CAUS

CAUS Court Document Peter A. Gersten, Esq.
Attorney for Plaintiff
Arizona Bar #016925
8624 E. San Bruno Drive
Scottsdale, AZ 85258
480-609-9120

UNITED STATES DISTRICT COURT

THE DISTRICT OF ARIZONA

CIV-990108-PHX-SMM

CITIZENS AGAINST UFO SECRECY, INC. Plaintiff v.
DEPARTMENT OF DEFENSE Defendant.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR DEPARTMENT OF DEFENSE LIMITED DISCOVERY

This is an action brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. §3552 to require the production of records to the plaintiff.

POINT ONE
PLAINTIFF'S REQUEST FOR LIMITED DISCOVERY

Defendant, through its counsel, has thirty (30) days from June 14, 1999 to submit a Motion for Summary Judgment. Plaintiff will then have an additional thirty (30) days to file its response (Local Rule 1.10 [l]1) Though Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved, See Public Employees for Envtl. Responsibility v. EPA, 978 F. Supp.955. 959 (D.Colo. 1997), it is usually when documents in issue already have been identified. See Cappabianca v. Commissioner, United States Custom Serv., 847 F.Supp. 1558, 1561 (M.D. Fla. 1994). And though there is authority that holds that "discovery in FOIA action is extremely limited" Williams v. FBI, 1991 WL163757 (D.D.C. 1991) the ultimate decision as to whether plaintiff is entitled to discovery and the limitations of that discovery is left to the discretion of the Court. The defendant by letter dated February 23, 1999 notified the plaintiff that it had conducted a search for the information requested (large triangular aerial object with specific performance characteristics) but could not find any relevant documents (see Exhibit A). The plaintiff has obtained and continues to obtain affidavits from eyewitnesses who have sighted this craft (see for example Exhibit B). These affidavits will be part of plaintiff's response to defendant's Motion for Summary Judgment. Plaintiff will argue that if this craft can be proven to exist, then the defendant logically would have information about it, due to its unique appearance and advanced performance characteristics. Plaintiff will then contend the only reason the defendant has not found any relevant documents is due to the inability of the plaintiff to identify the particular areas to be searched. Thus plaintiff, in order to assist defendant in both identifying the appropriate areas to be searched as well as providing plaintiff with the ability to intelligently respond to defendant's Motion for Summary Judgment, is requesting the following limited discovery:

POINT TWO
INTERROGATORIES

Plaintiff is requesting that it be allowed to serve seven (7) Interrogatories on the defendant. Three of the Interrogatories have two subparts (See Exhibit C).

POINT THREE
DEPOSE NON-PARTY WITNESS PETER A. DAVENPORT

Plaintiff is requesting that it be allowed to subpoena and depose Peter A. Davenport, the director of the National UFO Reporting Center in Seattle, Washington. On information and belief, Mr. Davenport has stated that in April 1997, he met with two federal agents at their request. That he promised them he would not reveal their identities. That they told him the following: 1) "the UFO phenomenon is undeniably real"
2) "UFOs are what they appear to be, namely sophisticated craft under some kind of intelligent control" and
3) "their agency is concerned about them"
Mr. Davenport has informed counsel for plaintiff that he would reveal their names if served with a subpoena and deposed.

POINT FOUR
DEPOSE NON-PARTY WITNESS DR. STEVEN GREER

Plaintiff is requesting that it be allowed to subpoena and depose Dr. Steven Greer, the director of the Center for the Study of Extraterrestrial Intelligence. On information and belief Dr. Greer had publicly stated on several occasions that he has spoken to over one hundred (100) government and military witnesses, many within the defendant's employ, who have confided that they possess information about top-secret government UFO programs and events. Dr. Greer has refused to cooperate with plaintiff's counsel in providing the names of these witnesses.

POINT FIVE
CONCLUSION

Based upon the above, plaintiff has reasonable cause to believe these two non-party witnesses have knowledge of the names of certain employees of the defendant who possess information that could help identify where, within the defendant, information about the this aerial object is located. Plaintiff believes its request for limited discovery will not incur any additional delay in these proceedings nor incur any additional time or expense on the part of the defendant. Plaintiff intends to videotape both depositions and provide defendant with a copy. Once the names of the federal agents are obtained, plaintiff intends to contact them to see if any will voluntarily cooperate. Plaintiff has no intention of deposing any of these persons. Based upon the foregoing, plaintiff requests that it be allowed limited discovery to wit: submission of the attached Interrogatories and/or deposing the two non-party witnesses.

Respectfully submitted this 6th day of July, 1999.

PETER A. GERSTEN Attorney for Plaintiff

Copy of the foregoing mailed this
6th day of July, 1999, to:

Richard G. Patrick
Assistant U.S. Attorney
4000 U.S. Courthouse
230 North First Avenue
Phoenix, Arizona 85025



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