime counsel shall confer for the purpose of reaching 5 agreement with respect to, frankly, any matter which is out 6 there. And I will require the submission of a, what I'll call 7 a joint report, on the outcome of that meeting, say 30 days 8 from today. Which report shall contain, hopefully, the parties 9 proposed deadline for briefing and other pertinent matters. 10 How you like that for rather broad language? 11 Obviously, if agreements can't be reached on 12 everything, then that report should indicate where the matters 13 are, you know, what matters you can't agree on. And then I 14 suppose you can each file your separate report concerning how 15 you have those matters resolved. 16 And let's say -- today is what, April 29th, I think, 17 or April 30th. What is it? 18 MR. LESAR: Today is the 26th. 19 THE COURT: Twenty-sixth, all right. This joint 20 report shall be filed by May 26, May 26. So between now and 21 then meet. I would suggest that you meet sooner rather than 22 later. File the report on May 26, basically indicating -- and 23 indicate in that report everything that you can agree upon. 24 And make a suggestion, you know, as to what should happen from 25 now on in, from henceforth. 16 1 I mean it would be great if the parties could agree on 2 a proposed briefing schedule, for example. But if you are not 3 able to agree on various things, hopefully, you will be able to 4 agree on most things, but if you can't agree on everything, 5 then on May 26 you each submit your suggestion as to how the 6 matters that could not be agreed upon should be resolved. And 7 then we come back on this next date in July. Okay. 8 MISS MOMENI: Just a point of clarification, if I 9 may. 10 THE COURT: Yes. 11 MISS MOMENI: So on May 26 the Court is ordering that 12 we submit a joint report on the outcome of our negotiations -- 13 THE COURT: Exactly. 14 MISS MOMENI: -- for lack of a better word, as to 15 what has been negotiated, and include in that a briefing 16 schedule for the remainder of the issues; is that correct? 17 THE COURT: Yes. 18 MISS MOMENI: Because I thought I heard the Court at 19 one point saying that we could or should file separate reports 20 as to how the other matters should be resolved. Then if that's 21 not necessary, we would prefer just to include a briefing 22 schedule, because obviously that's the only other way to go. 23 If it's not resolved between the parties, then we can just 24 brief it for the Court. 25 THE COURT: Well, what I'm saying is that perhaps 17 1 there will be some things that you simply can't agree upon. 2 MISS MOMENI: Right. 3 THE COURT: Hopefully, there is not. And with respect 4 to those matters, file your own suggestion as to how -- as to 5 what the result should be. In terms of briefing schedule, I'm 6 not thinking about anything on the merits, by the way, on 7 May 26. 8 MISS MOMENI: Right. 9 THE COURT: I'm just saying that, hopefully, you know, 10 you will be able to agree on everything. 11 MISS MOMENI: Yes, Your Honor. 12 THE COURT: And you will file the joint report, and 13 and proposed -- 14 MISS MOMENI: Briefing schedule. 15 THE COURT: -- briefing schedule that's just agreed 16 upon. And I'm pretty sure I'll go along with that. 17 But if you cannot, with respect to say one or two 18 matters, then you file your paper saying, well, we can't agree 19 on this, we couldn't agree on this, and this is what the 20 Government proposes. 21 MISS MOMENI: In terms of a briefing schedule, not in 22 terms of substantive? 23 THE COURT: Exactly, exactly. 24 MISS MOMENI: Okay, Your Honor. 25 THE COURT: Yes, yes, indeed. Is that what you are 18 1 asking about? 2 MISS MOMENI: Yes, Your Honor. 3 THE COURT: Absolutely. That was what I had in mind. 4 MISS MOMENI: I think coming up with dates together 5 shouldn't be too difficult in terms of a briefing schedule. 6 Thank you, Your Honor. 7 THE COURT: Well, I don't have any -- well, be great 8 if you are able to agree on everything substantively, but I 9 don't think so, not by May 26. 10 Anybody else want to say anything? 11 MR. CLARKE: Just briefly, Your Honor. Would Your 12 Honor like to schedule that today for the July hearing? I'll 13 be out of town July 10th and 11th. 14 THE COURT: Yeah, we are going to schedule that right 15 now. 16 MR. CLARKE: Okay. 17 THE COURT: Just come on caucus with Mr. West, and 18 he'll give you a date. 19 MR. CLARKE: Thank you, Your Honor. 20 THE DEPUTY CLERK: July 6 at 9:45, Your Honor. 21 THE COURT: All right. July 6 at 9:45 a.m. will be 22 the next status hearing in this case. All right. 23 Good day. 24 (Concluded at 11:28 a.m.) 25 19 1 CERTIFICATE OF COURT REPORTER 2 3 I, ANNIE R. SHAW, certify that the foregoing is a 4 correct transcript from the record of proceedings in 5 the above matter. 6 7 Date: June 9, 2006 8 9 Signature of Court Reporter 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25