San Francisco, CA 94102
Defendants have advised us that they will soon file a supplemental declaration in an attempt to justify their assertion of privilege under 50 U.S.C. § 403g. all substantive questions, including inquiries into the foundation for a claim of privilege, into the involvement of the CIA, a named defendant, in this case. Such an overbroad use of t 403g privilege will seriously undermine Plaintiffs’ right to discovery in this action.performed various assignments in connection with the CIA’s Project MKULTRA, such as experiments on prisoners at the Addiction Research Center in Lexington Kentucky and the Atlanta Federal Penitentiary. Defendants instructed Dr. Pelikan not to answer foundational questions about whether he had any connection to the CIA. Further, they instructed him not 1 In evaluating this privilege
For example, on December 10, 2010, during Plaintiffs’ deposition of a third party, Dr. Edward W. Pelikan, who is employed at the Boston University School of Medicine,
Defendants instructed the witness not to answer on over 130 occasions on the grounds that the information was protected pursuant to 403g or other statutory privileges.
2 Plaintiffs have reason to believe that Dr. Pelikan, a former employee of the Office of Naval Research,
1 Section 403g states that “the [Central Intelligence] Agency shall be exempted from . . . the provisionsof any other law which require the publication or disclosure of the organization, functions, names, official titles,
“Did you ever talk with anyone outside of government about any work you mightId. at 27:7-27:9.)“Have you ever heard of Project MKULTRA?” (Id. at 49:2.)“Have you ever heard of a Ray Treichler?” (Id. at 52:14.)
“Have you ever received any funding in connection with the Atlanta [F]ederalId. at 53:6-53:7)“Have you ever worked with a Dr. Harold Abramson?” (Id. at 63:8-63:9.)
and to foreclose even the most basic inquiries into the CIA’s widely known involvement in human experimentation. Plaintiffs ask the court to take Defendants’ recent, overbroad privilege claims into account when evaluating their 403g declaration .
• Did you ever work for the CIA? (Pelikan Deposition Transcript at 26:2)“[D]id you receive any payments from any sources other than the Naval Reserve?” “During the period that you worked for the Office of Naval Research, were you ever
/s/ GORDON P. ERSPAMER
Gordon P. Erspamer
PLAINTIFFS’ MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT – Case No. CV 09-0037-CW 3
Plaintiffs have been forced to confront the fact that several of the Plaintiffs are ill, and one of the Plaintiffs, Wray Forrest, has inoperable cancer, and is receiving hospice care for the last days of his life.
. . . (text intentionally omitted)
Wherefore, Plaintiffs proposed to add Mr. Josephs and Mr. Blazinski, both of whom are veterans who were military test subject “volunteers” at Edgewood Arsenal. (Exh. A at ¶¶ 200-231.)
Thus, their rights arise out of the same series of occurrences – i.e., experimental testing and harmful exposures – as the current Plaintiffs, and common questions of law and fact exist between them and the current Plaintiffs. Plaintiffs have previously notified Defendants during the course of meet and confer discussions of the likelihood that they may add additional individual Plaintiffs, and transmitted a draft of the proposed amendment regarding Mr. Josephs and Mr. Blazinski to Defendants for their review on June 2, 2010. (Declaration of Gordon P. Erspamer (“Erspamer Decl.”) at ¶ 7.)
With respect to the DVA and Secretary Shinseki, during the course of discovery, Plaintiffs ascertained important new facts regarding the DVA’s role in the chemical and biological weapons testing program and its aftermath. As explained in the proposed Third Amended Complaint, the DVA supplied substances to the Army, DOD, and CIA for use in human experiments. (Exh. A at ¶ 239).
Plaintiffs have also learned that the DVA has assumed responsibility for notifying veterans involved in the experiments and of the existence of several defects in and/or improprieties with respect to the DVA’s program for notifying “volunteers,” including the distribution of false or misleading claims calculated to discourage veterans from filing SCDDC claims or seeking VA health care. See Exh. A at ¶¶ 234–243. Moreover, the DVA has itself conducted a series of experiments on veterans utilizing many of the same drugs and toxic chemicals that the Defendants used on military personnel at Edgewood, Fort Detrick, and other military and other installations. Among the common chemicals/drugs tested are BZ (quinuclidinyl benzylate), Lewisite, LSD, mustard gas, phosgene, sarin, soman, tabun, and VX (nerve gas). These also include a long litany of biological agents such has botulism, anthrax, ebola virus, brucellla, and many others.
Plaintiffs’ claims against the DVA and the current Defendants, indeed, arise out of the same series of occurrences. Questions of law and fact related to Plaintiffs’ claims are common among the DVA and the current Defendants.
Thus, Plaintiffs VVA and the Individual Plaintiffs seek declaratory relief in the new Fifth Claim for Relief that the DVA cannot act as a neutral decision-maker under the due process clause because of its self-interest, conflict of interest, and bias in the underlying events. Plaintiffs also seek an injunction forbidding defendants from continuing to mislead “volunteers” or their survivors, and from continuing to use biased decision-makers to decide their eligibility for free, priority health care and for SCDDC, including DIC.
Plaintiffs also seek declaratory and injunctive relief pursuant to the Administrative Procedure Act in their new Sixth Claim for Relief. Plaintiffs seek a declaration that DVA’s rating procedures and standards for deciding chemical and biological weapons claims violate the rule of reasonable doubt set forth in 38 C.F.R. § 3.102.
Plaintiffs also seek an injunction compelling the DVA to apply the reasonable doubt doctrine to Plaintiffs and all “volunteers,” and compelling DVA to notify Plaintiffs and all “volunteers” of the details of their participation in human experimentation programs and provide them with full documentation of the experiments done on them and all known or suspected health effects.
Therefore, joining Mr. Josephs and Mr. Blazinski as plaintiffs and the DVA and its Secretary as defendants on two new claims is proper.
Leave to Amend Is Liberally Granted
Federal Rule of Civil Procedure 15(a) requires that the “court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). “This policy is to be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). The Supreme Court has held that leave to amend should be “freely given” in the absence of four factors: (1) bad faith, (2) undue delay, (3) undue prejudice to the opposing party, and (4) futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). As explained below, none of these factors exist in this case.
Furthermore, a party opposing a motion to amend must shoulder a substantial burden to demonstrate that the motion should not be granted.
Lucasarts Entm’t Co. v. Humongous Entm’t Co., 870 F. Supp. 285, 288 (N.D. Cal. 1993);
Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989).
Vietnam Veterans of America, et al. v. CIA, et al.
Case No. CV 09-0037-CW
[PROPOSED] PROTECTIVE ORDER
DISCLOSURE AND USE OF PROTECTED MATERIAL
7.1 Disclosure of Protected Material. Defendants are authorized to release records protected under the Privacy Act, without obtaining prior written consent of the individuals to whom the records pertain, to the persons identified in subparagraphs (a)-(h), below. Except upon the prior written consent of the Producing Party originally designating Protected Material as containing information within the scope of paragraph 3(a) of this Order, or as otherwise expressly provided in this Order, Protected Material may be disclosed only to:
(a) Counsel in this action, as well as employees or consultants of said Counsel to whom it is reasonably necessary to disclose the information for this litigation and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A);
(b) Certain designated representatives of Plaintiffs and Defendants (two representatives from each Defendant agency or Plaintiff non-profit corporation and three representatives of the Individual Plaintiffs) who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A);
(c) Experts (as defined in this Protective Order) to whom disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A);
(d) the Court and its personnel;
(e) court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A);
(f) during depositions or in preparation of affidavits or declarations for pretrial testimony, to fact witnesses in the action (and their counsel) to whom disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A). As set forth in paragraph 4.3(b), pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Protective Order;
(g) the author or listed recipient of the document or the original source of the Protected Material; and (h) the person to whom the Protected Material pertains. (g) the author or listed recipient of the document or the original source of the Protected Material; and (h) the person to whom the Protected Material pertains.
7.2 Use of Protected Material. Except as provided in paragraph 12.3, unless otherwise ordered by a court or otherwise provided in this Order, Protected Material received by a Party during the course of this litigation may be used only in connection with the prosecution or defense of this litigation and for no other purpose and shall be marked by the Producing Party as “CONFIDENTIAL — PRODUCED SUBJECT TO PROTECTIVE ORDER,” or with a similar
marking in a way that brings its attention to a reasonable examiner.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of Protected Material, the Receiving Party must so notify the Designating Party, in writing (by electronic mail, if possible) immediately, and in no event more than what is reasonable with the exercise of due diligence, after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order. The Receiving Party also must immediately inform in writing the party who caused the subpoena or order to issue in the other litigation that some or all the material covered by the subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must deliver a copy of this Protective Order promptly to the party in the other action that caused the subpoena or order to issue. The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. The Designating Party shall bear the burdens and the expenses of seeking protection in that court of its confidential material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court.
9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
Except as provided in paragraph 12.3, if a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosure(s), (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosure(s) were made of all the terms of this Protective Order, if they are not already so informed, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” attached hereto as Exhibit A, if they have not already done so. Failure to designate any materials as subject to the terms of this Protective Order shall not constitute a waiver of any subsequent assertion that the materials are covered by this Protective Order. Unauthorized disclosure for an improper purpose may subject the disclosing party to sanctions.
10. FILING PROTECTED MATERIAL
Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5.
11. FINAL DISPOSITION
Except as otherwise required by statute, including the Federal Records Act, 44 U.S.C. § 3010, et seq., or regulation, within ninety (90) days after the final termination of this action, each Receiving Party must return all Protected Material to the Producing Party, unless otherwise ordered or agreed in writing by the Producing Party. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries or any other form of reproducing or capturing any of the Covered Documents or Covered Information. With permission in writing from the Designating Party, the Receiving Party may destroy some or all of the Protected Material instead of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the ninety (90) day deadline that identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any of the Covered Documents and Covered Information. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protective Material remain subject to this
Protective Order as set forth in Section 6 (DURATION), above.
12.1 Right to Further Relief. Nothing in this Protective Order abridges the right of any person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. No Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Protective Order. Similarly, no Party waives any right to object on any ground to the use in evidence of any of the material covered by this Protective Order.
12.3 No Effect on Existing Rights. The status of a document or information as Protected Material in this litigation shall not prevent disclosure or use as permitted by law or compelled by order of any court, or restrict a party’s use outside of this litigation of materials produced by that Party. This Protective Order does not restrict individual Plaintiffs’ use of Privacy-Act protected records pertaining to them. Nothing in this Protective Order shall be construed to confer rights on any third party, except to the extent that a third party produces documents or other information in this action subject to the terms of this Protective Order.
IT IS SO ORDERED.
DATED: August ___, 2010 _________________________________________
UNITED STATES MAGISTRATE JUDGE
1995: NYS Supreme Court rules (TD v NYS Office of Mental Health) against the state’s policy of conducting non-therapeutic experiments on mentally incapacitated persons – including children – without informed consent. Justice Edward Greenfield ruled that parents have no authority to volunteer their children: “Parents may be free to make martyrs of themselves, but it does not follow that they may make martyrs of their children.”
- 1931: Dr. Cornelius Rhoads, a pathologist, conducted a cancer experiment in Puerto Rico under the auspices of the Rockefeller Institute for Medical Investigations. Dr. Rhoads has been accused of purposely infecting his Puerto Rican subjects with cancer cells. Thirteen of the subjects died. A Puerto Rican physician uncovered the experiment an investigation covered-up the facts. Despite Rhoads’ hand written statements that the Puerto Rican population should be eradicated, Rhoads went on to establish U.S. Army Biological Warfare facilities in Maryland, Utah, and Panama, and was later named to the U.S. Atomic Energy Commission. Rhoads was also responsible for the radiation experiments on prisoners, hospital patients, and soldiers. The American Association for Cancer Research honored him by naming its exemplary scientist award the Cornelius Rhoads Award.
- 1932-1972: U.S. Public Health Service study in Tuskegee Alabama of more than 400 black sharecroppers observed for the natural course of untreated syphilis.
The mere mention of experimental medical research on incapacitated human beings—the mentally ill, the profoundly retarded, and minor children—summons up visceral reactions, with recollections of the brutal Nazi experimentation…. Even without the planned brutality, we have had deplorable instances of over-reaching medical research in this country.”
Justice Edward GreenfieldT.D. v. NYSOMH, 1995