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JEAN-PAUL JASSY, Cal. Bar No. 205513 [email protected] 2 KEVIN L

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JEAN-PAUL JASSY, Cal. Bar No. 205513 Jpjassy@Jassyvick.Com 2 KEVIN L Case 2:16-cv-05407-GHK-GJS Document 9 Filed 07/21/16 Page 1 of 3 Page ID #:25 1 JEAN-PAUL JASSY, Cal. Bar No. 205513 [email protected] 2 KEVIN L. VICK, Cal. Bar No. 220738 [email protected] 3 DUFFY CAROLAN, Cal Bar No. 154988 [email protected] 4 SUNNY K. LU, Cal. Bar No. 247667 [email protected] 5 JASSY VICK CAROLAN LLP 6605 Hollywood Boulevard, Suite 100 6 Los Angeles, California 90028 Telephone: 310-870-7048 7 Facsimile: 310-870-7010 8 Colby C. Vokey (pro hac vice forthcoming) LtCol USMC (Ret.) 9 [email protected] 6924 Spanky Branch Court 10 Dallas, Texas 75248 Telephone: 214-697-0274 11 Facsimile: 214-594-9034 12 Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC 13 d/b/a PAGE 1 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 16 MARK BOAL, an individual, Case No.: 2:16-CV-05407-GHK-GJS 17 FLAKJACKET LLC d/b/a PAGE 1, a California Limited Liability Company, Assigned to Hon. George H. King 18 Plaintiffs, 19 v. PLAINTIFFS’ EX PARTE APPLICATION FOR TEMPORARY 20 UNITED STATES OF AMERICA; RESTRAINING ORDER AND FOR BARACK OBAMA, in his official ORDER TO SHOW CAUSE WHY 21 capacity as President of the United DEFENDANTS SHOULD NOT BE States of America; ASHTON B. PRELIMINARY ENJOINED FROM 22 CARTER, in his official capacity as ISSUING AND/OR ENFORCING A Secretary of Defense; ERIC SUBPOENA TO PLAINTIFFS 23 FANNING, in his official capacity as Secretary of the Army; ROBERT B. 24 ABRAMS, in his official capacity as [Filed concurrently herewith: General Court-Martial Convening Memorandum of Points & Authorities, 25 Authority; JUSTIN OSHANA, in his Declaration of Mark Boal, Declaration of official capacity as Major, Judge Jean-Paul Jassy, and [Proposed] 26 Advocate, US Army Trial Counsel, Temporary Restraining Order and Order to and DOES 1 THROUGH 10, Show Cause Why Defendants Should Not 27 inclusive, Be Preliminarily Enjoined] 28 Defendants. PLAINTIFF’S EX PARTE APPLICATION FOR TRO AND ORDER TO SHOW CAUSE Case 2:16-cv-05407-GHK-GJS Document 9 Filed 07/21/16 Page 2 of 3 Page ID #:26 1 Pursuant to Rule 65 of the Federal Rules of Civil Procedure and Rules 7-19 and 2 65-1 of the Central District of California Local Civil Rules, Plaintiffs Mark Boal 3 (“Boal”) and Flakjacket LLC d/b/a Page 1 (“Page 1”) (collectively, “Plaintiffs”) 4 hereby apply to this Court for a Temporary Restraining Order (“TRO”) enjoining 5 defendants United States of America, President Barack Obama, Secretary Ashton B. 6 Carter, Secretary Eric Fanning, General Robert B. Abrams, Major Justin Oshana and 7 Does 1-10 (collectively, “Defendants”) from issuing and/or enforcing a threatened 8 subpoena to Plaintiffs (the “Subpoena”) that would violate Plaintiffs’ rights under the 9 First Amendment and other authorities. 10 Plaintiff Boal is a Los Angeles-based journalist, documentarian, screenwriter, 11 filmmaker and producer. While he is best-known as the writer and producer of The 12 Hurt Locker and Zero Dark Thirty, this action concerns his activities as a journalist. 13 In 2014, Boal began investigating the story of US Army Sgt. Robert Bowdrie (Bowe) 14 Bergdahl (“Bergdahl”). Bergdahl is presently facing a court martial in Ft. Bragg, 15 North Carolina for allegedly deserting his post in Afghanistan several years ago. 16 Bergdahl’s story was the subject of the recent second season of the podcast Serial, 17 which Boal helped co-produce. The military prosecutor in Bergdahl’s court martial, 18 Justin Oshana, Major, U.S. Army Office of the Staff Judge Advocate, has represented 19 that tomorrow, July 22, 2016, he will serve Plaintiffs with a subpoena for “[t]he 20 complete unedited audio recordings of conversations” between Boal and Bergdahl 21 “referenced in the Serial podcast as over 25 hours of recorded conversations.” Such 22 Subpoena violates Plaintiffs’ rights under the reporter’s privilege, which is rooted in 23 the First Amendment and recognized in this Circuit and nationwide. 24 This TRO is necessary to prevent the irreparable harm that would result from 25 allowing the Defendants to proceed with the Subpoena. If Defendants are permitted 26 to proceed, Plaintiffs will be forced to choose between handing over confidential and 27 privileged materials to the military prosecutor – with serious and irreparable harm to 28 -1- PLAINTIFF’S EX PARTE APPLICATION FOR TRO AND ORDER TO SHOW CAUSE Case 2:16-cv-05407-GHK-GJS Document 9 Filed 07/21/16 Page 3 of 3 Page ID #:27 1 Plaintiffs’ work, reputation and finances – or facing contempt charges under 10 2 U.S.C. § 847. 3 Plaintiffs further request that this Court issue an Order to Show Cause why a 4 preliminary injunction should not issue immediately after the TRO expires, to 5 continue enjoining Defendants and those in concert with them from issuing and/or 6 enforcing the Subpoena. This preliminary injunction should remain in place pending 7 a trial on the merits of the Complaint, which seeks declaratory relief under 28 U.S.C. 8 § 2201, injunctive relief, and a writ of mandamus and/or prohibition under 28 U.S.C. 9 § 1651(a). 10 Plaintiff Mark Boal’s Declaration is filed herewith in support hereof. So is a 11 Memorandum of Points and Authorities in Support of this Ex Parte Application. A 12 proposed TRO and Order to Show Cause are lodged herewith, pursuant to Rule 65-1 13 of the Central District of California Local Civil Rules. 14 The notice of application required by Rule 7-19.1 of the Central District of 15 California Local Civil Rules has been provided, as explained in more detail in the 16 concurrently-filed Declaration of Jean-Paul Jassy (“Jassy Decl.”), counsel for 17 Plaintiffs. During a phone call on July 20, 2016, Mr. Jassy provided notice of 18 Plaintiffs’ intent to seek this TRO to Major Justin Oshana, the military prosecutor 19 who represented that he would serve the Subpoena on Plaintiffs on July 22, 2016. 20 Major Oshana’s contact information is: Justin Oshana, Major, U.S. Army Office of 21 the Staff Judge Advocate, United States Army Forces Command, 4700 Knox Street, 22 Fort Bragg, NC 28310-5000, (910) 570-5922, [email protected]. Jassy 23 Decl., ¶¶ 2-4. 24 Dated: July 21, 2016 JASSY VICK CAROLAN LLP 25 By _____/s/ Jean-Paul Jassy____________ 26 JEAN-PAUL JASSY 27 Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC d/b/a 28 PAGE-2- 1 PLAINTIFF’S EX PARTE APPLICATION FOR TRO AND ORDER TO SHOW CAUSE Case 2:16-cv-05407-GHK-GJS Document 9-1 Filed 07/21/16 Page 1 of 37 Page ID #:28 1 JEAN-PAUL JASSY, Cal. Bar No. 205513 [email protected] 2 KEVIN L. VICK, Cal. Bar No. 220738 [email protected] 3 DUFFY CAROLAN, Cal Bar No. 154988 [email protected] 4 SUNNY K. LU, Cal. Bar No. 247667 [email protected] 5 JASSY VICK CAROLAN LLP 6605 Hollywood Boulevard, Suite 100 6 Los Angeles, California 90028 Telephone: 310-870-7048 7 Facsimile: 310-870-7010 8 Colby C. Vokey (pro hac vice forthcoming) LtCol USMC (Ret.) 9 [email protected] 6924 Spanky Branch Court 10 Dallas, Texas 75248 Telephone: 214-697-0274 11 Facsimile: 214-594-9034 12 Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC 13 d/b/a PAGE 1 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 16 MARK BOAL, an individual, Case No.: 2:16-CV-05407-GHK-GJS FLAKJACKET LLC d/b/a PAGE 1, a 17 California Limited Liability Company, Assigned to the Hon. George H. King 18 Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 19 v. PLAINTIFFS’ EX PARTE APPLICATION FOR TEMPORARY 20 UNITED STATES OF AMERICA; RESTRAINING ORDER AND FOR BARACK OBAMA, in his official ORDER TO SHOW CAUSE WHY 21 capacity as President of the United DEFENDANTS SHOULD NOT BE States of America; ASHTON B. PRELIMINARY ENJOINED FROM 22 CARTER, in his official capacity as ISSUING AND ENFORCING Secretary of Defense; ERIC SUBPOENA 23 FANNING, in his official capacity as Secretary of the Army; ROBERT B. [Filed concurrently herewith: Plaintiffs’ Ex 24 ABRAMS, in his official capacity as Parte Application for Temporary General Court-Martial Convening Restraining Order and for Order to Show 25 Authority; JUSTIN OSHANA, in his Cause, [Proposed] Temporary Restraining official capacity as Major, Judge Order and Order to Show Cause, 26 Advocate, US Army Trial Counsel, Declaration of Mark Boal, Declaration of and DOES 1 THROUGH 10, Jean-Paul Jassy] 27 inclusive, 28 Defendants. COMPLAINT AND WRIT PETITION Case 2:16-cv-05407-GHK-GJS Document 9-1 Filed 07/21/16 Page 2 of 37 Page ID #:29 1 STATEMENT OF COMPLIANCE WITH LOCAL RULE 7-19 2 As stated in additional detail in the concurrently-filed Ex Parte Application for 3 Temporary Restraining Order and for Order to Show Cause Why Defendants Should 4 Not Be Preliminarily Enjoined From Issuing and/or Enforcing a Subpoena to 5 Plaintiffs (“Application”) and the concurrently-filed Declaration of Jean-Paul Jassy 6 (“Jassy Decl.”), at ¶ 3, Plaintiffs Mark Boal and Flakjacket LLC d/b/a Page 1 7 (collectively, “Plaintiffs”) have complied with Local Rule 7-19 and 7-19.1. Counsel 8 for the opposing party is Justin Oshana, Major, U.S. Army Office of the Staff Judge 9 Advocate, United States Army Forces Command, 4700 Knox Street, Fort Bragg, NC 10 28310-5000, (910) 570-5922, [email protected]. As stated in additional 11 detail in the Jassy Declaration, Plaintiffs’ counsel gave Major Oshana notice of the 12 date and substance of Plaintiffs’ ex parte application on July 20, 2016.
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