858866

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, ex rel.
FLOYD LANDIS,
Plaintiffs,
v.
TAILWIND SPORTS CORP., et al.,
Defendants.

Civil Action No. 1:10-cv-00976-CRC
ECF

LANCE ARMSTRONGS MOTION FOR LEAVE TO FILE A REPLY TO THE
GOVERNMENTS RESPONSE TO ARMSTRONGS SUPPLEMENTAL
MEMORANDUM




Case 1:10-cv-00976-CRC Document 217 Filed 09/08/14 Page 1 of 2

858866
Lance Armstrong respectfully seeks leave to file a reply to the Governments Response to
Armstrongs Supplemental Brief (Response). See ECF No. 212. Armstrongs reply brief is
attached as Exhibit A. Armstrong has concurrently filed a proposed order.
Armstrong seeks leave to file the accompanying 6-page reply brief to address new
arguments made by the government in its Response. In particular, the brief addresses legal
authority the government cited for the first time in its Response, as well as the governments new
arguments relating to its possession of grand jury transcripts. The reply also identifies issues that
are no longer in contention.
Pursuant to Local Civil Rule 7(m), Armstrong certifies that he conferred with opposing
counsel regarding this motion. The government stated that it does not consent to Armstrongs
filing of a reply brief. The relator took no position on Armstrongs request.
Respectfully submitted,
KEKER & VAN NEST LLP
Dated: September 8, 2014 By: /s/ Sharif E. Jacob

JOHN KEKER (pro hac vice)
ELLIOT R. PETERS (pro hac vice)
R. JAMES SLAUGHTER (pro hac vice)
SHARIF E. JACOB (pro hac vice)
TIA SHERRINGHAM (pro hac vice)
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415 391 5400
Facsimile: 415 397 7188
ROBERT D. LUSKIN (D.C. Bar # 293621)
BENJAMIN D. WOOD (D.C. Bar # 478799)
SQUIRE PATTON BOGGS (US) LLP
2550 M Street, NW
Washington, DC 20037
Telephone: (202) 457-6000
Facsimile: (202) 457-6315
Attorneys for Defendant
LANCE ARMSTRONG

Case 1:10-cv-00976-CRC Document 217 Filed 09/08/14 Page 2 of 2


860741
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, ex rel.
FLOYD LANDIS,
Plaintiffs,
v.
TAILWIND SPORTS CORP., et al.,
Defendants.

Civil Action No. 1:10-cv-00976-CRC
ECF

[PROPOSED] ORDER GRANTING DEFENDANT LANCE ARMSTRONGS
MOTION FOR LEAVE TO FILE A REPLY
Upon consideration of Defendant Lance Armstrongs Motion for Leave to File a Reply to
the Governments Response to Armstrongs Supplemental Memorandum (the Motion to File a
Reply) and the record herein:
1. The Motion to File a Reply is GRANTED.
2. Armstrongs Reply to the Governments Response to Armstrongs Supplemental
Memorandum shall be filed.
IT IS SO ORDERED.

Dated:



HON. CHRISTOPHER R. COOPER
United States District Court Judge
Case 1:10-cv-00976-CRC Document 217-1 Filed 09/08/14 Page 1 of 1



EXHIBIT A
Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 1 of 10

860650
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, ex rel.
FLOYD LANDIS,
Plaintiffs,
v.
TAILWIND SPORTS CORP., et al.,
Defendants.

Civil Action No. 1:10-cv-00976-CRC
ECF

ARMSTRONGS REPLY TO GOVERNMENTS RESPONSE TO ARMSTRONGS
SUPPLEMENTAL MEMORANDUM
Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 2 of 10

i

TABLE OF CONTENTS
Page
1. Government Abandons Investigative Files and Common Interest Doctrines ..........1
2. Substantially Verbatim Witness Statements Must be Produced ..............................1
3. Witness Memoranda from a Closed Criminal Investigation Are Not Work
Product in a Subsequent Civil Case .........................................................................2
4. Armstrongs Recent Discovery that the Civil Attorneys Have Grand Jury
Transcripts Gives Rise to Substantial Concerns ......................................................3
5. The Governments Accusations Against Armstrongs Counsel Are Utterly
Baseless ....................................................................................................................4
CONCLUSION ................................................................................................................................6


Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 3 of 10

ii

TABLE OF AUTHORITIES
Page(s)
Federal Cases
* In re Grand Jury Proceedings
503 F. Supp. 2d 800 (E.D. Va. 2007) ........................................................................................3
* In re Veiga
746 F. Supp. 2d 27 (D.D.C. 2010) .............................................................................................2
Maki v. United States
No. 07-0443, 2008 U.S. Dist. LEXIS 31496 (W.D. Va. Apr. 15, 2008) ...................................2
* Miller v. Holzmann
No. 95-1231, 2007 U.S. Dist. LEXIS 16117 (D.D.C. Mar. 8, 2007) ........................................2
Miller v. Holzmann
No. 95-1231, 2007 U.S. Dist. LEXIS 2987 (D.D.C. Jan. 17, 2007) ..........................................2
* Saunders v. United States
316 F.2d 346 (D.C. Cir. 1963) ...................................................................................................1
* United States v. Sells Engg
463 U.S. 418 (1983) ...................................................................................................................3
Federal Statutes
18 U.S.C. 3500 ..........................................................................................................................1, 4
Federal Rules
Fed. R. Civ. P. 26(b)(3)(C) ..............................................................................................................1
Fed. R. Crim. P. 6(e) ........................................................................................................................3

Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 4 of 10
1
The Governments Response to Armstrongs Supplemental Brief (Response) raises
several new issues not previously addressed by Armstrong, and also make several sub rosa
concessions which narrow the issues in dispute. Armstrong therefore submits this short Reply to
address the new issues and attempt to sharpen the focus in anticipation of the upcoming
September 15 hearing.
1. Government Abandons Investigative Files and Common Interest Doctrines
In the privilege log to which Armstrong was responding with his Supplemental Brief, the
government purported to rely on both the investigative files privilege and a common interest
privilege with USADA for the withholding of certain memoranda. The Government has now
abandoned both claims, as it does not even attempt to respond to Armstrongs arguments about
the inapplicability of those two legal doctrines.
2. Substantially Verbatim Witness Statements Must be Produced
Armstrong has argued, as a threshold matter, that since the memoranda at issue constitute
substantially verbatim witness statements, they must be produced. The Government argues, in
essence, that a witness statement memorialized in detail by a government investigator is not
considered substantially verbatim unless it is signed or mechanically recorded. Response at
p. 8. In making this argument, the government ignores, and fails even to cite or mention,
Saunders v. United States, 316 F.2d 346, 350 (D.C. Cir. 1963), a case in which the D.C. Circuit
held that an attorneys notes of a witness interview can be considered substantially verbatim
under the Jencks Act. It also ignores the fact that under the Jencks Act the government considers
this type of investigative report of a witness interview to be substantially verbatim and produces
them routinely pursuant to 18 U.S.C. Section 3500. Instead, the Government attempts to rely on
an inapposite definition of previous statement contained in a section of Fed. R. Civ. P.
26(b)(3)(C) which governs when a party or person may request production of that person or
partys own prior statement, a situation which has nothing to do with the issues before the Court.
Since the memoranda at issue are substantially verbatim witness statements, they are not covered
by the work product objections and should be produced. No further analysis is necessary.
Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 5 of 10
2
3. Witness Memoranda from a Closed Criminal Investigation Are Not Work
Product in a Subsequent Civil Case
In response to Miller v. Holzmann, No. 95-1231, 2007 U.S. Dist. LEXIS 16117 (D.D.C.
Mar. 8, 2007), affd, 2007 U.S. Dist. LEXIS 21681 (D.D.C. Mar. 9, 2007) and Maki v. United
States, No. 07-0443, 2008 U.S. Dist. LEXIS 31496 (W.D. Va. Apr. 15, 2008), cited by
Armstrong, the government appears now to be forced to concede that memoranda of witness
interviews conducted as part of a separate criminal investigation which occurred prior to the time
that the relator filed his action and the subsequent date at which DOJ civil attorneys actually
began to work on this matter, are not subject to work-product protection in this case, and must be
produced.
1
This would appear to address the 23 entries on the governments privilege log listing
witness statements memorialized by Food and Drug Administration (FDA) and Federal Bureau
of Investigation (FBI) criminal investigators with no involvement whatever by civil attorneys.
However, the government seeks to avoid this outcome by claiming, without a shred of factual
support, that after July, 2010 civil attorneys were somehow participating in the direction of a
joint civil and criminal investigation. There is no competent evidence in the record to support
that assertion. No declaration of any form has been filed making that claim, even though the
government bears this burden as the proponent of a claim of privilege. The government supplies
only unsworn averments of its counsel, which does not suffice. In re Veiga, 746 F. Supp. 2d
27, 33-34 (D.D.C. 2010). At the very least, the first 8 items on the governments log must be
produced. More likely, the 23 memoranda prepared by FBI and FDA agents should all be
produced, since the log reveals that these memoranda were prepared by the criminal investigators
without any involvement from the civil side.

1
The government attempts to distinguish Miller by suggesting that that the civil [qui tam]
action in question was [not] pending at the time the interview reports were generated. Response
at p. 12. The governments attempt to distinguish Miller is unfounded. In Miller, a parallel civil
qui tam action was in fact pending at the time the FBI interview reports were generated. See
Miller v. Holzmann, No. 95-1231, 2007 U.S. Dist. LEXIS 2987, *5-*6 (D.D.C. Jan. 17, 2007),
affd, 2007 U.S. Dist. LEXIS 21681 (D.D.C. Mar. 9, 2007).
Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 6 of 10
3
4. Armstrongs Recent Discovery that the Civil Attorneys Have Grand Jury
Transcripts Gives Rise to Substantial Concerns
The Response completely misapprehends Armstrongs concerns about these civil
attorneys possession of grand jury transcripts generated in the criminal investigation. As a
threshold matter, Armstrong does not understand how that possession could possibly be lawful.
While the sharing of ANY grand jury information with government civil attorneys requires a
showing of particularized need under Fed. R. Crim. P. 6(e), United States v. Sells Engg, 463
U.S. 418, 420 (1983), the standard is far stricter, and virtually impossible to satisfy, when it
comes to grand jury transcripts. Parties seeking grand jury transcripts under Rule 6(e) must
show that the material they seek is needed to avoid a possible injustice in another judicial
proceeding, that the need for disclosure is greater than the need for continued secrecy, and that
their request is structured to cover only material so needed[.] Id.; see also In re Grand Jury
Proceedings, 503 F. Supp. 2d 800, 804-07 (E.D. Va. 2007). Here, DOJ civil attorneys who
themselves had the power to subpoena and question witnesses under oath, nonetheless have
obtained and are presently using an unknown quantity of grand jury testimony.
2
It is impossible
to conceive of how the government could have ever established that its civil attorneys needed
this grand jury testimony to avoid an injustice in this proceeding, or how the need for
disclosure is greater than the need for continued secrecy of these transcripts, or how the request
was structured to cover only material so needed, as opposed to a wholesale (and unlawful)
production of grand jury transcripts. But as a threshold matter Armstrong needs to know how
and when the civil attorneys obtained this grand jury testimony, so that this Court may assess
whether it occurred lawfully. Armstrong needs to see any applications for disclosure, and
corresponding Orders, and any communications among criminal and civil operatives via which
grand jury materials (and especially transcripts) were shared. To date the Government has

2
Notwithstanding promises to do so, the Government has still not produced to Armstrong a
single transcript of the many sworn, transcribed instances of witness testimony that it generated
during its civil investigation, even though those transcripts would be exceedingly easy to
produce, and 20 months have passed since the Government intervened in this case.
Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 7 of 10
4
furnished none of the above. Armstrongs original position is not simply that he should have
access to grand jury materials in the possession of the civil attorneys, but that the civil attorneys
never should have had access to this material in the first place. However, since the Government
presently possesses and is using this grand jury material in this civil case, Armstrong is entitled
to its disclosure under Rule 26. Contrary to the Governments suggestions, at this stage,
Armstrong cannot fairly be required to file an application in the Central District of California to
seek disclosure to him of materials his civil adversaries already have, based on a legal standard
(avoid a possible injustice) that he does not believe can properly be satisfied. Armstrong first
needs to ascertain whether the Government has this material lawfully. In order to do so, the
grand jury materials themselves and the documents relating to their disclosure to the civil
attorneys must be produced.
5. The Governments Accusations Against Armstrongs Counsel Are Utterly
Baseless
For reasons known best to itself, the Government persists in accusing Armstrongs
counsel of impropriety in connection with the handling of the inadvertently produced interview
memoranda. Those accusations are utterly baseless. The government produced these
memoranda on June 10, 2014 as part of a larger document production. Counsel diligently and
carefully reviewed them at that time. Counsel did not then believe or understand for even a
second that the memoranda were privileged or had been inadvertently produced. The
memoranda were substantially verbatim reports of witness interviews, akin to police reports, that
are routinely produced by the government in both civil and criminal cases. For example, U.S.
Attorneys Offices throughout the United States routinely produce precisely this type of
investigative report as Jencks materials, 18 U.S.C. Section 3500, which requires production of
witness statements, defined as a substantially verbatim recital of what a witness said.
Counsel then filed with the Court on July 3, one of the memoranda in support of the instant
motion. At that time no notice of inadvertent production had been made, and counsel for
Armstrong had no belief or expectation that any such claim would be made. On July 7, 2014 for
Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 8 of 10
5
the first time the government notified Armstrong that it claimed the witness interview
memoranda had been inadvertently produced. While disagreeing with the assertion that these
memoranda could properly be withheld from discovery, counsel for Armstrong thereafter took
all appropriate steps to comply with their obligations. They internally sequestered all copies of
the memoranda. They did not (and have not) shared these memoranda with anyone. They have
not made any use of the memoranda in any way since July 7. Counsel for Armstrong did file
all of the memoranda under seal and in camera with the Court, to assist its determination of the
motion, but that type of use is lawful and is contemplated by the Proposed Order. In short, the
Governments accusations of wrongdoing by Armstrongs counsel are entirely baseless, in
addition to being unnecessary to resolution of this motion. The government should accept
responsibility for its own alleged inadvertence and while it certainly may disagree with
Armstrong about whether the memoranda must be produced, it should also recognize that
Armstrong has acted appropriately in handling the situation at all times since first learning on
July 7 that there was any issue with production of these interview memoranda.
///
///

Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 9 of 10
6
CONCLUSION
For all of the foregoing reasons, as well as those articulated in Armstrongs Opening,
Reply and Supplemental Memoranda of Law in Support of Motion to Compel, Armstrong
respectfully requests that his motion be granted.
Respectfully submitted,
KEKER & VAN NEST LLP
Dated: September 8, 2014
By: /s/ Elliot R. Peters
JOHN KEKER (pro hac vice)
ELLIOT R. PETERS (pro hac vice)
R. JAMES SLAUGHTER (pro hac vice)
SHARIF E. JACOB (pro hac vice)
TIA SHERRINGHAM (pro hac vice)
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415 391 5400
Facsimile: 415 397 7188

ROBERT D. LUSKIN (D.C. Bar # 293621)
BENJAMIN D. WOOD (D.C. Bar # 478799)
SQUIRE PATTON BOGGS (US) LLP
2550 M Street, NW
Washington, DC 20037
Telephone: (202) 457-6000
Facsimile: (202) 457-6315

Attorneys for Defendant
LANCE ARMSTRONG

Case 1:10-cv-00976-CRC Document 217-2 Filed 09/08/14 Page 10 of 10