No Easy Answers

Tuesday, April 18, 2006

Libby Case: Joint Status Report [Doc 86]

      Case 1:05-cr-00394-RBW           Document 86        Filed 04/18/2006       Page 1 of 5

                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                      )
                                              )       CR. NO 05-394 (RBW)
               v.                             )
I. LEWIS LIBBY,                               )
      also known as "Scooter Libby"           )

                                   JOINT STATUS REPORT

       This status report is submitted jointly by the parties in response to the Court's request of

April 12, 2006.

I.     Status of Classified Discovery

       1. In addition to the classified materials produced prior to the last status conference in

this matter on February 24, 2006, the government has produced or is in the process of producing

to the defense: (i) additional pages of defendant Libby's notes for certain dates as directed by the

Court in the proceedings on February 24, 2006; and (ii) certain materials relating to daily

intelligence briefings as directed by the Court in orders dated March 10, 2006 and March 24,

2006. There remain certain motions outstanding addressed to classified information (e.g. the

defense request for information regarding Ms. Plame's employment and any damage assessment)

as well as defendant's third motion to compel discovery, which implicates classified documents

as well.

       2. Regarding the additional notes of defendant Libby that the Court directed the

government to produce to the defense, the government has already produced approximately 770

pages of such notes to the defense and expects to produce to the defense an additional 360 pages

this week. Thereafter, the government expects to produce any remaining pages of defendant

      Case 1:05-cr-00394-RBW           Document 86        Filed 04/18/2006       Page 2 of 5

Libby's notes to the defense by early May. Such production would satisfy the Court's ruling

regarding the notes during the February 24, 2006 Status Conference.

       3. The defense has been transliterating copies of the pages of defendant Libby's notes

designated in its Section 5 notices, and providing the transliterations to the government pursuant

to a stipulation dated February 10, 2006. As of today's date, the government has been provided

with transliterations of 233 pages. In turn, the government has been forwarding such

transliterations to the intelligence community for classification review.

       4. As specified in the Court's Order of March 24, 2006, production of the materials

concerning the daily intelligence briefings should be complete on or before June 13, 2006.

II.    Schedule for Hearings Pursuant to Section 6 of CIPA

       5. In order to proceed to hearings pursuant to Sections 6(a) and 6(c) of the Classified

Information Procedures Act ("CIPA"), the defense must file a final Section 5 notice specifying

the classified documents it expects to disclose or reasonably expects to cause the disclosure of, as

well as provide a written summary of the classified information it expects to disclose or

reasonably expects to cause the disclosure of. The defense has filed interim Section 5 notices on

January 23, 2006 and March 29, 2006.

       6. Due to the fact that defendant Libby's notes are difficult to work with, and due to the

fact that the intelligence briefing materials will not be produced until June 13, the defense cannot

file a final Section 5 notice until August 15, 2006. (The defense will, however, file a further

interim Section 5 notice on July 17.) The defense intends the final notice to be comprehensive

and to delete requests to use documents which will no longer be necessary where the defense has

identified other documents that it believes would better advance the defense's case.

      Case 1:05-cr-00394-RBW            Document 86        Filed 04/18/2006       Page 3 of 5

         7. After receiving the final filing, the intelligence community will need substantial time

to examine the designated documents and the written summary of the oral disclosure to examine

what intelligence equities might be compromised by disclosure of the particular designated

documents or particular aspects of the proffered information. Thereafter the Court will need to

conduct a Section 6(a) hearing concerning "use, relevance or admissibility" of the classified

information in dispute. The parties suggest that the Section 6 hearing proceed on September 20,

2006 and proceed daily until completed. (After receiving the defendant's final Section 5 notice

on August 15, 2006, the government will provide the defendant with its Section 6(b) notice of the

classified information at issue on or before August 29, 2006. The government will file an

omnibus response brief to the defense's use, relevance, and admissibility arguments on or before

September 12, 2006, and the defense will file its omnibus reply on or before September 18,


         8. As to any classified information that the Court rules admissible at or following the

hearing, the government has the right to move pursuant to Section 6(c) of CIPA for an order that

it be allowed to provide for a substitution for such classified information of either (i) a statement

admitting the relevant facts the classified information tends to prove; or (ii) a summary of the

classified information. In order to allow for negotiation between the parties on the issue of

substitutions following the Court's rulings after the Section 6(a) hearing, and in order to allow

the government to discuss with the intelligence community the efficacy of any proposed

substitutions, as well as discuss with the executive branch any substitutions that would obviate

any need to assert executive privilege or confidentiality, the parties recommend that the Section

6(c) hearings proceed on October 10 (the day following Columbus Day) and proceed daily until


      Case 1:05-cr-00394-RBW           Document 86        Filed 04/18/2006        Page 4 of 5

       9. The parties are also mindful that any remaining issues regarding executive privilege

and confidentiality of the designated classified documents need to be addressed during the CIPA


       10. It is respectfully submitted that given the volume of work that needs to be done and

the need to deal with the classified materials as a whole in determining relevance and

admissibility, as well as the propriety of any substitutions, the foregoing schedule is the most

efficient way to proceed.

Dated: April 18, 2006

       /s/                                         /s/
Patrick J. Fitzgerald                         John D. Cline
                                              (D.C. Bar No. 403824)
Special Counsel                               Jones Day
Bond Building                                 555 California Street, 26th Floor
1400 New York Avenue NW                       San Francisco, CA 94104
Ninth Floor                                   Tel: (415) 626-3939
Washington, D.C. 20530                        Fax: (415) 875-5700
Tel: (202) 514-1187
Fax: (312) 353-8298                           Theodore v. Wells, Jr.
                                              (DC Bar No. 468934)
                                              Paul, Weiss, Rifkind, Wharton & Garrison LLP
                                              1285 Avenue of the Americas
                                              New York, NY 10019-6064
                                              Tel: (212) 373-3000
                                              Fax: (212) 757-3990

                                              William H. Jeffress, Jr.
                                              (DC Bar No. 041152)
                                              Baker Botts LLP
                                              The Warner
                                              1299 Pennsylvania Ave., NW
                                              Washington, D.C. 20004-2400
                                              Tel: (202) 639-7751
                                              Fax: (202) 585-1087

Case 1:05-cr-00394-RBW   Document 86   Filed 04/18/2006    Page 5 of 5

                             Joseph Tate
                             Dechert Llp
                             4000 Bell Atlantic Tower
                             1717 Arch Street
                             Philadelphia, PA 19103-2793
                             Tel: (215) 994-4000
                             Fax: (215) 994-2222

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