Plaintiffs ) CIVIL ACTION NO vs. ) JUDGE LAMBERTH

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1 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA ASSOCIATION OF AMERICAN ) PHYSICIANS AND SURGEONS, INC. ) etc., et al., ) Plaintiffs ) CIVIL ACTION NO vs. ) JUDGE LAMBERTH HILLARY RODHAM CLINTON, etc., ) et al., ) Defendants ) PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS The Plaintiffs, ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC. ("AAPS"), AMERICAN COUNCIL FOR HEALTH CARE REFORM ("ACHCR"), and NATIONAL LEGAL AND POLICY CENTER ("NLPC"), by and through counsel, pursuant to Rule 37(a) of the Federal Rules of Civil Procedure and Rule 108 (a) of the Local Rules of the United States District Court for the District of Columbia, submit this Memorandum of Points and Authorities in Support of their Motion to Compel Answers to Interrogatories and Production of Documents. STATEMENT OF RELEVANT FACTS A. The D.C. Circuit Opinion On June 22, 1993, the United States Court of Appeals for the District of Columbia Circuit rendered its opinion in Association of American Physicians and Surgeons. Inc., et al. v. Clinton. etc., et al., Nos and In its Opinion,

2 the D.C. Circuit extensively discussed the Plaintiffs' contentions with respect to the "interdepartmental working group" led by Defendant Ira Magaziner, or divisions thereof, and the Defendants' arguments in response thereto. The D.C. Circuit first addressed the government's argument that the working group is not in contact with the President and is not, therefore, "utilized" by the President within the meaning of the Federal Advisory Committee Act (FACA). The D.C. Circuit expressly rejected this argument, stating as follows: The statute cannot be properly interpreted as applying only to those advisory committees, established in the Executive Office of the President, that present the most delicate constitutional problems. [Footnote omitted.] Otherwise, the government's argument effectively would render almost all presidential advisory committees free from FACA. Committees in direct contact with the President implicate the President's executive power and hence cannot be covered by FACA, while committees not directly in contact are not "utilized". In any event, the statutory language does not remotely support the government. Slip Op., at The D.C. Circuit then went on to consider the government's and this Honorable Court's reliance on National Anti-Hunger Coalition v. Executive Committee, 711 F.2d 1071 (D.C. Cir. 1983). The D.C. Circuit distinguished Anti-Hunger on its facts and concluded that this Court's conclusion that the working group could be disregarded as "staff" depended on the determination that the Task Force was covered by FACA. Slip Op. at 28. The D.C. Circuit then concluded that "[o]ur disagreement with the district court on the latter issue compels a different analysis of the working group's status." Id. This conclusion rested upon the 2

3 fact that "it is the working group now that is the point of contact between the public and the government." Id. The D.C. Circuit thus rejected the government's contention that the members of the working groups were merely "staff" to the Task Force and thus not subject to the FACA based upon the decision in Anti- Hunger. After implicitly rejecting the argument that the working group could not be considered "staff" under Anti-Hunger, the D.C. Circuit addressed the government's argument that the working group is not, as a matter of law, a FACA advisory committee because it is not expected to offer consensus advice. In response to this contention, the D.C. Circuit concluded that "since one of the purposes of FACA is to achieve some balance, and thereby diverse views on advisory committees, it would be passing strange if FACA only applied to those committees that would offer consensus recommendations." Slip Op. at 29. Finally, the D.C. Circuit embarked on an extensive analysis of the characteristics of an "advisory committee" within the meaning of the FACA. The D.C. Circuit first observed: The point, it seems to us, is that a group is a FACA advisory committee when it is asked to render advice or recommendations, as a group, and not as a collection of individuals. The group's activities are expected to, and appear to, benefit from the interaction among the members both internally and externally. Advisory committees not only provide ideas to the government, they also often bestow political legitimacy on that advice. Slip Op. at 29. (Emphasis in the original.) The D.C. Circuit then concluded that "committees bestow these various benefits only insofar as their members act as a group" and 3

4 that "[t]he whole, in other words, must be greater than the sum of the parts". Slip Op. at 30. Relying upon Judge Gesell's opinion in Nader v. Baroody, 396 F.Supp (D.D.C. 1975), the D.C. Circuit stated that "an important factor in determining the presence of an advisory committee becomes the formality and structure of the group". Id. The D.C. Circuit then went on to observe as follows: In order to implicate FACA, the President, or his subordinates, must create an advisory group that has, in large measure, an organized structure, a fixed membership, and a specific purpose. The government suggests that the working groups, composed as they are of a crowd of 340 virtually anonymous persons, do not bear the characteristics of the paradigm FACA advisory committee. That may well be so. The working groups, as a whole, seem more like a horde than a committee. On the other hand, the groups have been created ("established") with a good deal of formality and perhaps are better understood as a number of advisory committees. We simply cannot determine how to classify the working groups based on the record before us. Id. The final argument advanced by the government before the D.C. Circuit was that all of the members of the working groups were full-time officers or employees of the federal government and that therefore the working groups are not FACA advisory committees. The government claimed that the working groups also included 40 "special government employees" who were "full-time". The D.C. Circuit expressly observed, however, that " [t]he record does not reflect where these persons come from, nor does it show how many hours they work." Slip Op., at 31. (Emphasis added.) While the government relied heavily upon the definition of "special government employee" found in 18 U.S.C. Sec. 202(a), the D.C. Circuit did not believe that "section 202 (a) helps the 4

5 government". Id. The D.C. Circuit explained the reason for this aspect of its opinion: We must construe FACA in light of its purpose to regulate the growth and operation of advisory committees. FACA would be rather easy to avoid if an agency could simply appoint 10 private citizens as special government employees for two days, and then have the committee receive the section 3(2) exemption as a body composed of full-time government employees. Slip Op. at Finally, the D.C. Circuit considered the government's argument regarding a third class of persons participating in the interdepartmental working group described by the government as "consultants". The D.C. Circuit's discussion of the issues raised by "consultants" participating in the interdepartmental working group was as follows: The key issue, it seems to us, is not whether these consultants are "full-time" government employees under section 3(2), but whether they can be considered members of the working group at all. When an advisory committee of wholly government officials brings in a "consultant" for a one-time meeting, FACA is not triggered because the consultant is not really a member of the advisory committee. In that situation, the relationship between the temporary consultant and committee is very similar to the one between the White House officials and various private sector representatives exempted from FACA in Nader.... But a consultant may still be properly described as a member of an advisory committee if his involvement and role are functionally indistinguishable from those of the other members. Whether they exercise any supervisory or decision-making authority is irrelevant. If a "consultant" regularly attends and fully participates in working group meetings as if he were "member", he should be regarded as a member. Then his status as a private citizen would disqualify the working group from the section 3(2) exemption for meetings of full-time government officials. Slip Op. at

6 Finally, the D.C. Circuit summarized the scope of the factual inquiry under FACA as follows: When we examine a particular group or committee to determine whether FACA applies, we must bear in mind that a range of variations exist in terms of the purpose, structure and personnel of the group. Perhaps it is best characterized as a continuum. At one end one can visualize a formal group of a limited number of private citizens who are brought together to give publicized advice as a group. That model would seem covered by the statute regardless of other fortuities such as whether the members are called "consultants". At the other end of the continuum is an unstructured arrangement in which the government seeks advice from what is only a collection of individuals who do not significantly interact with each other. That model, we think, does not trigger FACA. Slip Op. at 33. In an important footnote, the D.C. Circuit held, "once the Magaziner affidavit was filed and considered the district court was obliged to permit reasonable discovery as to the facts set forth in the affidavit" [citation omitted.] Slip Op. at 26, n. 11. In an equally important concurring opinion, Circuit Judge Buckley discussed one aspect of the Magaziner affidavit which the Plaintiffs herein have sought to discover through their First Set of Interrogatories and Second Set of Requests for Production of Documents. Judge Buckley observed: As one reviews the affidavit filed with the district court by Ira Magaziner, Senior Advisor to the President for Policy- Development, one is struck by the fact that every member of the Task Force and Interdepartmental Working Group, but one, was subject to one or more of the statutes that Congress has enacted to ensure the proper conduct of members of the Federal Government -- the insiders', as the government describes those who qualify as "full-time officers and employees" within the nieaning of FACA. These laws impose burdensome ethics requirements. See, e.g., Ethics in Government Act of 1978, 5 U.S.C. App. 3 Sec. 101(f)(3) (1991 Supp.) (applying financial disclosure requirements on all higher- paid "officers and employees" in the Executive 6

7 Branch); id. Secs. 501(a)(1), 505(2) (1991 Supp.) (applying outside income limitations on all higher paid officers and employees except 1, special government employees"); 18 U.S.C. Sec. 205 (1991 Supp.) (prohibiting any "officer or employee" from representing outsiders in "matters affecting the Government"); id. Sec. 207 (prohibiting anyone who formerly was an "officer or employee" from participating in certain governmental proceedings and decisions after leaving government employment); id. Sec. 208 (prohibiting an "officer or employee" from "participat[ing] personally" in a matter affecting "a financial interest"); 5 U.S.C. Sec (1988) (prohibiting an "employee in an Executive agency" from taking "an active part" in political campaigns). And even though the Government argues that the Interdepartmental Working Group was not an advisory committee within the meaning of FACA, Mr. -Magaziner nevertheless took pains to stress the fact that every member of and consultant to the Group -- whether a regular or special government employee, whether working full time or part, for pay or without -- was required to file a financial disclosure statement and to comply with other requirements of these laws. See Magaziner Affidavit, Go'%'t App. at Slip Op. (Buckley, J., concurring), at B. The Plaintiffs' Discovery Reguests and the Defendants' Responses On July 9, 1993, the plaintiffs filed and served their First Set of Interrogatories and Second Set of Requests for Production of Documents (hereinafter "discovery requests"). Pursuant to Rule 107(b) of the Local Rules of the United States District Court on the District of Columbia, a true and correct copy of the 'Plaintiffs' First Set of Interrogatories and Second Set of Requestsr for Product ion of Documents are attached to their Motion to Compel as Exhibit "A". On August 11, 1993, the Defendants filed and served their Responses and Objections to the Plaintiffs' First Set of Interrogatories and Second Set of Requests for Production of Documents. Pursuant to Rule 107(b) of the Local Rules of the United States District Court for the 7

8 District of Columbia, a true and correct copy of the Defendants' Responses and Objections to the Plaintiffs First Set of Interrogatories and Second Set of Requests for Production of Documents is attached to the plaintiffs' Motion to Compel as Exhibit "B". The Plaintiffs specifically propounded the following discovery requests, inter alia : 2. Identify all persons who served as members of, participated in meetings of, attended meetings of, and/or were invited to attend meetings of the Task Force, the Task force interdepartmental working group, all cluster groups, the Health Professional Review Group, the group(s) looking at cost issues, the group(s) looking at legal issues, and the group(s) looking at administrative simplification and quality issues, and any other groups or subgroups that were created, formed, established, held meetings, reported to, rendered advice or information to, or otherwise assisted, supported, or acted in connection with the Task Force and the groups specified above (hereinafter, all of the foregoing groups, including the Task force, shall be referred to collectively as "Task Force groups"), and any and all advisors or consultants to any of the Task Force groups. In identifying all such persons, indicate all Task Force groups with which they were associated. 3. State the identity of all documents and communications relating to the persons identified in response to Interrogatories 1 and 2, including all documents relating to any meetings held by the Task Force groups or by members of the Task Force groups with other persons and the dates and locations of the meetings, including but not limited to meeting agendas, meeting minutes, a list which states the identity of all meeting attendees for each meeting, including their names, addresses, and occupations, and any and all,documents and communications which identify the roles of the meetings' participants and the purpose of the meetings. 4. As to each person who served as a member of, participated in meetings of, or attended meetings of a Task Force group, if the person was not a full-time officer or employee of the Federal Government, state: (a) whether the person was a special government employee while performing services for a Task Force group; (b) whether the person was deemed to be, or denominated as, a consultant to a Task Force Group;

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10 (c) the name of the person's regular employer and the person's job title with that employer (If any such person was selfemployed, identify any partnership, group practice, firm or other entity with which the person was affiliated in offering the person's services for remuneration); (d) the length of time that the person performed services for any Task Force group and, if the person received any remuneration while performing services for a Task Force group, the amount of remuneration received (including payment or reimbursement for out-of-pocket and travel expenses) and the identity of the entity providing the remuneration. 5. Identify all documents reflecting the information provided in response to Interrogatory 4, including but not limited to conflict of interest or ethics forms supplied to or signed by the persons performing services for the Task Force groups, payroll records, expense accounts, expense records, and travel records. 6. Describe the operations, activities, purposes, structure, and organization of each Task Force group. 7. Identify each written contract, agreement or letter of invitation to participate with the Task Force groups involving any federal employee, special government employee, advisor, consultant or other person, who was a member of or an advisor or consultant or participant on a Task force group, including, for each such agreement. (a) the date of the contract, agreement or letter of invitation; (b) the subject matter of the contract, agreement or letter of invitation; (c) any person with knowledge of the contract, agreement or letter of invitation; (d) all documents and communications concerning the contract, agreement or letter of invitation, including but not limited to payroll records, expense accounts, expense records, and travel records. 8. Identify each oral contract or agreement involving the Task Force groups and any federal employee, special government employee, advisor, consultant or other person who was a member of or an advisor or consultant or participant on a Task Force group, including, for each such contract or agreement:

11 a. the date of the oral con tract or agreement; - b. the subject matter of the oral contract or agreement;

12 c. any person with knowledge of the oral contract or agreement; d. all documents and communications concerning the oral contract or agreement, including but not limited to payroll records, expense accounts, expense records, and travel records. 9. Identify any organizational charts or similar documents that reflect the structure ana/or interrelationship among and between the Task Force groups and their members and participants. 10. Identify those persons who were responsible for directing the activities of each Task Force group. 11. Identify those persons who were responsible for directing communications to, from, among, between and within each Task force group and to, from, among, and between the members and/or participants in each Task force group. In the "Definitions" section of the Plaintiffs' discovery requests, the Plaintiffs expressly defined "defendants" and "your" as follows: D. "Defendants" and "your" refers to "the President's Task force on Health care Reform," the "White House Task force on Health care Reform," the "National Task Force on health care Reform," the "Health Care Task Force," "Health Care Correspondence," "Health Care Correspondence Task Force," and the "Task Force," and any and all other subgroups or subcommittees of the Task Force, or other related groups, including but not limited to the interdepartmental working group, all cluster groups, the Health Professionals Review Board, persons looking at cost issues, persons looking at legal issues, and persons looking at administrative simplification and quality issues. The Defendants have failed and refused to respond to these discovery requests, all as is set forth in detail below. ARGUMENT Rule 26(b) of the Federal Rules of Civil Procedure provides, inter alia : Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including

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14 the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. In construing and interpreting the above provision of Rule 26, Justice Powell, speaking for a unanimous United States Supreme Court, made it clear that relevancy is a broad concept, and that the relevancy requirement of Rule 26 must be liberally construed to effectuate its purpose. Justice Powell observed: The key phrase in this definition -- "relevant to the subject matter involved in the pending action" -- has been construed broadly to encompass any matter that could bear on any issue that is or may be in the case. See Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, , 91 L.Ed. 451 (1947). Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Hickman v. Taylor, supra, at , 67 S.Ct. at Nor is discovery limited to the merits of a case, for a variety of factoriented issues may arise during litigation that are not related to the merits. Oppenheimer Fund. Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, , 57 L.Ed.2d 253 (1978). The lower federal courts have consistently held that "relevant" is synonymous with "germane", Nichols v. Philadelphia Tribune Co., 22 F.R.D. 89 (E.D.PA. 1958); Oil. Chemical & Atomic Workers Local U. v. N.L.R.B., 7l1,F.2d 348, 360 (D.C. Cir. 1983); Local 13. Detroit Newspaper Union v. N.L.R.B., 598 F.2d 27, 271 (D.C. Cir. 1979). Interrogatories~may inquire into any factual matter that is germane to any of the issues of the action, may extend to information that may possibly lead to the discovery of admissible e~vidence, and may relate to circumstantial evidence. 11

15 Webster Motor Car Co. v. Packard Motor Car Co., 16 F.R.D. 350 (D.D.C. 1954). (Emphasis added.) In sum, the precise perimeters of relevancy are fixed by th~ subject matter in issue and not by particular pleadings, United 'States v. International Business Machines Corp. 66 F.R.D. 180 (S.D.N.Y. 1974), and relevancy is to be liberally construed. Association for Women in Science v. Califano, 566 F.2d 339, 343 (D.C. Cir. 1977). If a party fails or refuses to respond to a legitimate, relevant discovery request, a district court may compel a response pursuant to Rule 37 (a) of the Federal Rules of Civil Procedure. Under Rule 37, "an evasive or incomplete answer is to be treated as a failure to answer." F.R.Civ.P. 37(a) (3) In the present case, the decision of the United States Court of Appeals for the District of Columbia Circuit illustrates the broad perimeters of discovery to which the Plaintiffs' are entitled here. When one reads the D.C. Circuit's opinion in conjunction with the Defendants' evasive and incomplete responses and the Defendants' utterly baseless relevancy objections, it is manifest that the Plaintiffs are entitled to an order compelling discovery pursuant to Rule 37 of the Federal Rules of Civil Procedure. After the Plaintiffs agreed to a two-day extension for the Defendants to respond to the discovery requests, on August 11, 1993, the Defendants filed and served their Responses to the discovery requests. Like the Magaziner affidavit previously filed with this Honorable Court, the Defendants' Responses are an artful exercise in obfuscation and, in many instances, outright failure 12

16 and refusal to address direct, simple questions or requests. Additionally, the Defendants' Responses vastly oversimplified and openly ignored the scope of the D.C. Circuit's opinion regarding the interdepartmental working~ group and its cluster groups and subgroups in order to manufacture various relevancy objections to the discovery requests. The obvious relevancy of the discovery requests with which the Defendants have failed and refused to comply is discussed infra. Indeed, the Defendants even go so far in their "General Objections" to imply that the D.C. Circuit resolved the issue of relevancy by arguing that "[t]hese discovery requests seek information beyond that which the D.C. Circuit held to be relevant for resolving the remaining issues in the case." Defendants' Responses, at 2. The D.C. Circuit set forth the factors to be considered in determining whether the interdepartmental working group, and its individual cluster groups and subgroups, are advisory committees within the meaning of FACA, but by no means decided exactly what specific type of information regarding the interdepartmental working group, and its individual cluster groups and subgroups, is relevant to determining whether these factors are satisfied. The Defendants have also baldly objected to the discovery requests "because plaintiffs' complaint contains no claim that the interdepartmental working group, its cluster groups or subgroups or any other groups were subject to the FACA." Such a contention, of course, is obviously without merit. All of the parties extensively briefed this issue before this Honorable Court and the D.C. Circuit, and both this Honorable Court and the D.C. Circuit 13

17 ruled on the issue. The Defendants' objection, based upon some illusory, archaic "code pleading" concept, is simply frivolous and is designed to evade the discovery to which the Plaintiffs are clearly entitled under the 1aw~ of the case. When one examines the specific, barely-comprehensible responses tendered by the Defendants, it is manifest that the Defendants have openly ignored the plain import of the Plaintiffs' discovery requests and that this Honorable Court should thus compel them to respond to these reasonable requests pursuant to Rule 37 of the Federal Rules of Civil Procedure. In response to discovery request No. 2, the Defendants responded, in relevant part, as follows: There are a few additional individuals listed who may have maintained expert or consultancy agreements with the government prior to the advent of the working group, or for purposes of participating on the working group. They are not designated as having been retained by a particular governmental entity pending the results of a continuing search for pertinent documentation. Defendants' Responses, at 8. In a footnote, the Defendants stated that "[t]hese individuals include: RICHARD FRANK, JOANNE LUKOMNIK, SHEILA PINES, ANN ZUVEKAS, CATHI CALLAHAN, DEBORAH LEWIS-IDEMA, JAMES MAYS and GORDON TRAPNELL." Id., n. 2. To date, the Defendants have not provided any information showing which governmental entity, if any, retained these individuals. The Defendants' Response to Discovery Request - No. 2 continues, statin'g that "[t]he documents at Tab 3 are lists of individuals who participated with each working group, except for 14

18 Groups 1A and 22A-D, for which no list was ever created." Id. Certainly, the alleged lack of a formal, pre-existing list of persons participating in Groups la and 22A-D does not eccuse compliance with the request. The Defendants could readily assemble such lists by referring to the minutes, correspondence, working papers, and agendas of Groups la and 22A-D to determine who participated in these groups. Furthermore, the Defendants could interview other members of the working groups to discern who participated in Groups la and 22A-D. To date, the Defendants have not provided any information illustrating the individuals who participated in Groups la and 22A-D, their private sector affiliations, and which governmental entity, if any, retained them to participate in these Groups. Additionally, in an artful exercise of evasion, the Defendants state the following alleged caveat regarding the lists and information which they do provide in response to discovery request No. 2: Tabs 2 and 3 should not be considered "membership" rosters. A number of individuals listed served as part- time or intermittent "consultants" who were regarded not as "members" of the interdepartmental working group, but instead as advisors on particular issues to specific working~groups. Given the fluid and dynamic process by which the interdepartmental working group was formed and operated, "membership" was not a significant or operative concept. Instead, Tabs 2 and 3 are simply lists of individuals who attended a meeting or meetings of a working group or groups. The principal, but not exclusive, means by which Tabs 2 and 3 were compiled were standard information forms submitted by many working group participants. Tabs 2 and 3 should not be understood as fully exhaustive or completely accurate lists of individuals who participated on the interdepartmental working group. 15

19 or of the participants on individual working groups. Responses, at (Emphasis added.) Defendants' The Defendants then go on to respond to discovery request No. 2 as follows: Nonetheless, some individuals attended meetings of cluster or subgroups without being listed as a policy assistant. * * * Thus, Tabs 2 and 3 are derived from several different sources and by different means. Given the fluidity and informality of the process by which individuals participated in the interdepartmental working group, Tabs 2 and 3 contain the names of some individuals who did not attend any meetings or who attended only one or two. Similarly, some individuals who attended some working group meetings are undoubtedly not listed. Defendants' Responses, at 10-li. (Emphasis added.) Manifestly, the Defendants' Response to discovery request No. 2 is self-contradictory, incomplete, evasive, and overtly misleading. The Defendants should be compelled to fully and completely answer this reasonable request. With respect to the Plaintiffs' request for information regarding the Health Professional Review Group, the group(s) looking at legal issues, the group(s) looking into cost issues, the group(s) - looking into minority issues, and the group(s) looking at administrative simplification and quality issues, and any other groups or subgroups - that were created, formed, established, held meetings, reported to, rendered advice or information to, or otherwise assis~ted, supported, or acted in connection with the Task Force, the interdepartmental working group, and any and all cluster groups, (referred to collectively 16

20 as "Task Force groups" throughout the discovery requests), the Defendants responded as follows: Five "audit groups" were established. Tab 4 is a list of the members of the group that examined cost issues. Tab 5 is a list of members of the group that examined administrative issues. Tab 6 is a list of the members of the group that examined legal issues. Tab 7 is a list of the members of the group that examined issues pertaining to minorities. Tab 8 is a list of the members of the group that examined issues pertaining to health care providers, also known as the Health Professions Review Group. Defendants' Responses, at 12. In a footnote, the Defendants stated that "[a] drafting group was also created to draft the President's health care reform legislation" and that "[u]nlike the working groups, the drafting group as not tasked with reviewing information and developing health care reform policy options." Id. n. 3. The Defendants have not provided any information whatsoever regarding the members of the drafting group. While the Defendants have provided the names and employers of those persons listed as members of these other "audit groups", the Defendants have not provided their job titles with their private employers. And, although discovery request No. 4 clearly requests such information with respect to all members and participants on any and all "Task Force Groups" (as defined in Request No. 2), the Defendants have not stated whether these persons were denominated "special government employees" or "consultants" while performing services for a Task Force group, the person's regular employer and job title, and the length of time that the person performed services for a Task Force group, and the amount of remuneration received and the identity of the entity providing the remuneration to the persons. 17

21 serving on a Task Force group. The Defendants should be compelled to provide this information with respect to each and every listed member of an "audit group". The Defendants' Response to discovery request No. 3 is blatantly evasive and openly ignores those parts of the D.C. Circuit opinion discussing what aspects of the interdepartmental working group this Court should focus upon in determining whether the interdepartmental working group or individual working groups are subject to the FACA. The Defendants have claimed that discovery request No. 3 is overbroad, unduly burdensome, and seeks information that is irrelevant to the issues before this Court on remand from the D.C. Circuit. These objections are simply not well taken. First of all, with respect to the undue burden and overbreadth objection, it is the Defendants that have created their own problems by setting up a gargantuan group composed of numerous subgroups relating to a variety of complex healthcare related issues. It is absurd for the government to set up such a monstrosity consisting of numerous persons drawn from the private sector, hide its deliberations from public scrutiny, get entangled in litigation seeking to require such public scrutiny, and then claim that any specific inquiry into the structure, purpose, and -personnel of the leviathan which it created is unduly burdensome and overbroad. In sum, the Defendants have created their own -burdens and cannot now be heard to complain of requests that go to the heart of the operation, structure, and personnel of the Task Force groups. 18

22 Furthermore, with respect to the Defendants' relevancy objection, one need only read the D.C. Circuit's opinion to see that the information sought is patently relevant to the structure, purpose, and personnel of the interdepartmental working group and its individual cluster groups and subgroups. The D.C. Circuit expressly held that the degree of a person's participation in the group was relevant to determining whether that person was a "member" of such group. In their Responses, the Defendants themselves have evasively stated that some persons listed (although not specifically identified) attended only one or two meetings or possibly none at all. The Defendants have also claimed that certain persons were mere "consultants". The items requested in discovery request No. 3, especially "a list which stated the identity of all meeting attendees for each meeting", will show the extent and degree of each person's participation on each of the Task Force groups. When these persons are identified, the Plaintiffs will then be able to determine which persons listed as being drawn from the private sector can legitimately be considered "members" of a Task Force group or groups. Similarly, the requested. information will also tend to show whether there was a fixed continuity of membership rather than a changing slate of individuals, which the D.C. Circuit plainly perceived as relevant to structure. Finally, the materials sought will also tend to show the interaction of meeting attendees, the degree of such interaction, and the benefits of such interaction, i.e., whether the whole is greater than the sum of the parts. The D.C. Circuit held this to be relevant to the inquiry of whether a group can be 19

23 classified as a FACA committee. This Honorable Court should compel the Defendants to respond to discovery request No. 3. In their Response to discovery request No. 4, the Defendants state, inter alia, as follows: Those who participated intermittently and who provided periodic advice upon request on particular subjects, were placed in the "consultant" category. They did not supervise others, and were generally regarded as consultants to a working group and not as a "member" of one. The individuals listed at Tab 12 are special government employees who participated in the interdepartmental working group on a regular, full-time basis, i.e., as a "member" of the interdepartmental working group. [Footnote omitted.] "Consultants", as defined above, are listed in Tab 13. [Footnote omitted.] Individuals employed by state and local governments or organizations, who were SGES, or "consultants " in connection with their participation on the interdepartmental working groups, are listed separately in Tab. 14. Defendants' Responses, at 17. (Emphasis added.) In two footnotes, the Defendants have indicated that a search for relevant documentation is continuing with respect to certain of these individuals. Thd., nn. 6, 7. To date, the Defendants have not provided this documentation to the Plaintiffs. Furthermore, the Defendants have not stated specifically into which category each individual from state or local governments or organizations were classified, as a "member" of the working group working on a full-time basis or as a "consultant" working only intermittently on the interdepartmental working group and its individual cluster groups or subgroups. 1 The Defendants should be compelled to The Defendants' apparent ability to classify persons as full-time, i.e., "members" of the interdepartmental working group 20

24 to provide relevant documentation and a full and definite answer to discovery request No. 4. Also in their Response to discovery request No. 4, the Defendants have not adequately or fully responded to request No. 4(d), which asks the Defendants to state the length of time that the person performed services for any Task Force group, and if the persons received any remuneration while performing services for a Task Force group, the amount of remuneration received (including payment or reimbursement for out-of-pocket and travel expenses) and the identity of the entity providing the remuneration. The Defendants have not even provided a clue as to the length of time (e.g., days, weeks, number of hours per week, etc.) that each person listed as participating on the interdepartmental working group and its individual cluster groups or subgroups actually worked on the interdepartmental working group, and its individual cluster groups or subgroups. Even assuming, arguendo, that certain time records do not exist, other documents in the possession of the Defendants (e.g., minutes of meetings, etc.) could certainly provide answers to this request and the Defendants (Footnote 1,.continued.) also buttresses the Plaintiffs' contention that the Defendants' Response to Discovery request No. 2 is misleading and evasive. While the Defendants stated in response to discovery request No. 2 that "[g]iven the fluid and dynamic process by which the interdepartmental working group was formed and operated, 'membership' was not a significant or operative concept," at least in partial response to discovery request No. 4 the Defendants have shown that full-time participation i.e., "membership" can be ascertained rather easily. The Defendants' partial response to discovery request No. 4 clearly illustrates that the Defendants are capable of grasping the concept of "membership" so as to be able to fully and completely answer discovery request No

25 could certainly contact persons participating on the interdepartmental working group and its individual cluster groups or subgroups to obtain answers. Clearly, the Defendants should be compelled to provide answers as to how much time each participant on the interdepartmental work~{ng group and its individual cluster groups or subgroups worked so that the Plaintiffs, and this Court, can confidently determine who could be classified as a member and at which end of the "continuum" discussed by the D.C. Circuit the interdepartmental working group and its individual cluster groups or subgroups are located. As to the request for the amount of remuneration received by each participant on the interdepartmental working group and its individual cluster groups or subgroups, for his or her services, the Defendants have claimed this information is irrelevant to the remaining issues in this case. Such relevancy objection is utterly specious. It is simply logical for the Plaintiffs to conclude that the amount of remuneration provided to an individual is directly proportional to the amount of time and services the individual provides. This, in turn, will show the degree and continuity of the person's participation on the interdepartmental working group, and its individual cluster groups or subgroups, information which the D.C. Circuit clearly believed to be relevant to the determination of whether the interdepartmental working group as a whole or the individual cluster groups or subgroups were FACA committees. Likewise, the amount of remuneration for travel expenses and the per diem paid to alleged "consultants" and others will tend to show how long persons were present in 22

26 Washington, the purpose of their presence in Washington, and how many days the persons worked for the interdepartmental working group. Again, this will tend to show whether the persons met only one or two times with certain persons on the interdepartmental working group, and its individual cluster groups or subgroups, or whether their participation was continuous, e.g., like that of a "member". The Defendants should be compelled by this Court to provide such information with respect to each individual participating on the interdepartmental working group and its individual cluster groups or subgroups. 2 With respect to discovery request No. 5, the Defendants have basically reiterated their objections to the information sought in discovery request No. 4. The Defendants should be required to respond to this discovery request for payroll records, expense accounts, expense records, and travel records for the reasons stated previously. 3 The most glaring omissi~on in the Defendants' t must also be noted that the Defendants have stated in a general manner that certain individuals were not paid by the government while participating on or performing services for the interdepartmental working group and its individual cluster groups or subgroups. However, the Defendants have not stated whether these individuals were being paid by some other entity (i.e., one in the private sector or a state or local government or organization) while participating in the interdepartmental working group, and the amount of any such remuneration. This information is certainly relevant to show not only that the terms "special government employee" and "consultant" are a ruse, but also to show that one of the purposes of FACA, to control the influence of special interests on governmental policy, is being circumvented. The Defendants should be required to comply with the obvious tenor of discovery request No The Defendants' production of 47 time records on some of the participants in the interdepartmental working group illustrates not-only that the Defendants' response to this request is incomplete, but also that the relevancy objection made by the Defendants is totally disingenuous and not well taken. 23

27 Response to Discovery Request No. 5 is the failure to provide the conflict of interest, financial disclosure or others ethics forms which were filled out by each participant in the interdepartmental working group and its individual cluster groups or subgroups. The affidavit of Ira Magaziner stated that each person filled out such papers. The Defendants, however, have only produced sample blank forms rather than the completed forms on each individual. The Defendants should be required to produce the completed form or forms with respect to each individual. Production of such documents will not only check the accuracy and veracity of the Magaziner affidavit, but will also show the nature and extent of the private sector affiliations of each participant on the interdepartmental working group and its individual cluster groups or subgroups. The Defendants should be compelled to produce the completed copies of all conflict of interest, financial disclosure and ethics documentation regarding each person participating in the interdepartmental working group and its subgroups and cluster groups. With respect to discovery request No. 6, the Defendants have~ essentially crafted an evasive answer much like their response to discovery request No. 2. Like their Response to discovery request No. 2, the Defendants have objected to providing the information sought on the ground that "[i]nformation on 'operations' and 'activities' is irrelevant to the structure, purpose and personnel, of the interdepartmental working group." Defendants' Responses, at 21. The Defendants then proceed, as they did in response to discovery request No. 2, to provide absolutely no 24

28 detail, as typified by their opening caveat that "[t]he purpose, structure and organization of the interdepartmental working group, its cluster groups and subgroups are not easily described or summarized." Id. The tenor of discovery request No. 6, like discovery request No. 2, plainly seeks detailed information with respect to each working group, cluster group, and subgroup and the Defendants have merely provided an overlygeneralized, self- serving response for the entire interdepartmental working group. This Court should compel the Defendants to respond fully and with some detail to discovery request No. 6. Certainly, the Defendants are fully capable of doing so by referring to meeting minutes, agendas, and working papers of each cluster group and subgroup of the interdepartmental working group. The Defendants cannot be heard to deny the Plaintiffs access to such materials which would provide details and then refuse to provide any details in response to discovery request No. 6. Finally, in response to discovery request no. 7, the Defendants have objected to the request for certain documentation regarding each participant in the interdepartmental working group, and its individual cluster groups and subgroups, on the ground of relevancy. The documentation sought by discovery request No. 7 will obviously -tend to show if, as the Defendants have claimed, persons serving on the interdepartmental working group and its individual cluster groups and subgroups were indeed "special government employees" or "consultants" and were treated as such at the outset of their service. The requested documentation will also show the dates of such persons' participation on the 25

29 interdepartmental working group and the extent and continuity of such participation. In any event, the Defendants' willingness to discuss the documentation with respect to individuals retained by HHS (see Defendants' Responses, at 26) reveals the disingenousness of the objection. - The Defendants, however, have not even begun to fully respond to this discovery request. The Defendants only discuss certain persons retained by HHS and totally omit any discussion of documentation regarding "special government employees" or "consultants" retained by other government entities such as the White House Office, the Office of Management and Budget, etc. The Defendants should be compelled not only to produce the documents regarding those persons retained by HHS, but by other governmental offices and entities as well. With respect to Requests No. 9, 10 and 11, the Defendants have provided nothing. They failed to even address Request No. 9 at all. Clearly, these requests are relevant to any consideration as to whether the interdepartmental working group and its individual cluster groups and subgroups are FACA committees. Organizational charts, whether pre-existing or not, may be easily drawn and the identity of working group leaders as well as those who were resp~onsible for communications to, from, among, between and within each Task Force group and to, from, among and betw~en the members and/or participants in each Task Force group. These materials are not only relevant to determine how the groups functioned but their structure as well. Such names must be known and should be provided. 26

30 CONCLUSION For all the foregoing reasons, the Plaintiffs' Motion to Compel should be granted, and the Defendants should be required to pay the Plaintiffs' costs incurred in bringing the Motion to Compel, including their reasonable attorneys' fees. Respectfully submitted, KENT MASTERSON BROWN, ESQ. CHRISTOPHER J. SHAUGHNESSY, ESQ. BROWN & BROWN, P.S.C First National Building 167 West Main Street Lexington, Kentucky (606) Facsimile (606) FRANK M. 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

31 27

32 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing has been served upon Defendants by hand-delivering a copy of same to Defendants' counsel of record, Hon. Elizabet~i A. Pugh, Jeffrey Gutman, Esq., Robert S. Whitman, Esq., and David Andersen, Esq., U.S. Department of Justice, Civil Division, 901 E Street, N.W., Room 952, Washington, D.C on this day of September, KENT MASTERSON BROWN, ESQ. 28

33 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA ASSOCIATION OF AMERICAN - ) PHYSICIANS AND SURGEONS, INC. ) etc., et al., ) Plaintiffs ) CIVIL ACTION NO vs. ) JUDGE LAMBERTH HILLARY RODHAM CLINTON, etc., ) et al., ) Defendants ) ORDER The Plaintiffs, ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC. ("AAPS"), AMERICAN COUNCIL FOR HEALTH CARE REFORM ("ACHCR"), and NATIONAL LEGAL AND POLICY CENTER ("NLPC"), having moved for an order compelling the answers to various requests in their Interrogatories and the production of various documents in their First Set of Interrogatories and Second Set of Requests for Production of Documents; and the parties having appeared in open court; and the court being otherwise sufficiently advised; IT IS HEREBY ORDERED that Plaintiffs' Motion be and the same is hereby GRANTED, and the Defendants shall, within days, fully and completely answer the Interrogatories and produce the documents requested by the Plaintiffs in their First Set of Interrogatories and Second Set of Requests for Production of Documents as follows: