Lance Depo

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES, ex rel., FLOYD LANDIS, Plaintiff, v. TAILWIND SPORTS CORPORATION, et al., Defendants.

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No. 1:10-cv-00976-CRC

MEMORANDUM OF LAW IN SUPPORT OF UNITED STATES MOTION FOR ADDITIONAL TIME (FOUR HOURS)

IN CONNECTION WITH LANCE ARMSTRONGS DEPOSITION

Case 1:10-cv-00976-CRC Document 398 Filed 08/05/15 Page 1 of 5

Armstrong has to date spent approximately 17 hours taking testimony from the United

States. Fairness demands that the government be afforded the same right to gather the testimony

it needs to support its claims. Although the Federal Rules create a presumption that a deposition

should be concluded within a single day of seven hours, the Rules also provide that [t]he court

must allow additional time consistent with Rule 26(b)(2) [1] if needed to fairly examine the

deponent or [2] if the deponent, another person, or any other circumstance impedes or delays the

examination. Fed. R. Civ. P. 30(d)(1) (emphasis added); see also Roberson v. Bair, 242 F.R.D.

130, 138 (D.D.C. 2007) (noting that the Court is required to permit more time where

additional time is needed for a fair examination) (emphasis added).1 In the present case,

additional time is warranted for both of the reasons contemplated by Rule 30.

First, additional deposition time is needed to conduct a fair examination. The Advisory

Committee Notes state that courts have discretion to extend the time for a deposition based on a

variety of factors including [i]f the examination will cover events occurring over a long period

of time, or if the witness will be questioned about numerous or lengthy documents . Fed.

R. Civ. P. Advisory Committee notes 2000 Amendments. Here, Armstrongs relevant conduct

took place over two decades,2 and his personal knowledge is relevant to every issue in this case.

Further, Armstrong has made numerous and lengthy public statements that are germane to the

issues in this case. Armstrongs counsel has refused to stipulate even to the authenticity of

Armstrongs prior statements. See Finkelstein Decl. Ex. A (Depo Tr.) at 351:17-353:18 (if you

want to show something to the witness, do it, and dont rely on the fact that we will stipulate to

something ). Therefore, the government should be entitled to make a record of the fact that

Armstrong actually made the statements that have been attributed to him.

The government is also entitled to discover how Armstrong will attempt to explain his

many incriminating prior statements at trial. More than once during the first seven hours of his

1 Rule 26(b)(2) provides that the Court must limit discovery where the discovery sought

is unreasonably cumulative, the party seeking discovery has had an opportunity to obtain the information, or the burden of the proposed discovery outweighs the likely benefit.

2 In his deposition, Armstrong testified that he started using banned substances in 1993. Tr. 132:11-13.


deposition, Armstrong sought to minimize or explain away his most incriminating prior

statements.3 The transcript from the first seven hours of Armstrongs deposition in this case will

show that the government proceeded as expeditiously as possible to discover Armstrongs

explanations for his many relevant prior statements. However, the government was not able to

discover Armstrongs explanations for many additional relevant prior statements. Specifically,

the government did not have sufficient time to ask about the following prior statements:

Armstrongs second SCA deposition; his Larry King Live appearance in August 2005; his

Outside the Lines interview with Bob Ley; the two recent full length documentaries on his

doping scandal; and his January 2015 BBC interview.

Fairness also requires that the government be permitted additional time to inquire into

topics that it was not able to cover during the first seven hours of Armstrongs deposition. First,

because this Court had not ruled on Armstrongs protective order motion at the time his

deposition commenced, the government was not able to ask Armstrong about bank records

showing payments to Michele Ferrari, and others. The government also needs additional time to

explore the current market value of his sponsorship services (viz., after the doping revelations),

the circumstances of Armstrongs separation from his former sponsors, his lawsuits against his

accusers (including David Walsh), and his time outside the country between 2000 and 2010.

Courts routinely allow additional deposition time in circumstances such as these, where the

complexity of the case and the knowledge of the witness merit it. See, e.g., Arista Records LLC

v. Lime Grp. LLC, No. 06-5936, 2008 WL 1752254, at *2 (S.D.N.Y. APR. 16, 2008) (Lynch, J.)

(The presumptive length of depositions provided in Rule 30, which are more than adequate for

the general run of simpler litigation, was not designed for a witness of this significance in a case

of this magnitude ); Kleppinger v. Texas Dept of Transp., 283 F.R.D. 330, 334 (S.D. Tex.

3 For instance, when he was asked about his 2005 deposition testimony that he was aware that his sponsors would drop him if he were found to be doping, Armstrong stated that this remark was no longer correct. Tr. 222:7-12. Armstrong also sought to distance himself from his remark to Oprah Winfrey that the USPS Teams doping program was definitely professional. Tr. 137:20-138:12 (that probably wasnt the best use of words ). In addition, Armstrong attempted to disavow certain statements in his 2000 book Its not About the Bike, characterizing these statements as Sallyisms (referring to his co-author, Sally Jenkins). Tr. 243:1-21.


2012) (granting additional deposition time where the defendant sought to examine Plaintiff on

specific areas not covered (in detail) by [counsel] in the previous deposition ).

Finally, additional deposition time is warranted based on Armstrongs counsels repeated interruptions. See Fed. R. Civ. P. 30(d)(1) (court must allow additional time if another person impedes or delays the examination). During the first seven hours of Armstrongs deposition, counsel repeatedly and improperly interrupted the examination. For instance, counsel made lengthy speaking objections, e.g. Tr. 98:11-99:8, 372:7-374:4, and interfered with the governments ability to obtain answers to the most routine follow-up questions, Tr. 191:12-18, 207:23-208:8; 264:9-265:2. Indeed, at times, more than one of Armstrongs attorneys objected to the same question. Tr. 221:10-22.4

Rule 30 requires that any objections during a deposition must be made [1] concisely

and in a [2] non-argumentative and [3] non-suggestive manner. Fed. R. Civ. P. 30(d)(1).

Armstrongs counsel repeatedly violated all three of these requirements, and additional time is

warranted for this reason as well. See Alexander v. FBI, 186 F.R.D. 21, 52-53 (D.D.C. 1998) (It

is highly inappropriate for counsel for the witness to provide the witness with responses to

deposition questions by means of an objection, rephrase or later the question, or engage in an

argument with opposing counsel.); Blumenthal v. Drudge, 186 F.R.D. 236, 242 n.5 (D.D.C.

1999) (noting that speaking objections and soliloquies by counsel may entitle the party taking the

deposition to additional deposition time).

For these reasons, the government respectfully requests four more hours in addition to

whatever time this Court permits the relator to continue the deposition of Lance Armstrong.

4 In addition and contrary to Armstrongs attorneys own deposition practice counsel

instructed Armstrong not to read portions of certain exhibits into the record. Compare Tr. 342:16-344:12 with Finkelstein Decl. Ex. B (Joseph Porporino Deposition) at 34:10-35:20. Further, when the government attempted to inquire into changes to Armstrongs appearance fees after the doping revelations, his counsel initially went so far as to instruct the witness not to answer on the basis of a relevance objection. Tr. 303:6-306:19. After a lengthy colloquy, Armstrongs counsel relented and permitted certain questioning regarding the appearance fee issue. In spite of counsels ultimate acquiescence, this pattern of obstructive conduct during the deposition was highly improper. See Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 1, 6 (D.D.C. 2004) (directing a witness not to answer a question on the grounds of relevance is a clear violation of the Federal Rules and sanctionable.).


Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General VINCENT COHEN, JR. Acting United States Attorney DANIEL F. VAN HORN, D.C. Bar # 924092 Assistant United States Attorney s/ David M. Finkelstein MICHAEL D. GRANSTON

TRACY L. HILMER ROBERT E. CHANDLER

DAVID M. FINKELSTEIN ROBERT McAULIFFE GREGORY A. MASON Attorneys, Department of Justice Civil Division Post Office Box 261 Ben Franklin Station Washington, D.C. 20044 Tel: (202) 616-2971

DATED: August 5, 2015


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES, ex rel., FLOYD LANDIS, Plaintiff, v. TAILWIND SPORTS CORPORATION, et al., Defendants.

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No. 1:10-cv-00976 (CRC) ECF

DECLARATION OF DAVID M. FINKELSTEIN

I, David M. Finkelstein, hereby declare that:

1. I am an attorney with the United States Department of Justice, and am one of the

attorneys responsible for representing the United States in connection with the above-

named case. I have personal knowledge of the facts set forth herein, to which I could

competently testify under oath if called as a witness.

2. Attached as Exhibit A are excerpts from the first seven hours of Lance

Armstrongs deposition in this matter, which was taken on July 23, 2015.

3. Attached as Exhibit B is an excerpt from the deposition of Joseph Porporino, a

former USPS employee, which was taken on July 9, 2015.

I declare under the penalty of perjury under the laws of the United States of

America that the foregoing is true and correct

s/ David M. Finkelstein DAVID M. FINKELSTEIN

DATED: August 5, 2015

Case 1:10-cv-00976-CRC Document 398-1 Filed 08/05/15 Page 1 of 1

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