Opposition Brief — Crater Corp. v. Lucent Technologies, Inc.

No. 01-932 .

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In THE | i

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Supreme Court of the Hnited States ~~

CRATER CORPORATION,

Petitioner,

Vv

LUCENT TECHNOLOGIES INC.,

AMERICAN TELEPHONE AND TELEGRAPH

CoMPANY, AND UNITED STATES,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Federal Circuit

BRIEF OF RESPONDENTS LUCENT

TECHNOLOGIES INC.

AND AMERICAN TELEPHONE AND

TELEGRAPH COMPANY

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

BRYAN CAVE LLP

Tuomas C. WALSH

(COUNSEL OF RECORD)

Louis F. BONACORSI

ONE METROPOLITAN SQUARE

SuITE 3600

St. Louis, MO 63102

(314) 259-2000 (PHONE)

(314) 259-2020 (Fax)

Attorneys for Respondents

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477 ' \ oe

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CORPORATE DISCLOSURE STATEMENT

Respondents Lucent Technologies Inc., and Ameri-

can Telephone and Telegraph Co. are publicly traded

companies on the New York Stock Exchange.

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REASONS FOR DENYING THE PETITION

I.

The first three Questions Presented by the Petition

relate to the “state secrets privilege” — an issue that

was not decided by the Court of Appeals. That court’s

opinion said:

“We conclude, however, that it is not necessary for

us to address Crater’s arguments concerning the

state secrets privilege. The reason is that we

believe that the issue of the privilege is irrelevant+to

the question that is before us on appeal...” (Pet.

Apdx 18a).

This Court does not ordinarily grant review to con-

sider issues not discussed by the court below. Perry v.

Thomas, 482 U.S. 483, 492 (1987); Street v. New York,

394 U.S. 576, 582 (1969); Bailey v. Anderson, 326 U.S.

203, 206-07 (1945). The opinion of the Court of Appeals

creates no precedent concerning the state secrets privi-

lege, and accordingly there is nothing for this Court to

review relating to that issue.

In addition, Questions 1-3 are premised on a misde-

scription of the record in this case. The Secretary of the

Navy filed a Declaration stating that the information

sought by petitioner was classified as “Top Secret,” and

that petitioner’s requested discovery “could be expected

to cause extremely grave damages to national security”

because requiring responses to petitioner’s discovery

“would, directly or indirectly, provide adversaries of the

United States Government with information concern-

ing... operations and programs... [that] are currently

ongoing,” and would “permit potential adversaries to

adopt specific measures to defeat or otherwise impair

_ oe

the effectiveness of those operations and programs”

(Pet. Apdx 118a-119a).

The Secretary's Declaration also recited that it was

“based on my personal consideration of the matter” and

“on information provided to me in my official capacity,

and on my evaluation of that information” (Pet. Apdx

119a, 117a). So petitioner’s contention that the Secre-

tary had insufficient information or provided inad-

equate detail when invoking the privilege is belied by

the Declaration itself, as well as by the case law. See

Kasza v. Browner, 133 F.3d 1159, 1169 (9th Cir.) (Secre-

tary of Air Force need not explain why each requested

item of information affected the national interest), cert.

denied, 525 U.S. 967 (1998); Bareford v. General Dy-

namics Corp., 973 F.2d 1138, 1142 (5th Cir. 1992)

(Secretary of Navy could invoke privilege based on

understanding of type of information plaintiffs would

need to establish their claim), cert. denied, 507 U.S.

1029 (1993); Ellsberg v. Mitchell, 709 F.2d 51, 59 (D.C.

Cir. 1983) (declaration asserting prejudice to national

interest need not explain what interest consists of or

how it might be damaged), cert. denied, 465 U.S. 1038

(1984).

Nor is there any basis for petitioner’s assertion that

the privilege was applied here to “bar discovery of

relevant materials that do not constitute state or mili-

tary secrets” (Pet. i). The district court’s order specifi-

cally authorized the parties to “proceed with discovery

on the issues of (1) whether [respondents] made, used,

or sold the Accused Device . . . to or for anyone other than

the United States of America, and (2) whether the

United States Government gave its authorization or

consent to [respondents] for their manufacture or use of

the Accused Device” (Pet. Apdx 88a).

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The Court of Appeals likewise rejected petitioner's

characterization of the scope of the privilege applied by

the district court:

“The only information relevant to Crater’s opposi-

tion to Lucent’s motion was information of commer-

cial use of the coupler by Lucent. The privilege, by

definition, only barred discovery of evidence of non-

commercial use of the coupler by Lucent. The fact

the district court allowed the government to assert

the privilege had no bearing on Crater’s ability to

discover evidence that would have created a genu-

ine issue of material fact as to whether Lucent

engaged in commercial activity regarding the cou-

pler” (Pet. Apdx 19a).

Hence, questions 1-3 are simply not presented by this

case.

il.

Questions 4 and 5 posit inappropriate conduct on the

part of the district judge by reason of his entertaining ex

parte explanations by a government lawyer concerning

the sensitivity of the information being sought through

petitioner’s discovery requests. On the contrary, it is

well accepted that the government can — and must —

make its case for confidentiality outside of counsel’s

presence in order to avoid disclosing the very informa-

tion it seeks to protect. See United States v. Reynolds,

345 U.S. 1, 8 (1953) (a court must “determine whether

the circumstances are appropriate for the claim of

privilege . . . without forcing a disclosure of the very

thing the privilege is designed to protect”).

Accordingly, courts have consistently recognized the

propriety of ex parte, in camera proceedings for the

ae

examination of the state secrets issue. See,e.g., United

States v. Klimavicius-Viloria, 144 F.3d 1249, 1260 (9th

Cir. 1998), cert. denied, 120 S.Ct. 110 (1999); Kasza, 133

F.3d at 1169; Bareford, 973 F.2d at 1144-45; United

States v. Yunis, 867 F.2d 617, 620 (D.C. Cir. 1989).

Indeed, it has specifically been observed that participa-

tion by private counsel “carries with it serious risk that

highly sensitive information may be compromised.”

Halkin v. Helms, 598 F.2d 1, 7 (D.C. Cir. 1978), quoting

Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1369 (4th

Cir. 1975).

Petitioner’s attempt to impute misconduct to the trial

judge is therefore misguided, as is the suggestion that

Judge Webber’s impartiality might reasonably be ques-

tioned by reason of actions that were perfectly proper.

It.

Petitioner’s Sixth Question Presented deals with the

application of rules relating to summary judgment in

this fact-specific context. It does not warrant this

Court’s attention.

Subpart (1) of the issue — relating to the affidavit of

Paul Rominski that supposedly was “not based on the

affiant’s personal knowledge” — was not addressed by

either lower court. The Court of Appeals’ opinion

summarized the status of this issue:

“ _. {In ruling in favor of Lucent, the district court

did not rule on the motion to strike the Rominski

affidavit, stating that, in view of the discovery that

had taken place, the issue was moot... . Under

these circumstances, we have not considered the

Rominski affidavit” (Pet. Apdx 12a).

_ on

Subpart (2) of Question 6 deals with evidence submit-

ted with respondents’ reply brief in the district court.

The Court of Appeals found nothing irregular in the

procedure used under the unique circumstances pre-

sented because (a) discovery was not authorized until

after the motion and initial memorandum were filed,

and (b) petitioner’s response to the motion was filed

after the discovery in question, so petitioner “was able

to adequately address the evidence in its opposition

brief” (Pet. Apdx 14a-15a).

To the limited extent that Question 6 is actually

presented in this record, it arises in an esoteric factual

context and, in any event, is insubstantial.

CONCLUSION

For the reasons stated, the Petition for Writ of Certio-

rari should be denied.

Respectfully submitted,

BRYAN CAVE LLP

Thomas C. Walsh

(Counsel of Record)

Louis F. Bonacorsi

One Metropolitan Square

Suite 3600

St. Louis, MO 63102

(314) 259-2000 (Phone)

(314) 259-2020 (Fax)

Attorneys for Respondents

Lucent Technologies Inc., and

American Telephone and Tele-

graph Company

January 2002