Bohl v. Pryke

Bohl v. Pryke Bohl v. Pryke Filed 5/4/07 Bohl v. Pryke CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO NANCY K. BOHL et al., Plaintiffs and Respondents, v. RAYMOND PRYKE, Defendant and Appellant. E039392 (Super.Ct.No. SCV68052) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Reversed. Law Office of Stanley W. Hodge, Stanley W. Hodge and Arshak Bartoumian, for Defendant and Appellant. Cheong, Denove, Rowell & Bennett, and John D. Rowell, for Plaintiffs and Respondents. I. INTRODUCTION Nancy Bohl (Bohl) and her company, The Counseling Team (TCT), initiated this action against Raymond Pryke (Pryke) and other defendants after Pryke published a series of false and defamatory articles in three local newspapers which he personally owned and operated. The articles accused Bohl of various crimes and misconduct, resulting in causing her and TCT economic harm. Given the nature of the lawsuit, Pryke raised the California reporters shield laws[1]to avoid revealing his sources. Bohl and TCT (herein collectively referred to as Plaintiffs) moved to compel Pryke to answer. After Plaintiffs made a prima facie showing of falsity, the trial court ordered Pryke to answer the discovery. He failed to do so, and the trial court eventually granted Plaintiffs motion to strike Prykes answer and enter his default. Proceeding to the default prove-up trial, Plaintiffs introduced evidence to support their claims and request for damages. Thus, the court awarded damages, including punitive, and costs to Plaintiffs. Pryke appeals. II. PROCEDURAL BACKGROUND AND FACTS Bohl is a licensed psychotherapist with a Ph.D. in Psychology. She is the founder and president of her company, TCT. Bohl and TCT provided counseling services to San Bernardino law enforcement personnel from 1984 until 1999. TCT obtained such contracts over the years through a competitive bidding process. Years later, Bohl began a personal relationship with Sheriff Gary Penrod, whom she has since married. Shortly after her personal relationship with Penrod began, Bohl became the target of newspaper articles published by Pryke. Starting in 1999, Pryke, who is the publisher, editor, and author of the headlines for the articles, published a series of articles about Plaintiffs in three local newspapers that he personally owned and operated. The articles accused Bohl of various crimes and misconduct, such as sleeping with the sheriff to obtain the service contracts, cheating the County of San Bernardino on the bills for such services, and breaching the confidentiality of therapeutic dialogue by disclosing the content with the sheriff or other law enforcement brass. On June 16, 2000, Plaintiffs initiated this action against the reporter, the newspapers, and their editors/publishers. On April 10, 2001, defendants filed an untimely special motion to strike (anti-SLAPP motion) under Code of Civil Procedure section 425.16, the Strategic Lawsuit Against Public Participation, (SLAPP) statute. On July 3, 2001, Pryke was identified as Doe 1. He joined in the anti-SLAPP motion. In order to respond to the motion, Plaintiffs sought specific discovery. Pryke failed to respond to the discovery. Instead, he raised Californias shield law (see fn. 1, ante) to avoid revealing his sources. On January 11, 2002, Plaintiffs moved to compel responses to the discovery sought, and the trial court followed the procedure required by Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell). Mitchell allows a court to require a plaintiff to make a prima facie showing of falsity before a media defendant must reveal purported sources. On November 12, 2002, the trial court found that Plaintiffs had met the standard in Mitchell, supra, 37 cal.3d 268, and ordered Pryke to answer certain questions. Pryke neither answered the questions nor filed a writ with this court regarding the courts ruling. Instead, prior to the court-ordered deadline, the parties agreed to stay the all-matters-pending mediation. The case did not settle. On May 13, 2003, Plaintiffs attempted to revoke the stay and obtain the discovery identified in the November 12, 2002, order. Further attempts at mediation were made by the parties; however, by August 2003, Plaintiffs wanted the discovery responses because it did not appear that further mediation would help. On September 17, 2003, Plaintiffs moved for terminating sanctions on the grounds that Pryke failed to provide the discovery responses pursuant to the November 12, 2002, order. Pryke obtained new counsel and filed a petition for writ of mandate or prohibition with this court on October 20, 2003.[2] We denied the writ, and on November 5, 2003, the trial court granted Plaintiffs motion and struck Prykes answer, thus entering his default. On July 15, 2004, following the entry of Prykes default, Plaintiffs dismissed their case against the reporter and proceeded against Pryke only. On October 6, 2005, the court conducted a prove-up hearing. After hearing the evidence, the court found in favor of Plaintiffs on October 21. Bohl was awarded $750,000 for emotional distress and $750,000 for injury to her reputation. TCT was awarded $500,000 for its economic damages. After finding clear and convincing evidence of malice, and specifically finding the conduct to be egregious, repetitive, and manifold, the court awarded to Plaintiffs $1,000,000 in punitive damages, based on evidence of Prykes financial condition. Plaintiffs also received an award of costs in the amount of $10,839. III. ORDER GRANTING TERMINATING SANCTIONS Citing to the United States and California Constitutions, Pryke contends that he was denied his constitutional rights when the trial court granted terminating sanctions against him. He argues that the courts order was completely arbitrary, capricious and unlawful. While Pryke cites to case law that supports his claim that terminating sanctions are subject to limitations, he fails to provide any argument, let alone citation to the record, as to how the trial court abused its discretion and denied him his constitutional rights under the facts in this case. Instead, the first time that he offers any support for his contention is in his reply brief. Ordinarily, we will not consider an issue raised in this way (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 55; Camp v. Boyd (1919) 41 Cal.App. 83, 87); however, because Plaintiffs thoroughly addressed the issue in their respondents brief, we have chosen to address it on the merits. Putting aside Prykes due process claim for the moment, we turn to his claim that the trial court abused its discretion in granting Plaintiffs motion for terminating sanctions. Before we begin our analysis, we must point out that in his opening brief, Pryke challenges the trial courts November 5, 2003, order granting the terminating sanctions; however, in his reply brief, he references the paperwork he filed subsequent to the courts decision and in support of his January 6, 2004, motion to reconsider motion for sanctions. The information provided to the court after the court rendered its decision is irrelevant. (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 706.) Moreover, Pryke has not challenged the courts decision regarding his motion to set aside order for sanctions. Thus, in reaching our decision, we only consider the evidence in the record that was before the court when it rendered its decision in November 2003. In order to understand why the trial court believed that only terminating sanctions were appropriate, we need to examine the procedural history of the case. On June 16, 2000, Plaintiffs initiated this action.[3] Service of the summons on all named defendants was completed in August 2000. Although the defendants were originally represented by Ewaniszyk & Higgins, on October 19, 2000, a substitution of counsel was filed identifying Reid & Hellyer as defendants attorneys of record. The Register of Actions notes that on December 8, 2000, Plaintiffs filed a motion to compel the deposition of Mark Gutglueck. As of January 12, 2001, the parties were setting the deposition, and the motion to compel was identified as being continued by stipulation or taken off calendar. By January 22, 2001, the deposition had occurred and the motion to compel was deemed moot. On April 10, 2001, defendant filed an anti-SLAPP motion. Nine days later, on April 19, Plaintiffs filed a motion to compel further responses to questions at deposition of Gutglueck. On April 26, 2001, Plaintiffs further moved to strike the anti-SLAPP motion and for an order lifting the discovery stay. As a result of the anti-SLAPP motion, all discovery proceedings were stayed. (Code Civ. Proc., 425.16, subd. (g).) On May 8, 2001, when the motion for order lifting discovery stay was to be heard, the clerks minutes state: MATTER IS CONTINUED AT REQUEST OF COURT. . . . THE COURT RESETS THE MOTIONS FROM TODAY AND WILL RESET THE DEFENDANTS SLAPP MOTION IF NECESSARY. THE MOTION TO COMPEL SET FOR 5/21/01 IS STATUTORILY STAYED UNTIL THE HEARING OF THESE MOTIONS AND WILL ALSO BE RESET ON 5/16/01. On May 16, 2001, the trial court denied Plaintiffs motion to strike the anti-SLAPP motion, and reset the anti-SLAPP motion and the motion to compel. The court further heard Plaintiffs motion to lift the discovery stay and ruled as follows: COURT GRANTS DISCOVERY IN THE SPECIFIC AREAS OF THE DEPOSITIONS OF R. PRYKE, M. HAEKEL, S. MORAN AND M. GUTGLUECK; ALSO THE AREA OF OBTAINING RESPONSES TO REQUEST OF 3/22/01. On June 5, 2001, Plaintiffs motion to compel further responses to questions at deposition of Gutglueck was heard. The court granted the motion as to certain questions, and there was a stipulation as to the others. On July 3, 2001, nearly 13 months after the complaint was filed, Pryke was identified as Doe 1. On July 23, he filed a joinder in the anti-SLAPP motion. The anti-SLAPP motion was to be heard on September 11, 2001; however, several times the parties stipulated to have the motion continued to February 14, 2002. It was later continued to January 7, 2003. On January 11, 2002, Plaintiffs filed two motions to compel further responses to special interrogatories. One was directed at the discovery propounded to Pryke, and the other was directed at the discovery propounded to Gutglueck. Neither motion requested sanctions against either Pryke or Gutglueck. Both motions were originally scheduled to be heard on February 5, 2002; however, by stipulation of counsel, the hearing was continued to March 12. On March 12, the matter was taken under submission. On May 10, the court issued its ruling. Recognizing that Mitchell, supra, 37 Cal.3d 268, provides the guiding authority for the issues presented by Plaintiffs motions, the court stated: Given the serious privilege implications in these interrogatories, it is the intention of this court, pursuant to Mitchell, to require a prima facie showing of the falsity of the statements in question before requiring any further answers. Such a showing may be done by declarations, depositions, or other evidence admissible for this purpose. This matter is continued to June 4, 2002 on this departments calendar at 1:30 p.m. for review of such a showing. Such additional material to be submitted 5 days before the hearing. The hearing was continued several times, finally to November 5, 2002. In response to Plaintiffs prima facie showing, defendants maintained that Plaintiffs failed to show that defendants acted with malice. Thus, defendants argued that the motions to compel should be denied. Defendants requested an opportunity to submit declarations under seal to rebut Plaintiffs prima facie showing. They further stated: If the court makes any other ruling, defendants request that they have 21 days to provide supplemental responses and/or request appellate review, with a stay on all further proceedings while the latter is pending. If appellate relief is sought but not granted, then defendants request 21 days thereafter to respond to the discovery. On November 5, 2002, the matter was heard. The trial court issued its decision on November 12, 2002. The court found that Plaintiffs had made the requisite showing under Mitchell, supra, 37 Cal.3d 268, such that disclosure is warranted under the circumstances. After identifying the specific interrogatories to which Gutglueck and Pryke were to provide responses, the court ordered the response due within 30 days of the date of the order. In December 2002, the parties entered into a stipulation to stay all matters and proceedings (hearings on motions, discovery responses, etc., et al.) pending mediation. The trial court ordered the stay pursuant to the stipulation on January 2, 2003. On April 28, 2003, a stipulation to postpone mediation and hearing on the anti-SLAPP motion was filed. Although the trial court accepted the stipulation, it stated: There will be no further continuances allowed. All motions and CMC continued to 6/11/03. On June 11, 2003, at the case management conference, the following was noted in the Register of Actions: THE MEDIATION WITH JUDGE KENNEDY/JAMS HAS BEEN SCHEDULED FOR FURTHER SESSION. MATTER CONTINUED WITH TRIAL ASSIGNMENT ADVISAL GIVEN. On August 15, 2003, at a further case management conference, the Register of Actions notes: PLAINTIFF IS CONTEMPLATING A DISCOVERY SANCTION MOTION RE: IDENTITY OF SOURCE. SECOND SESSION OF MEDIATION IS SET FOR SEPTEMBER (2ND SESSION WITH JUDG2 [sic] KENNEDY/JAMS). MATTER IS SET FOR TRIAL WITH DISMISSAL ADVISAL GIVEN RE: DEFENDANT PRYKE.[4] On September 17, 2003, Plaintiffs filed their motion for sanctions against Pryke and Gutglueck. Plaintiffs requested the following orders against defendants: (1) issue terminating sanctions, striking defendant GUTGLUECKs Answer, (2) render judgment by default against both defendants, and (3) impose monetary sanctions in the amount of $13,150.00 representing fees incurred in bringing this Motion and in previous attempts to secure this discovery. In support of their motion, Plaintiffs represented that in December 2002, a stipulation to stay all matters and proceedings was entered into pending mediation; however, on May 13, 2003, at 12:13 p.m., via facsimile, [P]laintiffs revoked the stay and demanded the answers be provided on or before May 19, 2003. Although Plaintiffs demanded responses in six days, the stipulation provided all pending time limits including, but not limited to, the time for Defendants Raymond Pryke and Mark Gutglueck to respond to the interrogatories propounded to each of them and/or to petition the appellate court with regard to the trial courts order thereon are hereby tolled until 30 days after notice of revocation of this stipulation is served by the revoking party upon the non-revoking parties. Pryke filed his petition for writ of mandate or prohibition with this court on October 20, 2003, which we denied four days later. Thus, the hearing on Plaintiffs motion for terminating sanctions was held on November 19, 2003. Prykes counsel at the time of the hearing associated in the matter on October 31, twenty days prior to the hearing. At the hearing, the trial court provided a brief overview of the procedural history of the case. Specifically, the court noted that when the mediation failed to settle the matter, the discovery responses that were ordered in November 2002 became due. Thus, as of May 2003, the court opined that Pryke was required to provide responses. Before hearing argument of counsel, the court stated what it intended to do: I will tell you what the intended [sic] is and it is to strike the answer of Mr. Pryke and strike Mr. Prykes anti-SLAPP motion and enter Mr. Prykes default. In doing so, I recognize that sanctions are not there to punish necessarily, they are there to obtain compliance and process litigation in the most economic and least expensive manner possible. [] Given the nature of the litigation and I searched - I dont know that I searched my soul, but I searched virtually everything else I could come to in terms of trying to figure out what an interim effective sanction would be and it is this Courts opinion that there is no such interim effective sanction. You either respond to the discovery, which is critical and pivotal to the SLAPP motion and vitality of the litigation, after the Court has ordered you to do so more than one year ago or you dont. [] Mr. Pryke has chosen with the services of two different lawyers in this case at this point . . . to ignore the Courts order and without that discovery, the action cannot proceed. So the only way that the action can proceed in the estimation of the Court is to remove the offending partys ability to participate at the level of liability and simply allow that party to do what it may relative to the damage aspects of the case. Prykes counsel responded: Well, as I did mention, I think that before a discovery sanction should be imposed, especially a drastic one such as this, that the SLAPP motion should be heard, but youve considered that. And I dont know that there is any authority for striking a SLAPP motion without having it being heard on the merits as a discovery sanction. [] Secondly, as I mentioned in my papers, as the Court knows, Im new to the case and I have advised Mr. Pryke and he is in agreement that rather than . . . accept a sanction, such as striking of the answer and a default being entered, that he would provide the information. There are obvious reasons why that is an unpleasant thing for a publisher to do, but rather than accept a dismissal or a striking of the answer, he would do so and thats why I suggested that if you were going to make such an order, that it be contingent upon failure to provide the information within X days. Now that I am involved in the case, I can tell the Court that it is - that information would be provided within the next, I dont know, ten days. Plaintiffs counsel objected, stating that Pryke has had a year to provide this information. . . . [] The time for complying with the Courts order has long since come and gone and its just not fair to plaintiff in this case that they are - that there not be the kind of serious consequences that naturally would flow from the failure to comply with this Courts order. The trial court agreed with Plaintiffs counsel, noting that Pryke has had the opportunity to do any number of things, but has thumbed his nose at the court, and only now insists that he will comply if given some more time. Thus, the court stated: Well, that dont [sic] work, at least not here, and its a viable approach as to how to deal with these things. It will be the Fourth District Court of Appeal which gives a seal of approval. In response to the courts representations, Prykes prior counsel respectfully disagreed with its factual statements: Your Honor, I dont believe the responses were due in May of this year. I dont believe the responses were due at all until [Plaintiffs counsel] sent out his notice of motion in September of this year. As the Court rightly points out, Mr. Pryke then went to the appellate court and was rebuffed there and came back down, so I think that the time frame has been compressed quite a bit, No. 1. [] No. 2, the Court also made the comment that there was some agreed to discovery. I dont know precisely what the Court is alluding to, but we were in discussions with [Plaintiffs counsel] and we were objecting to discovery, but then the - decided certain objections at certain times were, were probably going to be unavailing. So if thats what the Court meant by agreed to discovery, then I would agree that thats an accurate rendition. [] But my point, ultimate point is Mr. Pryke has not had a year. We were supposed to go back to JAMS in early September. Mr. Pryke at the last minute had a letter sent to me saying that he couldnt make it. He had another engagement he had to do. . . . I called JAMS. It would be my hope, your Honor, that this matter should go back to JAMS with Judge Kennedy, because I concur with this Courts assessment, Judge Kennedy should be able to fashion a settlement in this matter and I think Mr. Pryke should be given another opportunity, your Honor. Rejecting Prykes counsels arguments, the court granted Plaintiffs motion and struck Prykes answer. Misuse of the discovery process may result in the imposition of a variety of sanctions. These include payment of costs, sanctions barring the introduction of certain evidence, sanctions deeming that certain issues are determined against the offending party, and sanctions terminating an action in favor of the aggrieved party. [Citations.] Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so. [Citations.] (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214.) The discovery sanction at issue here was imposed in connection with five interrogatories. Pursuant to the statute governing that method of discovery (Code of Civil Procedure former section 2030, subdivisions (k) & (l)), the trial court is authorized to impose a broad range of sanctions for misuse of the discovery process. (Code Civ. Proc. former 2030, Stats. 1986, ch. 1334, 2, pp. 4728-4729, amended by Stats. 1987, ch. 86, 12; Stats. 1988, ch. 553, 4; Stats. 1988, ch. 575, 1; Stats. 1991, ch. 1090 (AB 1484), 11, pp. 5076-5077.) These include monetary sanctions, contempt sanctions, issue sanctions ordering that designated facts be taken as established or precluding the offending party from supporting or opposing designated claims or defenses, evidence sanctions prohibiting the offending party from introducing designated matters into evidence, and terminating sanctions that include striking part or all of the pleadings, dismissing part or all of the action, or granting a default judgment against the offending party. (Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1, 12.) A terminating sanction may be imposed only after a motion to compel is made and granted, and the party to be sanctioned has failed to comply with that order. (Code Civ. Proc., former 2030, subd. (l), Stats. 1986, ch. 1334, 2, pp. 4728-4729, amended by Stats. 1987, ch. 86, 12; Stats. 1988, ch. 553, 4; Stats. 1988, ch. 575, 1; Stats. 1991, ch. 1090 (AB 1484), 11, pp. 5076-5077.) However, in determining whether to impose a terminating sanction, the trial court considers the totality of the circumstances: conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Terminating sanctions have been held to be an abuse of discretion unless the partys violation of the procedural rule was willful [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing less severe sanctions would not produce compliance with the procedural rule. [Citations.] [Citation.] (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1215.) The relevant facts in this case fail to support the trial courts decision to issue terminating sanctions. The action was initiated in June 2000. Pryke was not identified as a defendant until July 2001. In January 2002, Plaintiffs filed a motion to compel further responses to special interrogatories directed at Pryke; however, no request for sanctions was made. In May 2002, the trial court issued its decision on the motion. Specifically, it found that before Pryke was required to provide further responses, Plaintiffs had to make a prima facie showing of the falsity of the statements in question pursuant to Mitchell, supra, 37 Cal.3d 268. Plaintiffs made such showing, and on November 12, 2002, the trial court ordered Pryke to provide further responses to five interrogatories. This ruling was the first substantive decision from the trial court that found Pryke could not hide behind the California reporters shield law. In December 2002, prior to the due date for Prykes responses, the parties entered into a stipulation to stay all matters (including the responses) pending a voluntary mediation. The stipulation was accepted by the court on January 2, 2003. Although Plaintiffs attempted to revoke the stipulation on May 13, 2003, they failed to provide the necessary 30 days response time required by the stipulation. In June 2003, mediation was still being pursued. In August 2003, Plaintiffs indicated they were contemplating a discovery sanction. On September 17, 2003, Plaintiffs filed their motion for terminating sanctions based on Prykes failure to provide further responses to five interrogatories that were identified in the trial courts November 12, 2002, order. On October 20, 2003, Pryke filed a petition for writ of mandate or prohibition with this court regarding that November 12, 2002, order. We denied the petition. As previously noted, the issuance of terminating sanctions amounts to an abuse of discretion unless either (1) a showing less severe sanctions would not produce compliance with the procedural rule, or (2) the partys violation of the procedural rule was willful [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1215.) Given the procedural history discussed above, we are hard pressed to find that Prykes failure to provide further responses to five specific interrogatories was willful. Pryke had a legitimate argument as to why he was not required to reveal the information, namely, the California reporters shield law. Even the trial court required Plaintiffs to make a prima facie showing under Mitchell, supra, 37 Cal.3d 268, before it agreed that Pryke had to respond. Moreover, the trial court had yet to rule on the anti-SLAPP motion. Given the procedural status of the case, Pryke, with Plaintiffs agreement, attempted to resolve the matter through mediation. When that did not work, he sought assistance from this court via the writ petition in case No. E034582. Although Plaintiffs would characterize Prykes actions as brazen violations of the courts discovery order, there is a strong argument that they amounted to no more than the use of legitimate means for a reporter to protect his or her sources. Even if we were to assume Prykes actions were willful, we cannot say that a less severe sanction would not produce compliance with the procedural rule. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1215.) As the record shows, Prykes counsel stated, [A]s I mentioned in my papers, as the Court knows, Im new to the case and I have advised Mr. Pryke and he is in agreement that rather than . . . accept a sanction, such as striking of the answer and a default being entered, that he would provide the information. There are obvious reasons why that is an unpleasant thing for a publisher to do, but rather than accept a dismissal or a striking of the answer, he would do so and thats why I suggested that if you were going to make such an order, that it be contingent upon failure to provide the information within X days. Now that I am involved in the case, I can tell the Court that it is - that information would be provided within the next, I dont know, ten days. (Italics added.) Clearly, the trial court could have fashioned the termination sanction contingent upon Prykes failure to comply within 10 days. Moreover, the trial court could have added another sanction, monetary or otherwise,[5]against Pryke for his failure to provide the responses prior to the hearing on the motion to compel. Instead, the trial court chose to strike Prykes answer and enter his default, suggesting an intent to punish Pryke, not accomplish the objects of discovery. A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions such as the [terminating] sanction imposed here: (1) absent unusual circumstances, there must be a failure to comply with a court order,[6]and (2) the failure must be willful. [Citation.] Even where nonmonetary sanctions are called for, they . . . should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. [Citations.] . . . [] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. [Citations.] [Citations.] [Citation.] [Citation.] (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327) Under the facts of this case, we find that the trial court abused its discretion in issuing a terminating sanction against Pryke, who, from all appearances, was asserting his rights under the California reporters shield laws. Accordingly, we reverse the order striking Prykes answer and entering his default, and remand the matter to the trial court. On remand, Prykes answer is to be reinstated. Further, the trial court is directed to consider whether the imposition of other sanctions against Pryke is warranted. Given our finding that the trial court abused its discretion in issuing a terminating sanction against Pryke, the judgment entered in favor of Plaintiffs and against Pryke is reversed. IV. DISPOSITION The judgment is reversed. The trial courts order striking Prykes answer and entering his default is reversed. Prykes answer is to be reinstated and the matter is remanded for further proceedings as directed within the body of this opinion. Each party is to bear his or her own costs. NOT TO BE PUBLISHED IN OFFICIAL REPORTS HOLLENHORST Acting P. J. I concur: MCKINSTER J. KING, J., Concurring. I concur with the majority as it relates to reversing the present judgment. Nevertheless, I would remand for further proceedings to allow the trial court to set forth on the record its reasons for striking the complaint and entering default as opposed to choosing a lesser sanction. If the trial court, after further consideration, and the setting forth of its rationale on the record, decides that a lesser sanction can accomplish the desired goal, said sanction can be ordered and the matter reset. If the court determines that a lesser sanction cannot achieve the appropriate result, and sets forth on the record its rationale, then the trial court should reenter its order, and the present judgment should be reinstated. A trial court has broad discretion to impose discovery sanctions . . . . Even where nonmonetary sanctions are called for, they . . . should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. [Citations.] . . . [] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are not designed to accomplish the objects of discovery but to impose punishment. [Citations.] [Citations.] [Citation.] (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) [T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) While the trial court recognized the need to consider lesser sanctions, the record is devoid of reasons as to why lesser sanctions were discarded in favor of striking the complaint and entering default. The trial court is intimately familiar with this matter and can presumably set forth its rationale. While I recognize that whether the trial court could have imposed a lesser sanction is not the end all question (see Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37), it is nonetheless relevant to whether the trial court abused its discretion in striking the complaint and entering default. It is only then can we properly address the trial courts exercise of discretion. I would therefore reverse and remand for the trial courts further consideration as to whether a less drastic sanction is available. After explaining its rationale on the record, the trial court may either modify the sanction imposed and continue forward with resolution of this matter, or enter a new order striking the answer and entering default. If the court strikes the answer and reenters default, reentry of the previous judgment would be appropriate. (See Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1575-1576.) /s/ King J. Publication courtesy of California pro bono legal advice. Analysis and review provided by La Mesa Property line attorney. [1]Article I, section 2, subdivision (b), of the California Constitution provides, A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . shall not be adjudged in contempt . . . for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. Evidence Code section 1070, subdivision (a), provides substantially the same. These provisions are sometimes known as the California reporters shield. [2] We hereby take judicial notice of the record in the writ proceedings in case No. E034582. In that appeal, Pryke sought an order from this court directing the trial court to refrain from taking further action on the motion for sanctions absent a determination on the merits of the anti-SLAPP motion. [3]Plaintiffs named the following defendants: Hesperia Resorter, Inc., Apple Valley News, The Adelanto Bulletin, Inc., Valley Wide Newspapers, Jenny Jones, Patty Thomas, Michele Haeckel, and Mark Gutglueck. [4]Apparently, Pryke had not filed his answer to the complaint. In fact, his answer was not filed until October 14, 2003. [5]We take judicial notice of the record in the writ proceedings in case No. E036703. We note that on page 4 of the petition, Pryke represents that [o]n December 23, 2003 the [trial] [c]ourt heard the [m]otion regarding [terminating] sanctions as [to] the [d]efendant Gutglueck. According to the [c]ourt record: Nancy K. Bohls motion for sanctions as to [d]efendant is Granted. The [c]ourt finds that appropriate sanctions are to deny the [d]efendants CCP 425.16/[]SLAPP motion. The [c]ourt finds that defendant frustrated the purpose of his own motion by refusing to comply with discovery stipulations and orders. The [c]ourt takes the issue of monetary sanctions under submission until the 1/6/04 motions are heard. Clearly, another viable sanction that the trial court could have imposed against Pryke was the denial of his anti-SLAPP motion. [6]Taken together, subdivisions (k) and (l) of section 2030 [of the Code of Civil Procedure] make clear that only after an order compelling responses or further responses to interrogatories has been obtained and violated can the court impose an issue sanction, an evidence sanction, or a terminating sanction. A few cases have approved the imposition of evidence and issue sanctions without a court order violation, but those cases involved egregious discovery abuses going far beyond the failure to supplement or amend a response in a timely fashion. (See Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 . . . [evidence and issue sanctions properly imposed without violation of order compelling production of documents, where requiring requesting party to seek such an order would have been futile in light of responding partys claim that requested documents had been stolen]; Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36 . . . [evidence sanctions appropriate despite absence of order compelling discovery, where sanctioned party concededly could not provide audit it had promised].)

Local businessman accuses TP sheriffs of harassment

In most people’s eyes, Crestline businessman Jeffrey Grotewold would seem to “have it all.” After all, he’s the owner of a successful multi-store carpet outlet (The Carpet Station), he’s married to a wealthy businesswoman – reportedly a member of the Goodwin’s Market family – and he had a remarkable career in major league baseball, tying the record for most consecutive home runs (three in all) as a pinch-hitter for the Philadelphia Phillies, for whom he played three seasons, beginning in 1992.

ACLU Renews Fight to Overturn Law That Denies Financial Aid to Students With Drug Convictions

CONTACT: media@aclu.org

ST. LOUIS, MO -- The American Civil Liberties Union today filed an appeal asking that a federal court be compelled to weigh the full body of evidence in determining the constitutional validity of a provision of the Higher Education Act that denies financial aid to students convicted of a drug offense. The U.S. District Court for the District of South Dakota dismissed the case last year after refusing to consider significant legislative history demonstrating the law to be unconstitutional.

“The law’s purpose is to impose a second criminal punishment on students who have already served their sentences, which makes it unconstitutional,” said Adam Wolf, an attorney with the ACLU Drug Law Reform Project. “Judges must assess, not ignore, lawmakers’ intentions. All we ask is that the court consider the evidence.”

The ACLU filed a motion in federal district court in March 2006 seeking to strike down the Higher Education Act’s Aid Elimination Penalty as unconstitutional. Since its enactment by Congress in 2000, the Aid Elimination Penalty has blocked aid to more than 200,000 would-be students.

The ACLU argued, in part, that the denial of student aid by the Department of Education (DOE), as mandated by the Aid Elimination Penalty, constitutes a second criminal punishment for a student who has already served a sentence imposed by the courts. This second penalty violates the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.

District Court Judge Charles Kornmann upheld the Aid Elimination Penalty in October 2006, ruling that insufficient evidence had been presented to prove the law violated the Double Jeopardy Clause. The court, however, declined to consider a wealth of evidence relating to the legislative history of the Aid Elimination Penalty and similar measures.

The ACLU’s appeal asks that the district court be ordered to consider this legislative history and to reassess whether the law runs afoul of the Constitution’s double jeopardy provision.

The Aid Elimination Penalty initially appeared in 1988 as part of a federal law that allowed judges, at their discretion, to rescind drug offenders’ eligibility for student aid as part of their criminal sentence. Judges, however, by and large declined to suspend aid.

For the first two years of the law’s existence, not a single judge suspended aid. From 1990 onward, courts suspended student aid in less than two out of one thousand eligible cases, according to a Government Accountability Office report.

Due to judges’ reluctance to revoke student aid, Congress sought alternative means to strip aid eligibility from drug offenders. Beginning in 1990, the House of Representatives introduced twin bills on a near an annual basis that would have required the mandatory denial of student aid for all people convicted of a drug offense.

A decade later, these congressional efforts culminated in passage of the Aid Elimination Penalty, which mandated that the DOE rescind the aid eligibility of anyone convicted of a drug offense. In shifting responsibility for imposing this punishment from the courts to the DOE, Congress made clear that the Aid Elimination Penalty was primarily intended to serve the criminal-law functions of retribution and deterrence.

Although the Supreme Court has held that such legislative history can be highly relevant to whether this type of punishment violates the Constitution, the district court expressly ignored this evidence.

“The Aid Elimination Penalty represents the culmination of a decade of legislative efforts to impose an additional criminal punishment on students who have already paid their debts to society,” said Wolf. “The Penalty’s legislative history makes clear that this law is an affront to the constitutional rights of students.”

The ACLU’s appeal, filed in the U.S. Court of Appeals for the Eighth Circuit, stems from a class action lawsuit brought on behalf of the thousands of students nationwide impacted by the penalty, including the national organization Students for Sensible Drug Policy, as well as three individuals denied aid under the provision.

The case, SSDP v. Spellings, names Margaret Spellings, Secretary of the U.S. Department of Education, as the defendant.

The ACLU’s appellate brief may be viewed online at: www.aclu.org/drugpolicy/youth/29379lgl20070416.html

Further background on the case, including the initial ACLU complaint, may be found online at: www.aclu.org/drugpolicy/gen/24713prs20060322.html

A recent SSDP report on the state-by-state impact of the penalty can be found at: www.aclu.org/drugpolicy/youth/25691res20060417.html

For a list of organizations supporting full repeal of the aid elimination penalty, see: www.raiseyourvoice.com/supporters.shtml

More on Barry Bruins: 'It sounds just like him'

Today's story about Mike Aguirre's latest outrage mentioned this about one of his key aides:

The affidavit [seeking the Sunroad search warrant] was signed by Barry Bruins, an investigator in Aguirre's office. Before joining Aguirre's public integrity unit, Bruins worked in the San Bernardino County District Attorney's Office, where he was demoted after he was accused of helping leak information about an ongoing corruption investigation to the political opponent of one of the targets.

Bruins sued San Bernardino County for $1.7 million, claiming he was made a scapegoat in a political dust-up. The case was later dismissed.

Here's a little more about Bruins' past, from a 2001 Riverside Press-Enterprise story:

In a second move to discipline staffers, [San Bernardino County] District Attorney Dennis Stout on Monday demoted his chief investigator, who was secretly tape-recorded aiding an opponent of Supervisor Jerry Eaves.

Barry Bruins was demoted to supervising investigator, said Mike Donovan, Bruins' interim replacement. ...

Former Rialto City Councilman Ed Scott recorded Bruins, Stout and former Assistant District Attorney Dan Lough discussing their investigation of Eaves last year. Scott made the tapes for a Sheriff's Department/FBI task force.

Here's a link to the internal investigation stemming from the scandal. Keep in mind when reading it that the agency it comes from -- the San Bernardino County D.A. -- had a vested interest in downplaying what Bruins and others had done because of how it reflected on the D.A.'s office.

The D.A. staffer who wrote the report nevertheless concluded, among other things, that in providing information on a county supervisor to his election opponent, Bruins had not met professional standards; that the D.A. should turn over a huge pending corruption probe of that county supervisor to the state attorney general because of the failings of Bruins and two of his colleagues, including the D.A. himself; and that the D.A.'s office should strive to reform its ways in dealing with "Public Integrity Crimes" and the leaking of info in such investigations.

I happen to have known Ed Scott, the Rialto councilman who wore a wire at the FBI's behest in his dealings with Bruins, since 1997. When I was a metro columnist at the Daily Bulletin in Ontario, I found that Scott lived up to his reputation as the truest, bluest Boy Scout politician one could imagine. He was -- is -- a straightshooter. A great example: Scott never used the info on Eaves that was provided to him by Bruins and another D.A. employee in his campaign against Eaves or leaked the info to a reporter. (He lost by less than 2 percent of the vote.)

Yesterday, I talked to him about Bruins and his role in Aguirre's baseless search warrant and abuse of power. Here's what Ed said:

"It sounds just like him."

Now to get back to the larger issue: What this says about Mike Aguirre. Most city attorneys would be leery of hiring someone punished by his own former agency for playing political games while in a law-enforcement position. Aguirre probably thought, hey, I could sure use a guy like that. And he did.

Posted by Chris Reed at March 30, 2007 11:51 AM

Prosecutors demand files of 3 House panels

By Richard B. Schmitt
January 04, 2007 in print edition A-8

Federal prosecutors in San Diego have subpoenaed documents from three House committees as part of an investigation into special-interest earmarks in spending bills.

The demand ratchets up an investigation by the U.S. attorney’s office in San Diego into contracts awarded by the Defense Department and other agencies. The probe stems from the bribery case against Rep. Randy “Duke” Cunningham (R-Rancho Santa Fe), who pleaded guilty and resigned in 2005.

The scope of the investigation is unclear, although the request for documents is considered unusually broad.

The subpoenas, which follow a failed attempt by the Justice Department to persuade the Republican Congress to voluntarily turn over thousands of documents, could test Democrats’ pledge to reform ethics in the new Congress. Last year, House Minority Leader Nancy Pelosi (D-San Francisco) – who today becomes House speaker – opposed a broad-based Justice Department search warrant targeting Rep. William J. Jefferson (D-La.).

The subpoenas went to the armed services, appropriations and intelligence committees, whose Republican chairmen reported the subpoenas to outgoing House Speaker J. Dennis Hastert (R-Ill.) in letters dated two weeks ago.

The subpoenas were made public Wednesday by the Congressional Record online. The House is supposed to turn over the requested records by Jan. 11 or else file an objection with the U.S. District Court in San Diego. Typically, such deadlines are extended.

Prosecutors in San Diego and a spokesman for the general counsel of the House declined to comment, and a Pelosi spokeswoman had no immediate comment.

The subpoenas are an escalation of a nine-month tug-of-war between the Justice Department and House Republicans. Prosecutors had asked the committees to turn over the information voluntarily.

House leaders and their lawyers consider the request constitutionally suspect, saying it runs afoul of the “speech or debate” clause, which protects members of Congress from prosecution for their legislative acts, including earmarks. Some have also complained that the committees would need months to compile such data.

None of the requested documents had been turned over as of Wednesday.

Pelosi campaigned in the fall on a platform of open and honest government, and has made one of her first orders of business an ethics package that would identify members of Congress who inserted earmarks for pet projects into bills.

The use of earmarks has tripled over the last decade, the Congressional Research Service estimates, with 13,000 earmarks in the last fiscal year adding more than $67 billion to spending bills.

The “speech or debate” privilege is at the core of a legal fight over an FBI search of Jefferson’s congressional office in May. The search and seizure of documents followed an FBI sting in which about $90,000 in foil-wrapped $100 bills was found in the freezer of Jefferson’s Washington home.

Pelosi and Hastert criticized the office raid and urged the government to return the seized documents. Pelosi later led a successful effort to strip Jefferson of an influential committee assignment until the federal corruption investigation was completed. (Jefferson has not been charged.)

Former Rep. Cunningham is serving an eight-year prison term after pleading guilty to taking $2.4 million in bribes from defense contractors and evading more than $1 million in taxes.

A House Intelligence Committee report issued in October concluded that Cunningham had used his position on that panel to steer more than $70 million to companies run by cronies, with much of the money going to businessman Brent R. Wilkes of Poway, Calif.

Wilkes remains under investigation.

The San Diego federal prosecutors have also been examining the relationship between Wilkes and Kyle Dustin “Dusty” Foggo, who resigned as CIA executive director in the spring after federal agents searched his office and home.

Investigators have examined at least one contract that was awarded to Wilkes while Foggo was a senior CIA procurement officer in Germany.

rick.schmitt@latimes.com

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• Senator says he asked, not pushed, prosecutor Mar 05, 2007

Squat for Teacher

The U.S. Supreme Court has ruled that school officials may search students without warrants and test them for drugs without individualized suspicion. But Congress evidently believes students still have too much privacy.

In September, on a voice vote without hearings, the House of Representatives approved the Student and Teacher Safety Act of 2006, which encourages schools to conduct broad searches on slight pretexts. The bill, which has been referred to a Senate committee, threatens to withhold federal funds from districts that do not allow searches “by a full-time teacher or school official, acting on any reasonable suspicion based on professional experience and judgment, of any minor student on the grounds of any public school, if the search is conducted to ensure that classrooms, school buildings, school property and students remain free from the threat of all weapons, dangerous materials, or illegal narcotics.”

An earlier version of the bill, which used the weaker standard of “colorable suspicion,” said the aim was to protect schools and teachers from lawsuits charging violations of students’ Fourth Amendment rights by clarifying what constitutes a “reasonable” search in this context. But requiring schools with relatively strict search policies to loosen them is a recipe for more litigation, as courts grapple with questions such as whether a school-wide strip search is justified by a whiff of marijuana or by one student’s suspiciously red eyes.

Thousands More Scientists Slam Bush Science Policies

by Megan Tady

Dec. 14, 2006 – Over 10,000 scientists are calling on the US government to stop manipulating science for political reasons, a government watchdog has announced.

This week, the Union for Concerned Scientists released the names of thousands of signatories to a statement reprimanding the Bush administration for what the scientists say is a "distortion of scientific knowledge for partisan political ends."

The signers joined 62 leading scientists who first released the statement in February 2004.

The statement said the quality and independence of science has suffered from political interference, and that the practice "must cease."

The scientists allege that the Bush administration has installed political appointees who have conflicts of interest or who are unqualified to fill scientific posts. Additionally, the administration has suppressed scientific government reports when "scientific findings are in conflict with the administration?s policies or with the views of its political supporters," the statement reads.

As previously reported by The NewStandard, for example, the Bush administration came under fire in January 2005 for attempting to undermine the results of a science advisory panel?s investigation into the dangers of a rocket-fuel chemical found in water and produce.

In June, 2005, TNS reported that a White House official edited the language of scientific reports warning about the effects of greenhouse gases; the report was changed to lessen the impact of the scientists? findings.

The signers are asking Congress to establish laws forbidding the "censorship" of scientific studies, require scientists on advisory panels to have professional qualifications, and guarantee public access to government and advisory-panel studies and findings.

Americans To Be Tortured For Refusing To Show ID?

[ Original article contains video ]

Student shocked, tortured for defending constitutional rights

Paul Joseph Watson
Prison Planet
Thursday, November 16, 2006

A horror video that wouldn't look out of place in Maoist China or Nazi Germany shows a student being repeatedly shot with a stun gun by UCLA police for the crime of not showing his ID. As similar cases begin to pile up how long will it be before Americans are routinely tortured for noncompliance and refusing to have their 4th amendment violated?

"A cell phone captured video of a 23-year-old student being administered multiple Taser shocks by UCLA police on Tuesday. The UCLA student was hit with the Taser shocks multiple times while he was in the Powell Library Computer Lab. According to the paper, (Mostafa) Tabatabainejad did not show ID to community service officers who were conducting a random check," reports NBC.

Watch the video above and witness as the cops bark at Tabatabainejad to get to his feet as simultaneously shock him over and over until he begins crying and screaming for them to stop.

Police are given extensive training on the use of stun guns and in most cases that training involves taking a taser shot and feeling the effects. Depending on each individual's physiology, it takes at least a minute to be able to even stand after a single Taser shot. Over a hundred deaths have occurred in America as a result of taser shocks and Taser's own manual discourages repeated shocks, yet the history of their use tells us that police simply administer repeated shocks until "compliance is gained." This is a euphemism for torture.

The video and the eyewitness reports describe multiple taser shots as Tabatabainejad begs and pleads while at one point screaming, "Here's your Patriot Act, here's your f---ing abuse of power."

The officers repeatedly order Tabatabainejad to stand even as they administer further shocks - sending 50,000 volts of current that override the nervous system and temporarily paralyze muscles shooting through his system again and again. He can't stand and the cops know it, they just get off on the maniacal ego power trip of torture and this is why Tabatabainejad is hit again and again despite his screaming and the protests of the onlookers.

Similar cases abound in the so-called land of the free, including the video above in which a housewife, Abbey Newman, is assaulted and arrested for simply refusing to tell the gestapo her name at an unconstitutional checkpoint. Another case in which an Alex Jones listener, Ferrell Montgomery, was tasered and had a dog set on him again underscores the brutal and sadistic nature of the police. Like Tabatabainejad, Montgomery was repeatedly told to put his hands behind his head and stand up while he was electric shocked and a dog savaged him for not complying.

In November 2005, Deborah Davis was reading a book on a Denver bus when a guard of a nearby federal building got on board and demanded everyone show their ID. Davis refused, leading the guard to "call on federal cops, who then dragged Davis off a public bus, handcuffed her, shoved her into the back seat of a police car and drove off to a police station within the Federal Center."

How long before Americans are tortured with taser weapons on the streets for refusing to show identification on a routine basis?

How long before we are forced to wear shock collars like some bizarre science fiction movie, where our masters can discipline us on a whim for not obeying orders?

It may be a lot sooner than we think.

Every indication suggests that there are moves afoot to implement these measures on every major street corner and transport system. A year ago we were told that Federal air marshals were to expand their work beyond airplanes, launching counter-terror surveillance at train stations and other mass transit facilities. So called "Visible Intermodal Protection and Response" teams — or VIPER teams, may soon be permanently deployed to check ID's under the banner of counter-terrorism.

We need to set a precedent now whereby police who use taser stun guns and any other kind of unreasonable force as implements of torture, simply if an individual refuses to have their 4th amendment right illegally violated, are instantly fired, sued and can never work in any sector of government, policing or security again.

Watch this space for further updates on the Tabatabainejad case.

ACTION: Call UCLA and demand an investigation into this incident. BE POLITE. 310-825-4321

Group Sues FBI to Disclose Personal-Data 'Warehouse'

Oct. 23, 2006 – The FBI is gathering hundreds of millions of pieces of personal information in the name of fighting terrorism and storing them in a vast, secretive data "warehouse." Last week, public-interest groups went to court to find a way in.

The privacy-rights group Electronic Frontier Foundation (EFF) filed a lawsuit against the Department of Justice on Tuesday, demanding the government disclose information on the handling of personal data in the FBI?s "Investigative Data Warehouse." The lawsuit seeks details on the nature of the information collected and what privacy protections the agency has applied.

The EFF filed the suit in federal district court after the Justice Department failed to respond to Freedom of Information Act requests sent on August 25 and September 1. The complaint alleges that the FBI has not only "wrongfully withheld" records, but also neglected mandatory disclosure procedures. For instance, the EFF argued, the FBI had not issued an official public notice outlining the database and its contents, as required under the federal Privacy Act.

The FBI has not yet formally responded to the EFF?s complaint.

In a speech at a public-safety conference in March 2005, John Lewis, deputy assistant director of the FBI?s Counterterrorism Division, said the database included "photographs, biographical information, physical location information, and financial data for thousands of known and suspected terrorists."

FBI Director Robert Mueller testified at a May congressional hearing that the Data Warehouse was accessible to about 12,000 users from various local, state and federal agencies working on national-security issues.

In August, Gurvais Grigg, acting director of the FBI?s Foreign Terrorist Tracking Task Force, told the Washington Post that his agency maintains the database by consistently vetting its sources and conducting internal records audits. He claimed the database was in "full compliance" with federal privacy laws.

But privacy-rights activists want to see proof. EFF staff attorney Marcia Hofmann said in a press statement, "The public needs as much information as possible to evaluate tools that put our privacy at risk. The Department of Justice must abide by the law and publicly release information about these surveillance programs."

Pentagon Using Anti-Terror Resources to Spy on Peace Activists

by Megan Tady

Nov. 28, 2006 – More evidence emerged last week showing that the Pentagon has used counterterrorism resources to spy on peace activists.

As previously reported by The NewStandard, the military has been cataloging nonviolent anti-war protests through its terrorism-watch database, Threat and Local Observation Notice (TALON). The Pentagon says the database is meant to track potential terrorism threats.

The American Civil Liberties Union obtained the documents through a lawsuit filed in June, after the Pentagon ignored a Freedom of Information Act (FOIA) request initiated in February. The ACLU made the FOIA request to follow up on repeated reports that the Department of Defense was monitoring protest activities and anti-war organizations.

The newly released TALON reports reveal the Pentagon has been monitoring groups that planned demonstrations against military recruitment.

In a November 2004 TALON document, "a federal law enforcement agency" reported that Veterans for Peace was planning to protest at the Sacramento Military Entrance Processing Station. The report said Homeland Security agents had been notified, and it warned that while the protest was likely to be peaceful, "some type of vandalism is always a possibility."

According to a news report about the event, also included in the TALON database, the veterans group read the names of 18 soldiers who had been recruited through the Sacramento station and later died in Iraq.

In February 2005, a "special agent" with the Department of Homeland Security reported that the War Resisters League, along with Code Pink, United for Peace and Justice, and other groups, were planning civil disobedience and other protests at recruiting stations in various cities to coincide with the two-year anniversary of the war in Iraq.

The report warned that several marches would culminate with civil disobedience and that other protesters would "leaflet, hold banners and coffins, and talk to people."

Additionally, the report included a "church service for peace" as a planned action.

The two other new TALON reports, both from April 2005, notified the Pentagon that Veterans for Peace was planning anti-war actions on college campuses.

The ACLU is calling on Congress to investigate the surveillance of political and religious groups.

San Bernardino County Records Are Subpoenaed

By Richard Simon and Ashley Powers
June 03, 2006 in print edition B-3

A federal grand jury conducting a criminal investigation has subpoenaed San Bernardino County records related to a Washington lobbying firm with close ties to Rep. Jerry Lewis, chairman of the powerful House Appropriations Committee, according to federal documents.

Federal investigators are looking into the relationship between Lewis (R-Redlands) and a Washington lobbyist linked to disgraced former Rep. Randy “Duke” Cunningham (R-Rancho Santa Fe), three people familiar with the investigation told The Times last month. The city of Redlands also received a grand jury subpoena.

Investigators are said to be particularly interested in whether intermingling between Lewis’ aides and lobbyist Bill Lowery’s staff led to favorable treatment for Lowery’s clients, sources told The Times. Lewis and Lowery have denied any wrongdoing.

The subpoena delivered to the county was issued “in connection with an official criminal investigation,” according to a cover letter from the U.S. attorney’s Public Corruption and Civil Rights Section in Los Angeles.

The investigation is part of a federal probe stemming from Cunningham’s conviction for accepting $2.4 million in bribes and favors from defense contractors.

In the May 17 subpoena, obtained by The Times, the Los Angeles Grand Jury asks for e-mails, memoranda, contracts and other records regarding the county’s decision to hire Lowery’s firm – Copeland Lowery Jacquez Denton & White – as well as billing records and all other communications between the county and Lowery or members of his firm.

The grand jury also demanded “all documents relating to communications by and between you [San Bernardino County] and United States Rep. Jerry Lewis

The investigation is being conducted by the FBI, the IRS and the Defense Criminal Investigative Service, a federal prosecutor stated in a letter that accompanied the subpoena.

San Bernardino County spokesman David Wert said the county would comply with the subpoena, which asks that the documents be turned over by June 13. Wert said he could not discuss the matter further at the request of the U.S. attorney’s office.

Thom Mrozek, the attorney’s office spokesman, said it was Justice Department policy not to comment on pending investigations.

In a statement Friday, Lewis said the department had not contacted him regarding an investigation. “Throughout my career, I have also made every effort to meet the highest ethical standards, and I am absolutely certain that any review of my work will confirm this,” the congressman said.

“This is just routine, ordinary, simple appropriations,” said Patrick Dorton, a spokesman for Lowery’s firm. “It is the same as work done every single day in Washington for counties and towns in every state in the country. It was done consistent with all the laws, rules, and regulations that govern Capitol Hill lobbying.”

From 2002-06, San Bernardino County approved more than half a million dollars in lobbying contracts with Lowery’s firm to represent the county in Washington. Several other Inland Empire cities also employ the firm.

Redlands City Atty. Dan McHugh could not be reached for comment, but told the San Bernardino Sun this week that the city also had received a subpoena seeking information regarding Lowery’s firm.

San Bernardino’s city attorney, James F. Penman, had no comment as to whether federal investigators contacted the city.

Lowery, a former congressman from San Diego, has worked with such clients as Brent R. Wilkes, a defense contractor who was identified by his lawyer as the unindicted “co-conspirator No. 1” in the Cunningham corruption case.

Cunningham was sentenced to eight years and four months in prison for accepting $2.4 million in bribes and favors from “co-conspirator No. 1” and his business associate, Mitchell Wade, who pleaded guilty to bribing Cunningham.

The Cunningham case has put the spotlight on “earmarking,” a practice in which lawmakers slip parochial and special- interest projects into spending bills, often at lobbyists’ behest late in the legislative process and without advance public notice.

Wilkes and his companies are among Lewis’ largest contributors, giving the lawmaker at least $60,000 in campaign contributions over the years. At the same time, Wilkes has paid Lowery’s firm more than $160,000 in lobbying fees.

*

Times staff writers Peter Pae and Cynthia H. Cho contributed to this report.

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Lewis Surfaces in Probe of Cunningham

By Peter Pae
May 11, 2006 in print edition A-1

Federal prosecutors have begun an investigation into Rep. Jerry Lewis, the Californian who chairs the powerful House Appropriations Committee, government officials and others said, signaling the spread of a San Diego corruption probe.

The U.S. attorney’s office in Los Angeles has issued subpoenas in an investigation into the relationship between Lewis (R-Redlands) and a Washington lobbyist linked to disgraced former Rep. Randy “Duke” Cunningham (R-Rancho Santa Fe), three people familiar with the investigation said.

The investigation is part of an expanding federal probe stemming from Cunningham’s conviction for accepting $2.4 million in bribes and favors from defense contractors, according to the three sources.

It is not clear where the investigation is headed or what evidence the government has. But the probe suggests that investigators are looking past Cunningham to other legislators and, perhaps, the “earmarking” system that members of Congress use to allocate funds.

Lewis said Wednesday that he was not aware of any investigation, had not been contacted by any investigator and did not know why he would be investigated.

“For goodness sake, why would they be doing that?” Lewis asked.

The government is looking into the connection between Lewis and his longtime friend Bill Lowery, the sources said. Lowery, a lobbyist, is a former congressman from San Diego.

As chairman of the Appropriations panel, Lewis has earmarked hundreds of millions of dollars in federal contracts for many of Lowery’s clients, one of the sources said.

Lewis said he knew Lowery well, having spent 12 years in Congress with him, but denied favoring earmarks for Lowery’s clients.

“Absolutely not,” Lewis said. He said all the earmarks he authorized benefited “my constituents and my people.” He said he was particularly proud of helping fund programs such as the cancer treatment center at Loma Linda University, a client of Lowery’s. “That would never have been accomplished without an earmark,” he said.

The Lewis investigation is in the early stages and has not been presented to a grand jury, the sources said. They spoke on condition of anonymity because they were either involved in the probe or were not authorized to speak about ongoing investigations.

Thom Mrozek, spokesman for the office of U.S. Atty. Debra Wong Yang, said that as a matter of policy he could not confirm or deny any investigation it might be conducting.

The probe focuses on what one source said was an unusually close relationship between Lewis and Lowery, who served on the House Appropriations Committee together from 1985 to 1993.

Shortly after leaving Congress, Lowery founded Copeland Lowery Jacquez Denton & White, a Washington lobbying firm whose clients include Brent R. Wilkes, a defense contractor who is the focus of a separate probe in San Diego.

Wilkes has been identified by his lawyer as the unindicted “co-conspirator No. 1” in the Cunningham corruption case.

In that case, Cunningham was sentenced to eight years and four months in prison for accepting $2.4 million in bribes and favors from “co-conspirator No. 1” and his business associate, Mitchell Wade, who pleaded guilty to bribing Cunningham. Cunningham and Wade are cooperating with federal investigators.

Wilkes and his companies have given Lewis at least $60,000 in campaign contributions over the years, making them among the lawmaker’s largest contributors.

At the same time, Wilkes has paid Lowery’s firm more than $160,000 in lobbying fees.

According to Taxpayers for Common Sense, a nonpartisan research organization, Lewis has earmarked at least $70 million in federal funds for a mapping software company in Redlands. The company, Environmental Systems Research Institute Inc., is one of Lowery’s largest clients and has paid more than $320,000 in lobbying fees, according to the nonpartisan Center for Public Integrity.

Investigators are said to be particularly interested in the intermingling of Lewis’ and Lowery’s staffs and whether it led to favorable treatment for Lowery’s clients in securing government contracts.

Jeff Shockey, a key Lewis staffer, went to work for Lowery as a lobbyist in 1999 and then returned to Lewis’ staff last year. According to a source familiar with the investigation, Shockey received $600,000 in severance payments from Lowery’s firm before returning to Lewis to become the deputy staff director for the House Appropriations Committee – with an annual salary of $170,000.

“He is now the gatekeeper for more than $850 billion,” said Keith Ashdown of Taxpayers for Common Sense, referring to the Appropriations Committee’s role in disbursing government funds.

Shockey could not be reached for comment.

John Scofield, communications director for the House Appropriations Committee, said Shockey and the committee had had “no contact with any entity of any kind,” referring to investigators.

“This is all based on anonymous sources and hearsay. It’s borderline slanderous,” Scofield said.

In 2003, another key Lewis aide, Letitia White, became a lobbyist for Lowery.

“It’s the wicked revolving door,” said Naomi Seligman Steiner, investigator for Citizens for Responsibility and Ethics in Washington, a government watchdog backed by liberal groups that has questioned the relationship between Lewis and Lowery.

Lewis was among several members of Congress who came under scrutiny after the Cunningham corruption case erupted last summer. Cunningham, also a longtime Lewis friend, admitted to earmarking funds to Wilkes in return for cash and favors.

Cunningham challenged Lowery, the incumbent, in the 1992 Republican primary. But Lowery dropped out of the race after he was identified as one of the worst offenders of “Rubbergate,” in which several members of Congress were discovered to have written numerous bad checks on the House bank. Lowery acknowledged writing 300 bad checks.

Cunningham’s campaign slogan was: “A congressman we can be proud of.”

Lewis is one of the senior members of Congress, with 27 years on Capitol Hill. At one time, he was head of California’s GOP delegation, and became a “cardinal” – as the chairs of Appropriations subcommittees are known – serving most recently as chairman of the Appropriations defense subcommittee and managing the biggest spending bill in the federal budget.

Last year, Lewis became chairman of the full committee, historically one of the most powerful jobs in Washington.

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• San Bernardino County Records Are Subpoenaed Jun 03, 2006
• Prosecutors demand files of 3 House panels Jan 04, 2007
• There’s a Mountain of Wealth on Capitol Hill Jun 15, 2006
• Body in San Diego is probably that of missing man Jan 30, 2008
• Indicted O.C. sheriff’s back on the job, just not at his desk Jan 08, 2008

Big Bear Lake Resort Association history isn't all rosy

By ARRISSIA OWEN TURNER

Wednesday, May 10, 2006 11:57 AM PDT

Ssssh. The Big Bear Lake Resort Association's success story isn't completely free of freckles, but not too many people want to shout about it. Most RA members and ex-members are so afraid of speaking out against the RA they practically hang up the phone at the mere mention of voicing an opinion. When you pry a little deeper, they'll talk, but only if you don't know their names.

That sort of fear and secrecy is what has caused much of the controversy surrounding the RA. At board meetings, members are sometimes chastised for trying to speak up. Others spend years trying to get on the board because they are suspect of how the money is handled. Others just flat out filed a lawsuit.

In the late 1990s, a lawsuit charged that RA board president and president of Snow Summit Resort Dick Kun was hard-balling people into joining the RA to keep receiving discounted ski lift tickets from the resorts. There were charges the RA favored certain member businesses and prohibited members from subscribing to other referral services.

There were personal attacks, allegations of price fixing, and in the end the lawsuit was defeated, spare some free ski lift tickets and lawyer fees exchanged. Kun and the RA came out on top.

Day-to-day transactions remain a hot issue with some business owners still seven years after the lawsuit was settled. The reservation system seems to be the burning button for most.

“Entopia, I don't care for it,” says Jim Fulton, manager of North Shore Cabins, one of the few willing to give his name. Fulton says the referrals from the RA only seem to come during busy times when the cabins are already plenty booked. “We don't get anything during the off season. We don't get nothing from them.”

Part of the problem seems to be a lack of communication from the upper level management of the RA that focuses solely on marketing Big Bear. RA members who just deal with the bottom line are not seeing the benefits or even aware of an ad in the Los Angeles Times or Family Circle and how that helps their businesses in the big picture.

The RA's clients are not always privy to the science behind the marketing plan or have a gist of what tourism in Big Bear would be like without the public relations and marketing. They just have the headaches of a flawed reservation system that sometimes sends guests to their front desk before the lodge knows the room is booked.

Another accommodations manager who declined to be identified said her lodge is no longer a member of the RA because of billing problems. “Behind the business door, dealing with some of them is not easy,” she says, explaining stumbling blocks with credit card billings in the past.

“I felt what they claim as far as no favoritism is not true either,” she says. For a lodge not yet able to hook into the reservation system online, they are literally left out of the loop more than others.

Another business owner who also spoke on the basis of anonymity said the RA, while a good business model, is not a great one. “When you make it for profit, you end up competing with your own customers,” he says, adding that after paying the dues, he's also approached to pay to advertise in the RA visitors guide and help promote events that do not directly help his business profit.

“The RA should stick to promoting Big Bear as a destination,” he says. “Because they have their own reservation system it makes people suspect. They end up in competition with other places that have their own Web sites.”

As far as events, he is offended when asked to help other businesses profit without his monthly numbers taken into account, he says. “They are taking money for what should be a good thing and at the same time are stabbing their customers in the back.”

Contact reporter Arrissia Owen Turner at (909) 866-3456, ext. 142 or by e-mail at aoturner@bigbeargrizzly.net.

Sheriff Penrod committed perjury

April 19, 2006
Fair Political Practices Commission
428 J Street, Suite 620
Sacramento, CA 95814

Office: (866) 275-3772

Re: Economic Interest Statements

To Whom It May Concern:

This letter is to inform you that San Bernardino County Sheriff Gary Penrod failed to report on his economic interest statements his and his wife’s ownership interest in numerous properties, two businesses as well as the beneficial interest in a note and deed of trust. (see Exhibit “A”, copy of Form 700 Economic Interest Statements filed by Sheriff Gary Penrod) The list of properties, businesses and note that were not reported by Sheriff Gary Penrod are as follows by year that they should have been reported on the economic interest statement:

ECONOMIC INTEREST STATEMENT PERIOD COVERED 01/01/99 THRU 12/31/99 SIGNED MARCH 29, 2000
BUSINESS: Penrod Construction – general Contractor License # 359427 issued on 07/03/78 with an expiration date on 06/30/06 as verified on the California Contractors State License Board website. No record of fictitious business name statement filed. No record at the Secretary of State’s office of a corporation, limited partnership or LLC.

Owner Parcel # Property Address Purch Date Sold Date
Gary & Nancy Penrod 0321-271-20 36551 Avenue E, Yucaipa, CA

Gary Penrod 0321-271-30 no address

ECONOMIC INTEREST STATEMENT PERIOD COVERED 01/01/00 THRU 12/31/00 SIGNED MARCH 19, 2001

On or about April 1, 2000, Gary Penrod married Nancy Bohl. Nancy Bohl is the owner of The Counseling Team International which is a business that provides counseling services to over 200 city, county, state agencies and private businesses. The Counseling Team International has a contract to provide services to numerous agencies of the County of San Bernardino such as: Department of Public Social Services, San Bernardino County Superior Court, District Attorney’s Office, Fire Department, Probation Department and Sheriff’s Department. (see attached Exhibit “B”, printout of The Counseling Team International’s clients)

The Counseling Team International has filed a fictitious business statement with the San Bernardino County Recorder’s Office indicating ownership by Nancy K. Bohl, Inc. Secretary of State shows Nancy K. Bohl, Inc. as an active corporation.

BUSINESS: Penrod Construction and The Counseling Team International

Owner Parcel # Property Address
Gary & Nancy Penrod 0321-271-20 36551 Avenue E, Yucaipa, CA

Gary Penrod 0321-271-30 no address

Nancy Penrod 0315-253-19 State Lane, Lake Erwin, CA

Nancy Bohl 0349-152-19 18431 Arrowhead Blvd San Bernardino, CA

Nancy Bohl 0396-391-07 15415 Anacapa Road Victorville, CA

Nancy Bohl 0141-461-65 1881 Business Center Drive 12A San Bernardino, CA 92408

Nancy Bohl 0141-461-66 1881 Business Center Drive 12B San Bernardino, CA 92408

Gary & Janet Penrod 0315-201-15 750 Lakewood Drive

ECONOMIC INTEREST STATEMENT PERIOD COVERED 01/01/01 THRU 12/31/01 SIGNED FEBRUARY 28, 2001 (ERROR ON YEAR)

BUSINESS: Penrod Construction and The Counseling Team International

Owner Parcel # Property Address
Gary & Nancy Penrod 0321-271-20 36551 Avenue E, Yucaipa, CA

Gary Penrod 0321-271-30 no address

Nancy Penrod 0315-253-19 State Lane, Lake Erwin, CA

Nancy Bohl 0349-152-19 18431 Arrowhead Blvd San Bernardino, CA

Nancy Bohl 0396-391-07 15415 Anacapa Road Victorville, CA

Nancy Bohl 0141-461-65 1881 Business Center Drive 12A San Bernardino, CA 92408

Nancy Bohl 0141-461-66 1881 Business Center Drive 12B San Bernardino, CA 92408

ECONOMIC INTEREST STATEMENT PERIOD COVERED 01/01/02 THRU 12/31/02 SIGNED MARCH 26, 2003

BUSINESS: Penrod Construction and The Counseling Team International

Owner Parcel # Property Address

Gary & Nancy Penrod 0321-271-20 36551 Avenue E, Yucaipa, CA

Gary & Nancy Penrod 1242-511-13 no address
Gary Penrod 0321-271-30 no address

Nancy Penrod 0315-253-19 State Lane, Lake Erwin, CA

Nancy Bohl 0349-152-19 18431 Arrowhead Blvd San Bernardino, CA

Nancy Bohl 0396-391-07 15415 Anacapa Road Victorville, CA

Nancy Bohl 0141-461-65 1881 Business Center Drive 12A San Bernardino, CA 92408

Nancy Bohl 0141-461-66 1881 Business Center Drive 12B San Bernardino, CA 92408

ECONOMIC INTEREST STATEMENT PERIOD COVERED 01/01/03 THRU 12/31/03 SIGNED MARCH 8, 2004

BUSINESS: Penrod Construction and The Counseling Team International

NOTE AND DEED OF TRUST: Dated May 8, 2003, Grandview Ranch Properties, Trustors, Nancy Bohl, Beneficiary, Loan Amount $34,000.00

Owner Parcel # Property Address Purch Date Sold Date

Gary & Nancy Penrod 0321-271-20 36551 Avenue E, Yucaipa, CA

Gary & Nancy Penrod 1242-511-13 no address
Gary Penrod 0321-271-30 no address

Nancy Bohl 0396-391-07 15415 Anacapa Road Victorville, CA

Nancy Bohl 0141-461-65 1881 Business Center Drive 12A San Bernardino, CA 92408

Nancy Bohl 0141-461-66 1881 Business Center Drive 12B San Bernardino, CA 92408

ECONOMIC INTEREST STATEMENT PERIOD COVERED 01/01/04 THRU 12/31/04 SIGNED MARCH 30, 2005

BUSINESS: Penrod Construction and The Counseling Team International

NOTE AND DEED OF TRUST: Dated May 8, 2003, Grandview Ranch Properties, Trustors, Nancy Bohl, Beneficiary, Loan Amount $34,000.00

Owner Parcel # Property Address

Gary & Nancy Penrod 0321-271-20 36551 Avenue E, Yucaipa, CA

Gary Penrod 1242-511-13 no address

Gary Penrod 0321-271-30 no address

Nancy Bohl 0396-391-07 15415 Anacapa Road Victorville, CA
Nancy Bohl 0141-461-65 1881 Business Center Drive 12A San Bernardino, CA 92408

Nancy Bohl 0141-461-66 1881 Business Center Drive 12B San Bernardino, CA 92408

ECONOMIC INTEREST STATEMENT PERIOD COVERED 01/01/05 THRU 12/31/05 SIGNED FEBRUARY 23, 2006

BUSINESS: Penrod Construction and The Counseling Team International

NOTE AND DEED OF TRUST: Dated May 8, 2003, Grandview Ranch Properties, trustors, Nancy Bohl, beneficiary, loan amount $34,000.00

Owner Parcel # Property Address

Gary & Nancy Penrod 0321-271-20 36551 Avenue E, Yucaipa, CA

Gary & Nancy Penrod 1242-511-13 no address
Gary Penrod 0321-271-30 no address

Nancy Bohl 0396-391-07 15415 Anacapa Road Victorville, CA

Nancy Bohl 0141-461-65 1881 Business Center Drive 12A San Bernardino, CA 92408

Nancy Bohl 0141-461-66 1881 Business Center Drive 12B San Bernardino, CA 92408

Sheriff Gary Penrod signed the Form 700’s Economic Interest Statement under the penalty of perjury as required under Government Code § 81004.

81004. (a) All reports and statements filed under this title shall be signed under penalty of perjury and verified by the filer. The verification shall state that the filer has used all reasonable diligence in its preparation, and that to the best of his knowledge it is true and complete.

(b) A report or statement filed by a committee which qualifies under subdivision (a) of Section 82013 shall be signed and verified by the treasurer, and a report or statement filed by any other person shall be signed and verified by the filer. If the filer is an entity other than an individual, the report or statement shall be signed and verified by a responsible officer of the entity or by an attorney or a certified public accountant acting as agent for the entity. Every person who signs and verifies any report or statement required to be filed under this title which contains material matter which he knows to be false is guilty of perjury.

The lack of truthful disclosure on his Form 700’s Economic Interest Statement by Sheriff Gary Penrod defeats the purposes of Government Code § 81002.

The assets and income belonging to The Counseling Team International may be materially affected by the position that Sheriff Gary Penrod holds in the County of San Bernardino. The Counseling Team International has been awarded several contracts from the County of San Bernardino. The fact that Sheriff Gary Penrod failed to disclose his wife’s ownership of The Counseling Team International is a glaring potential conflict of interest.

81002. The people enact this title to accomplish the following purposes:

(a) Receipts and expenditures in election campaigns should be fully and truthfully disclosed in order that the voters may be fully informed and improper practices may be inhibited.

(b) The activities of lobbyists should be regulated and their finances disclosed in order that improper influences will not be directed at public officials.

(c) Assets and income of public officials which may be materially affected by their official actions should be disclosed and in appropriate circumstances the officials should be disqualified from acting in order that conflicts of interest may be avoided.

(d) The state ballot pamphlet should be converted into a useful document so that voters will not be entirely dependent on paid advertising for information regarding state measures.

(e) Laws and practices unfairly favoring incumbents should be abolished in order that elections may be conducted more fairly.

(f) Adequate enforcement mechanisms should be provided to public officials and private citizens in order that this title will be vigorously enforced.

Please accept this letter as our formal complaint and request for an investigation into these very serious breaches of the law.

Sincerely,

Gail C. Fry
CIVIC USA
2010 W. Avenue K #616, Lancaster, CA 93536

Whistle-Blower Outs NSA Spy Room

AT&T provided National Security Agency eavesdroppers with full access to its customers' phone calls, and shunted its customers' internet traffic to data-mining equipment installed in a secret room in its San Francisco switching center, according to a former AT&T worker cooperating in the Electronic Frontier Foundation's lawsuit against the company.

Mark Klein, a retired AT&T communications technician, submitted an affidavit in support of the EFF's lawsuit this week. That class action lawsuit, filed in federal court in San Francisco last January, alleges that AT&T violated federal and state laws by surreptitiously allowing the government to monitor phone and internet communications of AT&T customers without warrants.

On Wednesday, the EFF asked the court to issue an injunction prohibiting AT&T from continuing the alleged wiretapping, and filed a number of documents under seal, including three AT&T documents that purportedly explain how the wiretapping system works.

According to a statement released by Klein's attorney, an NSA agent showed up at the San Francisco switching center in 2002 to interview a management-level technician for a special job. In January 2003, Klein observed a new room being built adjacent to the room housing AT&T's #4ESS switching equipment, which is responsible for routing long distance and international calls.

"I learned that the person whom the NSA interviewed for the secret job was the person working to install equipment in this room," Klein wrote. "The regular technician work force was not allowed in the room."

Klein's job eventually included connecting internet circuits to a splitting cabinet that led to the secret room. During the course of that work, he learned from a co-worker that similar cabinets were being installed in other cities, including Seattle, San Jose, Los Angeles and San Diego.

"While doing my job, I learned that fiber optic cables from the secret room were tapping into the Worldnet (AT&T's internet service) circuits by splitting off a portion of the light signal," Klein wrote.

The split circuits included traffic from peering links connecting to other internet backbone providers, meaning that AT&T was also diverting traffic routed from its network to or from other domestic and international providers, according to Klein's statement.

The secret room also included data-mining equipment called a Narus STA 6400, "known to be used particularly by government intelligence agencies because of its ability to sift through large amounts of data looking for preprogrammed targets," according to Klein's statement.

Narus, whose website touts AT&T as a client, sells software to help internet service providers and telecoms monitor and manage their networks, look for intrusions, and wiretap phone calls as mandated by federal law.

Klein said he came forward because he does not believe that the Bush administration is being truthful about the extent of its extrajudicial monitoring of Americans' communications.

"Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with FISA," Klein's wrote. "And unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of internet communications of countless citizens."

After asking for a preview copy of the documents last week, the government did not object to the EFF filing the paper under seal, although the EFF asked the court Wednesday to make the documents public.

One of the documents is titled "Study Group 3, LGX/Splitter Wiring, San Francisco," and is dated 2002. The others are allegedly a design document instructing technicians how to wire up the taps, and a document that describes the equipment installed in the secret room.

In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be "could be used to 'hack' into the AT&T network, compromising its integrity."

According to court rules, AT&T has until Thursday to file a motion to keep the documents sealed. The government could also step in to the case and request that the documents not be made public, or even that the entire lawsuit be barred under the seldom-used State Secrets Privilege.

AT&T spokesman Walt Sharp declined to comment on the allegations, citing a company policy of not commenting on litigation or matters of national security, but did say that "AT&T follows all laws following requests for assistance from government authorities."