TAILWIND SPORTS CORP., TAILWIND SPORTS LLC, LANCE ARMSTRONG, and JOHAN BRUYNEEL,
Defendants.
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Civil Action No. 10- 00976 (RLW)
UNITED STATES OPPOSITION TO DEFENDANT LANCE ARMSTRONGS MOTION FOR EXPEDITED BRIEFING
At 11:46 p.m. Eastern Time on June 4, 2014, defendant Lance Armstrong filed a motion to compel the production of documents and to quash several depositions. His motion requests an expedited briefing schedule that would set the due date for the Governments response on June 11, 2014, and would conclude briefing on June 16, 2014. Armstrong explains that this heavily-compressed briefing schedule, which would allow the Government just six days to respond to a brief he spent nearly four months preparing, is necessary for a single reason to allow sufficient time for the Court to rule on his motion prior to his June 23, 2014 deposition. Pl. Mot. at 5. Earlier today, the United States informed counsel for Armstrong that the Government is willing to reschedule Armstrongs deposition for August 4, 2014, and further indicated that the Case 1:10-cv-00976-RLW Document 172 Filed 06/06/14 Page 1 of 4
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Government may consider rescheduling the deposition again if necessary for the orderly resolution of Armstrongs pending motions. The Government also informed Armstrongs counsel that it would withdraw all of the remaining deposition notices that are outstanding. Given that the Government has postponed Armstrongs deposition and withdrawn its remaining notices of deposition, there is no need for expedited briefing of Armstrongs motions. We therefore respectfully request that the Court deny Armstrongs motion for expedited briefing. Armstrong does not object to the postponement of the depositions. In fact, Armstrongs counsel sent an email last evening requesting that the June 23, 2014, date for Armstrongs deposition be changed, due to Armstrongs family obligations that day, and stating his assumption that the Government would not proceed with the remaining depositions until Armstrongs motions had been decided. See Exh. 1. Although resolution of Armstrongs motions is no longer urgent, he has not withdrawn his motion for expedited briefing. At 12:17 p.m. Eastern Time today, the Government informed Armstrongs counsel of its willingness to postpone the depositions, and asked whether, in light of that decision, the Government could state in its response to the Court that Armstrong would withdraw his motion for expedited briefing. In order to ensure that the Court was informed of this development prior to ruling on the motion for expedited briefing, the Government requested a response from Armstrongs counsel by 4 p.m. Eastern Time. Armstrong did not respond by 4 p.m. At 4:47 p.m., as the Government was about to file its response, Armstrongs counsel offered to withdraw the motion for expedited briefing, but only if the Government and relator agreed not to notice any depositions until the Court decides Armstrongs motions. Armstrongs latest demand has nothing to do with his request for expedited briefing. Indeed, the concession Case 1:10-cv-00976-RLW Document 172 Filed 06/06/14 Page 2 of 4
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he seeks from the plaintiffs goes well beyond even the purported basis for his motion to quash. That is, Armstrongs proposal would restrict the Government and relator from conducting depositions even where he is in possession of all materials necessary to prepare for the deposition. Armstrongs proposal is nothing more than a cynical attempt to extract an inappropriate concession from the Government for the withdrawal of his motion for expedited briefing even after the basis for that motion has dematerialized. CONCLUSION Given the Governments agreement not to proceed with the depositions that are the subject of Armstrongs motion to quash, there exists no urgency to resolve Armstrongs motion. The United States therefore respectfully requests that the Court deny Armstrongs motion for expedited briefing.
Respectfully submitted,
STUART F. DELERY Assistant Attorney General
RONALD C. MACHEN JR., D.C. Bar # 447889 United States Attorney
DANIEL F. VAN HORN, D.C. Bar # 924092 Assistant United States Attorney
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_/s/ Mercedeh Momeni_________________ DARRELL C. VALDEZ, D.C. Bar # 420232 MERCEDEH MOMENI Assistant United States Attorneys Judiciary Center Building 555 4th St., N.W., Civil Division Washington, D.C. 20530 Tel: (202) 307-2843
__/s/ David M. Finkelstein______________ MICHAEL D. GRANSTON ROBERT E. CHANDLER DAVID M. FINKELSTEIN Attorneys, Department of Justice Civil Division Post Office Box 261 Ben Franklin Station Washington, D.C. 20044 Tel: (202) 514-4678
DATED: June 6, 2014 Case 1:10-cv-00976-RLW Document 172 Filed 06/06/14 Page 4 of 4 1 Chandler, Robert (CIV) From: Sharif E. Jacob <SJacob@kvn.com> Sent: Friday, June 06, 2014 4:47 PM To: Chandler, Robert (CIV) Cc: Finkelstein, David M. (CIV); Valdez, Darrell (USADC); Elliot Peters; R. James Slaughter; Sean Breen (sbreen@howrybreen.com); Momeni, Mercedeh (USADC) Subject: RE: Landis v. Tailwind, No. 10-0976 Rob:
Thank you for agreeing to withdraw the pending deposition notices. We will agree to withdraw Armstrongs request for expedited briefing if, in addition to the conditions below, (1) the government further agrees to withdraw Armstrongs deposition notice if the Court has not ruled by August 4 and (2) the government and the relator agree not to serve any additional deposition notices until the Court has ruled. We assume you can arrange the relators agreement pursuant to 31 U.S.C. 3730(c)(2)(C). Let me know if the plaintiffs agree to this proposal.
Regards,
Sharif E. Jacob Attorney at Law
415 676 2237 direct | vCard | sjacob@kvn.com 633 Battery Street, San Francisco, CA 94111-1809 | 415 391 5400 main | kvn.com
From: Chandler, Robert (CIV) [mailto:Robert.Chandler@usdoj.gov] Sent: Friday, J une 06, 2014 9:17 AM To: Sharif E. J acob Cc: Finkelstein, David M. (CIV); Valdez, Darrell (USADC); Elliot Peters; R. J ames Slaughter; Sean Breen (sbreen@howrybreen.com); Momeni, Mercedeh (USADC) Subject: RE: Landis v. Tailwind, No. 10-0976
We are going to withdraw our notices for the Korioth, Higgins, Carmichael, and McIlvain depositions. We will issue a new notice setting Armstrongs deposition for August 4, but we may reconsider that date depending on how the proceedings unfold. That being the case, there is no longer any need for the expedited briefing schedule you proposed. In filing our response to your motion for expedited briefing, may we inform the Court that you consent to withdraw your motion for expedited briefing? I will need your answer to that question no later than 4 pm EDT today in order to incorporate it into our response to the Court.
Regards,
Robert E. Chandler United States Department of Justice Civil Division, Fraud Section 601 D Street NW Washington D.C. 20530 (202)514-4678 Robert.chandler@usdoj.gov Exhibit 1 Case 1:10-cv-00976-RLW Document 172-1 Filed 06/06/14 Page 1 of 2 2
From: Sharif E. J acob [mailto:SJ acob@kvn.com] Sent: Thursday, J une 05, 2014 5:56 PM To: Chandler, Robert (CIV) Cc: Finkelstein, David M. (CIV); Valdez, Darrell (USADC); Elliot Peters; R. J ames Slaughter; Sean Breen (sbreen@howrybreen.com) Subject: Landis v. Tailwind, No. 10-0976
Rob:
I write regarding the depositions the government recently noticed. Lance Armstrong has family obligations on June 23, and Elliot is unavailable that day. I also received a call from Sean Breen, who informed me that you asked him to negotiate directly with the parties over their availability for the Higgins and Korioth depositions. Now that the motion to quash is pending, I assume the government will not seek to reschedule these depositions until the Court has issued a ruling. In the future we should meet and confer about deposition dates. Dont hesitate to contact me with any questions.
Regards,
Sharif E. Jacob Attorney at Law
415 676 2237 direct | vCard | sjacob@kvn.com 633 Battery Street, San Francisco, CA 94111-1809 | 415 391 5400 main | kvn.com
Exhibit 1 Case 1:10-cv-00976-RLW Document 172-1 Filed 06/06/14 Page 2 of 2