ORDER

JULIE A. ROBINSON, District Judge.

On February 19, 2015, the Court received a lengthy e-mail from Plaintiff Horace B. Edwards' counsel, Jean Lamfers, attached to this Order as Exhibit A. The e-mail complains about the Court's failure to schedule an "emergency request" for a conference call she requested by voicemail, and argues further that the Court erred in denying her motion to seal certain exhibits attached to Defendants' Motion to Dismiss.

The federal rules are quite clear on the proper method for seeking Court relief: "A request for a court order must be made by motion. The motion must: (A) be made in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought."1 Of course, the filing must also conform to Fed. R. Civ. P. 11. The Court's Local Rule 7.1 provides more specific guidance regarding the content of motions filed in this District. Plaintiff's e-mail fails to conform to either the federal or local rules for requesting Court relief, therefore the Court will not act on the requests contained therein.

Plaintiff is instructed to follow the federal and local rules for seeking Court relief going forward. The Court will not entertain these requests informally by telephone or e-mail; they must be in writing and filed in the Court record on CM/ECF. To the extent Plaintiff seeks a hearing, such a request shall also be made in writing and accompany the motion for which a hearing is sought. The Court likewise will not set a civil case for hearing or status conference in the absence of an accompanying motion and written request unless the federal rules require such a hearing. There has been nothing filed in this case to date that requires a hearing under the applicable rules.

Plaintiff's counsel has been instructed that the Court prefers informal communications with the Court be made by e-mail, with copy to opposing counsel. In the Court's experience, such informal communications are rarely necessary and are typically limited to coordinating hearing dates after the Court has determined a hearing is necessary, or to address routine, procedural questions. The Court does not and will not entertain requests for relief in this manner and Plaintiff shall refrain from this practice going forward.

IT IS SO ORDERED.

Your Honor,

As requested by the Court's Courtroom Deputy, I am responding to the Court by email.

I had filed a motion on February 12, 2015, requesting certain documents be filed under seal and was neither heard nor given an opportunity to reply before the Court's Order dated February 13, 2015. In conjunction with this email, a supplemental memorandum and declaration are also being filed with the Court.

I phoned the Court on an "emergency basis" on February 17th at approximately 3 p.m. and received an email from the Courtroom Deputy at around 2 p.m. on February 18th, about 24 hours after my emergency request for a brief conference call/hearing with the Court and all counsel related to the Denial of a Motion to Seal Classified Information because I understood the Court was misinformed by defendants of the proper legal standards applicable to classified materials and apprpriate means to declassify. Thereby an important issue separate from the merits of the action was decided with practical and/or actual finality, and is effectively unreviewable now due to the timing of defendants' ongoing conduct. Clarification was requested and not received in time for the relief sought. The order denying plaintiff's sealing motion was decided based on defendants' representations and papers leading to, inter alia, what plaintiff asserts to be clear error. The legal standards between classified information being unsealed and issues of sealing unrelated, unclassified court records are very different, as indicated by the precedent provided in plaintiff's Motion. The precedent cited was neither mentioned or distinguished in defendants' papers to the Court, nor referred to in the Court's Order.**

Plaintiff's counsel was not provided, based upon defendants' approach, any meaningful or sufficient opportunity to respond to defendant's Objections when the Court's denial order was issued approximately 8 hours after the Objection was filed on Friday the 13th, just before a three day holiday weekend. Because of such circumstances, irreparable harm is not only imminent, but also quantifiable and demonstrable, as supported by the proposed 2nd Amended Complaint and its Exhibits, inter alia, the Certification of Acknowledgement of the former general counsel of the National Security Agency (NSA) reporting research summarizing measurable negative activity by al-Qaeda and splinter groups following the Snowden disclosures.

As has been recognized by United States government officials, including the President, there is no more important issue to our Nation as a whole than its security and the lawful exercise of such to protect and defend the Constitution and the rights it enshrines. The film, Citizenfour, admittedly by defendants in their Motion to Dismiss, discloses classified information, including sources and methods of intelligence gathering and Tier 3 classified information, which experts say has been disclosed to countries considered our adversaries and organizations recognized as terrorists by the United States Government. See Exhibits to 2nd Amended Complaint.

I advised Mr. Rhodes on January 23, 2015 that any submission of the film should only be undertaken on an in camera basis to the Court. I said I did not want to take possession of it. This was because of my understanding the film contains classified information based on my having seen the film. I received no response to this request from defendants' counsel. To the contrary defendant's counsel delivered a copy of the DVD to my office (which remains unopened and under lock and key).

My conclusion that classified information is actually contained in Citizenfour has thereafter been admitted by defendants in their Motion to Dismiss, Doc. 14. Ex. 1 at 30-31, 37-40, 29-31, 45-46, and 37-38. Despite those admissions, defendants' counsel objected to filing under seal using citations only to cases NOT related to how classified information is to be handled and ignoring the procedures applicable for doing so, thus misleading the Court. My reference in my Motion to "Better safe than sorry" was not stated merely as an idiomatic expression, but rather a reference to the fact that classified information is typically held in the Clerk's safe, not in the public file. I had contacted the clerk's office and understood the DVD would be held in the safe until a motion could be determined.

Furthermore, the expression used by defendants: "once the cat is out of the bag, the ball game is over" is not relevant to classified information standards but is from a case involving privileged, not classified documents. See, Gambale v. Deutsche Bank AG, 377 F.3d 133, 145, n.11. (2nd Cir. 2004).

The delay resulting from a lack of candor by defense counsel on the legal precedent related to the issue of how classified information is declassified does not include unofficially endorsed media disclosures to a wide audience or disclosures by those who unlawfully obtained or participated and colluded in obtaining such materials. See proposed 2nd Amended Complaint and the precedent referenced in my Motion to Seal, Doc. 15. Even classified information published in the Congressional Record has been deemed as remaining classified as indicated in Wilson v. CIA, 586 F.3d 171, 196 (2nd Cir. 2009). The procedure for declassifying information is not simply revealing it in a film, but rather "when the propriety of a classification is challenged, a court appropriately reviews the record, "in camera" or otherwise," to ensure that the government agency has "good reason to classify . . . with "reasonable specificity, demonstrat[ing] a logical connection between the [classified] information and the reasons for classification." Wilson at 196.

This situation has placed the plaintiff in an untenable position regarding avoiding irreparable harm and obtaining appropriate relief sought on a serious issue in a timely manner.

The denial of a sealing motion has furthered the irreparable harm and relief necessary to address such harm, among other things, by the continuing injury through repetition of classified, stolen information that reaches a broader constituency of extremists with each showing, the effects of which will be exacerbated by the announced worldwide distribution of the film Sunday/Monday via the Academy Awards and HBO's scheduled cable distribution.

Accordingly, given the circumstances and pursuant to Federal Rule of Appellate Procedure 8.2(A) and 10th Cir. R. 8, the only effective relief at this time places plaintiff in the position to bring this matter under an emergency motion for emergency relief to the Tenth Circuit Court of Appeals.

I make the above factual assertions under penalty of perjury as my declaration as an officer of this Court. I respectfully request this email be docketed as a part of the official record of this Court.

note** The applicable law and rules requiring candor with the Court on legal precedent is paramount to due process and fairness, as addressed in the Kansas Rules of Professional Conduct, Rule 226, 3.3 and Comments thereto. Defense counsels' Objection cited entirely to cases unrelated to classified information. To therefore assert such cases are controlling law is inapposite to the issue of declassification through unofficial public disclosure. To not disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the defendants or to distinguish the cases that were cited by plaintiff raises issues of improper advocacy.

Sincerely, Jean Lamfers

On 2015-02-18 01:24 PM, Bonnie_Wiest@ksd.uscourts.gov wrote: