Armstrong Discovery Issues

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)

RELATOR’S SUMMARY OF DISCOVERY DISPUTES ARISING FROM THE

DEPOSITION OF LANCE ARMSTRONG AND RELATING TO 1) THE

AUTHENTICITY OF THE ARMSTRONG LIE VIDEO AND TRANSCRIPT, AND

2) WHETHER ARMSTRONG REVIEWED HIS COMPLAINT AGAINST USADA

Case 1:10-cv-00976-CRC Document 440 Filed 10/19/15 Page 1 of 5

1

I. THE ARMSTRONG LIE

Relator is seeking to authenticate video footage of defendant Armstrong from The

Armstrong Lie – a 2013 documentary detailing Armstrong’s lies about his doping. In an

effort to complete the authentication in an efficient manner, relator provided a video and

transcript of the documentary to Armstrong in advance of his September 24, 2015

deposition and advised him of the questions he would be asking,1 but Armstrong

nonetheless testified in his deposition that he had never seen the movie.2 Relator was

thus unable to authenticate the video footage of Armstrong during the deposition.3

When Federal Rule of Civil Procedure 30 was amended to include time limits on

depositions, the accompanying Committee Note stated that “[i]n cases in which the

witness will be questioned about numerous or lengthy documents, it is often desirable for

the interrogating party to send copies of the documents to the witness sufficiently in

advance of the deposition so that the witness can become familiar with them.” Fed. R.

Civ. P. 30, Committee Note on Rules – 2000 Amendment (hereinafter “Committee

Note”). Although counsel for Armstrong has repeatedly cited the Committee Note as the

appropriate procedure to follow, see, e.g., Scott Decl. at ¶ 3 & Ex. A, Mr. Armstrong

nevertheless declined to follow that procedure himself. Moreover, he failed to read the

entire transcript, testifying only that he had read it “for the most part.” Id. at 694:13-15.

His counsel then objected to most of relator’s questions pertaining to the authenticity of

the transcript and video on grounds of lack of foundation or that the questions called for

1 See Declaration of Paul D. Scott (“Scott Decl.”), Ex. B, Armstrong Depo. Exs.

597 (cover letter from relator’s counsel) & 598 (transcript of The Armstrong Lie). 2 Id. at 693:21-23 (“I haven’t seen the movie . . . .”); see also id. at 694:6-12;

695:11-19. Notably, Armstrong was extensively involved in the film, permitting the

filmmaker to accompany him during the 2009 Tour de France and sitting for multiple

interviews before and after his admission to doping on Oprah Id. at Exh. 598, passim. 3 This was relator’s first opportunity to depose Mr. Armstrong. After the

Government took Armstrong’s deposition, relator moved for time to examine him on

several topics, including, inter alia, “video footage of misrepresentations by Mr.

Armstrong and others.” ECF No. 400 at 2. The Court granted relator two hours to

depose Mr. Armstrong. ECF No. 412. The Armstrong Lie is 2 hours and 4 minutes long.

Scott Decl. at ¶ 2.


2

speculation. Id., Ex. B. Moreover, Armstrong did not answer relator’s questions with

specificity. See Scott Decl. at ¶ 4 & Ex. B.

The Committee Note states that “[s]hould the witness nevertheless not read the

documents in advance, thereby prolonging the deposition, a court could consider that a

reason for extending the time limit.” Accordingly, the formal relief being sought here is

additional deposition time. See Fed. R. Civ. P. 30(d)(1) (“The court must allow

additional time . . . if needed to fairly examine the deponent or if the deponent, another

person, or any other circumstance impedes or delays the examination.”).4

As relator’s counsel explained in the meet and confer process, however, relator is

not looking to inconvenience Mr. Armstrong or cause unnecessary expense for the parties

if it can be avoided. Relator proposed the straightforward solution that Armstrong simply

stipulate to the authenticity and accuracy of the video footage where Mr. Armstrong

speaks or appears, so as to save the parties and the Court the very considerable time,

expense and inconvenience of later authenticating the multiple different pieces of video

footage, including archived footage from several different sources, at trial.

Armstrong’s counsel has refused to so stipulate, saying that it should be enough

that Armstrong stated in his deposition that his statements in the transcript were accurate

“if the statements were taken off of the documentary where I was being interviewed and

sitting there and it was me and my mouth was moving . . . .” Scott Decl., Ex. B,

Armstrong Depo at 694:25-695:3. The manifest problem with this testimony, however, is

that since Mr. Armstrong is claiming he has never seen the movie, his testimony lacks

foundation, which is precisely what Mr. Armstrong’s counsel repeatedly asserted as an

objection in the deposition. Id., Ex. B. Similarly, Mr. Armstrong’s failure to

acknowledge reading the transcript in full creates uncertainty as to whether his

authenticating testimony applies to any particular part of the transcript.

4 It is well-established that the authenticity of documents or exhibits is a proper

subject of discovery. See, e.g., Wilson v. Hunam Inn, Inc., Civ. Action No. 14-1522

(EGS), 2015 WL 5158721 at *5 (D.D.C. Sept. 1, 2015) (summary judgment denied to

allow plaintiff discovery to “test the accuracy and authenticity” of defendant’s exhibits).


3

II. ARMSTRONG’S COMPLAINT AGAINST USADA

Armstrong’s counsel improperly instructed Armstrong not to answer whether he

had reviewed his federal complaint against USADA in Texas before it was filed. Scott

Decl., Ex. C, Armstrong Depo. at 618:13-25 & 619:5-11. In an effort to resolve this

matter efficiently after the deposition, relator proposed that Armstrong simply provide an

answer in writing--in the form of an interrogatory response or in his errata to the

deposition transcript--as to whether he had read the original complaint in the USADA

case before it was filed (rather than the amended complaint which was filed after the

court dismissed the original complaint sua sponte). Armstrong, however, maintains that

he will only answer the precise question posed in the deposition, which did not include

the word “original.” Id., Ex. D.5

Armstrong’s position is inconsistent with clear authority permitting follow-up

deposition questions when testimony was initially foreclosed by improper objections.6

Accordingly, relator is again left with no alternative but to seek more time to depose Mr.

Armstrong unless he will agree or is ordered to respond in writing as to whether he read

the original complaint in his case against USADA before it was filed.

The United States concurs with relator’s position on these issues.

5 It is unclear whether Armstrong is still maintaining his privilege claim as to the

question posed by relator. Relator did not ask, and does not seek to ask, whether counsel

transmitted the complaint to Armstrong or anything else about Armstrong’s

communications with counsel, but only whether Armstrong himself read the complaint.

Only communications regarding advice, and not underlying facts, are protected by the

privilege. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 6 See, e.g., Ferrand v. Schedler, No. 2:11-cv-00926-JTM-JCW, 2012 WL 3016219

at *6 (E.D. La. July 23, 2012) (after overruling improper instruction not to answer, court

ordered that “This question and any follow-up questions reasonably related to it must be

answered when the deposition is re-commenced.”); see also Burns v. Georgetown Univ.

Medical Ctr., Civil Action No. 13-898 (CKK), 2015 WL 3413477 at *1 (D.D.C. May 28,

2015) (“Pursuant to Rule 37, a district court has broad discretion to impose sanctions for

discovery violations.”) (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S.

639, 642-43 (1976) (per curiam)); id. at *4-5 (overruling in part counsel’s instructions not

to answer questions about an email on basis of attorney-client privilege and granting

motion to compel deposition testimony as to the non-privileged topics).


4

Dated: October 19, 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


1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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

RELATOR’S SUMMARY OF DISCOVERY DISPUTES ARISING FROM

THE DEPOSITION OF LANCE ARMSTRONG

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. I

provide this declaration in support of Relator’s Summary of Discovery Disputes

Arising From the Deposition of Lance Armstrong.

2. The video of The Armstrong Lie has a running time of approximately 2

hours and 4 minutes, as shown by the transcript of the movie which I have reviewed

and on Internet Movie Database, see http://www.imdb.com/title/tt1638364/.

3. Attached hereto as Exhibit A is a true and correct copy of an excerpt

from the transcript of the deposition of William Stapleton taken on July 30, 2015, in

which counsel for Armstrong stated, in relevant part: “Federal Rule of Civil

Procedure 30 and the comments to Rule 30 specifically provide that if counsel wants

witness to review documents, they should send them to them in advance . . . .”

Case 1:10-cv-00976-CRC Document 440-1 Filed 10/19/15 Page 1 of 3

http://www.imdb.com/title/tt1638364/

2

Counsel for Armstrong also made several additional similar objections during the

deposition based on Rule 30.

4. Attached hereto as Exhibit B is a true and correct copy of an excerpt

from the transcript of the deposition of Lance Armstrong on September 24, 2015 (and

accompanying exhibits 597 and 598 concerning The Armstrong Lie), including

Armstrong testifying only in generalities as to matters concerning the authenticity of

the video and transcript, such as: he was “assuming” the video footage was authentic,

693:24-694:5; he “would hope so” that his statements were accurately reflected in the

transcript, 694:5-9; and that there were not any instances “that I’m aware of” where

the transcript was inaccurate (694:16-20), where a different question had actually

been asked of him than the one he appeared to be answering on the video (696:7-18),

or where a different person was listed in the transcript than was actually talking

(697:3-10).

5. Attached hereto as Exhibit C is a true and correct copy of an excerpt

from the transcript of the deposition of Lance Armstrong on September 24, 2015

showing counsel for relator’s question regarding whether Mr. Armstrong reviewed

the complaint in his action against USADA in federal district court in Texas prior to

its filing, and counsel for Armstrong’s instruction not to answer.

6. Attached hereto as Exhibit D is a true and correct copy of an email

exchange between me and Armstrong’s counsel dated October 5-9, 2015.

/

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/

/

/


3

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

foregoing is true and correct. Executed this 19th day of October, 2015.

.

PAUL D. SCOTT


1United States of America ex rel. Floyd Landis vs. William J. StapletonTailwind Sports Corporation, et al 7/30/2015

5115 NORTH GALLOWAY AVENUE, SUITE 202, MESQUITE (DALLAS COUNTY) TEXAS 75150STEVEN H. GENTRY & ASSOCIATES, INC. (214) 321.5333

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

2

3 UNITED STATES OF AMERICA )EX REL. FLOYD LANDIS )

4 ) NO. 1:10-CV-00976-CRCVS. )

5 )TAILWIND SPORTS CORPORATION,)

6 ET AL )7

8 -----------------------------------9 VIDEOTAPED DEPOSITION OF

WILLIAM J. STAPLETON10 JULY 30, 201511 ------------------------------------12

13

14

15

16 ANSWERS AND DEPOSITION OF WILLIAM J.17 STAPLETON, produced as a witness at the instance of18 the Plaintiffs, taken in the above-styled and19 -numbered cause on JULY 30, 2015, at 9:37 a.m., before20 CHARIS M. HENDRICK, a Certified Shorthand Reporter in21 and for the State of Texas, located at U.S. Attorney's22 Office, located at 816 Congress Avenue, Suite 1000, in23 the City of Austin, County of Travis and State of24 Texas, in accordance with the Federal Rules of Civil25 Procedure.


117United States of America ex rel. Floyd Landis vs. William J. StapletonTailwind Sports Corporation, et al 7/30/2015

5115 NORTH GALLOWAY AVENUE, SUITE 202, MESQUITE (DALLAS COUNTY) TEXAS 75150STEVEN H. GENTRY & ASSOCIATES, INC. (214) 321.5333

1 MR. JACOB: I am just going to note --

2 THE VIDEOGRAPHER: No. Do you want to go

3 back on the record, Counsel?

4 Mr. MCAULIFFE: Yeah, he's ready to go,

5 so let's go.

6 THE VIDEOGRAPHER: We are record back on

7 the record at 12:23 p.m.

8 MR. JACOB: And I'm just going to note

9 that while the witness was off the record, there was

10 some attempt to have him review documents off the

11 record. Federal Rule of Civil Procedure 30 and the

12 comments to Rule 30 specifically provide that if

13 counsel wants witness to review documents, they should

14 send them to them in advance, not attempt to have them

15 do it off the record during breaks from deposition

16 time.

17 Q. (By Mr. McAuliffe) Mr. Stapleton, if you

18 look at Page 1709.

19 A. I need a second to read this. 1709 and --

20 Q. And Line 12 where you were asked about rumors

21 about performance-enhancement --

22 A. Wait. I can't even fined 1709. Oh, here it

23 is. Okay.

24 MR. HARRIS: 1709, Line 12.

25 Q. (By Mr. McAuliffe) In particular, you are


In The Matter Of:United States ex rel. Landis v.

Tailwind Sports Corp., et al.

Lance Armstrong (Contains Confidential Testimony)

September 24, 2015

Behmke Reporting and Video Services, Inc.

160 Spear Street, Suite 300


(415) 597-5600

Original File 27772Armstrong.txt

Min-U-Script® with Word Index


United States ex rel. Landis v.Tailwind Sports Corp., et al.

Lance Armstrong (Contains Confidential Testimony)September 24, 2015

Page 693

1 (Recess.)

2 (Plaintiffs' Exhibits 597 and 598 were

3 marked for identification.)

4 THE VIDEOGRAPHER: We're back on the record.

5 The time on the video monitor is 4:22 P.M. Please

6 begin.

7 BY MR. SCOTT: 8 Q. Mr. Armstrong, what has been placed before 9 you is Exhibit No. 597, which is a letter dated10 September 18th, 2015, from me to your counsel, Elliot11 Peters, and Exhibit 598, which is a transcript of the12 film of THE ARMSTRONG LIE.13 Do you see those exhibits before you?14 A. Yes.

15 Q. Have you ever seen either of those documents16 before?17 A. I've seen this. I don't recall seeing this.

18 Q. The letter; is that right?19 A. Yeah.

20 Q. You have not seen the letter.21 Have you watched the movie THE ARMSTRONG22 LIE?23 A. I have not.

24 Q. So would you be able to tell us, one way or25 the other, whether the depiction of the statements

Page 694

1 that appear to be made by you in that movie are 2 accurate? 3 A. Well, I mean, I'm assuming if they're

4 showing the interviews and it's me speaking, then

5 they would be accurate.

6 Q. So do you have any reason to doubt the 7 authenticity of the video footage of you in the movie 8 THE ARMSTRONG LIE? 9 A. Well, I haven't seen the movie so it would

10 be -- it would be impossible, or it would be very

11 difficult, to truly confirm, but I'm assuming that

12 this is accurate.

13 Q. Have you -- and you've read this transcript;14 is that right? Exhibit 598.15 A. For the most part.

16 Q. Are there any parts of this transcript that17 are inaccurate, to your knowledge?18 MR. JACOB: Lacks foundation. Calls for

19 speculation.

20 THE WITNESS: Not that I'm aware of.

21 BY MR. SCOTT: 22 Q. Are the statements attributed to you in this23 transcript statements that you made, to the best of24 your knowledge?25 A. Yeah. Again, if -- if the statements were

Page 695

1 taken off of the documentary where I was being

2 interviewed and sitting there and it was me and my

3 mouth was moving, I would -- yeah.

4 Q. You believe those -- those would have been 5 accurately represented in this transcript; is that 6 correct? 7 MR. JACOB: Lacks foundation. Calls for

8 speculation.

9 THE WITNESS: And I -- yeah, I would hope so.

10 BY MR. SCOTT: 11 Q. And to the extent that the documentary was12 showing archival footage taken by someone other than13 the maker of the movie THE ARMSTRONG LIE, is that14 footage, to your knowledge, also accurately15 represented in this transcript?16 MR. JACOB: Lacks foundation. Calls for

17 speculation.

18 THE WITNESS: Yeah. I didn't see the movie.

19 So --

20 BY MR. SCOTT: 21 Q. But to the extent that it refers to comments22 that you made in archived footage, are there any23 statements attributed to you in this transcript that24 you believe were not, in fact, made by you?25 MR. JACOB: Lacks foundation. Calls for

Page 696

1 speculation.

2 THE WITNESS: I wouldn't -- I mean, again, if

3 it's -- if it's old footage, new footage, the

4 sit-down with Alex, if it's me and I'm talking and my

5 mouth is moving, that's me.

6 BY MR. SCOTT: 7 Q. Okay. And in this -- this transcript also 8 makes reference to questions being posed by you -- 9 excuse me. This transcript also makes reference to10 questions being posed by other people to which you're11 responding.12 In reading this transcript, did you see any13 instances where you thought that a different question14 had been asked than the one you were answering at the15 time that you were quoted in this transcript?16 MR. JACOB: Lacks foundation. Calls for

17 speculation.

18 THE WITNESS: Yeah. Not that I'm aware of.

19 BY MR. SCOTT: 20 Q. Okay. And does the transcript accurately21 list the names of the individuals with whom you were22 interacting when it lists who the person is that's23 being quoted in the transcript, to your knowledge?24 MR. JACOB: Vague and ambiguous. Compound.

25 Lacks foundation.

Min-U-Script® BEHMKE REPORTING AND VIDEO SERVICES, INC.(415) 597-5600

(73) Pages 693 - 696




Page 697

1 THE WITNESS: Yeah. I don't know.

2 BY MR. SCOTT: 3 Q. In other words, when you were the party to a 4 conversation, and the transcript lists the two 5 parties to the conversation -- 6 A. This is Alex Gibney; right?

7 Q. -- right -- so are you aware of any instance 8 where, gee, it was someone else other than the person 9 listed?10 A. I am not -- I am not aware of that.

11 Q. And to the extent that there are date12 references in here as to when the question was being13 posed to you to which you were responding, are you14 aware of any instances where the date references in15 this transcript are incorrect?16 MR. JACOB: Compound. Lacks foundation. Calls

17 for speculation.

18 THE WITNESS: Not that I'm aware of.

19 BY MR. SCOTT: 20 Q. Are you familiar with something called the21 Thrift Drug Triple Crown of cycling?22 A. Yes.

23 Q. Did you participate in that race in 1993?24 A. Yes.

25 Q. And did you --

Page 698

1 A. Well, the -- no. The Thrift Drug is one

2 race. The Triple Crown is a series of three races.

3 Q. Thank you for that correction. The three 4 races are the Thrift Drug Classic, the Kmart West 5 Virginia Classic, and the CoreState U.S. Pro 6 Championship; is that correct? 7 A. Correct.

8 Q. And it's essentially three separate races 9 that together are referred to as the Triple Crown; is10 that right?11 A. Were. I think they only did it one year.

12 So --

13 Q. Okay. Well, it was referred --14 A. It was referred to.

15 Q. -- to as the Triple Crown in 1993; correct?16 A. Correct.

17 Q. Did you pay Roberto Gaggioli any money to18 let you win the final stage of the Triple Crown?19 A. No.

20 Q. Did you ever pay him any money at all in21 1993?22 A. No.

23 Q. Or in 1994?24 A. Not that I'm aware of.

25 Q. Did you offer to pay any member of the Coors

Page 699

1 Light cycling team to let you win the final stage of 2 the Triple Crown in 1993? 3 A. No.

4 Q. Or any race that was part of the Triple 5 Crown in 1993? 6 A. No.

7 Q. Did anybody offer to pay any money on your 8 behalf to any member of the Coors Light cycling team 9 to allow you to win any stage of that race?10 A. I believe that Jim Ochowicz, perhaps Phil

11 Anderson, negotiated some package with Coors Light.

12 Q. And how is it that you believe that Jim13 Ochowicz did that?14 A. Because I heard that.

15 Q. From whom?16 A. From those guys. From Jim.

17 Q. Jim Ochowicz told you he negotiated a deal?18 A. Yeah. And Phil Anderson.

19 Q. And Phil Anderson. For them basically to20 not compete at their strongest level and allow you to21 win the race; is that right?22 MR. JACOB: Objection. Lacks foundation.

23 THE WITNESS: No. Well --

24 MR. JACOB: Calls for speculation.

25 THE WITNESS: -- I don't know if they

Page 700

1 competed -- I don't think they threw the race, but I

2 don't know -- I was so new to the sport, and that

3 side of the sport was so new to me, I wasn't very

4 clear on how that worked.

5 BY MR. SCOTT: 6 Q. Were you aware of the fact that they had 7 agreed to accept money in return for allowing you to 8 win, before you began the race? 9 MR. JACOB: Vague and ambiguous.

10 THE WITNESS: I don't recall. Probably.

11 Probably. But I don't recall exactly.

12 BY MR. SCOTT: 13 Q. And you still took the money?14 MR. JACOB: Vague and ambiguous. Misstates

15 prior testimony.

16 THE WITNESS: No. The team -- the team took the

17 money.

18 BY MR. SCOTT: 19 Q. And you were paid a part of that money that20 was given to the team; is that right?21 A. Yeah. It was split up amongst the team

22 members.

23 Q. And some was given to the Coors team as24 well; correct?25 A. I don't know. I don't know -- I don't know


(74) Pages 697 - 700





















































In The Matter Of:United States ex rel. Landis v.

Tailwind Sports Corp., et al.

Lance Armstrong (Contains Confidential Testimony)

September 24, 2015

Behmke Reporting and Video Services, Inc.

160 Spear Street, Suite 300


(415) 597-5600

Original File 27772Armstrong.txt

Min-U-Script® with Word Index




Page 617

1 BY MR. SCOTT: 2 Q. You're not aware of whether Mr. Stapleton 3 wrote a letter to the USC, on your behalf, attacking 4 Dick Pound? 5 MR. JACOB: Asked and answered. Same objection.

6 THE WITNESS: I'm not -- I'm not aware.

7 BY MR. SCOTT: 8 Q. Isn't it true that the IOC, in fact, 9 sanctioned Dick Pound as a result of the action that10 you initiated against him?11 A. I believe so.

12 Q. And do you know what impact that had on his13 career at the IOC?14 MR. JACOB: Calls for speculation. Assumes

15 facts.

16 THE WITNESS: I do not know.

17 BY MR. SCOTT: 18 Q. Do you recall USADA bringing proceedings19 against you in 2012?20 A. Yes.

21 Q. And do you recall filing a complaint in22 Texas, in the United States District Court in Texas,23 in an effort to stop USADA's action against you?24 MR. JACOB: Object on attorney-client privilege

25 grounds, and I instruct you not to answer, to the

Page 618

1 extent your knowledge comes from communications with

2 your attorneys. But if you have a separate basis for

3 that knowledge, you may answer.

4 THE WITNESS: I'm aware that we -- that we did

5 that.

6 BY MR. SCOTT: 7 Q. Right. And -- and you filed a complaint in 8 Texas, against USADA, in that connection; right? 9 MR. JACOB: Same -- asked and answered. Same

10 objections.

11 THE WITNESS: Yes.

12 BY MR. SCOTT: 13 Q. Did you read the complaint before it was14 filed?15 MR. JACOB: Objection. I object on

16 attorney-client privilege grounds, and I instruct you

17 not to answer.

18 MR. SCOTT: I'm not asking him what his comm- --

19 his attorneys spoke to him about. I'm asking if he

20 read that document before it was filed.

21 MR. JACOB: Do you have a question? I'm not

22 withdrawing my objection.

23 MR. SCOTT: All right.

24 MR. JACOB: If he got that document, he got it

25 because his attorneys transmitted it to him.

Page 619

1 BY MR. SCOTT: 2 Q. Did you -- did you read the document at any 3 point in time after it was filed? The complaint. 4 A. Not to my recollection.

5 Q. And are you refusing to answer whether you 6 read the complaint before it was filed? I want to 7 know if you're following your attorneys instruction. 8 MR. JACOB: I object on attorney-client

9 privilege grounds, and I instruct you not to answer,

10 to the extent the complaint was communicated to you

11 by your attorneys before it was filed.

12 BY MR. SCOTT: 13 Q. Once USADA had -- well, let me ask you this.14 Have you spoken with any politicians, relative to15 either the criminal or the USADA or the Department of16 Justice's civil proceedings against you?17 MR. JACOB: Compound. Vague and ambiguous.

18 THE WITNESS: Yeah. Can you just go one by one?

19 BY MR. SCOTT: 20 Q. Well, okay. Sure. Let me ask the question21 this way, perhaps.22 Have you ever spoken to any politicians on a23 subject relating to doping allegations against you?24 MR. JACOB: Vague and ambiguous.

25 THE WITNESS: Yes. I mean, I've known

Page 620

1 politicians through the years that are interested in

2 cycling and were curious.

3 BY MR. SCOTT: 4 Q. Which politicians have you spoken to on that 5 subject? 6 A. I don't recall exactly.

7 Q. Since 2010 -- do -- do you recall any of the 8 names of the politicians who you've discussed the 9 subject of doping?10 MR. JACOB: Asked and answered.

11 THE WITNESS: I don't recall exactly.

12 BY MR. SCOTT: 13 Q. You can't recall the names of any14 politicians that you've spoken to on the subject of15 doping; is that correct?16 MR. JACOB: This is asked and answered for the

17 third time.

18 THE WITNESS: Not to my recollection.

19 BY MR. SCOTT: 20 Q. Have you -- are you friendly with -- well,21 let me ask the question this way. Were you friendly22 with Bill Clinton before the USADA reasoned decision?23 MR. JACOB: Vague and ambiguous.

24 THE WITNESS: I was and still am friendly with

25 Bill Clinton.


(54) Pages 617 - 620


Subject: RE: US ex rel Landis v. Tailwind Sports Corp.From: "Paul D. Sco " <pdsco @lopds.com>Date: 10/9/2015 5:13 PMTo: "'Sharif E. Jacob'" <[email protected]>, "'Finkelstein, David M. \(CIV\)'"<[email protected]>CC: <[email protected]>, "'Golojuch, Ma hew C. \(CIV\)'" <Ma [email protected]>,"'Robert McAuliffe'" <[email protected]>, "'Valdez, Darrell \(USADC\)'"<[email protected]>, "'Elliot Peters'" <[email protected]>, "'R. James Slaughter'"<[email protected]>, "'Elizabeth K. McCloskey'" <[email protected]>, "'Chandler, Robert\(CIV\)'" <[email protected]>, <[email protected]>

Sharif,

I write to correctly memorialize the par es’ discussions regarding Armstrong’s deposi on.

With regard to the relator’s ques ons about Armstrong’s document produc on, we agreed to accept Armstrong’soffer with regard to the ques ons set forth at 231:13-22. We declined your offer as to the other ques ons I posed inthe deposi on rela ng to Mr. Armstrong’s document produc on, as your proposed solu on was inadequate.

With respect to Mr. Armstrong’s review of his complaint against USADA, I did not, as you claim, withdraw an offer ofcompromise. My request was clear in my ini al correspondence that we wanted Mr. Armstrong to confirm whether ornot he had reviewed the original complaint (which you stated in our discussion was how you interpreted my ques onas to whether he had “read the complaint before it was filed?"). I proposed again in our discussions that we wouldaccept Mr. Armstrong answering the ques on in wri ng to save him the inconvenience of reappearing. Whether thatwas handled in the errata, by Mr. Armstrong sta ng that he did or did not review his original complaint in his ac onagainst USADA, or by way of him responding to an interrogatory is not cri cal to us. We simply want an answer to theques on. Your argument that we should not be able to ask a different ques on than the precise ques on asked in thedeposi on is misplaced, as we would be en tled to ask a reasonable clarifying ques on if Mr. Armstrong was calledback to give further tes mony. Accordingly, we are happy to let the Court decide this issue.

With regard to the video and transcript, I explained how Mr. Armstrong’s tes mony was poten ally inadequate forpurposes of authen ca on, and I proposed that we could easily reach a s pula on regarding authen city (as alsodescribed below) to save both the par es and the Court unnecessary me and expense. I did not, as you claim,demand that Mr. Armstrong simply reread the transcript or watch the video for purposes of harassment. Again, weare fine with having the Court rule on this issue.

I would propose that the relator file a three page brief by next Friday rela ng to Mr. Armstrong’s deposi on, with Mr.Armstrong to respond by the following Friday. Please let me know if that ming is acceptable, and I will requestpermission with the Court to file on that schedule.

Paul

From: Sharif E. Jacob [mailto:[email protected]]Sent: Friday, October 09, 2015 10:41 AMTo: Paul D Scott; Finkelstein, David M. (CIV)Cc: Lani Anne Remick <[email protected]> ([email protected]); Golojuch, Matthew C. (CIV); Robert McAuliffe;Valdez, Darrell (USADC); Elliot Peters; R. James Slaughter; Elizabeth K. McCloskey; Chandler, Robert (CIV);[email protected]: RE: US ex rel Landis v. Tailwind Sports Corp.

RE:USexrelLandisv.TailwindSportsCorp.

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Paul:

I write to memorialize the par es’ agreements and disagreements regarding the relator’s sugges on to reopen LanceArmstrong’s deposi on for the second me.

The relator seeks to re-ask Armstrong ques ons about document produc on that invade his a orney-client privilege.Nevertheless, in an a empt to compromise, Armstrong offered to answer the ques ons you iden fied during ourOctober 7, 2015 telephone call subject to the relator’s and the government’s agreement not to argue that doing sowaives Armstrong’s privilege. We agreed that Armstrong will answer ques ons in wri ng via his deposi oncorrec ons to save the par es the inconvenience and expense of reconvening the deposi on. You and DavidFinkelstein, on behalf of the government, agreed not to argue waiver. However, the relator only accepted my offer asto the ques ons set forth at 231:13-22 of Armstrong’s September 24, 2015 rough transcript.

The relator also asked Armstrong to respond to the following ques on in wri ng, “Did you read the complaint beforeit was filed?” Armstrong agreed to the relator’s request, subject to the same non-waiver agreement by plain ffs.However, you subsequently withdrew the request and instead insisted that Armstrong answer a differentques on—one that the relator never asked during the deposi on or at any other me. We decline the relator’srequest to take new discovery a er the cutoff.

Finally, as reflected below, the relator ini ally asked Armstrong to watch and authen cate a documentary in which heappeared but had no role in producing or edi ng and has never seen. During his deposi on, Armstrong tes fied thathe made the statements shown in the documentary where “where [he] was being interviewed and si ng there and itwas [him] and [his] mouth was moving.” Armstrong 9/24/15 Tr. 266:13-19. The relator has not explained whataddi onal authen ca ng tes mony Armstrong could possibly give as a result of was ng two hours watching thedocumentary. And despite the fact that—at your request—Armstrong voluntarily read a transcript of thedocumentary and answered numerous ques ons about it, you demanded that he do so again. The relator’sever-increasing demands appear to have no purpose other than harassment, and we reject them.

In light of the foregoing, I see no need to have another call today. Don’t hesitate to contact me if you have anyques ons.

Regards,

Sharif E. JacobAttorney at Law

415 676 2237 direct | vCard | [email protected] Battery Street, San Francisco, CA 94111-1809 | 415 391 5400 main | kvn.com

From: Paul D Scott [mailto:[email protected]]Sent: Monday, October 05, 2015 3:36 PMTo: Sharif E. Jacob; Finkelstein, David M. (CIV)Cc: Lani Anne Remick <[email protected]> ([email protected]); Golojuch, Matthew C. (CIV); Robert McAuliffe;Valdez, Darrell (USADC); Elliot Peters; R. James Slaughter; Elizabeth K. McCloskey; Chandler, Robert (CIV);[email protected]: Re: US ex rel Landis v. Tailwind Sports Corp.

Sharif:


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I write to meet and confer regarding several issues stemming from Mr. Armstrong's reconvened deposition

1. Authentication of The Armstrong Lie: Despite my sending Elliot a copy of the Armstrong Lie video priorto Mr. Armstrong's second deposition, and despite my letting Elliot know in advance that I would bequestioning Mr. Armstrong regarding the video, Mr. Armstrong testified that he had not seen the movie, and Iwas therefore unable to question him as to the authenticity of the video in the time we had allotted. SeeRough Transcript at 264-68. The Committee Note to FRCP 30 provides that a witness' failure to review suchmaterials provided in advance of a deposition is grounds for seeking additional deposition time. SeeCommittee Notes on 2000 Amendment ("In cases in which the witness will be questioned about numerous orlengthy documents, it is often desirable for the interrogating party to send copies of the documents to thewitness sufficiently in advance of the deposition so that the witness can become familiar with them. Shouldthe witness nevertheless not read the documents in advance, thereby prolonging the deposition, a court couldconsider that a reason for extending the time limit."). Accordingly, it will be necessary for the relator tomove for additional deposition time to authenticate the scenes in the movie involving Mr. Armstrong unlesshe is prepared to stipulate to their authenticity. As Mr. Armstrong has already authenticated the transcript ofthe movie, I am hopeful that this will not be a significant issue. Please advise whether Mr. Armstrong isprepared to stipulate to the authenticity of the footage where he is either present or speaking in the movie.

2. Improper Privilege Objection Regarding Texas action against USADA: With respect to the action againstUSADA in Texas federal court, Mr. Armstrong was instructed not to answer the following question on thegrounds of attorney-client privilege: "Did you read the complaint before it was filed?" See Rough Transcriptat 192. The question does not call for any attorney-client communications, and the underlying facts are notprivileged. If you will not withdraw your objection, we will need to move to compel on this issue. If youelect to withdraw your objection, in order to save the parties the inconvenience and expense of reconveningthe deposition, we are prepared to accept a written answer by Mr. Armstrong as to whether he read hisoriginal complaint in his action against USADA before the complaint was filed.

3. Improper Privilege Objection Regarding Document Production: The attorney-client privilege objectionsregarding whether or not Mr. Armstrong reviewed the relator's or the Government's document requests areclearly improper. See Rough Transcript at approximately pp. 230-232. Please advise whether you willwithdraw those objections and permit Mr. Armstrong to answer.

Paul

Law Offices of Paul D. Sco , P.C.Pier 9, Suite 100, The EmbarcaderoSan Francisco, CA 94111Tel: (415) 981-1212Fax: (415) 981-1215

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