[00:00:00] Speaker 03:
Mr. Leshees?

[00:00:03] Speaker 02:
Leshees.

[00:00:03] Speaker 03:
Leshees.

[00:00:04] Speaker 03:
You may proceed.

[00:00:05] Speaker 02:
Thank you, Your Honors.

[00:00:06] Speaker 02:
Levy Leshees, representing Appellant Harold Pick.

[00:00:10] Speaker 02:
I will not be reserving any time.

[00:00:13] Speaker 02:
The Court thankfully provided some guidance as to what the Court is looking for today, and I think it will be challenged to go through all of that in 15 minutes.

[00:00:21] Speaker 02:
Prior to addressing the substantive issues, I'd just like to briefly point out a procedural issue relating to the record, which is

[00:00:30] Speaker 02:
The majority of claims in this case were eliminated on the first amended complaint.

[00:00:35] Speaker 02:
And I'm just pointing that out because I think, you know, as we discuss these issues, most of the claims in this case have the benefit of looking at the allegations at the first amended complaint and the second amended complaint, whereas there's only a very narrow claim that was left for consideration, the second amended complaint, and that perhaps is the only one which may be limited to certain portions of the record.

[00:01:00] Speaker 02:
With that introduction, I would like to address the first question posed by the court, which is whether the computer hard drive referred to by the parties as Drive 9 is a record within the meaning of the Privacy Act.

[00:01:15] Speaker 02:
Well, let me start by addressing UNT, because UNT is circuit precedent.

[00:01:22] Speaker 02:
With respect to

[00:01:24] Speaker 02:
If Ant is controlling on this court, which I believe it is not, then I think we would still, Harold Pick would still maintain that there is an estoppel issue and he is entitled to submit the question to the jury as to whether there was a characteristic equality within the hard drives that were destroyed without notice to him.

[00:01:50] Speaker 02:
I don't think that a agency has the

[00:01:53] Speaker 02:
latitude or prerogative to destroy.

[00:01:56] Speaker 00:
records without notice to the property owner invite violation but I think that the antecedent question is is it a record and as I understand it I mean there's a piece of evidence that they seized right and so it's you know on a shelf somewhere and there's Drive 9 and next to it is you know a bag of meth and next to it is you know a Glock 17 and there's you know a bunch of stuff in there and

[00:02:24] Speaker 00:
Sure, you know, Drive 9, unlike some of the other items, you know...

[00:02:28] Speaker 00:
is a information storage device that has information in it.

[00:02:32] Speaker 00:
And some of that is about him.

[00:02:33] Speaker 00:
But it still seems very odd to call that a record within a system of records, given the way it's being stored.

[00:02:41] Speaker 02:
Yes, I understand, Your Honor.

[00:02:41] Speaker 02:
And I think the correct analysis over here is by looking at the actual statutory language.

[00:02:46] Speaker 02:
Because if your Honor looks at subdivision A4, I think it really sets out

[00:02:54] Speaker 02:
three elements.

[00:02:56] Speaker 02:
The first element is that there's an item collection of grouping of information about an individual, then that this item about an individual is maintained by an agency, and then thirdly, there needs to be something within the record about the individual.

[00:03:21] Speaker 02:
And I think over here, all three elements are met.

[00:03:24] Speaker 02:
And before I get to why all three elements have met, I think it's important to understand that the drive nine is actually kind of a, it has two, it exists in two dimensions.

[00:03:37] Speaker 02:
It exists in a dimension the way that it exists within the evidence locker in the FBI storage unit.

[00:03:43] Speaker 02:
But then we were actually looking at the way this Drive 9 was furnished to a district court together with an authenticating declaration.

[00:03:55] Speaker 02:
And I think ultimately, especially because the alleged violation is under E-6 and E-9, which focuses

[00:04:02] Speaker 02:
whether the agency is acting with good faith essentially with respect to its obligations when sending information out the door.

[00:04:13] Speaker 02:
It really becomes very relevant to not look at just Drive 9, but the authenticating declaration that is handed to the district court along with Drive 9, which

[00:04:25] Speaker 02:
in the totality of those two circumstances, the authenticating declaration with the item, I think that easily meets a definition.

[00:04:33] Speaker 03:
Right, but what is on Drive 9 though, did it contain information about an individual or wasn't what was on Drive 9 several hundreds of versions of Microsoft software which wasn't

[00:04:55] Speaker 03:
about any individual.

[00:04:56] Speaker 02:
So, Your Honor, it's explicitly in the record that it was, there was a forensic examiner which examined the Drive 9 and said, well, there's information here about Harold Pick.

[00:05:07] Speaker 02:
So we do, that is unquestionably in the record.

[00:05:10] Speaker 04:
Well, as I understood, and I'm trying to follow up with Judge Wardlaw's question, I looked at RB19,

[00:05:18] Speaker 04:
Drive 9 contained Pick's name and his business address, but that's the only thing I find there.

[00:05:27] Speaker 04:
Yes, Your Honor, and so that, look... And in fact, I mean, the worry that I have about this is that it seems to me that you've either got to allege that the document reflects some quality or characteristic about your client in order to be a record,

[00:05:48] Speaker 04:
Or if you want to go the second circuit, you've got to allege that there is personal information about your client that's linked to your client through the record.

[00:05:59] Speaker 04:
I didn't find any of those allegations in your complaint or your second amended complaint.

[00:06:04] Speaker 04:
And then I tried to find anything in drive nine and that's why I came up with the idea that the best drive nine has is your client's name and address.

[00:06:16] Speaker 02:
Yes, Your Honor, and that is correct, and with respect to his name and address, that's ER 52, paragraph 63, ER 127, paragraph 47.

[00:06:26] Speaker 02:
I think Your Honor's analysis is correct, but I think what is critical here is looking at the language of A4 and recognizing that there are three distinct elements, and the

[00:06:41] Speaker 02:
And the question as to whether the record is about an individual has a separate test as to whether there is identifying information about the individual.

[00:06:52] Speaker 02:
And so when you look at the first part of these of A4, A4 references that when you're looking at whether the item is about an individual, it can be a grouping of items, right?

[00:07:03] Speaker 03:
Which I think...

[00:07:05] Speaker 03:
things like his education, financial transactions, medical history, and criminal or employment history.

[00:07:12] Speaker 03:
And then it says Ann contains his name.

[00:07:14] Speaker 03:
So here it seems like we have his name and his address, but nothing about anything like his background, his education, his medical history, criminal or employment history.

[00:07:30] Speaker 02:
Well, Your Honor, I would submit that that's sufficient because we meet the first part of the test, which is that it's an item collection grouping of information about an individual.

[00:07:39] Speaker 03:
It's not.

[00:07:39] Speaker 03:
It's really a collection of Motorola software.

[00:07:46] Speaker 03:
Well, Your Honor... Unauthorized Motorola software.

[00:07:50] Speaker 02:
Yes, but it's being collected as part of an investigation about Harold Pick.

[00:07:54] Speaker 00:
I mean, I guess to go back to the

[00:07:57] Speaker 00:
Question I started with about the other items in the evidence locker if if they've seized a gun and You know it's a gun where somebody has you know engraved his name on the stock Is that then a record because like it's it's part of their investigation of him and it has his name on it and

[00:08:15] Speaker 02:
I think it would be, Your Honor, because the first question is, who's it being collected about?

[00:08:21] Speaker 02:
It's being collected about the investigatory subject.

[00:08:24] Speaker 02:
Then the second question is, what identifying information does it have on it?

[00:08:28] Speaker 02:
And then it does say the person's name.

[00:08:31] Speaker 04:
And again, I think we... But it seems to me like you're arguing that all you've got to have is the name.

[00:08:37] Speaker 04:
And if I look at record, that isn't what it says.

[00:08:42] Speaker 04:
It says, as Judge Wardlaw pointed out, any item, collection, or grouping information about the individual, then it tells all the many things that could be, and then contains the name.

[00:08:54] Speaker 04:
So it isn't enough to have the name and address.

[00:08:58] Speaker 02:
Well, Your Honor, it had to be a record.

[00:09:01] Speaker 02:
I do think that meets the statutory language.

[00:09:05] Speaker 04:
But even to the extent... Okay, if that's your argument, I don't think that's correct.

[00:09:08] Speaker 02:
But even to the extent your honor is not inclined to accept it, at the end of the day, right, I think it really comes to the jury to go to determine, well, what did this hard drive contain, right?

[00:09:21] Speaker 02:
Because at the end of the day, this is the agency destroyed the hard drive, right?

[00:09:26] Speaker 02:
So I think it's premature at the pleading stage to tell the plaintiff, well, this

[00:09:32] Speaker 02:
Your property was destroyed and now you have insufficient evidence to show that this was a record.

[00:09:37] Speaker 04:
Okay.

[00:09:39] Speaker 04:
If you could, I'd like to move to FD302.

[00:09:44] Speaker 02:
FD302 and yes.

[00:09:46] Speaker 04:
And the reason I want to move there is that I frankly believe the statute of limitations has run, or at least it seems to have run, and I want you to talk about it.

[00:09:56] Speaker 02:
Thank you, Your Honor.

[00:09:57] Speaker 04:
To disabuse me of that crazy idea.

[00:10:00] Speaker 02:
Thank you, Your Honor.

[00:10:02] Speaker 02:
There are so many points with respect to the statute of limitations.

[00:10:06] Speaker 04:
Well, this is an interview form.

[00:10:10] Speaker 04:
Your client received a copy of this form in 2005, right?

[00:10:15] Speaker 04:
He would have known then that the document was inaccurate if it wasn't.

[00:10:21] Speaker 04:
When it gets to trial, he disagrees with the content of it, and now he wants me to suggest that there's some reason why the statute doesn't run.

[00:10:33] Speaker 02:
Thank you, Your Honor.

[00:10:34] Speaker 02:
And I think this really comes down to the case of OHA, which the circuit president and understanding this distinction between E5 and E6 under the statute, which is all important due to 552A Subdivision J. Under Subdivision J, right, so under Subdivision E5, there's an obligation to have accurate, complete, timely records.

[00:10:55] Speaker 02:
Under E6, there's a separate obligation which says before you send something out the door, you need to have some good faith bona fide process to determine that this is something you should be sending out the door.

[00:11:07] Speaker 02:
And then finally under E9, there's an obligation to abduct processes.

[00:11:12] Speaker 02:
All the issues that Harold Pick could have potentially have notice of in 2005 would have all been E5 issues, which would be non-actionable under Subdivision J. The agency can exempt itself from having, in turn, accurate records.

[00:11:35] Speaker 02:
You know, a really important point here, Honor, is under E6, if you have an individual agent who's scribbling down false information in FD302, but the agency is unaware of it, right, and they're passing out, you know, they get a subpoena, they pass it out the door, there's no E6 violation.

[00:11:51] Speaker 02:
The E6 violation is when the agency pulls it out of the file and it has red flags all over it, but they cover it all up.

[00:12:00] Speaker 02:
And that is the E6 violation.

[00:12:03] Speaker 02:
There's no way that Harold Pick could have known these information beforehand.

[00:12:07] Speaker 02:
And there's really three particular components of E6 that are at issue with the FD302 form, and none of these issues could have been known by Harold Pick previously.

[00:12:17] Speaker 02:
First issue is relevance to agency purposes.

[00:12:23] Speaker 02:
There's no way that Harold Pick could have known that the agency had no business or there was nothing incriminating on the drive.

[00:12:35] Speaker 02:
It's actually alleged in paragraph 77 through 78, 79 of the Second Amendment Complaint.

[00:12:40] Speaker 02:
Those were facts that were learned after the initial filing in this case, right?

[00:12:47] Speaker 02:
I handled the FOIA case.

[00:12:49] Speaker 02:
And I remember being super frustrated with the government's releases because I thought the golden egg would be at the last release and I thought the government was dragging it out.

[00:12:59] Speaker 02:
I remember the last release comes out and it's like jaw dropping.

[00:13:03] Speaker 02:
It's like the government has nothing, right?

[00:13:05] Speaker 02:
That's the point.

[00:13:07] Speaker 02:
That's the point in time when all the documents come out and it's clear that the government has nothing on this person, that's when

[00:13:14] Speaker 02:
The first time Harold Pick is able to say, hey, the government should have given me back my property.

[00:13:23] Speaker 02:
It was with the outside the scope of the warrant.

[00:13:27] Speaker 02:
Why are they holding onto it and giving a copy to Motorola?

[00:13:30] Speaker 02:
So that's the issue of relevance.

[00:13:32] Speaker 02:
Then there's completeness, which is the two he.

[00:13:36] Speaker 02:
Authorization, an underlying case, was used as a sword and a shield in the sense that there was one potentially incriminating statement that Harold Pick said in an interview, and that is given to Motorola in the trial, right?

[00:13:49] Speaker 02:
The real evidence that the government is sitting on is the fact that they turned over every stone in a 10-mile radius to Harold Pick and found nothing.

[00:13:57] Speaker 02:
That is ultimately probably the biggest fact about the Harold Pick investigation, the incredible witch hunt that happened, and they found nothing.

[00:14:05] Speaker 02:
Again, Harold Peck has no idea until the FOIA releases that the government has used TUI as a sword and a shield.

[00:14:13] Speaker 02:
And then there's the full city issue, which is the fact that it's fraudulently backdated.

[00:14:19] Speaker 02:
There is no way.

[00:14:22] Speaker 02:
Not only is there no way he can know that, it's explicitly in the allegations that there was a direct question to the authoring agent about that.

[00:14:36] Speaker 02:
that particular issue and there was a factually inaccurate answer.

[00:14:44] Speaker 02:
And that immediately triggers the G5 tolling provision.

[00:14:50] Speaker 02:
Now, I'm almost out of time.

[00:14:51] Speaker 02:
The one thing I also want to just point out as a practical matter, right, is just given the problem with the way the FOIA releases were handled, I think it's perfectly appropriate to have just a blanket rule

[00:15:03] Speaker 02:
When there's a question of bad faith with respect to FOIA releases, that tolls a Privacy Act claim.

[00:15:09] Speaker 02:
Because there's a practical reality, I'm saying, as a lawyer, when somebody comes in and says the government, the government, the government, I'm not going to go running and filing a complaint.

[00:15:18] Speaker 03:
But what evidence, or what do you allege that even if the document was backdated, that it caused a serious injustice?

[00:15:29] Speaker 02:
Oh, well, I'm saying that is actually explained in the WEDEC declaration.

[00:15:34] Speaker 02:
I think it's in your paragraph 62, but I'll try to get that exact site.

[00:15:39] Speaker 02:
The power of an FD302, the reason why the government creates it, part of it is that people can refresh their recollection.

[00:15:47] Speaker 02:
But the other part is it gives validity to what an agent is saying, right?

[00:15:54] Speaker 02:
If an agent is saying, you know, I wrote this down contemporaneously, and this is what Harold Pick told me at the time, that has, and in the first minute complaint, it's alleged how Harold Pick was asked to understand, well, was the FBI agent lying when he said that?

[00:16:14] Speaker 02:
And Harold Pick says yes, right?

[00:16:18] Speaker 02:
And then the reality is, it turns out, well, if the jury is told, well, you know what?

[00:16:23] Speaker 02:
He spoke to him.

[00:16:24] Speaker 03:
Why is that even relevant to his criminal case when he admitted that he possessed Motorola's copyrighted software and the chain of custody of Drive 9 was supported by a different FBI declaration?

[00:16:40] Speaker 03:
So even if there was a backdating, which we don't know for sure if there was, but even if there was,

[00:16:48] Speaker 03:
How did it affect the outcome of the trial?

[00:16:51] Speaker 02:
Very simply, Your Honor.

[00:16:52] Speaker 02:
And this is alleged extensively in the Second Amendment complaint.

[00:16:56] Speaker 02:
These pieces of software were generally old, antiquated pieces of software.

[00:17:02] Speaker 02:
We're talking about MS-DOS, right?

[00:17:04] Speaker 02:
And Motorola never sought actual damages because this was effectively worthless software, right?

[00:17:10] Speaker 02:
Motorola went to trial on the theory that Harold Pick is using our software to

[00:17:17] Speaker 02:
program radios for commercial purposes, he's pirating our software and making a profit.

[00:17:22] Speaker 02:
The only evidence the Motorola had to support that is Vandersteen's statement that I interviewed Mr. Harold Pick on February 6, 2005, and Harold Pick tells me that I've been programming hundreds of radios

[00:17:40] Speaker 02:
for hundreds of radios to sell to customers using Motorola software.

[00:17:49] Speaker 02:
And the excerpts that are cited in the first amended complaint, that's actually from the closing essentially of trial, if I remember correctly.

[00:17:59] Speaker 02:
Motorola's closing statement to the jury when they're presenting the evidence, they're cross-examining Harold Pick.

[00:18:06] Speaker 02:
They're saying, you told the FBI agent,

[00:18:10] Speaker 02:
that you programmed hundreds of radios using our pirated software.

[00:18:14] Speaker 02:
He says, no, I never said that.

[00:18:17] Speaker 02:
Turns out the agent authored an FD302 contemporaneously within a week, which doesn't have that statement.

[00:18:26] Speaker 02:
And then he authors, 18 months later, another FD302, which adds that statement.

[00:18:33] Speaker 02:
And the jury's never told that.

[00:18:35] Speaker 02:
Okay, counsel, you're well over your time.

[00:18:38] Speaker 02:
Well over my time.

[00:18:39] Speaker 03:
Thank you.

[00:18:39] Speaker 03:
Thank you for answering that.

[00:18:41] Speaker 02:
Thank you very much for your time, Your Honor.

[00:18:44] Speaker 02:
Thank you.

[00:18:54] Speaker 01:
Good morning, Your Honors.

[00:18:55] Speaker 01:
May it please the Court, Assistant United States Attorney Paul Escala on behalf of the Pell lead, the United States Department of Justice.

[00:19:02] Speaker 01:
Unless the court has a preference, I'd like to start with number four in the focus order, which is the statute of limitations.

[00:19:08] Speaker 01:
It seems to be the strongest, or it is the strongest argument, I think, for the government, and it would effectively address all of the claims in the various pleadings, both the first and... Including Drive 9?

[00:19:20] Speaker 01:
Including Drive 9.

[00:19:21] Speaker 03:
Okay.

[00:19:22] Speaker 04:
I was going to say, make sure it includes Drive 9.

[00:19:26] Speaker 01:
Will do.

[00:19:27] Speaker 04:
With what you're arguing, because that's important.

[00:19:30] Speaker 01:
I will, Your Honor, and of course I'm always happy to field the questions, but let me see if I can offer a little background.

[00:19:36] Speaker 01:
In order to organize my argument, essentially what I've done is I've broken it up.

[00:19:42] Speaker 01:
First amended complaint with regard to Drive 9, first amended complaint with regard to the FD302, and then I did the same thing with regard to the second amended complaint.

[00:19:51] Speaker 01:
just so that we can be completely thorough.

[00:19:53] Speaker 01:
The other thing is, just for the sake of terminology, there are two civil remedies for damages under the Privacy Act.

[00:20:00] Speaker 01:
That's 5 USC 552A, G1C, and I'm going to try to call that a failure to maintain provision instead of G1C.

[00:20:09] Speaker 01:
And there's the catch-all provision under G1D, and I have a tendency to call that the catch-all provision, just so that we're clear, because both, of course, get implicated in the pleadings here.

[00:20:21] Speaker 01:
So and of course as background according to Rose v. United States, the statute of limitations commences when the person knows or has a reason to know of the alleged violation.

[00:20:33] Speaker 01:
So starting with the first amended complaint as it pertains to Drive 9, Pick alleged that the government improperly provided and authenticated Drive 9.

[00:20:44] Speaker 01:
Based on those allegations, Pick alleged a violation of E9

[00:20:50] Speaker 01:
under the catch-all provision on the ground that providing Drive 9 violated two regulations when Special Agent Vandersteen provided misleading declarations about the authenticity of Drive 9.

[00:21:06] Speaker 01:
Also, based on those allegations that the government improperly provided and authenticated Drive 9,

[00:21:12] Speaker 01:
Pick alleged a violation under E6 under a failure to maintain provision, G1C, on the ground that due care should have been taken to ensure that the released information was truthful.

[00:21:28] Speaker 01:
These alleged violations would have occurred in 2004 when the government provided Drive 9 to Motorola

[00:21:37] Speaker 01:
And in 2005, when Special Agent Vandersteen allegedly provided a misleading authenticating declaration.

[00:21:45] Speaker 01:
As the owner and operator of Drive 9, who had possession of it in 2004 just prior to the search and seizure, Pick would have immediately known that the Motorola, during the Motorola litigation in 2004 and 2005, if Motorola was attempting to use an altered copy of Drive 9 in some way.

[00:22:04] Speaker 01:
And he should have filed suit at

[00:22:07] Speaker 01:
at the early or at the latest 2007.

[00:22:11] Speaker 01:
Going to the First Amendment complaint with regard to the FD302 claims, as it pertains to FD302, Pick only alleged the improper provision of an inaccurate FD302 in violation of subsection E6 under a failure to maintain claim on the ground that due care should have been taken to ensure that the released information was truthful.

[00:22:39] Speaker 01:
Pick alleged in his First Amendment complaint that the, and Judge Smith already alluded to this, but that the FBI furnished a copy of FD-302 to Pick in response to a tour request in connection with the Motorola litigation back in 2004.

[00:22:58] Speaker 01:
And that Special Agent Vanderstein was deposed over the FD-302 at that time.

[00:23:06] Speaker 01:
Pick would have immediately known at that time

[00:23:09] Speaker 01:
if the FD-302 was untruthful.

[00:23:12] Speaker 01:
He should have filed suit by no later than 2006 at the latest.

[00:23:18] Speaker 01:
There can be no tolling of the statute of limitations based on speculative allegations that Special Agent Vandersteen backdated the FD-302.

[00:23:26] Speaker 01:
The FBI was under no obligation to disclose when the FD-302 was prepared or handed to FBI Rotor clerk.

[00:23:37] Speaker 01:
and PIC has offered no explanation as to how an alleged misrepresentation of the date of the FD-302 is material to establishing failure to war, or excuse me, failure to maintain liability.

[00:23:49] Speaker 01:
Given that, PIC never alleges that the FD-302 was presented to the jury or that the jury even relied on it in rendering its verdict.

[00:23:58] Speaker 01:
Instead, throughout the first amended complaint, PIC makes very clear it was Vandersteen's testimony

[00:24:04] Speaker 01:
testimony, apparently, according to him, that resulted in the verdict.

[00:24:08] Speaker 01:
The FD-302 has nothing to do with that.

[00:24:12] Speaker 01:
Arguably, if a Special Agent Vandersteen wanted to doctor the FD-302, it was still the testimony that he was providing.

[00:24:20] Speaker 01:
It was not this record that would have been the cause of any verdict.

[00:24:26] Speaker 01:
And as Judge Wardlaw already mentioned, there was already some admissions by PIC during the trial that

[00:24:34] Speaker 01:
make it implausible that he can proceed in this case.

[00:24:39] Speaker 01:
Just another point on FD 302 with regard to the first amended complaint.

[00:24:44] Speaker 01:
The government raised the statute of limitations issue in its motion to dismiss the first amended complaint and Pick did not oppose it.

[00:24:52] Speaker 01:
The district court acknowledged that there was a failure to address that claim and that's at ER 31.

[00:25:00] Speaker 01:
So Pick has waived his claim under Doe versus Garland.

[00:25:03] Speaker 01:
If it's all right, I'll move on to the second amendment complaint, unless there are any questions about the first amendment complaint.

[00:25:09] Speaker 03:
Yes, move on to the second amendment complaint.

[00:25:11] Speaker 01:
Thank you, Your Honor.

[00:25:13] Speaker 01:
As it pertains to Drive 9, Pick alleges failure to maintain and the catch-all provision both based on

[00:25:23] Speaker 01:
an alleged violation of E-9 for willfully or intentionally failing to implement rules of conduct of TUI officers or failing to train or instruct TUI officers regarding compliance of E-6.

[00:25:37] Speaker 01:
As Mr. Lesch has explained, E-6 happens to do with the dissemination or making sure prior to dissemination that the records are accurate, relevant, et cetera.

[00:25:48] Speaker 01:
Pick also alleged as to drive nine in the second amended complaint a failure to maintain claim based on an alleged violation of E6 because due care should have been taken to ensure that the released information was relevant to agency purposes and I may have misspoke just so I'm clear the there was failure to maintain and catch all claims based on E9

[00:26:13] Speaker 01:
And then a failure to maintain claim based on E6.

[00:26:18] Speaker 01:
So I apologize if I misspoke on that.

[00:26:21] Speaker 01:
If Pitt truly thought that Drive 9 was not relevant to the FBI's investigation at all, she would have known that in 2004 when the FBI seized Drive 9.

[00:26:34] Speaker 01:
According to Rose, that's when the violation would have commenced and the statute of limitations, or the violation would have occurred and the statute of limitations would have commenced.

[00:26:44] Speaker 01:
But in any event, during the Motorola litigation in 2005, Pick knew the FBI held Drive 9 and provided it to Motorola.

[00:26:54] Speaker 01:
If you did not think a criminal investigation was pending at that time, which is contrary to other allegations,

[00:27:02] Speaker 01:
And he thought Drive 9 was no longer relevant because he thought there was nothing on there that the FBI could use.

[00:27:07] Speaker 01:
Arguably, or not even arguably, that's when the statute of limitations would have commenced under Rose.

[00:27:12] Speaker 01:
The truth is that Pick knew the criminal investigation was pending against him until at least 2006.

[00:27:19] Speaker 01:
He alleges as much at ER 71, paragraph 159.

[00:27:23] Speaker 01:
And because the Motorola verdict had been rendered in 2005,

[00:27:28] Speaker 01:
Pitt cannot establish that holding onto Drive 9 was not relevant at the time of the verdict.

[00:27:35] Speaker 04:
As to the Second Amendment complaint with regard to... My worry about the statute of limitations as it relates to Drive 9 claims is that I'm not sure that Pitt's claim that the Department of Justice improperly maintained Drive 9

[00:27:58] Speaker 04:
with no investigatory purpose, his time barred.

[00:28:07] Speaker 01:
As Pick alleges, the criminal investigation was pending at least until 2006.

[00:28:12] Speaker 01:
It's not to say that they ultimately charged him because they did not, according to the allegations.

[00:28:18] Speaker 01:
But at that time, and during that time, it would have been drive 9,

[00:28:24] Speaker 04:
Absolutely was relevant to the criminal investigation at that time did I answer your question your honor well one of the claims is that the department improperly maintained a drive nine with no investigatory purpose and that claim I worry

[00:28:46] Speaker 04:
is not time barred.

[00:28:48] Speaker 01:
So, Your Honor, I think under E-6 or E-5, it's not just failure to maintain, it's failure to maintain as to accuracy, relevancy, completeness or timeliness.

[00:29:01] Speaker 01:
And the argument that has been made is one that Drive 9 is not accurate.

[00:29:06] Speaker 01:
I'm not sure

[00:29:08] Speaker 01:
how that plays in.

[00:29:11] Speaker 01:
If it was not accurate, then Pick would have known that during the Motorola litigation when Drive 9 was at issue.

[00:29:17] Speaker 01:
with regard to relevancy again at the time of the Rotorola litigation in 2004 2005 It was definitely relevant under picks own allegations that he knew the criminal investigation was pending against him until at least 2006 I thought one of his allegations was that after that point when it was no longer relevant I mean at that point it was relevant to the investigation, but there was some time that

[00:29:44] Speaker 00:
Sometime later when it was no longer relevant to an investigation and they nonetheless held on to it and that was improper and and that claim I mean You may have merits arguments about that claim, but that claim would seem to have risen and maybe continued You know it's sort of a continuing violation that for some later period of time and

[00:30:04] Speaker 04:
Thank you for better explaining what I was after.

[00:30:07] Speaker 01:
I see.

[00:30:08] Speaker 01:
From my perspective and how I'm reading the pleadings, the damage here, the injury, is the verdict from Motorola.

[00:30:16] Speaker 01:
I'm not seeing allegations that he's pursuing any other sort of actual damages after that period in time.

[00:30:28] Speaker 01:
So perhaps let's end this reading on my part.

[00:30:31] Speaker 01:
I've gone through the pleadings several times, and I didn't recognize that, if that's the point, Your Honor.

[00:30:40] Speaker 01:
Going back to, I think I've covered, but on the second amended complaint with regard to FD302,

[00:30:46] Speaker 01:
The allegation there is a distribution of irrelevant records to Motorola in violation of E6 under a failure to maintain claim.

[00:30:56] Speaker 01:
I interpret that to mean that it included the FD302.

[00:31:00] Speaker 01:
And the allegation there is that at the time of furnishing such evidence to Motorola and at the time of engaging in TUI authorizations, due care should have been taken to ensure

[00:31:10] Speaker 01:
that the released information was relevant to agency purposes.

[00:31:13] Speaker 01:
And so for the same reasons, if Pick truly thought that the FD-302 was not relevant to the FBI's investigation at all, he would have known that during the Motorola litigation in 2004 and 2005, when the government

[00:31:26] Speaker 01:
furnished a copy of the FD-302 to plaintiff.

[00:31:30] Speaker 01:
And again, the truth is that Pick knew the criminal investigation was pending against him until at least 2006.

[00:31:36] Speaker 01:
And because the Motorola verdict, which is the damages that I'm understanding here, had been rendered in 2005, Pick cannot establish that the FD-302 was not relevant at the time of the verdict.

[00:31:51] Speaker 03:
Happy to to where are you finding that the only damages were the Motorola verdict?

[00:31:58] Speaker 03:
That is the only injury rather Is that in the second amendment amended complaint?

[00:32:20] Speaker 01:
I'm actually looking first at the first amendment complaint.

[00:32:24] Speaker 03:
I don't see how the first amendment complaint is actually relevant.

[00:32:27] Speaker 01:
Okay, then I can move to the second amendment complaint.

[00:32:38] Speaker 01:
The second amendment complaint under the failure to maintain claim at ER 146.

[00:32:50] Speaker 01:
It's that the damages are at least two point four two point four million plus fees and costs That's the that that trigger that ties in with the jury verdict from the Motorola case.

[00:33:01] Speaker 03:
Oh, that's it.

[00:33:02] Speaker 03:
There's Paragraph 13.

[00:33:04] Speaker 01:
Yes, I'm sorry paragraph 13 your honor and I think I

[00:33:09] Speaker 01:
Yes, and the same can be said even with the second amendment complaint with regard to the catchall provision or catchall claim.

[00:33:17] Speaker 01:
If your honor were to look at, it actually is on ER 145 paragraph 12.

[00:33:23] Speaker 01:
Again, the references damages there is the 2.4 million, which tracks with the Motorola verdict.

[00:33:30] Speaker 03:
Okay.

[00:33:32] Speaker 03:
Now, let me just, do you have an answer to the issue of whether Drive 9 is a record under the Privacy Act?

[00:33:40] Speaker 01:
Yes, Your Honor.

[00:33:41] Speaker 01:
It's not much different than what I was gleaning from Your Honor's discussion with Mr. Leshes.

[00:33:49] Speaker 01:
So, to answer the question directly, Drive 9 is not a record under the Privacy Act.

[00:33:55] Speaker 01:
Pick and the government agree that the statutory definition of a record under subsection A4 concerns the contents of the record.

[00:34:07] Speaker 01:
The Ninth Circuit, as has already been discussed, held that to be a record under the Privacy Act, the contents must reflect some quality or characteristic about the individual involved.

[00:34:19] Speaker 01:
And this makes sense because under

[00:34:23] Speaker 01:
What I understand Congress's intent and their finding in support of enacting the Privacy Act was that they were concerned about the privacy of an individual being directly affected by the collection, maintenance, use, and dissemination of personal information by federal agencies.

[00:34:42] Speaker 01:
Here, as has already been discussed, for Drive 9 itself to be a record, it must be an item, collection, or grouping of personal information about PIC.

[00:34:52] Speaker 01:
In the first and second amended complaints, Drive 9 is described as containing business records and unauthorized versions of Motorola software.

[00:35:02] Speaker 01:
In the appellant's opening brief, Pick referred to Drive 9 generally when he stated that the FBI invited Motorola personnel to examine the hard drives and other equipment seized from Pick's business.

[00:35:15] Speaker 01:
And even in the proposed third amended complaint,

[00:35:18] Speaker 01:
We got a sneak peek into that, of course.

[00:35:20] Speaker 01:
It was included in the record.

[00:35:22] Speaker 01:
Pick alleges that Drive 9 contains his name and his business address.

[00:35:26] Speaker 01:
Nothing else.

[00:35:27] Speaker 03:
All right.

[00:35:28] Speaker 03:
Did you have a question?

[00:35:30] Speaker 01:
No.

[00:35:30] Speaker 03:
No.

[00:35:30] Speaker 03:
OK.

[00:35:31] Speaker 03:
Thank you.

[00:35:31] Speaker 03:
You're over your time.

[00:35:34] Speaker 03:
Pick versus DOJ will be submitted.

[00:35:37] Speaker 03:
Palinan versus Mercedes-Benz has been submitted.

[00:35:43] Speaker 03:
And this session of the court is adjourned for today.

[00:35:46] Speaker 03:
Thank you very much, counsel.

[00:36:00] Speaker 04:
Thank you very much for your argument.

[00:36:03] Speaker 03:
This court for this session stands adjourned.