UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ASSOCIATION OF AMERICAN ) PHYSICIANS AND SURGEONS, INC., ) AMERICAN COUNCIL FOR HEALTH ) CARE REFORM AND NATIONAL ) LEGAL & POLICY CENTER, ) Civil Action ) No Plaintiffs, ) ) (Judge Lamberth) v. ) HILLARY RODHAM CLINTON, ) DONNA E. SHALALA, Secretary of ) Health and Human Services, ) LLOYD E. BENTSEN, Secretary of ) the Treasury, LES ASPIN, ) Secretary of Defense, JESSE ) BROWN, Secretary of Veterans ) Affairs, RONALD H. BROWN, ) Secretary of Commerce, ROBERT ) B. REICH, Secretary of Labor, ) LEON E. PANETTA, Director of ) the Office of Management and ) Budget, ALICE RIVLIN, Deputy ) Director of the Office of ) Management and Budget, CAROL ) RASCO, IRA MAGAZINER and ) JUDITH FEDER, White House ) Advisors, THE PRESIDENT'S ) TASK FORCE ON NATIONAL ) HEALTH CARE REFORM, the ) INTERDEPARTMENTAL WORKING ) GROUP OF THE PRESIDENT'S TASK ) FORCE ON NATIONAL HEALTH CARE ) REFORM, and its CLUSTER GROUPS, ) WORKING GROUPS and SUBGROUPS, ) et al., ) Defendants. ) ) PLAINTIFFS' COMBINED REPLY MEMORANDUM IN SUPPORT OF MOTION FOR RULE Ii SANCTIONS AND FOR A RULE OF CONTEMPT TO ISSUE AGAINST IRA MAGAZINER AND MOTION FOR ORDER mat FACTS BE TAKER AS

2 ESTABLISHED AND PROHIBITING AND STRIKING CERTAIN CLAIMS, DEFENSES AND EVIDENCE

3 The Plaintiffs, ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC. ("AAPS") AMERICAN COUNCIL FOR HEALTH CARE REFORM ("ACHCR"), and NATIONAL LEGAL & POLICY CENTER ("NLPC"), submit the within Combined Reply Memorandum in SuPport of their Motion for Rule 11 Sanctions and for a Rule of Contempt to Issue Against Ira Magaziner and their Motion for an Order That Facts Be Taken as Established and Prohibiting and Striking Certain Claims, Defenses and Evidence. ARGUMENT I. THE DEFENDANTS' CONDUCT TH ROUGHOUT THIS LITIGATION WARRANTS THE IMPOSITION OF RULE 11 AND RULE 37 SANCTIONS. In their Combined Memorandum in Opposition to Plaintiffs' Motion for Rule 11 Sanctions and for a Rule of Contempt to Issue Against Ira Magaziner and to Plaintiffs' Motion for Order That facts Be Taken as Established, and Prohibiting and Striking Certain Claims, Defenses and Evidence ("Defendants' Reply Memorandum"), the Defendants go to great lengths to further attempt to evade the consequences of past conduct which they cavalierly categorize as a mere "litigation approach". What the Defendants cannot contest is that the linchpin of their "litigation approach" has been complete misrepresentations --which were and are --totally contradicted by documentation in their possession at the time the representations were made. This conduct has unnecessarily prolonged this litigation, has unnecessarily increased the Plaintiffs' costs of pursuing this litigation, and has forced the Plaintiffs and this court to engage in a foolish and burdensome game of "cat and mouse", with the Defendants' position constantly changing like a 2

4 chameleon to suit their short -term objective of unduly prolonging the inevitable result here. The Defendants so much as acknowledge the burdensomeness of their "litigation approach" by quoting their own initial summary judgment memoranda, stating that "it would be a substantial burden for defendants and this Court to make a person-by-person assessment that each 'member' worked 'full -time'." Defendants' Reply Memorandum, at 10. Apparently, the Defendants found no problem whatsoever in forcing the Plaintiffs to sift through the documents and other discovery responses in order to carry this burden, which the plaintiffs have so thoroughly done that the Defendants have now chosen to jettison the "full -time officer or employee" dodge like a politically embarrassing White House advisor. Clearly, the Defendants took a position totally contradicted by their own documentation for the improper purpose of causing unnecessary delay and undue and unwarranted burden upon the Plaintiffs, conduct clearly proscribed by Rule 11.1 In sum, now that the Defendants' previous contention that the Interdepartmental working Group of the President's Task Force on National Health Care The Defendants claim that the fact that Plaintiffs have not offered them an opportunity to recant their position warrants a denial of the Rule 11 Motion is laughable. The Defendants acknowledge any such offer would not have changed their position and thus, would have been futile. Since the Defendants are so versed in the Federal Rules, they are certainly aware that on March 1, 1994, they were required to disclose evidence to the plaintiffs, including the preliminary Work Plan attached to the Third Magaziner Declaration, which was never disclosed in discovery, and only a portion of which was attached to a previous memorandum filed by the Defendants in this Court, an overtly misleading "litigation approach" proscribed not only by Rule 37 of the Federal Rules of civil procedure, but also by the basic ethical requirement of candor toward this tribunal.

5 Reform, its Working Groups, Cluster GrouPs and Subgroups were composed wholly of full -time officers and employees of the federal government has outlived its usefulness as a delay device, the Defendants have abandoned it, seeking instead to obfuscate and mislead this Court on other matters. Manifestly, sanctions are in order to deter this dilatory and burdensome "litigation approach". II. A RULE OF CONTEMPT SHOULD ISSUE AGAINST IRA MAGAZINER. A classic example of the now predictable "litigation approach" is the Defendants' contention that there is no basis for a Rule of contempt to issue against Ira Magaziner. First, Defendants claim that Mr. Magaziner did not violate any Court order, and therefore, a Rule of Contempt cannot issue. In addition to assuming that a Court order is required for a party to be obligated to testify truthfully and not mislead a federal court during litigation, this argument flies in the face of established law holding that failing to testify truthfully and misleading a federal court is per se grounds for contempt. See, Wiideman v. McKay, 132 F.R.D. 62, 66 (D.Nev. 1990) (any person who files a false affidavit is subject to contempt proceeding); united states V. Thoreen, 653 F.2d 1332, (9th Cir. 1981) (attorney' s swearing to and filing of false affidavits is contumacious deceptive behavior punishable by contempt); United States V. Griffin, 589 F.2d 200, 205 (5th Cir. 1979) (false testimony can amount to contemptuous conduct when added to element of perjury there is the further element of obstruction to the court in the performance of its duty). 4

6 Second, the Defendants claim that "Mr. Magaziner's first declaration was not misleading in any way and, in fact, was fully supported by subsequent declarations and documentary evidence", Defendants' Reply Memorandum, at 13, is utterly specious. In his first Declaration filed with this Court on March 3, 1993, and upon which this Court relied in making its initial ruling, Magaziner testified that "[o]nly federal government employees serve as members of the interdepartmental working group". First Magaziner Declaration, 11. Magaziner also testified as follows: The working group has also retained a wide range of consultants, who attend working group meetings on an intermittent basis, either with or without compensation... These consultants have not had any supervisory role or decision -making authority in connection with the consulting services they have provided to the working group, but instead provide information and opinion to working group members. First Magaziner Declaration, 13. The documents produced by the Defendants reveal that scores of persons who served on the Interdepartmental Working Group were assigned no status whatsoever, "SQE", "consultant", or otherwise. The sign -in lists and Secret Service entry records also reveal that scores of these persons attended numerous meetings and were in the Old Executive Office Building on a large number of days. Mr. Magaziner's' testimony that all members were federal government employees was patently false and misleading. The false statements, further, relate to a material issue of the case. Indeed, while the Defendants now claim it is too burdensome for them to verify and argue the status of the individuals who served on the Interdepartmental Working Group of the president's Task Force on 5

7 National Health Care Reform, its working Groups, cluster Groups and Subgroups, Mr. Magaziner gave sworn testimony in this Court regarding the issue, testimony which the Defendants now cannot verify. Mr. Magaziner either gave knowingly false testimony on the composition of the Working Group, or did not review records or make any inquiry or investigation so as to have the personal knowledge which, of course, was a prerequisite to his giving testimony on the composition issue in the first instance. As to Magaziner's claim that "consultants" had no supervisory role in the Interdepartmental Working Group, the documentation produced by Defendants plainly contradicts this testimony. For example, the Defendants' own documentation reveals that Arnold Epstein was the Chair of Working Group 9, "Quality Measurement". Epstein was a Robert Wood Johnson Foundation Health Policy Fellow. Mr. Epstein was no more a federal employee than is the undersigned. Marion Secundy and Nancy Dubler were the co -leaders of Working Group 17, "Ethical Foundations of the New System". Neither of these persons were assigned any status whatsoever by the Defendants. Mark Smith, a person classified by the Defendants as a "consultant" in their initial discovery responses, was the co - leader of Working Group 22 and leader of cluster VIII. Mr. Smith was Vice president of the Kaiser Family Foundation. Thomas 0. Pyle, also labeled a "consultant" by the Defendants, was the chair of cluster III, "New System Infrastructure". cluster XIV, Group 34, "Numbers Audit", was composed entirely of non -federal personnel who had no status whatsoever assigned to them. Simi Litvak, who 6

8 was employed by the World Institute on Disability, and who was assigned no status by the Defendants, was the leader of Working Group 36, "Disability Cross -Cutting Work Group". Working Group 39, "Minority Issues Review Group" was composed entirely of non -federal personnel. Mr. Magaziner has never offered any statement withdrawing the testimony in his first Declaration regarding the composition of the Working Groups. Additionally, Mr. Magaziner has not submitted any declaration in opposition to the Plaintiffs' verified Motion. In sum, the first Magaziner Declaration is a total sham in light of documents verified by Marjorie Tarmey, Mr. Magaziner's own assistant. Interestingly, Mr. Magaziner now states that he assigned the leaders to the various Cluster Groups and Working Groups. Surely, if he did, he knew their status, and his testimony that "consultants" exercised no supervisory role was a knowingly false statement of material fact, as was his statement that only federal employees served on the Interdepartmental Working group of the president's Task Force on National Health Care Reform, its Cluster Groups, Working Groups and Subgroups. III. THE DEFENDANTS FAILED TO COMPLY WITH THIS COURT'S NOVEMBER 9, 1993 ORDER. The Defendants' assertion that they complied with this Court's November 9, 1993 Discovery order, like their reading of Magaziner's Declarations, is equally the product of wishful thinking and self - serving revisionist history. The Defendants' claim that neither the November 9 order, nor the Plaintiffs' discovery requests, required the Defendants to distinguish between working group "members" and "participants" is belied by the Defendants' First 7

9 Discovery Responses. There, the Defendants clearly classified persons listed as "SGE's i.e. members" and "consultants". Why did the Defendants make this distinction and assign classifications to those persons if such was not within the clear tenor and import of the discovery requests? The answer is obvious: the Defendants knew that such was the case and only chose to comply with the plaintiffs' Discovery Requests when they felt like it. The Defendants' construction of the plaintiffs' Discovery Requests is likewise shallow and plainly insulting to the Plaintiffs and this Court. The Defendants attempt to justify withholding the Preliminary Work Plan and only partial disclosure of that document to this Court is indefensible. The Defendants' niggardly construction of the term "identify" and their subjective understanding of this term is contradicted by the history of this case. First, the Request for Production of Documents, pursuant to F.R.Civ.P. 34, is a simple document which requests production or the disclosure of documents. The Defendants certainly possess the knowledge to understand the import of the request which was served upon them. Second, if production of documents wasn't required, why did the Defendants produce documents to the Plaintiffs, albeit in "dribbles and drabs", in their initial responses to the discovery requests? To ask the question is to answer it. Moreover, the Defendants now state in their Reply Memorandum that they did not have to produce the working group documents that were leaked to the Bureau of National Affairs, nor did they have to produce the "weekly summaries", "option drafts", "discussion drafts", "master 8

10 calendars", "briefing books", "tollgate schedules" or "updated work plan". Even assuming, arguendo, that one can accept this argument, the Defendants never even "identified" these documents in their discovery responses, despite their now claiming that this was all that the Plaintiffs' discovery requests required according to. their subjective understanding. The Defendants are simply digging themselves a deeper grave on this issue in order to justify their conscious withholding of documents in discovery, documents which were plainly germane and damaging to their defense. Furthermore, the Defendants' assertions regarding their failure to produce "option drafts", "discussion drafts", "master calendars", "briefing books", "tollgate schedules" or "updated work plan" because they are substantive documents ignore the fact that Defendants have produced other substantive documents under the terms of an Agreed Protective Order. The Defendants simply reiterate an argument now which did not carry the day with the Court on November 9, 1993, in a facile attempt to explain their nondisclosure of information to the Plaintiffs under the terms of that Order and the Agreed Protective Order entered by this Court shortly thereafter. The Defendants' non -compliance in this regard is self-evident. In sum, the November 9, 1993 Order constituted a broad grant to the Plaintiffs' Motion to compel, and any exceptions to this broad grant were enumerated by the Court. The Defendants can point to no exceptions set forth in the November 9, 1993 order which justify their withholding of the information requested, the existence of which was only recently revealed by the documents 9

11 authenticated by Marjorie Tarmey and the "Preliminary Work Plan" attached to the Third Magaziner Declaration. Finally, the Defendants' bald assertion that Plaintiffs made no attempts at discovery by way of deposition prior to the filing of the Notion for summary Judgment is simply not true. Plaintiffs' counsel contacted Defendants' counsel to establish an agreeable time to take the deposition of Mr. Magaziner. Declaration of Kent Masterson Brown. No reply whatsoever was ever received by plaintiffs' counsel. As the Defendants had so thoroughly delayed this process, and due to the fact that the documents at issue pertain to matters being considered at the national level at that time and currently, time was of the essence in terms of the disposition of this case. Further, the issue was presented to plaintiffs after Defendants moved for Summary Judgment. Plaintiffs were given no choice but to move on the basis of the documentary evidence verified by Marjorie Tarmey, Mr. Magaziner's assistant (which is more than ample to prevail on the Motions and award plaintiffs Summary Judgment). Given the Defendants' repeated obstructionist tactics, such action was warranted given the nature and importance of this case. This Court should not reward the Defendants' dilatory tactics by holding that the Plaintiffs should have played along with them. CONCLUSION For all the foregoing reasons, the Plaintiffs' Motion for Rule 11 sanctions and for a Rule of Contempt to Issue Against Ira Magaziner and Motion for an Order That Facts Be Taken as 10

12 Established and Prohibiting and Striking Certain Claims, Defenses and Evidence should be granted. Respectfully submitted, KENT MASTERSON BROWN, ESQ. CHRISTOPHER J. SHAUGHNESSY, ESQ First National Building 167 West Main Street Lexington, Kentucky (606) (606) facsimile FRANK N. NORTHAM, ESQ. Bar No ALAN p. DYE, ESQ. Bar No WEBSTER, CHAMBERLAIN & BEAN 1747 Pennsylvania Avenue, N.W. Suite 1000 Washington, D.C (202) COUNSEL FOR PLAINTIFFS, ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., AMERICAN COUNCIL FOR HEALTH CARE REFORM, and National LEGAL & POLICY CENTER CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing plaintiffs' Combined Reply Memorandum in Support of Motion for Rule 11 sanctions and For a Rule of contempt to Issue Against Ira Magaziner and Notion for Order That Facts Be Taken as Established and prohibiting and striking Certain Claims, Defenses and Evidence has been served upon Defendants by hand -delivering a 11

13 copy of same to Defendants' counsel of record as follows: Hon. Elizabeth Pugh, Hon. Jeffrey Gutman, Hon. Robert S. Whitman, U.S. Department of Justice, Civil Division, 901 E Street, MW., Room 952, Washington, D.C , on this the day of June, KENT MASTERSON BROWN C: \wpwin\clinton\repyto.mem

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