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7/31/2019 2:12-cv-00887 #51
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JOSEPH J. LEVIN, JR. (Pro Hac Vice)[email protected] P. SUN (SBN 218701)[email protected] E. SHORT (Pro Hac Vice)[email protected]
SOUTHERN POVERTY LAW CENTER400 Washington AvenueMontgomery, AL 36104Telephone: (334) 956-8200Facsimile: (334) 956-8481
(Caption Continued on Next Page)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Western Division
TRACEY COOPER-HARRIS and ) Case No. CV12-887 CBM (AJWx)MAGGIE COOPER-HARRIS, )
)Plaintiffs, ) JOINT CONFERENCE REPORT
v. ) PURSUANT TO FEDERAL RULE) OF CIVIL PROCEDURE 26(f)
UNITED STATES OF AMERICA; )ERIC H. HOLDER, JR., in his official )capacity as Attorney General; and ) Hon. Consuelo B. MarshallERIC K. SHINSEKI, in his official capacity )as Secretary of Veterans Affairs, ) No Scheduling Conference Requested
)Defendants. )
)BIPARTISAN LEGAL ADVISORY )GROUP OF THE U.S. HOUSE )OF REPRESENTATIVES )
)Intervenor-Defendant. )
)
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28 2JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
RANDALL R. LEE (SBN 152672)[email protected] BENEDETTO (SBN 252379)[email protected] CUTLER PICKERING HALE AND DORR LLP350 South Grand Avenue, Suite 2100
Los Angeles, CA 90071Telephone: (213) 443-5300Facsimile: (213) 443-5400
ADAM P. ROMERO (Pro Hac Vice)[email protected] CUTLER PICKERING HALE AND DORR LLP7 World Trade CenterNew York, NY 10007Telephone: (212) 230-8800Facsimile: (212) 230-8888
EUGENE MARDER (SBN 275762)
[email protected] CUTLER PICKERING HALE AND DORR LLP950 Page Mill RoadPalo Alto, CA 94304Telephone: (650) 858-6000Facsimile: (650) 858-6100
Attorneys for Plaintiffs
STUART F. DELERYActing Assistant Attorney General
ANDRE BIROTTE, JR.United States Attorney
ARTHUR R. GOLDBERG (DC Bar 180661)Assistant Branch Director
JEAN LIN (NY Bar 4074530)[email protected] Trial CounselUnited States Department of JusticeCivil DivisionFederal Programs Branch
20 Massachusetts Ave., N.W.Washington, DC 20530(202) 514-3716(202) 616-8470 (Fax)
Attorneys for Federal Defendants
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28 3JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
Paul D. Clement (DC Bar 433215)[email protected]. Christopher Bartolomucci (DC Bar 453423)[email protected] J. Nelson (DC Bar 1001696)[email protected]
BANCROFT PLLC1919 M Street, N.W.Suite 470Washington, D.C. 20036202-234-0090 (telephone)202-234-2806 (facsimile)
Of Counsel:Kerry W. Kircher, General Counsel (DC Bar 386816)[email protected] Pittard, Deputy General Counsel (DC Bar 482949)[email protected]
Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000)[email protected] B. Tatelman, Assistant Counsel (VA Bar 66008)[email protected] Beth Walker, Assistant Counsel (DC Bar 501033)[email protected]
OFFICE OF GENERAL COUNSEL,U.S. HOUSE OF REPRESENTATIVES219 Cannon House Office BuildingWashington, D.C. 20515202-225-9700 (telephone)202-226-1360 (facsimile)
Counsel for Intervenor-Defendant the BipartisanLegal Advisory Group of the U.S. House of Representatives
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1
JOINT CONFERENCE REPORT PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 26(f)
Pursuant to Fed. R. Civ. P. 26(f), Local Rule 26-1, and the Standing Order of
Honorable Consuelo B. Marshall, Plaintiffs Tracey and Maggie Cooper-Harris,
Federal Defendants, and Intervenor Bipartisan Legal Advisory Group of the U.S.
House of Representatives (Intervenor) by and through their respective counsel,
hereby submit this Joint Conference Report and request that the Court enter it as its
Order.
A. Statement of the Case
Plaintiffs Factual AllegationsThe parties agree that Plaintiffs have alleged the following facts:
Plaintiff Tracey Cooper-Harris served honorably in the United States Army for
approximately twelve years, nine in active duty, reaching the rank of Sergeant. For
Traceys distinguished service, the United States government awarded her with over
two dozen medals and commendations. She was honorably discharged in 2003.
In November 2008, Tracey married her same-sex spouse, Plaintiff Maggie
Cooper-Harris, in Van Nuys, California. The State of California legally recognizes
Tracey and Maggies marriage and provides them with the same status,
responsibilities, and protections as other legally married couples under state law.
Tracey suffers from a number of conditions, including multiple sclerosis and
post-traumatic stress disorder (PTSD). In 2011, the U.S. Department of Veterans
Affairs (VA) determined that those conditions are service-connected under 38
U.S.C. 101(16), and accordingly, Tracey receives monthly disability compensation.
The VA provides a number of benefits to married veterans and their families,
including additional disability benefits; Dependency and Indemnity Compensation,
which provides monthly benefits to a surviving spouse after a veteran has died from a
service-connected injury or disease; and joint burial benefits for the veterans spouse
at a veterans ceremony.
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28 2JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
In 2011, Tracey filed a claim with the VA to add Maggie as her spouse and
obtain these benefits. The VA denied Traceys claim because the statute that governs
veterans benefits defines spouse as a person of the opposite sex who is a wife or a
husband. 38 U.S.C. 101(31). Title 38 similarly limits surviving spouse to a
person of the opposite sex. Id. 101(3).
Even if Title 38 recognized Tracey and Maggies marriage for the purpose of
veterans benefits eligibility, Section 3 of the Defense of Marriage Act (DOMA)
would prevent the VA from recognizing their marriage. DOMA provides that, for
purposes of federal statutes, the word marriage means only a legal union between
one man and one woman as husband and wife, and the word spouse means only aperson of the opposite sex who is a husband or a wife. 1 U.S.C. 7.
Plaintiffs Legal Position
Plaintiffs Tracey and Maggie Cooper-Harris seek declaratory and injunctive
relief pursuant to 28 U.S.C. 2201-2202 and Fed. R. Civ. P. 57. Plaintiffs seek a
determination that the definitions of spouse and surviving spouse in Title 38
violate on their face the United States Constitution by denying them benefits received
by other married veterans and their spouses solely because they are married to a
person of the same sex. Plaintiffs also seek a determination that Section 3 of DOMA,
as applied to them, violates the United States Constitution by denying them benefits
that similarly-situated married veterans and their spouses in heterosexual marriages
receive.
Federal Defendants Legal Position
Federal Defendants previously have informed this Court and the parties that the
Department of Justice will not defend the constitutionality of Section 3 of the Defense
of Marriage Act (DOMA), 1 U.S.C. 7, and Sections 101(3) and 101(31) of Title
38 of the United States Code under the equal protection component of the Fifth
Amendment. It is the position of the Department that those provisions classify on the
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28 3JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
basis of sexual orientation; that heightened scrutiny is the appropriate standard of
review for classifications based on sexual orientation, and that consistent with that
standard, Section 3 of DOMA and 38 U.S.C. 101(3) and 101(31) may not be
constitutionally applied to same-sex couples whose marriages are legally recognized
under state law. Federal Defendants, however, intend to raise appropriate
jurisdictional defenses, if any, in this case.
Intervenors Legal Position
Intervenor believes that this Court lacks jurisdiction to hear this case. See 38
U.S.C. 511; Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1021-36 (9th
Cir. 2012) (en banc).Regarding the merits of Plaintiffs claims (should this Court find that it has
jurisdiction to hear this case), Intervenor believes that DOMA Section 3 and 38 U.S.C
101(3), (31) are constitutional. Under binding Ninth Circuit and Supreme Court
precedent, this Court must apply rational basis review to Plaintiffs challenge to the
constitutionality of these statutes. DOMA Section 3 and 38 U.S.C. 101(3), (31)
plainly survive rational basis review. Even if this Court could ignore binding Ninth
Circuit and Supreme Court precedent which it cannot these statutes would also
survive review under the heightened scrutiny standard proposed by Federal
Defendants.
B. Subject Matter Jurisdiction
Plaintiffs Position
Plaintiffs rely on this Courts subject matter jurisdiction under 28 U.S.C. 1331
and 28 U.S.C. 1346(a)(2).
Federal Defendants Position
Federal Defendants intend to raise appropriate defenses, if any, relating to this
Courts subject matter jurisdiction in accordance with the motion schedule set forth
below.
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28 4JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
Intervenors Position
As noted above, it is Intervenors position that 38 U.S.C. 511 precludes this
Courts from exercising jurisdiction over this case. See Veterans for Common Sense
v. Shinseki, 678 F.3d 1013, 1021-36 (9th Cir. 2012) (en banc).
C. Initial Disclosures
The parties shall exchange initial disclosures on August 24, 2012 in compliance
with the requirements set forth in Federal Rule of Civil Procedure 26(a)(1).
D. Responsive Pleading Deadline Tolled
Plaintiffs agree to extend the time for Federal Defendants to file their respective
responsive pleading pursuant to motion schedule set forth below.
E. Discovery Plan and Dispositive Motions Schedule
The parties agree that pending the resolution of all motions to dismiss or stay
that they will preserve discoverable information in accordance with the Federal Rules
of Civil Procedure. Plaintiffs believe that the material factual and legal issues that
would be resolved and on which discovery may be needed include, without limitation:
(1) the constitutionality of 38 U.S.C. 101 (3) and (31); and (2) the constitutionality
of Section 3 of DOMA, 1 U.S.C. 7, as applied to Plaintiffs.
Plaintiffs further state that they do not intend to seek any discovery against
Federal Defendants. Accordingly, the Federal Defendants do not object to the
deadlines set forth by Plaintiffs. Plaintiffs further state that they do not intend to seek
any discovery against Intervenor based on Intervenors position that it has no
discoverable information relevant to this case.
Plaintiffs Position
Under Plaintiffs proposed schedule, the parties would have 60 days to
complete the very limited discovery in this case: namely, the depositions of Dr.
Lawrence Korb and Gen. Dennis Laich, two experts that Plaintiffs identified in their
opposition to Intervenors motion to stay. Plaintiffs have offered that the parties begin
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28 5JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
scheduling the depositions of these two experts now in order to accommodate the
schedules of counsel. Given the nature of this case and the very limited discovery
involved, it is Plaintiffs position that 60 days is more than sufficient time to complete
discovery.
With respect to expert discovery, Plaintiffs position is that the parties should
submit any expert reports concurrently, given that (1) Plaintiffs identified all of their
experts and the subject matter of their testimony as early as June 18, 2012 in
Plaintiffs opposition to Intervenors motion to stay; and (2) there is no basis for
Intervenor to delay in disclosing any expert testimony that it intends to offer on these
subjects, particularly because under heightened scrutiny review, the burden lies withIntervenor. For these reasons, it does not presently make sense to provide for a time
period for rebuttal reports, and doing so would only serve to further delay resolution
of this case, which has been pending since February 2012. After the parties serve
their affirmative expert reports, if any party wishes to submit an appropriate rebuttal
report which Plaintiffs do not anticipate any party could move to extend the
discovery period.
Similarly, given the extremely limited discovery in this case, Plaintiffs do not
anticipate any discovery disputes. However, if a dispute arises that cannot be resolved
in the discovery period, any party could move to extend the discovery period.
Intervenors Position
Intervenor states that it proposes a modest 30-day extension to Plaintiffs
exceedingly expedited discovery period. Intervenors proposal maintains an expedited
discovery period, which lasts only ninety (90) days under its proposed schedule.
Intervenor maintains that its 90-day proposal is a practical compromise that will
result in discovery being completed on an expedited basis while still allowing the
parties time to complete fact and expert discovery and to resolve any discovery
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28 6JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
disputes within the allotted discovery period without need to seek additional time
from the Court.
Regarding Intervenors expert disclosures, as an initial matter, Intervenor
disagrees that it bears any burden this case or that heightened scrutiny review is
applicable to Plaintiffs challenge to DOMA Section 3 and 38 U.S.C. 101(3), (31).
Under binding Ninth Circuit precedent, rational basis, not heightened scrutiny, applies
to this Courts review of DOMA Section 3 and 38 U.S.C. 101(3), (31).
In any event, the issue of burden this case is distinct from the issue of timing of
the disclosure of rebuttal expert reports. Intervenor does not intend to offer any
affirmative experts. See Section F, infra. Intervenor reserves only the right to offerrebuttal expert reports to Plaintiffs two Title 38 experts. See id. Accordingly,
pursuant to Fed. R. Civ. P. 26(a)(2)(D)(ii), Intervenors rebuttal expert reports should
be submitted thirty (30) days after Plaintiffs expert reports as shown in its proposed
schedule below.
Although Plaintiffs have offered to begin scheduling the depositions of their
two Title 38 experts now, Intervenor will not have access to Plaintiffs expert reports
until September 12, 2012. Scheduling may well be impacted by the content of
Plaintiffs expert reports as well as by Intervenors decision to offer any rebuttal
expert witnesses. Additionally, Plaintiffs schedule provides no time for rebuttal
expert reports and/or depositions.
Plaintiffs Proposed
Deadline
Intervenors
Proposed Deadline
Event
Friday, August 17,
2012
Friday, August 17,
2012
Discovery period opens.
Friday, September
14, 2012
Friday, September
14, 2012
Last day for parties to serve
affirmative expert reports.
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28 7JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
Plaintiffs Proposed
Deadline
Intervenors
Proposed Deadline
Event
Friday, September
14, 2012 [Plaintiffs
position is that allreports must be
disclosed at the same
time]
Monday, October
15, 2102
Last day for Intervenor to serve
rebuttal expert reports.
Tuesday, October 16,
2012
Tuesday, November
13, 2012
Discovery period closes.
Thursday, November
15, 2012
Thursday, December
13, 2012
Last date on which Intervenor may
file any dispositive motions.
Last date on which Federal
Defendants may file anydispositive motion other than a
dispositive motion regarding the
constitutionality of DOMA
Section 3 or 38 U.S.C. 101(3),
(31) under the equal protection
component of the Due Process
Clause.
Monday, December
17, 2012
Monday, January 14,
2013
Last date on which Plaintiffs may
file any dispositive motion andany response to any dispositive
motions filed by Federal
Defendants and/or Intervenor.
Last date on which Federal
Defendants may file any response
to any dispositive motion filed by
Intervenor.
Last date on which Intervenor mayfile a response to Federal
Defendants dispositive motion
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28 8JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
Plaintiffs Proposed
Deadline
Intervenors
Proposed Deadline
Event
Monday, January 14,
2013
Wednesday,
February 13, 2013
Last date on which Intervenor may
file any response to Plaintiffs
dispositive motion, any responseto Federal Defendants response to
Intervenors dispositive motion,
and any reply in support of its
dispositive motion.
Last date on which Federal
Defendants may file any reply in
support of their dispositive motion
and any response to Plaintiffs
dispositive motion
Wednesday,
February 13, 2013
Thursday, March 14,
2013
Last date on which Plaintiffs may
file a reply in support of their
dispositive motion.
Monday, March 11,
2013 at 11 a.m.
Monday, April 16,
2013 at 11:00 a.m.
Hearing on parties dispositive
motions
14 days after Order
on dispositive
motions
14 days after Order
on dispositive
motions or as set bythe Court
Pre-Trial Scheduling Conference
(if necessary)
F. Expert Witnesses
The parties agree that the Federal Rules of Civil Procedure, as revised and in
effect as of December 1, 2010, will apply to the entire litigation, including the rule
changes regarding expert discovery. The parties positions with respect to the dates
for disclosures pursuant to Rule 26(a)(2) are set forth in Section E, supra.
Plaintiffs expect to submit expert testimony by the following: Drs. George
Chauncey, Nancy F. Cott, Michael Lamb, Letitia Anne Peplau, Gary Segura,
Lawrence Korb, and Gen. Dennis Laich. With respect to Plaintiffs experts
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28 9JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
Chauncey, Cott, Lamb, Peplau, and Segura, Plaintiffs agree to submit declarations in
connection with the above-captioned action that are substantively identical to those
submitted in Windsor v. United States, No. 10-cv-08435 BSJ (S.D.N.Y.), and
Pedersen v. OPM, 3:10cv-1750 (VLB) (D. Conn.). Accordingly, Intervenor and
Federal Defendants agree that these experts will not be subject to deposition, provided
that their declarations are substantively identical to those submitted in Windsorand
Pedersen. The parties agree that the deposition transcripts of these experts taken in
connection with the Windsorcase may be used for all purposes in the above-captioned
action. Intervenor reserves its right to depose Plaintiffs experts Dr. Korb and Gen.
Laich.The Federal Defendants do not expect to submit expert testimony. The
Intervenor reserves its right to submit rebuttal expert testimony in response to any
testimony offered by Dr. Korb and/or Gen. Laich. It is Plaintiffs position that any
expert testimony that Intervenor intends to rely upon should be disclosed concurrently
with Plaintiffs expert disclosures, as indicated in Plaintiffs proposed schedule and
discussed in Section E, supra. It is Intervenors position that rebuttal expert reports
should be submitted thirty (30) days after Plaintiffs expert disclosures pursuant to
Fed. R. Civ. P. 26(a)(2)(D)(ii). Intervenor disagrees that it bears any burden this case
or that heightened scrutiny review is applicable to Plaintiffs challenge to DOMA
Section 3 and 38 U.S.C. 101(3), (31). See Section E, supra.
G. Discovery Limitations
The parties propose complying with the discovery limitations set forth in the
Federal Rules of Civil Procedure.
H. Protective Order
Plaintiffs do not anticipate a protective order will be needed unless information
of a highly personal nature is sought from the Plaintiffs such as sensitive medical or
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28 10JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
financial information. If such information is sought, the parties agree to negotiate a
protective order in good faith under Fed. R. Civ. P. 26(c).
I. Claims of Privilege, Attorney Work-Product, or Protection
The parties agree to return any privileged or work-product materials as soon as
it is discovered they were produced and the receiving party or parties is/are notified of
the disclosure by the producing party, without any need to show that production was
inadvertent. The parties agree to meet and confer in good faith concerning this and
other issues that arise in this area.
J. Magistrate Judge
The parties do not consent to designation of a magistrate judge to conduct allproceedings pursuant to General Order 05-07.
K. Additional Matters Under Local Rule 26-1
i. Complexity of the Case
Plaintiffs do not propose that any of the procedures from the Manual for
Complex Litigation be utilized.
ii. Motion Schedule
The parties positions with respect to the motion schedule are set forth in
Section E, supra.
iii. Settlement
The parties do not believe settlement in this case is possible because the
constitutionality of federal statutes is at issue. Accordingly, the parties request relief
from L.R. 16-15, because the Alternative Dispute Resolution process cannot result in
resolution of this case.
iv. Trial Estimate
If a trial is necessary, the parties estimate that trial would take no longer than 5
days, depending on the claims remaining in the case.
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28 11JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
v. Additional Parties
The parties do not presently expect any additional parties to be joined in this
action, but reserve the right to seek leave of the Court for the addition of parties.
vi. Trial Counsel
Plaintiffs Trial Counsel
Plaintiffs identify the following attorneys as trial counsel:
Christine P. Sun and Caren E. Short of Southern Poverty Law Center, and
Randall R. Lee, Adam P. Romero, Matthew D. Benedetto, and Eugene Marder of
Wilmer Cutler Pickering Hale and Dorr LLP.
Federal Defendants Trial CounselFederal Defendants trial counsel will be Jean Lin.
Intervenors Trial Counsel
Intervenor identifies the following attorneys as trial counsel:
Paul D. Clement, H. Christopher Bartolomucci, and Nicholas J. Nelson of
Bancroft PLLC, and Kerry W. Kircher, William Pittard, Christine Davenport, Todd B.
Tatelman, and Mary Beth Walker of the Office of General Counsel, U.S. House of
Representatives.
viii. Scheduling Conference
Although the parties do not request a scheduling conference before the Court,
the parties are available by telephone should the Court have questions about the above
report or the parties respective positions.
/
/
/
/
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28 12JOINT RULE 26(f) CONFERENCE REPORT
CASE NO. CV 12-887 CBM (AJWx)
DATED: August 17, 2012
Respectfully submitted,
SOUTHERN POVERTY LAW CENTER
WILMER CUTLER PICKERING HALEAND DORR LLP
BY: /s/ Randall R. Lee__________RANDALL R. LEE350 South Grand Avenue, Suite 2100Los Angeles, CA 90071(213) [email protected]
Attorneys for Plaintiffs Tracey Cooper-Harrisand Maggie Cooper-Harris
DEPARTMENT OF JUSTICE
BY: /s/Jean Lin__________JEAN LINSenior Trial CounselU.S. Dept of JusticeCivil DivisionFederal Programs Branch20 Massachusetts Ave., N.W.
Washington, DC 20530(202) 514-3716
Attorneys for Federal Defendants
BANCROFT PLLC
BY: /s/ Paul D. ClementPaul D. Clement
Counsel for Intervenor-Defendant the
Bipartisan Legal Advisory Group of the U.S.House of Representatives
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28 13JOINT RULE 26(f) CONFERENCE REPORT
CASE NO CV 12 887 CBM (AJWx)
The Court adopts the agreed upon matters set forth above, and adopts
[Plaintiffs] [Intervenors] discovery schedule.
SO ORDERED.
Date:
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Hon. Consuelo B. MarshallUnited States District Judge
Case 2:12-cv-00887-CBM-AJW Document 51 Filed 08/17/12 Page 16 of 16 Page ID #:690