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I, STUART A. SEARS, declare and state as follows:
1. I am an attorney licensed to practice law in the Commonwealth of Virginia and am a member of the law firm of Zwerling, Leibig & Moseley, P.C, counsel for one of the Real Parties in Interest, Jacob Appelbaum, in the above-captioned matter. I have personal knowledge of the facts stated in this Declaration, and if called as a witness I could and would competently testify to them under oath.
2. Attached hereto as Exhibit A is a true and correct copy of the May 4, 2011 Order issued by Magistrate Buchanan that is the subject of the Real Parties' Objections.
3. On May 6, 2011, I personally went to the Clerk's Office and asked to see the running list for this case. I was originally informed that there was nothing for the public to view regarding this case. I then spoke to the operations supervisor for the Clerk's Office, Richard Banke. He told me that there was no running list for specific cases. He then showed me on a computer screen all that existed regarding this matter, which was a one-page computer entry listing four 'EC' cases'EC 1, EC 2, EC 3, and EC 4. The entire screen only depicted a list of four cases, each entitled 'USA v. Under Seal.' The general heading of the page was 'Case
Assignment History Report.' The cases were listed in numerical order from 1:11-ec-1 through 1:11-ec-4. The only other relevant information available on the screen was when the case had been created and to which judge it had been assigned.
4. Upon questioning, Mr. Banke advised me that there was no other information or documents available to be viewed in connection with this case.
5. On May 11, 2011, I called Mr. Banke by telephone. He confirmed that there was no other running list other than the computer screen he had previously shown me that showed the existence of the 1:11-ec-1, ec-2, ec-3, and ec-4 cases. Mr. Banke also advised me that the Clerk's Office was not maintaining any other list of documents in connection with this case. Upon questioning, he advised that there was no book, ledger or any other list being kept regarding this case. He also stated that it was his understanding that what the Clerk's Office had done regarding the docketing was in compliance with Magistrate Buchanan's May 4 Order.
6. On May 12, 2011, I spoke via telephone with Magistrate Buchanan's chambers to inquire whether the Clerk's office had in fact done everything required by the May 4 Order. I advised Chambers that I interpreted the May 4 Order to direct the Clerk's office to keep a publicly docketed running list of all filings in this case, which would identify all filings including search warrants, subpoenas, etc. I further relayed to Chambers the information I had received from Mr. Banke that no other information was available or docketed apart from the one-page computer screen I had seen depicting the existence of the four 1:11-ec cases.
7. Later on May 12, 2011, I received a call from Magistrate Buchanan's chambers advising me that any confusion over the May 4 Order had now been straightened out and that the filings we were seeking to view would now be docketed on the running list. I was advised that the running list would not be available to be viewed until Monday, May 16, 2011.
8. On May 16, 2011, I personally went to the Clerk's office to view the running list reflecting the documents filed in this case. I was assisted again by the supervisor, Mr. Banke. The running list I was shown was almost identical to the previous case list that I had seen on May 6, which merely showed the existence of the four ec cases. The only change in the list was Under Seal Application and Order; 1/5/11 Motion and Order to unseal order of 12/14/10 (granted).' No notations were added to any of the other ec cases. In addition, the list now included the existence of additional 1:11-ec cases, running from 1:11-ec-5 through 1:11-ec-9. There were no notations or information regarding these additional cases. A true and correct copy of this running list that I viewed is attached hereto as Exhibit B.
9. During this conversation, I was advised by Mr. Banke that there was no other running list being kept in connection with the case. When I inquired whether any search warrants connected with this case were being kept on a list to be tracked, I was informed that search warrants are not listed to a specific case number, but rather are kept separately on a list of all search warrants being filed, regardless of case number.
10. The next day, on May 17, 2011, I contacted Mr. Banke by telephone again in an attempt to confirm whether anything else was publicly available now or would be added to the public docket in response to the motion for public docketing. I was informed that there was no other public information for any of the other ec dockets, that there was not a sub-list within those docket numbers indicating which documents had been filed in those dockets, and that the Clerk's Office understood that it was now in compliance with the May 4 Order. When I asked if it was possible to see a list of any other electronic communications orders that were requested or issued in December 2010 or January 2011, which might not be reflected on this new 'ec' running list, Mr. Banke informed me that the Clerk's Office had not previously kept a running list of electronic communications orders or requests and that it had just created this 'ec' docketing system and this new 'ec' running list for electronic communications cases. 18th day of May, 2011, at Alexandria, Virginia.
/s/
Stuart A. Sears |
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Name(s:) |
Stuart Sears |
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Title: |
Attorney for Jacob Appelbaum |
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Concerning: |
Twitter 2703(d), 2703(d) Orders, Grand Jury |
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Url: |
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On May 4, 2011 (the 'May 4 Order'), the magistrate judge granted (at least in part) the Subscribers' request for public docketing when she ordered documents related to the Twitter Order assigned to the newly created 'ec' docket, case number 1:11-ec-3. JA 167. The magistrate judge directed that docket 1:11-ec-3 be recorded 'on the running list in the usual manner' and ordered all documents to remain sealed. Id. On June 1, 2011 (the 'June 1 Order'), the magistrate judge explained that the running list, which 'shows at a minimum all assigned case numbers other than grand jury cases, and whether a particular case is under seal...satisfies the public's right to know that a particular case exists and has been sealed.' JA 181. Specifically, the running list informs the public of the docket number, the date the docket number was assigned, the judge it was assigned to, and whether the order was filed under seal. JA 278. The Subscribers promptly filed objections to the May 4 Order and the June 1 Order with the district court. |
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Name(s:) |
Lindsay Kelly, Neil MacBride, Andrew Peterson |
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Title: |
Assistant United States Attorney, United States Attorney |
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Agency(ies): |
Office of the United States Attorney for the Eastern District of Virginia, Department of Justice, Cyber Security Division, EDVA |
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Url: |
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