Armstrong refused to answer Landis questions

IN THE 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. 10-cv-00976 (CRC)

RELATORS SUMMARY OF ISSUES RELATING TO 1) RELATORS FIRST SET OF REQUESTS FOR ADMISSIONS,

2) MISSING WILLIAMS & CONNOLLY DOCUMENTS, AND

3) CONFIDENTIAL DONOR NAMES

Case 1:10-cv-00976-CRC Document 429 Filed 09/21/15 Page 1 of 6

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A. Relators First Set of Requests for Admissions

Armstrong has failed to respond to the vast majority of relators First Set of

Requests for Admissions (RFAs). The RFAs request that Armstrong admit or deny

using anabolic steroids, erythropoietin (EPO), human growth hormone (HgH), blood

doping, corticosteroids, or any other prohibited substance or method in each race he is

believed to have raced in from 1998 to 2004. See Scott Decl., Ex. A, Armstrongs

Responses to Relators RFAs. They also ask him to admit or deny that he knew each

such substance or method was prohibited by the UCI or the IOC on a year-by-year basis.1

Id. Due to the number of PEDs taken by Armstrong and the number of races in which he

is believed to have raced for USPS, there are 435 RFAs, but Armstrong has only

responded to 16. Id. In meet and confer discussions, Armstrong has contended that the

number of requests is unduly burdensome. This objection, however, along with the other

boilerplate objections included in Armstrongs responses, is without merit.

A party responding to requests for admission must admit or specifically deny

the matter stated, or -- after making a reasonable inquiry -- may assert lack of

knowledge or information as a reason for failing to admit or deny. Fed. R. Civ. P.

36(a)(4). Here, Armstrong has merely objected to the RFAs, without even representing

that he made any reasonable inquiry to attempt to answer them. Armstrongs

burdensomeness objection is thus not justified, and Armstrong should be ordered to

answer the RFAs. Tequila Centinela, S.A. de C.V. v. Bacardi & Co., 247 F.R.D. 198, 202

(D.D.C. 2008) (Unless the court finds an objection justified, it must order that an answer

be served. The court may order either that the matter is admitted or that an amended

answer be served.) (citing Fed. R. Civ. P. 36(a)(6)).

A party resisting discovery bears the burden to show why discovery should be

denied. Tequila Centinela, S.A. de C.V. v. Bacardi & Co., 242 F.R.D. 1, 8 (D.D.C.

2007). When objecting on grounds of burdensomeness, the objecting party must make a

specific, detailed showing of how the discovery is burdensome. Id. [T]he objector

1 There are a few specific additional RFAs inquiring into Armstrongs use of

Actovegin, an extract of calfs blood.


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must do more than just state the objection, the objector must submit affidavits or offer

evidence which reveals the nature of the burden. Id. (citing Chubb Integrated Systems

Ltd. v. National Bank of Washington, 103 F.R.D. 52, 59-60 (D.D.C. 1984)). Where no

such showing is made, the court must overrule the objection. Id; see also Alexander v.

FBI, 194 F.R.D. 299, 302 (D.D.C. 2000) (unreasonably cumulative and duplicative

objection overruled where objecting party failed to identify the duplicative discovery).

Here, Armstrong has made no showing at all as to why he cannot state whether or

not he doped during each of the events in which he raced under the banner of the USPS.

The mere fact that there are a large number of requests for admission is an insufficient

basis for objection. The large number here is necessary to cover each of the events in

which Armstrong raced for the USPS (approximately five to ten events in each of the

seven years 1998 through 2004), and because over time Armstrong used multiple

performance enhancing drugs. Numerous courts have ordered responses to similar

numbers of RFAs when justified by the facts of the case.2

Armstrongs counsel frequently argues that Armstrongs use of performance

enhancing substances is not disputed, but the reality is that Armstrongs admissions to

date have been carefully orchestrated and have not included relevant details. Moreover,

Armstrong has frequently sought to minimize his doping in his testimony and otherwise.

Plaintiffs should be entitled to counter these types of arguments by showing the extent of

Armstrongs doping with particularity. Moreover, the number of races in which

2 See, e.g., Layne Christensen Co. v. Purolite Co., No. 09-2381-JWL-GLR, 2011

WL 381611, at *3-7 (D. Kan. Jan. 25, 2011) (277 RFAs to one defendant and 329 to

another not excessive where plaintiffs had offered no evidence, by affidavit or otherwise, to support their suggestion that the requests do create an undue burden); Sommerfield v. City of Chicago, 251 F.R.D. 353, 355 n.3 (N.D. Ill. 2007) (177 RFAs (or

234 counting subparts) not per se excessive although some failed for other reasons);

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc ., No. 052164MLBDWB, 2007 WL 3171768, at *2-3 (D. Kan. Oct. 29, 2007) (total of 1351 RFAs served by

multiple defendants not unduly burdensome given the complex allegations and fact that

$121 million in damages was asserted); see also Wigler v. Elec. Data Sys. Corp., 108

F.R.D. 204, 206 (D. Md. 1985) (Where a case is particularly complex, a large number of requests for admission may be justifiable.).


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Armstrong doped while riding for USPS, along with the substances he used, goes to the

materiality and number of breaches of the Sponsorship Agreements. Responses to the

RFAs will narrow the issues and reduce the time needed on these topics at trial.

B. Williams & Connolly Documents

On or about July 22, 2015, relator requested that W&C prioritize production of a

subset of emails sent to non-privileged third parties. Scott Decl. at 3. W&C agreed and

identified 318 such documents that it determined were responsive and delivered those

documents to Armstrong. Id. On August 10, 2015, relator received a production from

Armstrong which combined the foregoing W&C production and another production into

one much larger production, so that it was impossible to identify the prioritized

documents and/or whether any had been withheld. Id. at 4. Relator objected and after

considerable back and forth, Armstrong provided the W&C Bates numbers for the

prioritized production, which allowed relator to see that 10 pages of documents had, in

fact, been withheld by Armstrong. Id. Armstrongs counsel has claimed that the

withheld documents were not shared with third parties, but that contention is contradicted

by W&Cs representations regarding the search criteria for the prioritized production. Id.

at 3. In light of the foregoing, relator seeks the Bates numbers of the withheld ten pages

and reliable confirmation that the ten pages have not been shared with third parties.

Relator also respectfully requests that Armstrong be required to produce the

remaining W&C documents. W&C has made three additional productions of documents

since Armstrongs last production on August 10th, for a total of five productions. Id. at

5. It was only on Saturday September 19, 2015, after relator had advised Armstrongs

counsel of his plans to contact the Court, that Armstrong finally produced W&Cs third

and fourth productions to relator. Relator has still not received W&Cs fifth production.

C. Confidential information re: donors to Floyd Fairness Fund

After a previous motion to compel by Armstrong, the Court ordered relator to

produce documents related to, inter alia, the Floyd Fairness Fund (FFF), on the ground

that the requested documents are potentially relevant to Relators credibility and bias


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against Armstrong . . . . ECF No. 366, Order of July 1, 2015. Relator and his criminal

defense counsel Wilson, Sonsini subsequently produced a large volume of documents

pertaining to the FFF and the criminal proceedings in the Southern District of California

involving Mr. Landis. Those documents included redacted copies of lists of donors to the

FFF. Armstrong now seeks unredacted copies of the donor lists.

As a threshold matter, the names of the donors to the FFF are manifestly not

relevant to the merits in this case. Moreover, relator has already admitted in writing that

he made false representations to the donors. Accordingly, disclosure of the previously

undisclosed identities of the non-party donors and their financial information would not

be proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1).

Separately, Armstrongs request also runs counter to the confidential treatment of

the donor names by the District Court for the Southern District of California. During the

Landis criminal proceeding and through the present, the names and contributions of

donors have been specifically treated as confidential by the USAO and the Court. The

Deferred Prosecution Agreement (DPA) provided for the donors continued anonymity,

referring to them as certain donors and requiring that A confidential list of donors will

be provided to the Clerk of the Court within 90 days from the time this Agreement is

filed. See ECF No. 225-15, DPA, section VII. The District Courts subsequent Order

incorporated the DPA by reference and further provided for confidential notification to

the Court Clerk of the identity of any individuals who did not wish to receive restitution.

Scott Decl. 6, Ex. B.

In light of the foregoing, it is not sufficient to say that there is a protective order

available in this case, for neither the United States nor the District Court for the Southern

District of California has advised relator that the information at issue should be made

available to Mr. Armstrong or the other defendants in this case, and the third parties

whose privacy interests are at stake have not had an opportunity to assert their objections.


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Dated: September 21, 2015 Respectfully submitted,

____________/s/________________

Paul D. Scott

[email protected]

California State Bar No. 145975

Admitted Pro Hac Vice

____________/s/________________

Lani Anne Remick

[email protected]

California State Bar No. 189889

U.S.D.C. No. PA0045

Jon L. Praed

U.S.D.C. No. 450764

D.C. Bar No. 51665

LAW OFFICES OF PAUL D. SCOTT, P.C.

Pier 9, Suite 100

San Francisco, California 94111

Tel: (415) 981-1212

Fax: (415) 981-1215

Attorneys for Relator Floyd Landis


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IN THE UNITED STATES DISTRICT COURT


UNITED STATES OF AMERICA

ex rel. FLOYD LANDIS ,

Plaintiffs,

v.

TAILWIND SPORTS CORPORATION,

et al.,

Defendants.

___________________________________

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No. 1:10-cv-00976-CRC

DECLARATION OF PAUL D. SCOTT IN

SUPPORT OF SUMMARY OF ISSUES RE

1) RELATORS FIRST SET OF REQUESTS FOR ADMISSIONS, 2) MISSING WILLIAMS & CONNOLLY DOCUMENTS, AND

3) CONFIDENTIAL DONOR NAMES

I, PAUL D. SCOTT, declare as follows:

1. I am an attorney duly licensed by the State of California, and my firm

the Law Offices of Paul D. Scott, P.C., is counsel for relator Floyd Landis. I am

admitted pro hac vice to practice before this Court in the above-titled action.

2. Attached hereto as Exhibit A is a true and correct copy of Lance

Armstrongs Responses and Objections to Relators First Set of Requests for

Admissions dated August 21, 2015.

3. On or about July 22, 2015, relator requested that W&C prioritize its

production of a subset of emails that were sent to non-privileged third parties. W&C

agreed, and counsel for W&C described these documents as follows in a July 23,

2015 email to relator:

Case 1:10-cv-00976-CRC Document 429-1 Filed 09/21/15 Page 1 of 3

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Following up on our telephone discussion yesterday, we have run a search

through our already-collected documents to identify those that contain the

following terms in the email metadata fields for "to," "from," "cc" and "bcc":

@uci.ch

[email protected]

[email protected]

[email protected]

[email protected]

@afld.fr

W&C subsequently identified 318 such documents that it determined were responsive

and delivered those to Armstrong on July 28, 2015.

4. On August 10, 2015, relator received a production of documents from

Armstrong which combined the foregoing production with another separate W&C

production into one much larger production so that it was impossible to identify the

prioritized documents and/or whether any had been withheld. Relator objected and

after considerable back and forth, Armstrong provided the W&C Bates numbers for

the prioritized production, which allowed relator to see that 10 pages of documents

had, in fact, been withheld.

5. W&C has made three additional productions on August 14, August

28, and September 15 - since Armstrongs last production of W&C documents to the

relator on August 10th, for a total of five productions. It was only on Saturday

September 19, 2015, however, after relator had advised Armstrongs counsel of his

plans to contact the Court, that Armstrong finally produced documents from the third

and fourth W&C productions. Relator has still not received the documents produced

in W&Cs fifth production.


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6. Attached hereto as Exhibit B is a true and correct copy of an Order in

the matter United States v. Landis, Case No. 12CR3481-BEN (S.D. Cal.) filed on

March 8, 2013.

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

foregoing is true and correct. Executed this 21st day of September, 2015.

/s/ .

PAUL D. SCOTT


979791

UNITED STATES DISTRICT COURT


UNITED STATES OF AMERICA, ex rel. FLOYD LANDIS,

Plaintiffs,

v.

TAILWIND SPORTS CORP., et al.,

Defendants.

Civil Action No. 1:10-cv-00976-CRC

ECF

LANCE ARMSTRONGS RESPONSES AND OBJECTIONS TO RELATORS FIRST SET OF REQUESTS FOR ADMISSIONS


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Pursuant to Rules 26 and 35 of the Federal Rules of Civil Procedure, defendant Lance

Armstrong (Armstrong), through his undersigned counsel, hereby responds to the relators First

Set of Requests for Admission.

GENERAL OBJECTIONS

1. Armstrong objects that the requests for admission are disproportionate to the

needs of the case, unreasonably cumulative and duplicative, and burdensome. Fed. R. Civ. Proc.

26(b)(1), (b)(2)(C). The relator has served four-hundred thirty-five requests for admission

seeking information that is duplicative of prior request to Armstrong and already within his

possession. Courts routinely disallow requests for admission that run into the hundreds on the

grounds that they are abusive, unreasonable, and oppressive. Tamas v. Family Video Movie

Club, Inc., 301 F.R.D. 346, 346 (N.D. Ill. 2014).

2. Armstrongs responses are based upon a reasonable inquiry and his current

knowledge.

3. Armstrong objects to each request to the extent that it seeks information that is

protected by the attorney-client privilege, work product doctrine, joint defense privilege,

common interest privilege, and/or any other applicable privilege. Any disclosure of such

protected or privileged information is inadvertent and not intended to waive those privileges or

protections.

4. Armstrong objects to each request to the extent that it purports to require him to

disclose information in violation of a legal or contractual obligation of nondisclosure to a third

party. Armstrong will not provide such information without the consent of the relevant third

party or court order.

5. Armstrong objects to the each request to the extent that it seeks information

obtainable by the relator from other sources that can provide the requested information more

conveniently, more easily and less expensively than can Armstrong.


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6. Armstrong objects to each request to the extent it is phrased in absolute terms. If

a request asks for all, every or any information on a particular subject, Armstrong, in responding

to such request, will undertake to supply information known to him at the time of the response

after a reasonable inquiry, and will not undertake any obligation, express or implied, to represent

that the response includes all, every or any of the information that may exist.

7. Armstrongs responses to any request are not intended to and shall not constitute

an admission or agreement that any matter inquired into or any response provided is in any way

relevant to any claim or issue in this action. Armstrong expressly reserves all evidentiary

objections to the time of trial.

OBJECTIONS TO INSTRUCTIONS

1. Armstrong objects to Instruction No. 1 to the extent it purports to impose any

obligation beyond the requirements of Federal Rule of Civil Procedure 26(e) or inconsistent with

Federal Rule of Civil Procedure 36(b).

2. Armstrong objects to Instruction No. 2 to the extent it renders any request

incomprehensible.

OBJECTIONS TO DEFINITIONS

1. Armstrong objects to the definitions of Anabolic Steroid as vague, ambiguous,

and requiring medical and scientific knowledge.

2. Armstrong objects to the definitions of Corticosteroid as vague, ambiguous, and

requiring medical and scientific knowledge.

3. Armstrong objects to the definitions of Blood Doping as vague, ambiguous, and

overbroad. Armstrong understands Blood Doping to mean the transfusion of ones own

previously-extracted blood.

4. Armstrong objects to the definition of Prohibited Substances or Methods as

vague, compound, overbroad, burdensome, superfluous, and seeking irrelevant information that


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is not proportional to the needs of the case. Armstrong also objects that the definition does not

incorporate a time frame, and is therefore overbroad, burdensome, and oppressive.

5. Armstrong objects to the definition of in connection with as vague and

ambiguous. Furthermore, as defined, it renders each request that uses the phrase compound.

RESPONSES TO REQUESTS FOR ADMISSION

REQUEST FOR ADMISSION NO. 1:

Admit that the use of anabolic steroids was prohibited by the rules of the UCI in 1998.

RESPONSE TO REQUEST FOR ADMISSION NO. 1:

Armstrong incorporates his General Objections, Objections to Instructions, and

Objections to Definitions, above as though set forth in this response. Armstrong objects to this

request on the grounds that it is overly broad, unduly burdensome, seeks irrelevant information,

and is not proportional to the needs of the case. Armstrong further objects to this request to the

extent it seeks information that is not within Armstrongs possession, custody or control.

Armstrong further specifically objects to this request to the extent that it seeks information

protected by the attorney-client privilege, attorney work product doctrine, or any other applicable

privilege or immunity. Armstrong objects to this request to the extent it is unreasonably

cumulative or duplicative of other requests.

Without waiving and subject to the foregoing general and specific objections, Armstrong

responds as follows: Admitted.


Admit that you knew the use of anabolic steroids was prohibited by the rules of the UCI

in 1998.





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Admit that the use of anabolic steroids was prohibited by the rules of the IOC in 1998.














Admit that you knew the use of anabolic steroids was prohibited by the rules of the IOC

in 1998.


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Admit that you used anabolic steroids in connection with professional cycling events in

1998.












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responds as follows: After a reasonable inquiry, Armstrong lacks sufficient recollection,

knowledge, and information to respond, and on that basis denies.


Admit that you used anabolic steroids in connection with the Tour de France in 1998.












responds as follows: Denied.


Admit that you used anabolic steroids in connection with the Clasica San Sebastian in

1998.








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Admit that you used anabolic steroids in connection with the Tour of Spain in 1998.















Admit that you used anabolic steroids in connection with the Zuri Metgette in 1998.


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Admit that you used anabolic steroids in connection with the Tour of Luxumbourg in

1998.












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Admit that you used anabolic steroids in connection with the Paris Tours in 1998.















Admit that the use of EPO was prohibited by the rules of the UCI in 1998.








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Admit that you knew the use of EPO was prohibited by the rules of the UCI in 1998.














Admit that the use of EPO was prohibited by the rules of the IOC in 1998.





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Admit that you knew the use of EPO was prohibited by the rules of the IOC in 1998.















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Admit that you used EPO in connection with professional cycling events in 1998.














Admit that you used EPO in connection with the Tour de France in 1998.












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responds as follows: Denied.


Admit that you used EPO in connection with the Clasica San Sebastian in 1998.














Admit that you used EPO in connection with the Tour of Spain in 1998.










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Admit that you used EPO in connection with the Zuri Metgette in 1998.














Admit that you used EPO in connection with the Tour of Luxumbourg in 1998.








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Admit that you used EPO in connection with the Paris Tours in 1998.














Admit that the use of HGH was prohibited by the rules of the UCI in 1998.






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Admit that you knew the use of HGH was prohibited by the rules of the UCI in 1998.














Admit that the use of HGH was prohibited by the rules of the IOC in 1998.


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Admit that you knew the use of HGH was prohibited by the rules of the IOC in 1998.




request on the grounds that it is overly broad, unduly burdensome, and seeks irrelevant

information. Armstrong further objects to this request to the extent it seeks information that is

not within Armstrongs possession, custody or control. Armstrong specifically objects to this

request to the extent that it seeks information protected by the attorney-client privilege, attorney

work product doctrine, or any other applicable privilege or immunity. Armstrong objects to this

request to the extent it is unreasonably cumulative or duplicative of other requests. Armstrong

further objects that the number of requests are abusive, unreasonable, and oppressive; that the

discovery sought is unreasonably cumulative and duplicative of admissions already within the

relators possession; and, that the admissions sought are not proportional to the needs of the case.


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Admit that you used HGH in connection with professional cycling events in 1998.














Admit that you used HGH in connection with the Tour de France in 1998.












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Admit that you used HGH in connection with the Clasica San Sebastian in 1998.














Admit that you used HGH in connection with the Tour of Spain in 1998.










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Admit that you used HGH in connection with the Zuri Metgette in 1998.














Admit that you used HGH in connection with the Tour of Luxumbourg in 1998.








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Admit that you used HGH in connection with the Paris Tours in 1998.














Admit that Blood Doping was prohibited by the rules of the UCI in 1998.






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Admit that you knew Blood Doping was prohibited by the rules of the UCI in 1998.














Admit that Blood Doping was prohibited by the rules of the IOC in 1998.


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Admit that you knew Blood Doping was prohibited by the rules of the IOC in 1998.














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Admit that you engaged in the practice of Blood Doping in connection with professional

cycling events in 1998.














Admit that you engaged in the practice of Blood Doping in connection with the Tour de

France in 1998.











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Admit that you engaged in the practice of Blood Doping in connection with the Clasica

San Sebastian in 1998.














Admit that you engaged in the practice of Blood Doping in connection with the Tour of

Spain in 1998.







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Admit that you engaged in the practice of Blood Doping in connection with the Zuri

Metgette in 1998.














Admit that you engaged in the practice of Blood Doping in connection with the Tour of

Luxumbourg in 1998.


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Admit that you engaged in the practice of Blood Doping in connection with the Paris

Tours in 1998.














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Admit that the use of corticosteroids was prohibited by the rules of the UCI in 1998.














Admit that you knew the use of corticosteroids was prohibited by the rules of the UCI in

1998.












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Admit that the use of corticosteroids was prohibited by the rules of the IOC in 1998.














Admit that you knew the use of corticosteroids was prohibited by the rules of the IOC in

1998.









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Admit that you used corticosteroids in connection with professional cycling events in

1998.














Admit that you used corticosteroids in connection with the Tour de France in 1998.






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Admit that you used corticosteroids in connection with the Clasica San Sebastian in 1998.














Admit that you used corticosteroids in connection with the Tour of Spain in 1998.


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relators possession; and, that the admissions sought a