BR 14-01 Electronic Frontier Foundation's Notice of Pendency of other Action or Proceeding (FISC 2014)

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:; I.'.•'~• J' '·. • I I I •-• ~•I • ' - ·-•·'"- ('~·~· UNITED STATES i"'.r~t· l:.i,'i FOREIGN INTELLIGENCE SURVEILLANCE COURT ! WASHINGTON, D.C. IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OF TANGIBLE THINGS • ..... , r? r.i iln •• ''- f"'t ~·-::· ' • ' ••. ' '., .•• t '~. T .• I • •• I ··• !' • ' I \' ;• ~ L- r • ' , • • ' ,... . :_ j . •• · '.' .. '1 ,,.... , '~ : -1< 1.• \, r, .., ' ~= ~u ' .ii\ Docket No. BR 14-01 NOTICE OF PENDENCY OF OTHER ACTION OR PROCEEDING Movants submit this Notice of Pendency of Other Action or Proceeding to give this Court notice of a recent development in Carolyn Jewel, et al., v. National Security Agency, et al., No. 08-cv-4373-JSW (N.D. Cal.) and First Unitarian Church of Los Angeles, et al. v. National Security Agency, et al., Case No. 13-cv-3287-JSW (N.D. Cal.). Movants respectfully request that the Court take notice of the Northern District of California's March 1O. 2014 Order Granting Temporary Restraining Order, attached hereto as Exhibit A. Movants made an ex parte motion before that Court seeking an order temporarily restraining the government from destroying potential evidence, including the telephone metadata ("call detail") records, in violation of the existing evidence preservation order in Jewel v. NSA, No. 08-cv-4373-JSW (N.D. Cal.) and the government's evidence preservation obligations in First Unitarian Church ofLos Angeles v. NSA, No. 13-cv-3287-JSW (N.D. Cal.). The subject of evidence retention was addressed in this Court's order of March 7, 2014. The District Court granted the motion and issued a temporary restraining order. The Court further ordered full briefing by all parties with a hearing to decide the matter on March 19, 2014. l !L T - DATE: March 11, 2014 Respectfully submitted, ~----KURT OPSAHL KURT OPSAHL ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 kurt@eff.org Counsel for Movants 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing motion have been served on the following counsel on this l 11h day of March, 2014, in the manner indicated: By Overnight Delivery: CHRISTINE GUNNING United States Department of Justice Litigation Security Group 2 Constitution Square 145 N Street NE Suite 2W-l 15 Washington, DC 20530 (202) 514-9016 By Email: JAMES J. GILLIGAN Special Litigation Counsel james.gilligan@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6102 Washington, D.C. 20001 Phone: (202) 514-3358 HON. JEFFREY S. WHITE United States District Judge Northern District of California 450 Golden Gate Avenue Courtroom 11, 19•h Floor San Francisco, CA 94102 (415) 522-4173 MARCIA BERMAN Senior Trial Counsel marcia.bennan@usdoj.gov U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 7132 Washington, D.C. 20001 Phone: (202) 514-2205 Counsel for Defendants in Jewel v. NSA, No. 08-cv-4373-JSW (N.D. Cal.) and First Unitarian Church, v. NSA, No. 13-cv-3287JSW (N.D. Cal.) ~---- Dated: March 11, 2014 KURTOPSAHL 3 Exhibit A Exhibit A 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 8 9 10 t: 11 U .E ... ·- 12 (.I ;; .... w 13 =. e ~ '"" ...'G ... 0 rl:I .... '5 Q .....'€ .la 14 FOR THE NORTHERN DISTRICT OF CALIFORNIA CAROLYN JEWEL, ET AL., Plaintiffs, v. NATIONAL SECURITY AGENCY, ET AL., Defendants. 15 FIRST UNITARIAN CHURCH OF LOS ANGELES, ET AL., rn z 16 Plaintiffs, "' 17 c rl:I ~ E «! . ... 0 ,, -= ~ :s ....... ::>= 18 19 No. C 08-04373 JSW No. C 13-03287 JSW ORDER GRANTING TEMPORARY RESTRAINING ORDER v. NATIONAL SECURITY AGENCY, ET AL., Defendants. 20 21 22 This matter is now before the Court on Plaintiffs' ex parte motion for a temporary 23 restraining order requesting immediate relief. The Court HEREBY ORDERS that its prior 24 evidence preservation orders in these related matters shall be enforced. It is undisputed that the 25 Court would be unable to afford effective relief once the records are destroyed, and therefore 26 the harm to Plaintiffs would be irreparable. A temporary restraining order is necessary and 27 appropriate in order to allow the Court to decide whether the evidence should be preserved with 28 the benefit of full briefing and participation by all parties. Case3.i:~:-cv ·87-JS''l·/ Dcc~:1;.ent89 HadJ3/10/l :::iaga2 of 2 Accordingly, it is HEREBY ORDERED that Defendants, their officers, agents, servants. 2 employees, and attorneys, and all those in active concert or participation with them are 3 prohibited, enjoined, and restrained from destroying any potential evidence relevant to the 4 claims at issue in this action, including but not limited to prohibiting the destruction of any 5 telephone metadata or "call detail" records, pending further order of the Court. The Court 6 determines that there is no security necessary under the circumstances. 7 The Court sets the following briefing and hearing schedule, all in PST, in this matter: 8 Plaintiffs' opening brief shall be filed no later than March 13,.2014 at 2:00 p.m. 9 Defendants' opposition brief shall be filed no later than March 17, 2014 at 11 :00 a.m. -..=.. 12 ·.~a 13 -..... u= '2·e -... - (I} 0 tl (I} Q IO Plaintiffs' reply brief shall be filed no later than March 18, 2014 at 2:00 p.m. 11 The hearing on this issue shall be set for March 19, 2014 at 2:00 p.m. ·Q ·s .la 14 cu e 15 ~ rJ'.) '@ z0 ·-= "'C -=:s - I&. cu ;:J IT IS SO ORDERED. JEF~ Dated: March 10, 2014 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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