Case M:06-cv-01791-VRW Document 356 Filed 08/20/2007 Page 1 of 155 Laurence F. Pulgram (CSB No. 115163) 1 [email protected] Candace Morey (CSB No. 233081) 2 [email protected] FENWICK & WEST LLP 3 555 California Street, 12th Floor San Francisco, CA 94104 4 Telephone: (415) 875-2300 Facsimile: (415) 281-1350 5 6 Ann Brick (CSB No. 65296) [email protected] 7 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 8 39 Drumm Street San Francisco, CA 94111 9 Telephone: (415) 621-2493 Facsimile: (4150 255-8437 10 Attorneys for Plaintiffs in 11 Dennis P. Riordan, et al. Vincent I. Parrett (CSB No. 237563) [email protected] 12 Barry R. Himmelstein (CSB No. 157736) MOTLEY RICE LLC [email protected] 28 Bridgeside Boulevard 13 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP P. O. Box 1792 275 Battery Street, 30th Floor Mount Pleasant, SC 29465 14 San Francisco, CA 94111-3339 Telephone: (843) 216-9000 Telephone: 415-956-1000 Facsimile: (843) 216-9440 15 Facsimile: 415-956-1008 Interim Class Counsel for 16 Interim Class Counsel for MCI Class Verizon Class 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 SAN FRANCISCO DIVISION 20 IN RE: MDL No. 06-1791 VRW 21 NATIONAL SECURITY AGENCY PLAINTIFFS’ SUPPLEMENTAL TELECOMMUNICATIONS RECORDS REQUEST FOR JUDICIAL NOTICE AND 22 LITIGATION, SUPPLEMENTAL AUTHORITIES FOR THE MOTIONS TO DISMISS OR, IN THE 23 This Document Relates To: ALTERNATIVE, FOR SUMMARY JUDGMENT BY THE UNITED STATES 24 (1) All Class Actions Against MCI and OF AMERICA AND VERIZON Verizon Defendants in the Master MCI and 25 Verizon Consolidated Complaint, Dkt. 125; Date: August 30, 2007 (2) Bready v. Verizon Maryland (06-6313); Time: 2:00 p.m. 26 (3) Chulsky v. Cellco Partnership & Verizon Courtroom: 6, 17th Floor Communications Inc. (06-6570); and Judge: Hon. Vaughn R. Walker 27 (4) Riordan v. Verizon Communications Inc. (06-3574) 28 PLAINTIFFS’ SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE AND AUTHORITIES MDL NO. 06-1791 VRW Case M:06-cv-01791-VRW Document 356 Filed 08/20/2007 Page 2 of 155 1 Jennifer L. Kelly (CSB No. 193416) Elizabeth Cabraser (CSB No. 83151) [email protected] [email protected] 2 Aaron K. Perzanowski (CSB No. 244921) Eric B. Fastiff (CSB No. 182260) [email protected] [email protected] 3 FENWICK & WEST LLP Allison Elgart (CSB No. 241901) 555 California Street, 12th Floor [email protected] 4 San Francisco, CA 94104 LIEFF, CABRASER, HEIMANN & Telephone: (415) 875-2300 BERNSTEIN, LLP 5 Facsimile: (415) 281-1350 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 6 Peter J. Eliasberg (CSB No. 189110) Telephone: 415-956-1000 [email protected] Facsimile: 415-956-1008 (fax) 7 Peter Bibring (CSB No. 223981) [email protected] Interim Class Counsel for MCI Class 8 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN Joshua Graeme Whitaker 9 CALIFORNIA (Appearing pursuant to MDL Rule 1.4 [U.S. 1616 Beverly Boulevard Dist. Ct. for the Dist. of Md. Bar No. 16457]) 10 Los Angeles, CA 90026 [email protected] Telephone: (213) 977-9500 Edward Nelson Griffin 11 Facsimile: (213) 250-3919 (Appearing pursuant to MDL Rule 1.4 [U.S. Dist. Ct. for the Dist. of Md. Bar No. 16435]) 12 Nicole A. Ozer (CSB No. 228643) [email protected] [email protected] GRIFFIN WHITAKER LLP 13 AMERICAN CIVIL LIBERTIES UNION 8730 Georgia Avenue Suite LL100 FOUNDATION OF NORTHERN Silver Spring, MD 20910 14 CALIFORNIA Telephone: (301) 587-3345 39 Drumm Street Facsimile: (888) 367-0383 15 San Francisco, CA 94111 Telephone: (415) 621-2493 16 Facsimile: (4150 255-8437 17 Attorneys for Plaintiffs in Attorneys for Plaintiffs Dennis P. Riordan, et al. Christopher Bready, et al. 18 19 Ronald L. Motley David H. Sternlieb [email protected] [email protected] 20 Jodi W. Flowers Gary S. Shapiro [email protected] [email protected] 21 Don Migliori (Appearing pursuant to MDL Rule 1.4) (U.S. [email protected] Dist. Ct. for the Dist. of N.J.) 22 Justin B. Kaplan SHAPIRO & STERNLIEB, LLC [email protected] Attorneys At Law 23 MOTLEY RICE LLC 800 Tennent Road 28 Bridgeside Boulevard Manalapan, New Jersey 07726 24 P. O. Box 1792 Telephone: (732) 617-8050 Mount Pleasant, SC 29465 Facsimile: (732) 617-8060 25 Telephone: (843) 216-9000 Facsimile: (843) 216-9440 26 Interim Class Counsel for Counsel for 27 Verizon Class Plaintiffs Glen Chulsky, et al. 28 PLAINTIFFS’ SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE AND AUTHORITIES MDL NO. 06-1791 VRW Case M:06-cv-01791-VRW Document 356 Filed 08/20/2007 Page 3 of 155 1 INTRODUCTION 2 Plaintiffs have requested leave to submit this Supplemental Request for Judicial Notice 3 and Supplemental Authorities for the limited purpose of addressing new factual and legal 4 developments after the filing of Plaintiffs’ Joint Opposition to the Government’s Motion to 5 Dismiss (“Opposition”) on June 22, 2007. As this Court predicted in Hepting v. AT&T Corp., 6 439 F. Supp. 2d 974, 1001 (N.D. Cal. 2006), active and ongoing Congressional investigations 7 have spurred additional revelations concerning the programs at issue in this litigation. The Sixth 8 and D.C. Circuits have issued important decisions, which the United States and Verizon have 9 addressed in their reply papers, but Plaintiffs have not previously had the opportunity to address. 10 I. ADDITIONAL FACTUAL DEVELOPMENTS SUBJECT TO JUDICIAL NOTICE. 11 Public statements offered by the Attorney General, the Director of National Intelligence 12 (“DNI”), and a ranking member of the House Select Committee on Intelligence have confirmed 13 the existence of additional surveillance activities conducted by the National Security Agency 14 beyond the so-called Terrorist Surveillance Program (“TSP”), as well as the participation of 15 telecommunications operators in those activities. Plaintiffs request that this Court take judicial 16 notice of these public statements, all of which further undermine the Government’s assertion that 17 the state secrets privilege mandates dismissal of this litigation at the outset.1 18 According to the Government, Plaintiffs’ claims are barred because “no public facts 19 1 Under Federal Rule of Evidence 201, facts “not subject to reasonable dispute in that” they are 20 “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned” are judicially noticeable. Fed. Rule Evid. 201(b). When such notice is 21 “requested by a party and [the court is] supplied with the necessary information,” it is mandatory. Fed. Rule Evid. 201(d). 22 The facts recounted here, because they are public statements made by the Attorney General, the Director of National Intelligence, the Director of the Federal Bureau of Investigation, and a 23 ranking member of the House Select Committee on Intelligence, are “not subject to reasonable dispute.” Each of these facts is easily verifiable on the basis of the attached public documents 24 created by or reflecting the statements of those officials. See Exhibits A-D. Many courts have taken judicial notice of similar information. See, e.g., Texas & Pac. Ry. Co. v. Pottorff, 291 U.S. 25 245, 254 n. 4, 78 L. Ed. 777, 54 S. Ct. 416 (1933), amended on other grounds, 291 U.S. 649, 54 S. Ct. 525 (1934) (official reports put forth by the Comptroller of the Currency); Heliotrope Gen., 26 Inc. v. Ford Motor Co., 189 F.3d 971, 981 (9th Cir. 1999) (information contained in news articles); Del Puerto Water Dist. v. United States Bureau of Reclamation, 271 F.Supp.2d 1224, 27 1234 (E.D. Cal. 2003) (Senate and House Reports); Wietschner v. Monterey Pasta Co., 294 F.Supp.2d 1102, 1108 (N.D. Cal. 2003) (press releases issued by the Securities and Exchange 28 Commission). PLAINTIFFS’ JOINT OPPOSITION TO GOVERNMENT’S MOTION TO DISMISS -1- MDL NO. 06-1791 VRW Case M:06-cv-01791-VRW Document 356 Filed 08/20/2007 Page 4 of 155 1 provide any basis to conclude that … the Government could not accomplish the alleged 2 surveillance on its own,” Gov’t Opening Brief at 32. However, recent disclosures by the 3 Attorney General and Ranking Member Pete Hoekstra now confirm the participation of 4 telecommunications companies in the NSA’s surveillance activities. 5 On July 24, 2007, testifying under oath before Congress on the Department of Justice’s 6 proposal to amend the Foreign Intelligence Surveillance Act, Attorney General Alberto Gonzales 7 stated as follows: 8 [SENATOR] FEINGOLD: You state in your testimony that the 9 administration has transmitted to Congress a proposal to modernize the Foreign Intelligence Surveillance Act. And yet your department 10 still refuses to share with this committee and with the Intelligence Committee basic information about the evolution of the 11 department's legal justifications for the illegal wiretapping program from 2001 to the present. 12 And your legislative proposal contains a provision that would grant 13 blanket immunity to individuals who cooperate with the government for participating in certain unidentified intelligence 14 activities. How can you come to Congress with a straight face and ask for this 15 immunity provision, yet at the same time refuse to tell most members of Congress what they would be granting immunity for? 16 [ATTORNEY GENERAL] GONZALES: Well, of course, we 17 have provided briefings to the Intel Committees. And, again, we don't think -- you know, we went to companies for 18 help. They provided help in trying to protect this country. And we think that's appropriate for the Congress to consider. 19 20 Exhibit A, at 50 (emphasis added). 21 Two weeks later, Representative Pete Hoekstra, the ranking Republican on the House 22 Select Committee on Intelligence and a member of the so-called “Gang of Eight,” confirmed that 23 telecommunications carriers were the “companies” that assisted in these surveillance activities 24 and for whom legislative immunity was being sought.