Los Angeles Times Communications v. Department of the Army

• Decision Date: 24 July 2006
• Docket Number: No. CV 05-8293 FMC (JWJX).,CV 05-8293 FMC (JWJX).
• Citation: 442 F.Supp.2d 880
• Parties: LOS ANGELES TIMES COMMUNICATIONS, LLC, Plaintiff, v. DEPARTMENT OF THE ARMY, et aL, Defendants.
• Court: U.S. District Court — Central District of California

442 F.Supp.2d 880

LOS ANGELES TIMES COMMUNICATIONS, LLC, Plaintiff, v. DEPARTMENT OF THE ARMY, et aL, Defendants.

No. CV 05-8293 FMC (JWJX).

United States District Court, C.D. California.

July 24, 2006.

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Alonzo B. Wickers, IV, Karen A. Henry, Kelli L. Sager, Davis Wright Tremaine, Karlene Worthington Goller, Los Angeles Times Legal Dept., Los Angeles, CA, for Plaintiff.

Tara M. La Morte, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

COOPER, District Judge.

This matter is before the Court on Defendants' Partial Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Summary Judgment (docket no. 12), filed May 22, 2006, and Plaintiff's Motion for Summary Judgment (docket no. 14), filed June 12, 2006. The Court has read and considered the moving, opposition, and reply documents submitted in connection with these motions. The matter was heard on July 24, 2006, at which time the parties were in receipt of the Court's Tentative Order. For the reasons and in the manner set forth below, the Court hereby GRANTS Defendants' Motion for Summary Judgment¹ and DENIES Plaintiff's Motion for Summary Judgment.

I. EVIDENTIARY OBJECTIONS

Plaintiff objects to various statements included in four of the five declarations submitted in support of Defendants' Motion.²

The first declaration is by Colonel Gary Pease, who currently serves as a Deputy in the Army Corps of Engineers. (Pease Decl. ¶ 1.) Colonel Pease has been in the army for twenty-two years, and he served as the Director of the Reconstruction Operations Center³ ("ROC") in Iraq from February 2005 through July 2005. (Id.) Colonel Pease's duties at his current job include planning, training, and intelligence management for the U.S. Army Corps of Engineers. (Id.) No description is given of his past duties as Director of ROC. In his declaration, Colonel Pease describes the U.S. mission in Iraq, how ROC operates to further the U.S. mission in Iraq, and the use of Serious Incident Reports ("SIRs") by ROC. (Id. at ¶¶ 2-5.)

The second declaration is that of Lieutenant Michael E. Jonasson, who is currently serving as a full-time Active Guard Reserve judge advocate. (Jonasson Decl. ¶ 1.) Lieutenant Jonasson has been in the Air Force for sixteen years and served as the Staff Judge Advocate for the Joint Contracting Command—Iraq ("JCC-I") and General Counsel for the Iraq Project and Contracting Office ("PCO") from February 2005 to July 2005. (Id.) His duties while serving in Iraq included providing support in all legal areas associated with military command, with an emphasis on managing legal issues arising from government contract formation and administrative actions related to reconstruction efforts. (Id.) Lieutenant Jonasson's involvement in this case was limited to assisting in collecting documents in response to Plaintiff's Freedom of Information Act ("FOIA") request. (Id. at ¶ 5.) In his declaration, Lieutenant Jonasson describes how the PCO responded to Plaintiff s FOIA request, how SIRs were submitted and entered into a database, how SIRs were used by the Army and private security contractors ("PSCs"), and how SIRs could be used by the insurgents. (Id. at ¶¶ 2-6.)

The third declaration is by Colonel Bjarne Michael Iverson. Colonel Iverson has been in the Army for twenty-one years and is currently serving as a Commander in the U.S. Army in Missouri. (Iverson Decl. ¶ 1.) From July 2005 to March 2006, Colonel Iverson was Director of ROC in Iraq. (Id.) Colonel Iverson does not describe any of his duties or responsibilities as Director of ROC. In his declaration, Colonel Iverson describes the role of PSCs in Iraq, the use of SIRs by ROC, and the response to the LA Times FOIA request. (Id. at ¶¶ 2-7.)

The fourth declaration is that of Colonel Wallace L. Dillon, who has been in the Army for twenty-four years and is currently deployed in Iraq, serving as the Director of ROC. (Dillon Decl. ¶ 1.) Colonel Dillon was Deputy Director of ROC from October 2005 through April 2006, and he now serves as Director of ROC. (Id.) Colonel Dillon's duties as Deputy Director are not described in his original declaration ("Dillon Decl."). In his initial declaration, Colonel Dillon describes the U.S. Army's mission in Iraq, the purpose of ROC, the use of SIRs by PSCs and ROC, and how the release of SIRs to Plaintiff could aid the enemy. (Id. at ¶¶ 2-18.)

On June 26, 2006, Defendants filed two supplemental declarations by Colonel Dillon. (Def.'s Consol. Mot./Opp'n Exs. G.)

In the first supplemental declaration ("Dillon Supp.1"), Dillon describes his prior duties and training in the army in great detail. (Dillon Supp.1 ¶¶ 1-2.) Dillon also describes his specific duties as Director of ROC and how he has gained specific knowledge of the U.S. mission in Iraq (Id. at ¶¶ 2-6), and he explains that his past training and experience, together with his review of "hundreds of SIRs reports from PSCs," provide him with "significant experience regarding how insurgents operate in Iraq, how they target certain groups, individuals, or infrastructure that they ascertain are vulnerable, and how they change their tactics over time in response to the situation in the theater." (Id. at ¶ 12.) The majority of the remainder of Dillon's first supplemental declaration explains the role and significance of SIRs in the context of the ROC's operations in Iraq (Id. at ¶¶ 10-15) and illustrates how certain information contained in SIRs, e.g., information about the effectiveness of a weapons system tested by the insurgents, may be used by insurgents to "conduct battle damage assessments and vulnerability assessments" if the insurgents also have information regarding the specific PSCs affected by the testing. (Id. at ¶ 11.)

In his second supplemental declaration ("Dillon Supp.2"), Dillon clarifies that the placards PSCs use to identify themselves when traveling in Iraq "are standard 8½" × 11" in size" and are "placed in the window of the vehicle, normally on the driver's side dash." (Dillon Supp.2 ¶ 2.)⁴

1. Objections for Lack of Personal Knowledge:

Plaintiff objects to portions of all four declarations on the basis of lack of personal knowledge. Fed.R.Evid. 602.⁵

Generally, Rule 602 requires that a witness' testimony be based on events perceived by the witness through one of the five senses. This rule operates to ensure that decisions are based on the best evidence available. Although first-hand observation is the most common form of personal knowledge, first-hand observation is not the only basis for personal knowledge. See Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1155 (9th Cir.2000) (finding a Vice President of Corporate Services had sufficient personal knowledge of company procedures to testify that his employer contributed directly to its employee insurance plan).

Plaintiff notes that a witness must have both the opportunity to perceive an event and must have actually perceived it. Most of Plaintiff's objections for lack of personal knowledge relate to statements made by the declarants about practices put in place before they were employed at ROC. However, Plaintiff fails to appreciate that a declarant can testify about practices or procedures in place before the witness was employed with the organization about which he is relating information. See U.S. v. Thompson, 559 F.2d 552, 554 (9th Cir. 1977) (finding a manager of a restaurant had ample personal knowledge to testify what normal company procedures were on a date prior to his employment).

Here, Plaintiff's objections to portions of the Jonasson declaration are SUSTAINED because it is unclear how Jonasson, in his role as General Counsel, acquired personal knowledge of the procedures for entering SIRs into the database, the role of PSCs, etc. However, the Court need not, and did not, rely on the Jonasson declaration for this information. The Court is persuaded that it is reasonable that each of the other three declarants (Dillon, Pease, and Iverson), Army officers in leadership positions with respect to entry and use of SIRs at the ROC and the role of PSCs in Iraq, demonstrated sufficient personal knowledge to provide competent testimony on these topics. Therefore, Plaintiffs remaining objections for lack of personal knowledge are OVERRULED because the declarants established that their testimony is based on personal knowledge acquired through their positions and performance of their job duties.

2. Improper Lay Opinion:

Plaintiff also objects to portions of the Dillon and Jonasson declarations as improper lay opinion.⁶ Plaintiff focuses on the third requirement of Rule 701-testimony cannot be based on scientific, technical, or otherwise specialized knowledge.

This third requirement was added to Rule 701 via amendment in 2000 to prevent parties from evading the reliability requirements set forth in Rule 702 by proffering expert testimony under the guise of lay opinion testimony. See Fed. R.Evid. 701 Adv. Comm. Note (2000). The Advisory Committee specifically notes that this amendment is meant to prevent non-experts from testifying using "a process of reasoning which can be mastered only by specialists in the field." Id. Instead, lay witnesses should employ a "process of reasoning familiar in everyday life." Id.

Generally, lay witnesses can testify to inferences or opinions that are drawn from a series of personal observations over time. See U.S. v. Holmes, 229 F.3d 782, 788-89 (9th Cir.2000) (witness's six previous " thirty-minute meetings with defendant provided sufficient foundation for her lay opinion testimony identifying him on a surveillance tape). Additionally, courts may allow lay witnesses to testify to opinions based on a combination of their personal observations regarding the incident in question and their...