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, 2006.) 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 complete.
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 process. 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
March 2006 April 2006 May 2006 June 2006 July 2006 August 2006 September 2006 October 2006 November 2006 December 2006 January 2007 February 2007 March 2007 April 2007 May 2007 June 2007 July 2007 August 2007 September 2007 November 2007 December 2007 January 2008 February 2008 March 2008 April 2008 May 2008 June 2008 July 2008 August 2008 September 2008 March 2009 April 2009