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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA


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Plaintiffs,
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v.
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TAILWIND SPORTS CORPORATION,
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et al.,
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Defendants.
___________________________________ )
UNITED STATES ex rel. FLOYD
LANDIS,

No. 10-cv-00976 (CRC)

RESPONSE OF THE UNITED STATES TO


DEFENDANT LANCE ARMSTRONGS MOTION TO
QUASH THE UNITED STATES DOCUMENT SUBPOENA
TO THE INDIANA UNIVERSITY SCHOOL OF MEDICINE

Lance Armstrongs motion to quash the governments subpoena to the Indiana University
School of Medicine rests entirely on his conclusory claim that the subpoena will cause
unnecessary delay, and needlessly increase the cost of this litigation. Pl. Br. at 1. The subpoena
at issue is directed to a third-party for a limited set of records, and Armstrong does not explain
how production of the documents will result in undue delay or costs to anyone, let alone to
Armstrong. Similarly, he offers no explanation as to why he believes the governments
subpoena amounts to harassment. Id. Armstrong has failed to meet his burden to demonstrate
that the governments subpoena should be quashed, and his motion should be denied.
Contrary to Armstrongs representations, the governments subpoena is calculated to lead
to the discovery of admissible evidence. Indeed, the subpoenaed records relate to an event so
significant to the narrative of Armstrongs doping and exposure that Armstrong has given it a
name: the hospital room incident. Pl. Br. at 3 (internal quotations omitted).
The hospital room incident centered on a claim by at least two witnesses that, during a
visit to see Armstrong at the Indiana University Medical Center in 1996 while he was receiving
treatment for cancer, they overheard Armstrong tell his doctors he had used certain performance
enhancing drugs (PEDs). Their account was first revealed publicly in a book published in 2004.
Armstrong responded to the allegation very aggressively by making public statements angrily
denying that he disclosed PED use to his doctors, seeking to discredit the witnesses who claimed
to have heard the disclosure, and trying to persuade others who had been in the room at the time
to sign affidavits swearing that the disclosure had not occurred. In addition, Armstrong sued one
of the reporters who wrote the book, a newspaper that printed excerpts from the book, and an
insurance company that refused to pay him a $5 million performance bonus because of the
allegations in the book.

Perhaps the most significant evidence supporting Armstrongs defense of the hospital
room incident was the affidavit of Dr. Craig Nichols, the Indiana University physician
responsible for the majority of Armstrongs cancer treatment. See Chandler Decl. Ex. B
(Nichols Aff.). In his affidavit, which Armstrongs attorney released to the Associated Press in
June 2006, see Chandler Decl. Ex. C, Dr. Nichols stated he had reviewed Armstrongs medical
file and that Armstrongs medical records did not reflect Armstrongs use of PEDs. Nichols Aff.
at 12. In particular, Dr. Nichols swore that Armstrongs medical file did not contain any
evidence, from [Dr. Nichols] or any other doctor, that indicates Lance Armstrong admitted,
suggested or indicated that he has ever taken performance-enhancing drugs. Id. Dr. Nichols
affidavit went beyond rebutting the allegations at the center of the hospital room incident, adding
that he had monitored Armstrongs blood levels from 1997 to 2001, following Armstrongs
successful treatment for cancer, and found nothing irregular during that period. Id. at 11.
Dr. Nichols stated that Armstrongs blood cell levels indicated to him that Lance Armstrong
was not administering EPO between January 1997 and October 2001. Id. Armstrong has since
admitted that he did use EPO in 1998, 1999, 2000, and 2001. See Chandler Decl. Ex. D (Depo
Tr.) 55:8-9 (1998); 80:10-20 (1999); 91:6-15 (2000 and 2001).
On October 25, 2005, the two aforementioned witnesses testified under oath that they
heard Armstrong disclose to his doctors that he had used PEDs. Just two days later, on
October 27, 2005, Armstrongs foundation donated $1.5 million to the Indiana University School
of Medicine. Six weeks after Armstrongs donation, on December 8, 2005, Dr. Nichols signed
his declaration. Nichols Aff. at 7. Armstrong claimed, and continues to maintain to this day,
that he made the 2005 donation in recognition of Dr. [Lawrence] Einhorns treatment of
Armstrong in 1997. Pl. Br. at 1.

The records sought by the government are properly a matter for discovery. Because
Armstrong has asserted a statute of limitations defense, any actions he took to conceal his doping
are relevant to this litigation, and any medical records reflecting Armstrongs use of PEDs prior
to October 1996 plainly are relevant to his concealment of his doping.1 Indeed, Armstrongs
hospital room disclosure is more than relevant it is significant because, as he explains, it was
the only proof of actual PED use by Armstrong prior to 2012. Pl. Br. at 3. Armstrongs efforts
to blunt this allegation, including his selective release of medical information to the media
through Dr. Nichols affidavit, were critical to hiding the truth of his doping from, among others,
the United States Postal Service. The United States is entitled to explore whether Armstrongs
aggressive denials, procurement and release of Dr. Nichols affidavit, attacks on witnesses, and
litigation against members of the media had the purpose and effect of suppressing the truth of the
allegation that he disclosed his PED use to his doctors. The medical records sought by the
government are likely to contain probative evidence on that subject.2

The medical records are also relevant because the fact of Armstrongs doping is relevant.
In arguing that they are not, Armstrong offers only the half-truth that he admitted [during his
deposition] to using EPO during the time period, prior to 1996[.] Pl. Br. at 3. Armstrong
denied using the other substances that are the subject of the governments subpoena during that
time period, however, and the government is entitled to learn whether his denials are
contradicted by the medical records.
2

In fact, Armstrongs medical records are responsive to Request No. 2 only if they contain
evidence of Armstrongs use of certain PEDs prior to October 1996. The governments Request
No. 1 also is narrowly-tailored, in that it seeks only the anesthesia and surgical preoperative
notes from October 23, 1996, which Dr. Nichols explained would be particularly instructive in
determining whether Armstrong had made the alleged disclosure. Nichols Aff. 12.
With respect to Request No. 3, Armstrong argues on the one hand that the governments
request for records related to his donation are not calculated to lead to the discovery of
admissible evidence, but claims he would have provided the same information if the government
had only asked. Pl. Br. at 3. The government is not required to take Armstrong at his word,
however, and for the reasons discussed above, the records are relevant to Armstrongs efforts to
conceal his doping.
3

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
VINCENT H. COHEN, JR.
Acting United States Attorney
DANIEL F. VAN HORN, DC Bar #924092
Chief, Civil Division
DARRELL C. VALDEZ, DC Bar #420232
CARL E. ROSS, DC BAR #492441
Assistant United States Attorneys
Judiciary Center Building
555 4th St., N.W., Civil Division
Washington, D.C. 20530
Tel: (202) 252-2507
__/s/ Robert E. Chandler_______________
MICHAEL D. GRANSTON
ROBERT E. CHANDLER
DAVID M. FINKELSTEIN
ROBERT J. MCAULIFFE
GREGORY MASON
Attorneys, Department of Justice
Civil Division
Post Office Box 261
Ben Franklin Station
Washington, D.C. 20044
Tel: (202) 514-4678

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