United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 Documents will cited both to the MDL docket number (No M 06-

1791) and to the individual docket number (No C 07-0109) in the

following format: Doc #xxx/yy.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

IN RE:

NATIONAL SECURITY AGENCY

TELECOMMUNICATIONS RECORDS

LITIGATION

 

This order pertains to: 

Al-Haramain Islamic Foundation et

al v Bush et al (C-07-0109 VRW), 

 /

MDL Docket No 06-1791 VRW

ORDER

On January 5, 2009, the court ruled on cross-motions in

this action, denying the United States government defendants’ third

motion to dismiss (Doc #475/491

) and granting plaintiffs’ motion

for discovery pursuant to 50 USC § 1806(f)(Doc #472/46). Doc

#537/57 at 22. 

The January 5 order also set forth orders designed to

make it possible for the court to determine whether plaintiffs had

been subject to unlawful electronic surveillance and to enter an

order under seal regarding the outcome of that determination. The

order provided for plaintiffs’ counsel to obtain top

Case 3:07-cv-00109-VRW Document 90 Filed 05/22/2009 Page 1 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

secret/sensitive compartmented information (TS/SCI) security

clearances and ordered the government to review its classified

submissions in this case and determine whether any could be

declassified. Id at 22-25. At the January 23 case management

conference herein, the court stated: 

I have no intention of reviewing the sealed

document [containing classified information] until

we get all of these pieces in place so that we can

proceed in a judicial fashion; and by that I mean a

fashion in which both parties have access to the

material upon which the court makes a decision.

RT (Doc #532) at 34. 

The January 5 order noted in detail the manner in which

defendants had declined “fully [to] engage with plaintiffs’ [§

1806(f)] motion, but rather seem[ed] to hold themselves aloof from

it” while continuing to assert legal positions already specifically

rejected by the court in previous orders. Doc #537/57 at 20-22.

Defendants next filed a notice of appeal and moved the

court for an order certifying the January 5 order for an

interlocutory appeal. The court denied the motion and ordered

defendants to inform the court by February 27, 2009 how they

intended to comply with the January 5 order. Doc #562/71. The

court of appeals dismissed defendants’ appeal and agreed with this

court that an interlocutory appeal was not appropriate. AlHaramain Islamic Foundation, Inc v Obama, No 09-15266 (9th Cir

February 27, 2009). Defendants, in response, presented to the

court “three similar-sounding alternatives all of which appear[ed]

geared toward obtaining a stay of this court’s proceedings and

review by the court of appeals.” Doc #600/84 at 1-2. 

\\

Case 3:07-cv-00109-VRW Document 90 Filed 05/22/2009 Page 2 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

The court next ordered the parties to meet and confer

regarding the entry of an appropriate protective order and to

submit such an order to the court. Id at 2. The parties filed

their joint submission on May 15, 2009. Doc #626/89. 

As the court understands the situation:

1. The United States has completed suitability

determinations for two of plaintiffs’ attorneys and found them

suitable for TS/SCI clearances, but government officials in one or

more defendant agencies, including the NSA Director (Doc #626/89 at

16), are refusing to cooperate with the court’s orders because,

they assert, plaintiffs’ attorneys do not “need to know” the

information that the court has determined they do need to know. 

2. Defendants have refused to agree to any terms of the

protective order proposed by plaintiffs and have refused to propose

one of their own. Doc #626/89 at 35. 

Defendants are now ordered to show cause why, as a

sanction for failing to obey the court’s orders: 

(1) defendants should not be prohibited, under FRCP

37(b)(2)(ii), from opposing the liability component of plaintiffs’

claim under 50 USC § 1810 —— that is, from denying that plaintiffs

are “aggrieved persons” who were subjected to electronic

surveillance; and 

(2) the court should not deem liability under 50 USC §

1810 established and proceed to determine the amount of damages to

be awarded to plaintiffs. 

Defendants shall submit written response to this order no

later than May 29, 2009. 

\\ 

Case 3:07-cv-00109-VRW Document 90 Filed 05/22/2009 Page 3 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

Plaintiffs shall, no later than May 29, 2009, submit a

memorandum addressing whether it would now be appropriate and/or

feasible for plaintiffs to file a motion for summary judgment on

their claim under 50 USC § 1810. Plaintiffs should address the

merits of filing such a motion under two scenarios: (1) with a

protective order in place allowing plaintiffs’ counsel access to

the Sealed Document; and (2) with no such protective order and no

such access. 

Counsel for the parties shall appear for a hearing on

these questions June 3, 2009 at 2:00 pm in Courtroom 6.

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

Case 3:07-cv-00109-VRW Document 90 Filed 05/22/2009 Page 4 of 4