1

1 THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
2
MIAMI DIVISION
3
CASE NO.: 18-cv-24218-DPG
4

7
ROSS MANDELL, )
8 )
Plaintiff, ) November 21, 2019
9 v. )
)
10 SEC COMMISSION, et al., ) Pages 1 - 52
)
11 Defendants. )
________________________/
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13

14

15 MOTION HEARING

16 BEFORE THE HONORABLE ALICIA M. OTAZO-REYES

UNITED STATES MAGISTRATE JUDGE
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18

19

20 APPEARANCES:

21
On behalf of the Plaintiff:
22
LOEVY & LOEVY
23 311 N. Aberdeen Street,
3rd Floor,
24 Chicago, IL 60607
BY: MATTHEW V. TOPIC, ESQ.
25 BY: MARK G. ASTOR, ESQ.
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1
APPEARANCES CONTINUED:
2

3 On behalf of the Defendants:

4 UNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES ATTORNEY'S OFFICE
5 99 NE 4 Street,
Miami, FL 33132
6 BY: CARLOS J. RAURELL, ESQ.

10 Transcribed By:

11 BONNIE JOY LEWIS, R.P.R.

7001 SW 13 Street
12 Pembroke Pines, FL 33023
954-985-8875
13 caselawrptg@gmail.com

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1 (Thereupon, the following proceeding was held:)

2 THE COURTROOM DEPUTY: All rise

3 The United States District Court for the Southern

4 District of Florida is now in session. The Honorable Alicia M.

5 Otazo-Reyes presiding.

6 THE COURT: Good morning, everyone.

7 MR. TOPIC: Good morning, Your Honor.

8 MR. ASTOR: Good morning, Your Honor.

9 MR. RAURELL: Good morning, Your Honor.

10 THE COURTROOM DEPUTY: Ross Mandell versus SEC

11 Commission, et al.; Case Number 18-cv-24218-Gayles.

12 Counsel, please state your appearances for the record.

13 MR. RAURELL: Matt Topic for the Plaintiff.

14 MR. ASTOR: Mark Astor for the Plaintiff, Your Honor.

15 MR. TOPIC: Good morning, Your Honor.

16 Carlos Raurell from the U.S. Attorney's Office for the

17 sole remaining Defendant, the Federal Bureau of Investigation.

18 THE COURT: All right. Thank you very much. You may

19 be seated except when addressing the Court.

20 So I wanted to meet with you all again because it

21 seems like this whole summary judgment thing has kind of like

22 taken some twists and turns. And I want to make sure, number

23 one, that we have a complete record for any, you know, for my

24 decision-making.

25 And obviously, the review, because it will be by

 4

1 report and recommendation. So I need to make sure that

2 whatever I present to Judge Gayles it is clearly based on a

3 complete record. Also, at the same time, to make sure that

4 whatever is presented to the Court is properly before the Court

5 in terms of building the complete record.

6 Now, I note in the original motion assumed incorrectly

7 that the FOIA objection was a Glomar objection and that was

8 aired out at the last hearing.

9 So, then, it seems to me that maybe -- and I will hear

10 from Mr. Raurell that, you know, the Government moved for

11 summary judgment. And then, the Plaintiff was sort of like

12 initially fighting that based on what appears to be a bit of a

13 miss understanding so that when the two summary judgment

14 motions were put together there was, in my words, a bit of a

15 mismatch.

16 So that came out in the hearing. So the question is

17 the issue before me right now is this business of whether to

18 strike the Government's post hearing brief as requested by the

19 Plaintiff, or whether to allow that proposed surreply, or

20 whether to allow further enlargement of the record, which is

21 one of the things that the Plaintiff states in his reply,

22 quote, in the last paragraph:

23 "Finally, DOJ argues that the addition of material it

24 now wants to present create a factual issue based on the record

25 taken as a whole an attempt to justify use of hearsay.

 5

1 Plaintiff does not believe that responding to this merits

2 argument are properly within the scope of this motion to strike

3 which argues that the material should be stricken. Should the

4 Court prefer that the parties engage in further post hearing

5 briefing on the merits and whether DOJ has created an issue of

6 fact, Plaintiff will provide any further arguments for which

7 the Court grants Plaintiff leave."

8 That is what the Plaintiff said in the reply. In the

9 original motion the Plaintiff was just simply saying strike it

10 or give me a chance to file the reply brief which, basically,

11 just attacks the submission.

12 And I am happy to hear from you and that is why I

13 asked you to come in is what is your view in terms of do I have

14 a complete summary judgment record from both sides?

15 And not only from what the Plaintiff has submitted

16 originally, whether it was a complete submission given that the

17 Plaintiff got sidetracked into thinking this was a Glomar

18 objection, or whether for the sake of reaching a fair and just

19 result that would be subject to review, obviously, by Judge

20 Gayles and possibly by the Eleventh Circuit that we kind of

21 like fall back. We assess what has been adduced to the Court

22 and then determine from there whether any further evidence or

23 any further argument is necessary.

24 Obviously, the Court has the discretion to reopen a

25 record and to reopen briefing to make sure that it is satisfied

 6

1 that what is before it is a fair representation of each side's

2 view so that both sides get the due process to which they are

3 entitled.

4 So that's why rather than just rule on the motion to

5 strike and move on, I kind of imposed on you to come back and

6 air this out so that we can, you know, all kind of like hear

7 each other's views openly and I can make a decision on what to

8 do next.

9 So it is the Plaintiff's motion strike. I can assure

10 you I have reviewed it. I have gone back and looked over the

11 matters that were, you know, adduced at the hearing. I have

12 everything here in front of me and you can refer to anything

13 that you wish.

14 So let me hear, then, from Mr. Topic or Mr. Astor,

15 your views. And I also would like you to zero in on this

16 business of that e-mail that listed what the Government was

17 going to announce. And whether that list was a witness list

18 and this business of whether the Government ever disclosed, I

19 believe his name is Mr. Altman, as a witness.

20 I don't know that that is one hundred percent clear

21 from the parties' points of view. The Plaintiff seems to think

22 that that e-mail from the District Judge's law clerk is the

23 Government's witness list and the Government seems to disagree.

24 So I don't know if that needs to be aired out further

25 with any further evidence. So with those preliminary comments

 7

1 just to serve you as a guide to where my head his right now, I

2 am happy to hear from both sides.

3 MR. TOPIC: Thank you, Your Honor, and good morning

4 again. I guess I would start that it is correct that there was

5 confusion about whether they were relying on Glomar or whether

6 they were acknowledging the existence of records and claiming

7 that they were exempt.

8 I would make two points. First is if that was there

9 argument all along, then, there is no reason that the evidence

10 that they are now trying to put in should not have been in

11 their 56.1 statement from the get-go.

12 If we were mistaken, then we were mistaken, but they

13 knew what their argument was. They have not provided any basis

14 to, you know, be relieved from the local rule which says it is

15 an operation of the rule those facts are deemed admitted if

16 they are not controverted.

17 THE COURT: Well, if they are supported by the record,

18 right? The Court does not blindly --

19 MR. TOPIC: Correct.

20 THE COURT: -- say whatever you say goes, right?

21 MR. TOPIC: Right.

22 THE COURT: You would agree with that?

23 MR. TOPIC: Right. I would, but it's an examination

24 of whether they are supported in the record.

25 THE COURT: Yes.

 8

1 MR. TOPIC: It's not an examination of them peeling

2 back the evidence in the record.

3 I mean, there was an affidavit that supported that

4 claim in the record and we attached a copy of the document.

5 THE COURT: Right.

6 MR. TOPIC: We also argued even in the original set of

7 briefing, quote:

8 Second, there is no dispute that Altman was

9 Plaintiff's attorney, but nonetheless the Government intended

10 to use Altman as a trial witness against Plaintiff.

11 This raises important questions about the extent to

12 which the DOJ respects the attorney/client relationship in

13 pursuit of a prosecution which outweighs any privacy interest.

14 We understood it to be a different level issue. The

15 underlying factual issue was clearly before the DOJ when they

16 decided not to put that evidence into the record as required

17 under local Rule 56.1.

18 THE COURT: And I hate to interrupt you.

19 MR. TOPIC: No problem.

20 THE COURT: But I think this will help me.

21 So your contention is when you made that statement in

22 support of summary judgment for your side that it is undisputed

23 that the Government intended to call Altman as a witness.

24 That would have been the point in time when the

25 Government should have said, if true, no, we never intended to

 9

1 call Altman as a witness and here is our actual witness list.

2 So you are saying they missed that opportunity?

3 MR. TOPIC: Exactly. Correct.

4 And as the cases we cite make clear, this isn't

5 ascension by the Court. This happens by operation of the local

6 rule.

7 THE COURT: Right. I got that part.

8 So let me ask you this. The support for that

9 statement that the Government intended to call Altman as a

10 witness, that came from where?

11 MR. TOPIC: That came from Mr. Mandell's declaration

12 and then the attached document itself.

13 THE COURT: All right. And that was the famous e-mail

14 from the law clerk?

15 MR. TOPIC: It was the famous e-mail from the law

16 clerk we did not include the time. We included that and they

17 accused us of lying to you.

18 And so, we wanted to make clear the basis for our

19 conclusion that this was the Government's trial witness list is

20 that how it was described to us by the clerk for the Judge who

21 was presiding over it.

22 So we certainly didn't lie to you or blatantly

23 misrepresent anything. That was our understanding of what that

24 document was.

25 THE COURT: So when you first made the statement

 10

1 through Mr. Mandell's declaration, was there any documentary

2 evidence that showed what the Government's witness list was at

3 that point in time? You are saying supported by documents.

4 What documents?

5 MR. TOPIC: So we put the actual list. The e-mail

6 exchange with the clerk in the Southern District of New York,

7 it existed at the time.

8 THE COURT: I see.

9 MR. TOPIC: We did not include it because we had the

10 declaration that showed that.

11 THE COURT: I see. So let me see, I think I

12 understand. You put that list without saying where it came

13 from and you called it the list?

14 MR. TOPIC: I can pull the document to be sure.

15 I believe that's correct. We said the Government

16 disclosed -- the Government listed Mr. Altman as a trial

17 witness and then we attached that document.

18 THE COURT: I understand.

19 MR. TOPIC: So the affidavit and the list, correct.

20 I think we had a dispute about what that list is what

21 it comes down to now after, you know, again after the process

22 had gone through under 56.1.

23 THE COURT: All right. So you put this list on and

24 you say this is the Government's witness list and you are

25 saying back then, you know, I have the declaration. I have the
 11

1 list. And Government, you should have said back then, hey,

2 that wasn't our witness list.

3 MR. TOPIC: Correct.

4 THE COURT: That's your contention?

5 MR. TOPIC: All the things that they are arguing now

6 are things that they had every reason to argue at the time he

7 didn't and they had all the information available to them at

8 that time.

9 THE COURT: All right. So then, you are saying that,

10 you know, too bad, so sad. You missed your, you know,

11 opportunity. So the hammer goes down and the record is closed.

12 MR. TOPIC: If Courts had done that to pro se

13 defendants, then it is not appropriate to do that to the

14 Government of the United States and that would be our issue.

15 THE COURT: And counter to that, of course, is the

16 concept that on the one hand, everybody has to take their

17 opportunities when they come and if you miss it, you miss it.

18 And on the other hand, it is the duty of the Court to make sure

19 that everything it is pertinent is before it.

20 And so it is the discretion of the Court whether to,

21 you know, bring down the hammer or open the door.

22 Would you agree with that?

23 MR. TOPIC: The way I read the rule is that while

24 there may be discretion under the federal rules, the local rule

25 essentially removes that because it says it will be deemed

 12

1 admitted the operation --

2 THE COURT: Have you read the preamble to the local

3 rules that say that these local rules are subject to the Judge

4 or something along those lines? Have you read that?

5 MR. TOPIC: If I missed that and the rule makes clear,

6 then certainly I would defer it to you and look to what --

7 THE COURT: Because it wouldn't make sense for the

8 local rules to totally bind up the Judge's operation, right?

9 MR. TOPIC: Yes.

10 THE COURT: So, for example, there is a local rule

11 that says responses are due in 14 days, replies in seven days

12 and we can change that?

13 MR. TOPIC: Right.

14 THE COURT: Okay.

15 MR. TOPIC: So I guess that would leave us then with

16 if they are allowed to present that what do we do now

17 procedurally?

18 If their argument --

19 THE COURT: I'm sorry, again.

20 MR. TOPIC: Sure.

21 THE COURT: Is that the only issue that from your

22 point of view that they missed the boat on saying yes or

23 denying that Mr. Altman was a contemplated Government witness,

24 or is there anything else before we move to the next step?

25 MR. TOPIC: Well, yes, there are some other issues.

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1 THE COURT: Okay. Go ahead.

2 MR. TOPIC: Not as to whether it should be stricken.

3 THE COURT: Right.

4 MR. TOPIC: I think I would like to argue about why

5 you can even take that out of play and it shouldn't impact most

6 of what is even at issue in this case.

7 And also, procedurally, if you are going to allow them

8 to present that what should we do? Because I think it is only

9 right that they should have the opportunity. It is something

10 like they should do a supplemental 56.1 and include that and

11 then we should have the same opportunity under 56.1.

12 You know, their argument largely seems to be, well, we

13 referenced the criminal court proceedings and so those things

14 are sort of incorporated by reference and we should get to use

15 them.

16 Then there are other things we would want to use.

17 Including statements in the closing arguments by the prosecutor

18 about who Altman was and what he did and --

19 THE COURT: So, then, it would be up to me to hunt

20 around throughout that whole, you know, underlying thing.

21 MR. TOPIC: We would point you to specific things that

22 we will say if you are going to open this up now to them

23 bringing in some new stuff, then, we would like the normal

24 opportunity under 56.1 to provide --

25 THE COURT: So that kind of brings up why I wanted to

 14

1 have this hearing in the sense of, my words, things have been

2 muddled up a little bit.

3 And so for my own purposes and for purposes of review,

4 I am trying to get the record as clean as possible. So I am

5 trying to figure out how to do that, but going back to my other

6 question.

7 So, again, I understand your argument. You had the

8 chance to say he wasn't on our witness list and you missed it.

9 And I asked you anything else procedurally and you said, yes,

10 there are a couple of other things. And I think you may be

11 alluding to this hearsay argument that --

12 MR. TOPIC: Sure.

13 THE COURT: You know, that guy wasn't even, you know,

14 an attorney at the time.

15 MR. TOPIC: Right.

16 THE COURT: And things like that. So can you air all

17 that out?

18 MR. TOPIC: I would be happy to be do that, Your

19 Honor.

20 So, obviously, hearsay is an out-of-court statement by

21 someone else submitted for the truth of the matter asserted.

22 That affidavit comes -- and of course, it was a requirement

23 there being foundation.

24 The person who submitted that affidavit was not only

25 not employed by the U.S. Department of Justice. Not even an

 15

1 attorney. Had no involvement in trial and has no foundation to

2 speak to it. Other than he can say this is what our records

3 show and there are cases that allow that.

4 THE COURT: Like as a records custodian type person or

5 as a 30(b)(6) type person?

6 MR. TOPIC: Yes. So there is Florida case law that

7 says the person who is conducting a search or review of the

8 records can talk about those things in an affidavit and it

9 wouldn't be no hearsay part of that.

10 THE COURT: But is that the -- I'm sorry. Bear with

11 me.

12 MR. TOPIC: Yes.

13 THE COURT: Is that when the FOIA representative is

14 reviewing the records requested by FOIA or is that in the FOIA

15 litigation?

16 MR. TOPIC: In the FOIA litigation, the Government can

17 put forth an affidavit of someone who says this is what I know.

18 And this is what I know from reviewing the documents and there

19 is not a hearsay problem with that.

20 They can also be based on what they learned in the

21 ordinary course of business that just became sort of what their

22 knowledge is.

23 What we have here is a DOJ employee putting in an

24 affidavit that says these other people told me this. That's

25 classic hearsay. There is no exception in the Rule of Evidence

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1 to FOIA cases.

2 THE COURT: So your further argument, if I were to

3 allow the Government to come back and refute your original

4 statement that Mr. Altman was anticipated to be a Government

5 witness, your further argument is the way the Government is

6 refuting that by way of this -- I will call it new attorney.

7 I forget his name. It is not enough. If they really

8 want to do it they have to do it with, you know, whoever

9 decided, which from my understanding of the record, is somebody

10 who is not in private practice.

11 MR. TOPIC: If they are going to rely on a statement

12 by those people, then, there ought to be affidavits from those

13 people. Not affidavits from someone who says this is what

14 those people told me.

15 THE COURT: Okay. So that is your further objection.

16 MR. TOPIC: Correct.

17 THE COURT: And of course, you know, you would have

18 the opportunity to refute, or you would want to depose those

19 people. How do you envision that developing? Are we going

20 like really far afield here?

21 MR. TOPIC: Well, I think a little afield.

22 The normal process in a FOIA case would be they submit

23 declarations and then we would respond to those. Here this

24 would happen through sort of the supplemental 56 .1 process.

25 THE COURT: Yes.

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1 MR. TOPIC: And then, there is case law that sort of

2 governs when the affidavits have been sufficiently called into

3 question to potentially give rise to the need for a deposition.

4 So, you know, if we had nothing to counter that or

5 contradict that, most Judges would not allow us to take

6 discovery. I might try and argue that to you once I see

7 whatever affidavits this settles on, but we think there is

8 contrary evidence anyway. We would want to present that.

9 I could preview that if you would like or if you want

10 to move forward with the supplemental process, we would put

11 that into the record and, then, see where the chips landed at

12 that point. And whether you think it would be appropriate to

13 depose those people or whether you conclude that -- sometimes

14 our argument would just be they haven't met their burden.

15 They are saying this is what this person is saying,

16 but this is what that person said at trial. And so you

17 shouldn't listen to what they are saying now or at least they

18 haven't met their burden.

19 And I think it is a good opportunity to take a step

20 back and remember this is a FOIA case about whether certain

21 records are going to released. And that has implicated a lot

22 of issues, meaty issues about what happened at trial and what

23 the Government did or didn't, but this isn't a criminal case

24 against the Government.

25 I mean, it isn't that level of detail that is

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1 typically required here. It is heavily sufficiently called

2 into question to warrant being able to see the underlying

3 records. That is really the context for this.

4 THE COURT: All right. So, then, the source should be

5 the right source based on your assessment and, then, you could

6 challenge that proper source. And then, if you felt that you

7 needed more for the challenge, then presumably you would ask

8 for the discovery.

9 MR. TOPIC: Yes.

10 THE COURT: It is not like I think up, oh, it would be

11 nice to have discovery here. None of that.

12 MR. TOPIC: We would have something very particular

13 that says this is why we meet the standard for getting leave to

14 take depositions of those people.

15 THE COURT: All right. So, then, we have that.

16 So we have whether the contention is allowed. What

17 the source of contention would be.

18 Any other further roadblocks or arguments that you

19 would have that I need to consider to have a complete picture

20 of the way forward?

21 MR. TOPIC: This may or may not exactly fit into what

22 you are asking for, Your Honor.

23 But I do want to point out that as we put in our post

24 relief, there are really three different arguments here; Mr.

25 Altman has a privacy right, this is a matter of substantive DOJ

 19

1 law enforcement policy, and the Favish standard of potential

2 impropriety.

3 The new evidence that they want to put before you has

4 no bearing on the first issue as to whether Mr. Altman was the

5 personal attorney for Mr. Mandell. It has no bearing on

6 whether this is an issue of substantive law enforcement policy.

7 It arguably has a bearing only on that third issue and

8 we only need to win on one of these. So even if you let this

9 in and we go through this process, I don't think it is going to

10 make any difference as to argument one or argument two, each of

11 which is independently sufficient. So I just want to put that

12 in context.

13 THE COURT: All right. So it recap.

14 As you see this dispute there are three issues that

15 the Court will need to decide. One is whether as Mr. Mandell's

16 attorney, Mr. Altman had any privacy rights?

17 MR. TOPIC: Correct. That would be the first

18 argument.

19 THE COURT: That is the first issue.

20 MR. TOPIC: Former attorney, yes.

21 THE COURT: And that you see as a -- there is no

22 dispute that he was the attorney. So, then, that would only

23 leave a legal assessment.

24 MR. TOPIC: Correct.

25 And I think the Government has kind of tried to throw

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1 some shade on that and suggest that maybe he wasn't the

2 personal attorney. If that is going to continue to be in

3 dispute and they are going to address that in a new 56.1, we

4 absolutely have to make abundantly clear from the attorney that

5 prosecuted the case that Mr. Altman was Mr. Mandell's personal

6 attorney.

7 THE COURT: So attorney status -- the Government and I

8 will hear from Mr. Raurell -- attorney status factually they

9 may be challenging that. Assuming they don't and they concede,

10 yes, there was an attorney/client relationship, then, the

11 privacy of rights of Mr. Altman would just be a legal question.

12 MR. TOPIC: Precisely, Your Honor, yes.

13 THE COURT: So that is item number one.

14 Then, the item to the second issue that you were

15 saying would be for the Court to decide.

16 MR. TOPIC: Yes. So that is the Crew case that we

17 cited which says that setting aside the Favish line of cases,

18 if disclosure of records would help the public to understand

19 substantive DOJ law enforcement policy, in that particular case

20 it was how the DOJ or FBI went about investigating Tom DeLay

21 who is the Speaker; I believe the Speaker of the House. Then,

22 you don't have to get into the Favish is there potential

23 impropriety and stuff. That alone is a cognizable public

24 interest.

25 THE COURT: So, then, you are saying there is a bit of

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1 a fork in the road. You either go public interest or you go

2 Favish factors.

3 MR. TOPIC: Well, I wouldn't call it a fork in the

4 road. I think it could be both and we would argue here that it

5 is both.

6 THE COURT: But you say you would win under --

7 MR. TOPIC: Correct, yes.

8 THE COURT: -- any one of these, right?

9 MR. TOPIC: If you agreed with us that these records

10 would shed light on the matter of DOJ law enforcement policy.

11 Specifically, how they handle dealing with someone's former

12 attorney in the course of an investigation or a prosecution,

13 then we would prevail. You would not need to reach the Favish

14 question if you didn't want to.

15 THE COURT: And on the first point, if I said that

16 because of his status as Mr. Mandell's attorney, Mr. Altman has

17 no privacy interest, then there is no private interest to

18 protect under FOIA and that is the end of that inquiry.

19 MR. TOPIC: Then you would not even need to get to a

20 public interest analysis because there must be something

21 greater than a de minimus privacy interest before you get to

22 that.

23 THE COURT: All right. So point one. Point two

24 public interest. Fork in the road under my --

25 MR. TOPIC: Yes, I hear you.

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1 THE COURT: And then, the third one where we get into

2 the Favish -- Favish or Favish?

3 MR. TOPIC: I've heard it both ways.

4 THE COURT: Okay. Whichever.

5 All right. So, then, that third item. That third

6 issue. Then, is where we need to assess again those factors

7 where what?

8 MR. TOPIC: So the test here is -- let me give you the

9 exact language:

10 "Whether the requester has produced evidence that

11 would warrant a belief by a reasonable person that the alleged

12 Government impropriety may have occurred."

13 The impropriety would be whether they used Mr. Altman

14 improperly in the prosecution of Mr. Mandell.

15 THE COURT: So the third one is if there was an

16 impropriety, as the Court assesses it, then you are entitled to

17 the compliance with the FOIA request --

18 MR. TOPIC: Correct.

19 THE COURT: -- because of policy reasons?

20 MR. TOPIC: Right. Because there is a public interest

21 in knowing whether something improper occurred.

22 The requester is in sort of a trip box where we don't

23 know what -- the whole reason for this is we want to see the

24 records to show it. The Courts have said, well, you can't just

25 allege Government impropriety. You have to have something more

 23

1 tangible. Something that a reasonable person would be

2 justified in concluding that impropriety might have occurred.

3 The trial witness issue is one of those things. Their

4 new evidence doesn't do anything as to the rest of the evidence

5 that we put forth, which is the fact that he was listed as a

6 related case. He was described as part of the criminal

7 conspiracy at trial and he was never charged.

8 So even if they are correct that what we felt was the

9 trial witness list isn't a trial witness list, even without

10 that there is all these other pieces of evidence that is more

11 than enough for a reasonable person to scratch their head and

12 think, gee, I wonder why they didn't charge Mr. Altman with any

13 crimes after they said he was part of this criminal conspiracy

14 and after they listed him as a related case.

15 So I think you can even take out the trial witness

16 issue and you still have evidence that would meet the standard

17 under Favish.

18 THE COURT: So you are saying that that is evidence of

19 impropriety even though there is such a thing as prosecutorial

20 discretion?

21 MR. TOPIC: Yes. Because under the mere fact that he

22 wasn't charged -- well, the standard under Favish is whether a

23 reasonable person would be justified in concluding that

24 impropriety might have occurred.

25 And absent there being some explanation as to why the

 24

1 Government comes to trial and says Mr. Altman is part of this

2 crime and lists him in court papers as a related case and never

3 charges him, there may be a perfectly reasonable explanation

4 for that, but the record does not show any explanation and

5 that's enough under Favish.

6 THE COURT: And the Government has the burden of

7 explaining why they exercise prosecutorial discretion?

8 MR. TOPIC: I don't think I have seen a case that has

9 gotten that granular on this issue. The broader legal

10 construct is would a reasonable person be justified in

11 concluding that they might have improperly used Mr. Altman

12 against Mr. Mandell.

13 And given the evidence that these facts that we have

14 pointed to and given the lack of explanation, a reasonable

15 person would be justified in concluding the reason might have

16 been because they were using Mr. Altman.

17 THE COURT: So the Court just puts on its reasonable

18 person hat, looks at the facts, and says I've got no

19 explanation.

20 So based on what I am seeing, it looks like an

21 impropriety to me without imposing that burden on the

22 Government because it just does not seem to me that the

23 Government has to explain a decision.

24 That is the Government's own decision. Unless it

25 wants to. Obviously, if the Government wants to say I don't

 25

1 know -- I am just being facetious here. We didn't charge him

2 because he died.

3 MR. TOPIC: Right.

4 THE COURT: You know.

5 MR. TOPIC: Right. I think you are correct about the

6 reasonable person. And I think you would sort of look at the

7 totality of the facts and say how would a reasonable person

8 look at that?

9 The only modification that I would make to the way

10 Your Honor has just framed it is when you conclude that

11 impropriety might have occurred. You don't have to conclude

12 that impropriety did occur.

13 You have to conclude that it might have occurred

14 because the whole purpose of FOIA is people being able to see

15 records and come to their own conclusions about what the

16 Government has done or not done.

17 Balanced against the fact, as they say in Favish, it

18 is really easy to lob accusations at the Government and you

19 have to do something more than just an accusation. And we

20 contend that we have absolutely done that here and we've done

21 that even if you were to take the trial witness list out of

22 play entirely.

23 THE COURT: Okay. And going back to my fork in the

24 road simile how is this -- I will just refer to it as this

25 Tom DeLay prong -- different from the Favish prong?

 26

1 MR. TOPIC: Well, in the Crew case and the Tom DeLay

2 case, what the D.C. Circuit said was even if there was nothing

3 at all improper about how the Government investigated or why

4 they investigated Tom DeLay, the records would shed light on

5 how they handled that kind of situation as a matter of

6 substantive law enforcement policy.

7 And the reason it rose to that level of substantive

8 law enforcement policy is because, you know, Mr. DeLay was a

9 very powerful politician. And so the Court there -- it wasn't

10 a matter of policy like there is a written policy. It is a

11 matter of just how does the Government handle a particular kind

12 of situation in actual practice.

13 If this was just simply how do they prosecute someone

14 in the abstract that would be a different case. But here the

15 substantive issue is how do they handle a situation where one

16 of the witnesses, or potential witnesses, or just one of the

17 actors is a lawyer for the person who is the Defendant?

18 That is why it becomes a substantive law enforcement

19 policy matter and not just sort of an abstract single case.

20 THE COURT: All right. So, then, the Tom DeLay prong

21 is more of the people have the right to know on matters of

22 importance how this decision was made.

23 And the Favish prong is a reasonable person might

24 think that there was something improper. So both of these

25 roads would lead to disclosure.

 27

1 MR. TOPIC: That's correct, Your Honor.

2 THE COURT: All right. So, then, with that framework,

3 back to the completeness and integrity of the underlying

4 record.

5 If I were inclined to seek to have something that

6 clears up the record would you see -- not that you are

7 advocating it -- but would you see the best option to have

8 supplemental undisputed facts that go to both cross motions and

9 a response and, then, that hopefully those supplemental facts

10 would kind of clarify the existing factual record in some way.

11 Would you see that as the vehicle for doing it?

12 MR. TOPIC: Yes.

13 THE COURT: Or alternatively, you know, throw the

14 whole thing out and let each side, you know, redo their facts

15 and redo their arguments. And I do not want to make you work,

16 but I am just trying to envision for myself and for review what

17 would be less messy.

18 MR. TOPIC: I think whichever way makes it the easiest

19 for Your Honor, we would be more than happy to do it. I think

20 a lot of work has already been done.

21 Your Honor clearly has a very strong grip on what the

22 issues are and how they all fit together. I think really what

23 we are left with is this issue of some supplemental evidence

24 and the opportunity to respond to it.

25 You know, I think any legal issues around that are

 28

1 already fleshed out. But, at the same time, you know, some

2 time as we have seen in this case things take different twists

3 and turns.

4 And so, you know, if we are going to open that up, I

5 think that maybe there needs to be the opportunity to put some

6 context around those facts. So if it is easier for Your Honor

7 just to do all the summary judgment again, we can certainly do

8 that.

9 Alternatively, again, we can just have them put in

10 whatever supplemental evidence they want in some short brief

11 attached to that. Let us do the same in response. We would

12 potentially put in our own evidence refuting their evidence.

13 And if necessary there could be a reply, or we just do

14 one each just to put more evidence before you and explain why

15 it matters or doesn't matter. Put it into context. And then,

16 I think at that point, I would think you would have everything.

17 It is about to be winter in Chicago. So you can have

18 me come down here as many times as you want, Your Honor, and I

19 would be more than happy to do that. If it is helpful it is

20 really no problem.

21 THE COURT: I feel your pain. I went to visit my son

22 in Dubuque, Iowa.

23 MR. TOPIC: All right.

24 THE COURT: I got there October 30th. That night it

25 snowed.
 29

1 MR. TOPIC: Did you enjoy it or did you not wait to

2 get back?

3 THE COURT: It looked very pretty from inside the

4 house through the window.

5 MR. TOPIC: That's true.

6 THE COURT: I took some very nice pictures.

7 MR. TOPIC: Sure it does. It gets tiresome very

8 quickly, though.

9 THE COURT: All right. Let me hear from Mr. Raurell.

10 You have been patiently sitting there, sir. And let

11 me hear how you envision the Government's view on these points

12 that I have discussed with Mr. Topic.

13 MR. RAURELL: Thank you, Your Honor and thank you

14 Mr. Topic.

15 The Government would suggest that -- not suggest, but

16 say that the record is complete. The Court has the discretion

17 to consider the admittedly additional evidence that we

18 submitted.

19 Let's not forget the context. Not only had Plaintiff,

20 when responding to our motion for summary judgment,

21 misconstrued the plainly evident nature of the FBI's response

22 to the FOIA request as a Glomar request, it wasn't that.

23 The Plaintiff even said in their response to which

24 summary judgment the only issue here is whether a Glomar

25 response was appropriate. Well, it wasn't a Glomar response.

 30

1 That was clear on the face of the response. But not only that

2 there were, at that point additional -- when the Government

3 moved for summary judgment there were additional Government

4 agencies who were defending this.

5 And the Government believed, as it still does, that

6 the issues were proper and fully addressed with regard to --

7 asserting the privacy rights of Altman versus any public

8 interest that would be served by disclosure.

9 When the Court had its last hearing, the Court allowed

10 Plaintiff to expand upon, quite broadly, what was in the very

11 brief motion for summary judgment or response to our motion for

12 summary judgment.

13 And the Court was interested in hearing these aspects

14 of the Plaintiff's relationship with Altman and whether Altman

15 was the attorney for Mr. Mandell personally or just for the

16 business. And for that reason, the Government felt remiss if

17 it wouldn't have addressed these critical aspects of those

18 facts.

19 Plaintiff has relied heavily on the record of the

20 criminal proceedings against him. And very respectfully to

21 Mr. Topic and Mr. Astor, I don't for a moment believe that they

22 did anything purposefully improper.

23 But Plaintiff, himself, I would say in providing an

24 account of what happened in the criminal proceeding said that

25 the Government identified that Astor would be a witness.

 31

1 The Judge said it --

2 THE COURT: You mean Altman.

3 MR. RAURELL: Altman. Forgive me.

4 Nobody ever said that. Not the Judge. Not the

5 Government. And the list that was attached to Mr. Mandell's

6 affidavit was a partial list.

7 And if you look at the whole list, the title of it,

8 these are names that the Court should read out to the potential

9 jurors. And on that list there were U.S. Attorney's Office

10 employees who would never have any reason to be a witness in

11 the case. There were company names, corporations. How are

12 they going to be witnesses in the case?

13 Any reasonable person looking at the complete list

14 would have known what it was. And then, granted it seems like

15 the Clerk of Court --

16 THE COURT: The law clerk.

17 MR. RAURELL: The law clerk.

18 THE COURT: Sometimes law clerks.

19 MR. RAURELL: In response to a request for the witness

20 list, but the list itself should have settled pretty clearly

21 what it actually was. This wasn't a witness list.

22 THE COURT: And have we ever found out -- I think I

23 asked about this. There was never a formal witness list like

24 we require here that, you know, the list in that AO-Form that

25 gets submitted and nobody has dug that up?

 32

1 MR. RAURELL: There is one record which we haven't

2 produced neither to the Court nor to Plaintiff, obviously, that

3 is the attorney's list of who the witnesses she intended to

4 call.

5 THE COURT: But that's personal.

6 MR. RAURELL: That's a U.S. Attorney's Office

7 document.

8 And as we indicated in Mr. Chang's declaration, Altman

9 wasn't on that list because as Chang -- and let's talk about

10 Mr. Chang. He is not merely some new guy off the street who

11 came in. He spoke with personal knowledge of the criminal

12 proceedings because he handled the 2255 and as such, he is an

13 attorney in the criminal case. Albeit in the post conviction

14 litigation that occurred on the 2255.

15 And Mr. Topic spoke and he admitted that, in fact, in

16 FOIA litigation it doesn't necessarily have to be the person

17 with knowledge of the search for documents, but it goes beyond

18 that.

19 And I would point the Court to a couple of decisions.

20 One just issued by the D.C. District in September and that is

21 the case of Property Of The People, Inc. v. U.S. Department of

22 Justice and that is at 2019 WL 4644572.

23 And as Mr. Mandell knows in this case, the issue was

24 precisely this that an affidavit issue appeared to have been

25 made on something other than personal knowledge. So if the

 33

1 Court will indulge me, I will read the passage.

2 THE COURT: And give me that site again so I write it

3 down; 2019 West Law.

4 MR. RAURELL: Sure. Property Of The People, Inc. v.

5 U.S. Department of Justice and it is 2019 WL 4644572.

6 "So Plaintiffs said their argument that this Court

7 should not consider the declarations because they contain

8 hearsay is unavailing. In FOIA cases Courts in this

9 jurisdiction have held that declarants can rely on information

10 they have obtained through the course of their official

11 duties."

12 And they cite another case for that and that's Canning

13 v. U.S. Department of State, 134 F. Supp. 3d 490.

14 FOIA cases earlier on was decided under the

15 Administrative Procedures Act. And this is not usually that a

16 person would speak on behalf of the organization rather than a

17 witness would say a personal injury matter in which there was

18 motion for summary judgment.

19 Mr. Chang, our declarant, is speaking about

20 information that he obtained in the official course of his

21 duties as an AUSA. He is not just somebody off the street or

22 somebody who was just hired by the State Attorney's Office in

23 the Southern District of New York. He is an attorney who

24 handled the 2255.

25 Very importantly -- and I don't know if the Court will

 34

1 -- and I think the Court should consider it, but the

2 declaration states or what I also know to be true because I was

3 involved in the communications with the attorney who is now in

4 private practice.

5 The reality is and we can, you know, if the Court

6 demands this level of formality we will ultimately do it, but

7 both the prosecutor on the case and the FBI agent on the case

8 both said the Government never had any contact with Mandell or

9 rather with Altman and never intended to call him as a witness.

10 THE COURT: But they told that to Chang, right?

11 MR. RAURELL: To Chang -- to Mr. Chang.

12 THE COURT: But how is that making its way to the

13 Court record?

14 MR. RAURELL: Because Mr. Chang is a declarant to

15 those facts even though they are based on statements made by

16 the prosecutor and the FBI agent because they are statements.

17 It's information that Mr. Chang obtained in his official

18 capacity.

19 THE COURT: You explained that.

20 My question was, is that in Mr. Chang's declaration

21 already?

22 MR. RAURELL: Yes, the declaration explains how we

23 reached out to these people and they told us of these things.

24 THE COURT: Okay. All right. So your contention is

25 that Mr. Chang's declaration is sufficient and you don't see

 35

1 any purpose in getting a declaration from the prosecutor and/or

2 the FBI agent and you are willing to --

3 MR. RAURELL: I don't, Your Honor. If the Court --

4 I'm sorry.

5 THE COURT: And you are willing to take your chances

6 on just going with Mr. Chang?

7 MR. RAURELL: I believe that it is appropriate for the

8 Court to consider Mr. Chang's declaration.

9 THE COURT: But it's your choice. That is what I am

10 trying to tell you. It is your choice.

11 You know, I am not going to prejudge and tell you how

12 I will ultimately rule because I haven't done the complete

13 research. That is all I am saying. If this is how you want to

14 proceed and, then, for some reason after I analyze everything,

15 I decide Chang wasn't enough that is a risk that you would be

16 taking.

17 MR. RAURELL: Certainly. But I think it is

18 appropriate for the Court --

19 THE COURT: I wanted to be clear.

20 MR. RAURELL: -- to consider that. Let me read for

21 the Court an excerpt from Canning v. U.S. Department of State.

22 "The Court agrees with the Department that Hackett an

23 original classification authority who is familiar with FOIA

24 procedures and has reviewed the documents in question may make

25 a decision based in part on information obtained in the course

 36

1 of his official duties without triggering a need for additional

2 declarations from the individuals he consulted."

3 That is precisely what the Court is asking here. Do

4 we need additional declarations from the people that Mr. Chang

5 spoke with?

6 When he is speaking on behalf of the U.S. Attorney's

7 Office for the Southern District of New York, the Court noted

8 is this in the similar manner as the testimony from a 30(b)(6)

9 witness?

10 I believe that's what the FOIA case law talks about

11 declarations in FOIA which, by the way, are to be afforded a

12 presumption in good faith. That's the way it works in FOIA.

13 Oftentimes records are sought in cases that stem back

14 many decades in which case the original people may not any

15 longer be around and you are relying on assessments made by the

16 people who handled the request in present day based on their

17 understanding of what happened.

18 THE COURT: And I can understand all that.

19 And I think that the distinction that may have been

20 alluded to is that it makes perfect sense sort of like a

21 records custodian is of record. That is sort of what FOIA is.

22 It's being of records producing them. This is how I got them.

23 This is where they came from. The records custodian just

24 simply attests to what they found.

25 The question is does that law transfer to using this

 37

1 methodology to establish, from your point of view, that Mr.

2 Altman was never a witness or considered by the Government to

3 be a witness in this case, which kind of falls outside the

4 record gathering for FOIA purposes because this is not a FOIA

5 record. This is something from the underlying criminal case.

6 So, again, I have not decided if the two, you know,

7 meld or work in unison or not. I am just trying to tell you

8 that it seems to me that the Plaintiff has tried to bring up a

9 distinction and I wanted it to be very clear for you and on the

10 record that if you are simply saying under my review of the

11 case law Chang is enough, then, the result will be whatever it

12 is given that choice that you make.

13 MR. RAURELL: I think the distinction is not as

14 significant as the Plaintiff or the Court might be construing

15 it.

16 THE COURT: I am not construing anything.

17 MR. RAURELL: I'm sorry. I was just --

18 THE COURT: I am just trying to articulate what has

19 been presented before me.

20 MR. RAURELL: Mr. Chang's statement could easily have

21 been issued in the context of having searched for the records.

22 Although he says he is familiar with the records.

23 THE COURT: But it wasn't.

24 The fact that it could have been done in that, the

25 fact that he is familiar, none of that is really the issue that

 38

1 I am asking you about.

2 MR. RAURELL: The case law, I believe the Property Of

3 The People case that I cited deals with content in the FOIA

4 declaration that is not limited to the search for records but,

5 in fact, of the claiming of an exemption and that is what we

6 have going on here.

7 FOIA declarations are different than declarations or

8 affidavits that the Court might consider in a regular case.

9 These are statements from the agency. Not from an individual.

10 These are statements from the -- and they are allowed --

11 agencies are allowed to use a person with knowledge of the

12 information to speak on behalf of the agency.

13 THE COURT: Okay. So your contention is that under

14 Property Of The People and Canning, the general umbrella under

15 which declarations are allowed in FOIA apply to Mr. Chang?

16 That's your position.

17 MR. RAURELL: Not only those cases, but in any number

18 of other cases that say that agency declarations in FOIA are to

19 be afforded good faith and in many cases.

20 In fact, I would say the majority of cases that one

21 reviews are specifically allowed as hearsay because you

22 typically have a representative of the agency speaking in

23 defense of both the adequacy of the search and also the

24 claiming of exemptions and that's what is going on here.

25 We are making a statement related to our claim of an

 39

1 exemption based on Mr. Altman's privacy. And a factual matter

2 that the Court has found important is whether, in fact, Mr.

3 Altman was going to be used as a witness.

4 So the person handling the FOIA request from the U.S.

5 Attorney's Office in New York, and I included, we reached out

6 to the people who actually were involved to confirm because

7 Mr. Chang also has familiarity based on being the attorney for

8 the Government in the 2255 to confirm that Altman wasn't going

9 to be used as a witness and that they never had any contact

10 with him. So I think that Mr. Chang's declaration is

11 appropriate.

12 Also, just to explain what the thinking was. The

13 attorney -- forgive me. I am forgetting her name, but she is

14 named in the declaration, is now in private practice.

15 If the Government had to go outside of itself every

16 time FOIA requests required some information from somebody, I

17 would say, to be totally candid, the Government doesn't always

18 go this far to call, you know, the attorney that handled the

19 case to get a piece of information.

20 Here, in light of what the Court's concerns at the

21 last hearing, we did that. We thought it was enough to present

22 our case on the basis of the record and let's talk about the

23 record, Your Honor.

24 The Judge's statement we included in our reply the

25 transcript of the criminal proceedings. This is not something

 40

1 that we made up. It's not a declaration that we created for

2 the purpose of putting the facts before the Court. This is the

3 record of the criminal case.

4 The Judge is clear. He says these are names you might

5 hear. The list that they attached, I think it is telling, Your

6 Honor, that the Plaintiff, Mr. Mandell cut the list. He cut

7 it. He didn't include the e-mail that transmitted it. He

8 didn't even include the first part of the list which said

9 precisely what it was.

10 The Court has an adequate basis in which to rule in

11 the Government's favor. There were no attempts to call Mr.

12 Altman as a witness and there was no contact between the

13 Government.

14 THE COURT: But the point is you could have presented

15 that at the initial round and you didn't. That is the point

16 that they are making.

17 MR. RAURELL: Absolutely we do not dispute that

18 ideally we would have put this information in the --

19 THE COURT: So that you didn't and you did it at the

20 post hearing stage, would you contest Mr. Topic's argument that

21 if that is allowed, then he should be allowed to counter it

22 with whatever he has?

23 MR. RAURELL: Here's the thing about that, Your Honor.

24 When in response to our motion to our post hearing

25 brief, they filed a motion to strike which included a proposed

 41

1 reply. We don't object to their filing that reply. They could

2 have, at that point, addressed whatever facts they deemed were

3 excessive or --

4 THE COURT: Well, they have this little thing about

5 they didn't want to go into the merits, but that little clause.

6 MR. RAURELL: What merits, though?

7 All that the Government had done is refer to the

8 record of the criminal case. And said, hey, because Plaintiff

9 referred to it extensively in his complaint and elsewhere to

10 the record of the criminal proceedings and, then, the Court can

11 consider those criminal proceedings in assessing whether

12 Plaintiff's own declaration establishes that, A, the Government

13 was intending to call Altman as a witness, it doesn't.

14 THE COURT: Okay.

15 MR. RAURELL: In the record itself of the criminal

16 case and there was no evidence of that.

17 THE COURT: All right. So the Government's position

18 is as follows: Mr. Chang's declaration is enough.

19 And just like you, according to the Plaintiff, missed

20 your chance of the initial briefing stage and the Plaintiff

21 missed their chance at the motion to strike stage and so you

22 should get the -- even though you are getting the benefit of

23 the Chang declaration afterwards, they should get the benefit

24 of countering that declaration.

25 MR. RAURELL: If Plaintiff's -- the Government is not

 42

1 opposing the proposed surreply that they filed. The Court can

2 accept that. If they wish to file an additional statement of a

3 facts that they feel contradict what the Government has put

4 forth, then that's fine. We are not trying to stand in the way

5 of a full hearing, but at the same time, they were given an

6 opportunity following the last hearing to augment, and

7 supplement, and broadly expand on what they had previously

8 argued.

9 Why should the Government be prejudiced and limited to

10 what it only argued before that?

11 THE COURT: Okay. So if I go forward by allowing each

12 side to file -- I don't know what the best thing would be.

13 Supplemental 56.1 statements or revised 56.1

14 statements that kind of gets rid of all this stuff that we

15 agree is irrelevant and just ask for each side, of one page,

16 what each side's motion and response is dependent on.

17 So that neither I, nor reviewing Courts, have to go

18 back and say, oh, this is the extra and this is the original,

19 but out of this original some of this stuff is not relevant

20 anymore.

21 What is your view on that?

22 MR. RAURELL: I think the easiest way forward given

23 that the Court, I think, fully understands and has perceived

24 all of the legal arguments, the standards under Favish, under

25 Crew, regarding whether an attorney has a right to privacy, the

 43

1 easiest way forward is to have the parties issue new 56.1

2 statements and only 56.1 statements.

3 They will lay out their version of the facts that they

4 feel support the legal arguments they have made and we will

5 respond to them or perhaps both parties will issue an initial

6 set. Their Plaintiff's 56.1 facts.

7 THE COURT: Okay.

8 MR. RAURELL: And each side will respond to the

9 other's, either with an admission or a denial.

10 THE COURT: And so that makes sense to me. Each side

11 like complete 56.1 statements and the other side counters and

12 that is the one opportunity.

13 Now, obviously, for my sake I understand the legal

14 arguments, but for the sake of completeness, then, the argument

15 of how those new and improved factual predicates support each

16 side's arguments, I am wondering if that might be needed.

17 Not so much for me because I will be able to

18 understand them, but for somebody to review what my conclusions

19 would be and I am willing to hear about that.

20 MR. RAURELL: I don't think that -- well, it would

21 just be a restatement of what has been --

22 THE COURT: All in one location.

23 MR. RAURELL: I hate to make a statement of what the

24 Government wishes based upon my own workload, but this would be

25 the --
 44

1 THE COURT: I know.

2 MR. RAURELL: -- third time --

3 THE COURT: Yes.

4 MR. RAURELL: -- that we have briefed these issues for

5 the Court. Each time the Government has devoted a lot of time.

6 I mean, the Government's pleadings in this case haven't just

7 been cursory.

8 THE COURT: So have I, right?

9 MR. RAURELL: Of course, Your Honor. I don't mean to

10 suggest otherwise. I just mean that the Government has fully

11 set forth now on more than one occasion --

12 THE COURT: Basically, all the Government would need

13 to do is grab its prior -- and the other side -- grab its prior

14 legal arguments and then mush them with the new factual

15 predicate so that it is all there for me and for the reviewing

16 Courts to see in one neat little package.

17 And again, I am not doing it so much for me and I am

18 not doing it to create work for you because this is a report

19 and recommendation. I am trying to make sure that what I

20 prepare for Judge Gayles isn't going to make him go running all

21 around the record.

22 MR. RAURELL: So it seems to be clear, though, which

23 Your Honor is proposing and I agree that it is reasonable and

24 perhaps the only way forward.

25 Although, I would prefer the record as it exists.

 45

1 What Your Honor is proposing wipe the slate clean and let's

2 start fresh with new motions and summary judgment and

3 supporting --

4 THE COURT: Not completely because I am not asking for

5 new motion, response, reply, cross motion. I am not asking for

6 that.

7 It is sort of like I think more like what I am asking

8 is, a supplementation or a recasting of the factual record and,

9 then, basically new post hearing briefs that rely. So for that

10 I will only allow one set from each side as opposed to a back

11 and forth.

12 MR. RAURELL: What is the sequence that Your Honor is

13 envisioning? Simultaneously filed statements of fact or

14 sequential statements of fact so that the other side could

15 respond to the other?

16 THE COURT: Because both sides it is cross motions for

17 summary judgment. I am trying to figure out what the easiest

18 way would be.

19 You had initially said that each side presents theirs

20 and the other side presents the counters, but in a sense that

21 is going to be a little bit repetitious.

22 So maybe each side gives all of the facts that they

23 think supports both their motion and their opposition because

24 it is just one set of facts. And then, just responses, you

25 know, to counter. So one against the other. And I don't know

 46

1 who should go first, Plaintiff or Defendant.

2 Let me hear from Mr. Topic and I know we are getting

3 into the weeds here, but I want to make it as easy as possible

4 for you.

5 MR. RAURELL: So is the Court envisioning maybe we

6 will simultaneously file statements of facts. The other side

7 will get to respond. And then, each side will file one

8 document, one motion for summary judgment without the

9 opportunity for a response.

10 THE COURT: One brief.

11 MR. RAURELL: One brief based upon the statements of

12 facts and the responses thereto.

13 THE COURT: I think so.

14 MR. RAURELL: That would be fine with the Government,

15 Your Honor. Thank you.

16 THE COURT: All right. Mr. Topic, how does that sound

17 to you, sir?

18 MR. TOPIC: I got a little lost there for a second,

19 Your Honor.

20 THE COURT: Right.

21 MR. TOPIC: I guess this is how I would look at it.

22 The Government wants to add some new stuff. So

23 however we do it, I think they should put in their new stuff in

24 the format of a 56.1 and all that and, then, we should respond

25 to that. We are fine with just leaving the record as it is

 47

1 right now and not doing anything more.

2 They want to bring in some new things. If you are

3 going to allow them to bring in new things that is totally

4 understandable. Then, let them do that and let us respond to

5 that.

6 THE COURT: Right. But what I was trying to achieve

7 is instead of them having to go hunt and peck for all the old

8 stuff that was there, I am asking for that to be -- so are you

9 proposing the Government file its new and improved statement of

10 facts that has everything the Government has to throw in the

11 kitchen sink and, then, you will respond to that and so that

12 eliminates two back and forths?

13 MR. TOPIC: Yes. And we will, you know, admit or

14 deny. And then, if they are going to rely on what they are

15 attempting to rely on, I fully anticipate there is going to be

16 some facts in evidence that we are going to put in that we

17 believe, you know, put that in a different context or

18 contradict it. So it will not simply be admit deny, admit

19 deny.

20 I do expect that if they are going to put in what they

21 have shown so far, we have some things that we are going to put

22 in that we think will contradict that. If they want to

23 supplement, I think they should go first. We would respond.

24 THE COURT: Okay.

25 MR. TOPIC: If you think it is sort of superseding

 48

1 post hearing brief --

2 THE COURT: Yes.

3 MR. TOPIC: And both sides would make sense, it is no

4 trouble for us to sort of take what we have already done and

5 add whatever new stuff we need to. I think both sides

6 understand, but maybe we should make it very clear.

7 What we're talking about is them adding the thing that

8 they have just told us about and nothing new beyond that. And

9 whatever we are going to add is in response to that but, then,

10 we will have a new superseding set of post hearing briefs that

11 would then lay out the legal arguments --

12 THE COURT: Okay.

13 MR. TOPIC: -- along the lines of what we have done so

14 far.

15 THE COURT: All right. So, Mr. Raurell, you will

16 submit a new complete statement under Rule 56.1 that contains

17 all of the undisputed facts that the Government is relying on

18 to prevail on its motion for summary judgment and -- kill is

19 not a good word, but sort of like dissipate or eliminate

20 Plaintiff's motion for summary judgment because we have to

21 remember that these are cross motions.

22 So your facts in support of you prevailing on the

23 cross motions, I guess, would be the best way and, then, they

24 can counter. And obviously, they can add additional undisputed

25 facts. And if they do, then, you should have the opportunity
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1 to counter those.

2 MR. RAURELL: I would like to address something that

3 -- I don't know if it is what Mr. Topic was suggesting, but in

4 light of the Court's concerns -- and I know you didn't

5 necessarily adopt Mr. Topic's view about whether or not the

6 Government can rely on Chang's declaration to submit

7 information that originated from others.

8 The Government may seek a declaration from the

9 prosecutor and the FBI agent. We would like the ability to

10 include that if we are to file a new 56.1 motion --

11 THE COURT: All right.

12 MR. RAURELL: -- a 56.1 statement.

13 THE COURT: It would be on the same topic.

14 MR. RAURELL: Yes.

15 MR. TOPIC: If what they are proposing is to take what

16 Chang said they said and just have them say that thing then,

17 yes, we know what we're dealing with.

18 THE COURT: Because that eliminates your -- well,

19 theoretically that argument.

20 MR. TOPIC: Right. If there is entirely new stuff

21 that we haven't seen yet, you know, that is what I would ask

22 that we not allow them to do.

23 THE COURT: Yes. We are reconstructing. We are not

24 coming with up new stuff. For that everybody had plenty of

25 opportunity already.
 50

1 All right. So let's come up with dates, then, and I

2 know that the holidays are coming. So I will be flexible.

3 So you will be first, Mr. Raurell. Your comprehensive

4 Rule 56.1 statement of undisputed facts underlying the cross

5 motions for summary judgment.

6 MR. TOPIC: Your Honor, would that include also then a

7 post, supplemental post hearings brief as well?

8 THE COURT: No, not yet.

9 MR. TOPIC: Okay. Got it.

10 THE COURT: The briefs would come after.

11 MR. RAURELL: Are you asking when I would like to be

12 able to produce something like that?

13 THE COURT: Yes. Only the facts.

14 And then, obviously, you have to decide. Obviously,

15 that would need to be supported by record evidence. So if you

16 end up having to go to the prosecutor and all that, you need to

17 allow yourself time to make that decision.

18 MR. RAURELL: Sure. I think that we could probably

19 achieve that by, if the Court would allow it, less than 30

20 days, but by December 19th.

21 THE COURT: All right. And then, how long would you

22 need, Mr. Topic, to do your counter? So admit, deny, and then

23 possibly any additional undisputed facts from your point of

24 view.

25 MR. TOPIC: Could we have January 16th?

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1 THE COURT: Okay. Now, in the event that you have

2 additional undisputed facts, from your point of view, would a

3 week be sufficient for you, Mr. Raurell, to address those?

4 MR. RAURELL: I think I would prefer two weeks in case

5 there is a need to flesh out any information of people who no

6 longer work in the Government.

7 THE COURT: That would be January 30th, correct?

8 MR. RAURELL: I believe so, yes.

9 THE COURT: All right. Okay. So that is the factual

10 record.

11 And again, remember, I mean, I don't want to put you

12 through a lot of trouble in resubmitting things. If there is

13 lengthy stuff that is already in the record, if you reference a

14 docket entry, then, that can be easily found.

15 So, however you want to do it. If you want to do the

16 statement with all the supporting documentation in that same

17 docket entry, or the statement and the supporting documentation

18 by having pointers to the record.

19 All right. So, then, we will do that. That is the

20 date. So, then, now the simultaneous briefs. So you have done

21 that. Simultaneous briefs are when?

22 MR. RAURELL: I would suggest that if they would be

23 simultaneous, I would suggest that they occur two weeks after

24 that reply deadline for the Government to respond to their

25 56.1.
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1 THE COURT: So, then, we would be talking about --

2 MR. TOPIC: Could I ask 21 days, Your Honor?

3 I'm not sure what my schedule in February will look

4 like. It won't take a terribly long time. I just don't know

5 what I will have to work around at the time.

6 MR. RAURELL: Fine with the Government.

7 THE COURT: So, then, we are talking about we said

8 January 30th finishes. So three weeks from there would put us

9 at February 21st. Okay. And I think 20 pages each side should

10 be enough.

11 MR. TOPIC: We can do it in less than that, I'm sure.

12 THE COURT: Twenty pages maximum.

13 All right. I think we've got ourselves a plan and I

14 appreciate your cooperation. And I think by doing this we will

15 have cleaned up the record and sort of, like, tied up

16 everything for me to then prepare my report and recommendation

17 for Judge Gayles.

18 MR. TOPIC: Thank you, Your Honor.

19 THE COURT: Thank you very much.

20 MR. RAURELL: Thank you, Your Honor.

21 THE COURTROOM DEPUTY: All rise. Court is adjourned.

22 (Thereupon, the proceedings concluded.)

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2 CERTIFICATE

4 I hereby certify that the foregoing transcript is an

5 accurate transcript of the audio recorded proceedings in the

6 above-entitled matter.

10
11/25/19 Bonnie Joy Lewis,
11 Registered Professional Reporter
CASE LAW REPORTING, INC.
12 7001 Southwest 13 Street,
Pembroke Pines, Florida 33023
13 954-985-8875

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