SERVICE BRIEF

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
In the Matter of the
Petition of EYES ON GOVERNMENT
To Perpetuate the Testimony of Logan Otoya,
Special Agent, United States Secret Service

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Petition: 20150053

PETITIONER, EYES ON GOVERNMENTS MEMORANDUM OF LAW IN SUPPORT

OF ITS VERIFIED PETITION TO PERPETUATE SPECIAL AGENT LOGAN
OTOYAS TESTIMONY UNDER FEDERAL RULE OF CIVIL PROCEDURE 27
INTRODUCTION
This action seeks to perpetuate unique knowledge possessed by Logan Otoya because
there is substantial risk that Agent Otoya will be unavailable to testify at the time suit is
commenced or at trial. Petitioner, Eyes on Government, a non-profit that seeks to promote
transparency and accountability in government, submitted a Freedom of Information Act request
to the Secret Service, requesting records concerning visits made to the White House. Agent
Otoya wrongfully denied that request. Eyes on Government intends to bring suit in this matter,
once its administrative remedies are exhausted, which is anticipated to occur no later than May
19, 2015. However, Agent Otoya, an Army reservist, is scheduled to deploy to Afghanistan on
May 1, 2015 after completing six weeks of training.
Rule 27 of the Federal Rules of Civil Procedure permits pre-litigation preservation of
testimony that might otherwise be lost. De Wagenknecht v. Stinnes, 250 F.2d 414, 416-17 (D.C.
Cir. 1957). A court should grant a Rule 27 petition to prevent a failure or delay of justice if the
facts the petitioner seeks to establish and the reasons to preserve the proposed testimony are
sufficient. See Ariz. v. Cal., 292 U.S. 341, 347 (1934). Here, Agent Otoyas unique knowledge of
the reasons underlying his denial of Eyes on Governments Freedom of Information Act request
must be preserved as his military deployment overseas will result in his unavailability at the time
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of filing the complaint and, potentially, at trial, and the likely loss of his critical testimony will
result in a failure or delay of justice because there is no other means to accommodate that loss.
STATEMENT OF FACTS
Eyes on Government is a non-profit, educational foundation that seeks to promote
integrity, transparency, and accountability in government and fidelity to the rule of law.
(Verified Pet. To Perpetuate Test. 3, Jan. 16, 2015.) As such, Eyes on Government regularly
requests access to public records of various government entities and releases its findings to the
public. (Pet. 3.) Thus, on December 29, 2014, Eyes on Government sent a Freedom of
Information Act (FOIA) request seeking all records concerning all visits made to the White
House Complex from June 1, 2013 to that date. (Pet. 5, Ex. A.) (emphasis added)
Agent Logan Otoya is the Special Agent in Charge and Freedom of Information and
Privacy Acts Officer for the United States Secret Service. (Pet. Ex. A.) In his January 14, 2015
letter to Eyes on Government denying its FOIA request, Agent Otoya stated he interpret[ed]
Eyes on Governments request as one limited to WAVES and ACR records that were not
agency records subject to FOIA. (Id.) Agent Otoya incorrectly characterized Eyes on
Governments request for all official visitor logs and/or other records concerning visits made to
the White House from June 1, 2013 to present as specify[ing] such a limitation. (Id.) Agent
Otoya has thus far refused to speak with Eyes on Governments representatives. (Pet. 8.)
Eyes on Government is currently pursuing its administrative appeal, which will not be
exhausted until late-May 2015. (Pet. 5.) However, Agent Otoya, who is also a reservist in the
United States Army, received notice on December 28, 2014 of his military orders to depart for
Camp Atterbury, Indiana, for six weeks of training to detect nuclear, biological, and chemical
weapons, before being deployed to Afghanistan on May 1, 2015. (Pet. Ex. B.) The initial
deployment will be for six months, but his service is likely to be extended for a further six
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months. (Pet. 10.) Of note, to date, 2,355 U.S. personnel have died and 20,067 have been
wounded in action during Operation Enduring Freedom and Operation Freedoms Sentinel.1
Approximately 300,000 individual troops were deployed to Afghanistan during Operation
Enduring Freedom, prior to the 2015 start of Operation Freedoms Sentinel. 2
When the Secret Service decides Eyes on Governments administrative appeal, Agent
Otoya will be in Indiana or Afghanistan pursuant to his military orders. Accordingly, Eyes on
Government filed its Petition to perpetuate Agent Otoyas testimony on January 15, 2015, two
days after receiving Agent Otoyas denial letter. (See Pet.) Agent Otoyas testimony is necessary
to show the denial of Eyes on Governments FOIA request was wrongful under 5 U.S.C. 552
because he will describe the authorities and guidance upon which he relied in making his
decision. (Pet. 9.) Eyes on Government now files its Memorandum of Law in Support of its
Petition to demonstrate its compliance with Rule 27(a)(1) and the need to perpetuate Agent
Otoyas testimony to avoid a delay or failure of justice.
I.

BECAUSE AGENT OTOYA HAS UNIQUE, RELEVANT KNOWLEDGE ABOUT

HIS DENIAL OF EYES ON GOVERNMENTS FOIA REQUEST AND WILL BE
UNAVAILABLE TO TESTIFY, IT IS NECESSARY FOR THIS COURT TO
GRANT THIS PETITION TO PROTECT HIS TESTIMONY FROM THE RISK
OF LOSS AND THE CONSEQUENT DELAY OR FAILURE OF JUSTICE.
Rule 27 serves the important purpose of preserving material testimony that is at risk of

being lost because a party is not yet able to file suit. See Penn Mut. Life Ins. Co. v. United States,
68 F.3d 1371, 1374 (D.C. Cir. 1995). That is precisely the predicament facing Eyes on

United States Department of Defense News: Casualty Status, http://www.defense.gov/news/casualty.pdf (last

visited Mar. 28, 2015). Of those casualties, 1,663 of the deaths (70.62%) and 14,204 of the wounded (70.78%) were
from Army Service Members. Defense Casualty Analysis System GWOT Casualty Summary by Service
Component, https://www.dmdc.osd.mil/dcas/pages/report_sum_comp.xhtml (last visited Mar. 28, 2015).
2
Belasco, A., Troop Levels in the Afghan and Iraq Wars, FY2001-FY2012: Cost and Other Potential Issues, page
23, https://fas.org/sgp/crs/natsec/R40682.pdf (last visited Mar. 28, 2015) (Boots on the Ground statistics at the
peak of OEF in 2008); see also Belasco, A., The Cost of Iraq, Afghanistan, and Other Global War on Terror
Operations Since 9/11, Appendix A, https://fas.org/sgp/crs/natsec/RL33110.pdf (last visited Mar. 28, 2015)
(monthly Boots on the Ground reports through the end of OEF in December 2014).

SERVICE BRIEF
Government regarding its denied FOIA request. A party is entitled to perpetuate testimony if it
shows (1) that it expects to be a party to action cognizable in a United States court but cannot
presently bring the action, (2) the subject matter of the expected action and the petitioners
interest, (3) the facts the petitioner wants to establish by the proposed testimony and the reasons
to perpetuate it, (4) the names of persons whom the petitioner expects to be adverse parties and
their addresses, and (5) the name, address, and expected substance of the testimony of each
deponent. Fed. R. Civ. P. 27(a)(1)(A)-(E). If the court is satisfied that perpetuating testimony
may prevent a failure or delay of justice, the Court must issue an order allowing such testimony
to be perpetuated. Id. (a)(3) (emphasis added). The provisions of Rule 27 are to be liberally
construed. In re Ernst, 2 F.R.D. 447, 450 (S.D. Cal. 1942). The decision to grant a Rule 27
petition -suit is a matter for the reasonable discretion of the district court. See Mosseller v. United
States, 158 F.2d 380, 383 (2nd Cir. 1946). The judge's discretion encompasses the nature and
quality of evidence required to make the required showing under Rule 27(a)(1). In re Bay County
Middlegrounds Landfill Site, 171 F.3d 1044, 1046 (6th Cir. 1999). A decision granting a Rule 27
petition is reversed only for an abuse of that broad discretion. See Penn Mut., 68 F.3d at 1374.
Although Eyes on Government is confident it can satisfy each of the Rule 27(a)(1)
requirements, this Court has instructed the parties to brief the requirements of Rule 27(a)(1)(C) -the facts that Eyes on Government wants to establish by the testimony, and the reasons to
perpetuate it. This Court should grant Eyes on Governments Petition to Perpetuate Testimony
because Eyes on Government has made a narrowly-tailored showing of the anticipated substance
of Agent Otoyas testimony, which contains unique and relevant information, and because
perpetuating testimony is necessary to prevent the failure or delay of justice that will occur due
to Agent Otoyas imminent unavailability to provide that evidence if this Petition is denied.

SERVICE BRIEF
A.

This Court should find that Eyes on Government has made the required
showing that the anticipated substance of Agent Otoyas testimony is
narrowly-tailored to elicit material, relevant evidence of his unique
knowledge regarding his denial of Eyes on Governments FOIA request.

A decision to grant a petition to perpetuate testimony is appropriate when the petitioning

party makes a narrowly-tailored showing of the substance of the testimony it seeks to perpetuate.
In re Checkosky, 142 F.R.D. 4, 7 (D.D.C. 1992). Perpetuating testimony is necessary to prevent a
failure or delay of justice if the desired testimony is relevant, not simply cumulative, and likely
to provide material distinctly useful to a trier of fact. Bay County, 171 F.3d at 1047. Testimony
that sheds a different, greater, or additional light on a key issue constitutes testimony that is
distinctly useful to a finder of fact. Id. The testimony sought need not be absolutely unique. Id.
But, where the knowledge cannot be easily be accommodated by other potential witnesses, it
should be preserved. Penn Mut., 68 F.3d at 1375. Agent Otoyas knowledge is obviously
relevant to the FOIA denial, would shed light on a key issue for a finder of fact, cannot be
accommodated by other potential witnesses (since he personally denied the request in the
exercise of his duties as the Special Agent in Charge, Freedom of Information and Privacy Acts
Officer for the Secret Service), and therefore should be preserved in the interest of justice.
1.

This Court should find that Eyes on Government has made a narrowlytailored showing of the expected substance of Agent Otoyas testimony.

In Deiulemar, the petitioner made a narrowly-tailored showing of the substance of the

testimony it sought to perpetuate. In re Application of Deiulemar Compagnia Di Navigazione
S.p.A. v. M/V Allegra, 198 F.3d 473, 486 (4th Cir. 1999). In that case, the petitioner sought to
learn the present condition of the engine of a damaged ship it had chartered before it was
repaired, and stated, the purpose in perpetuating this evidence is to determine the nature and
extent of Petitioners claim. Id. at 477, 486. The Coast Guard had already revealed an inference

SERVICE BRIEF
of engine-related defects on the ship in a written report, and the trial court granted preservation
of additional related evidence. Id. at 486. In affirming the decision, the court reasoned that,
despite not knowing the precise nature of the information to be preserved, the petitioner
largely knew the substance of the information that it sought to preserve, based on the written
report. See id. (emphasis added). The court further reasoned that the district court had reasonably
concluded that, while the petitioner might not have known the exact nature of the evidence it
sought to gather, the petitioner knew of and sought to preserve evidence generally described
in the report, and thus appropriately sought to perpetuate, rather than discover, evidence. See id.
Therefore, the petitioner made a narrowly-tailored showing that it largely knew the substance of
the evidence to be preserved and Rule 27 relief was appropriate. See id.
Based on Deiulemar, this Court should find that Eyes on Government has made a
narrowly-tailored showing it largely knows the substance of Agent Otoyas anticipated testimony
and Rule 27 relief is appropriate. Like the petitioner in Deiulemar sought to perpetuate evidence
regarding the nature and extent of its claim, Eyes on Government is seeking to preserve
testimony describing the authorities and guidance upon which Agent Otoya relied in denying
Eyes on Governments FOIA request to support its future claim. Similar to Deiulemar, where the
petitioner sought to preserve evidence expanding upon the findings in a written report, Eyes on
Government desires testimony from Agent Otoya expanding upon his denial letter. Just as the
court reasoned in Deiulemar, that despite not knowing its precise nature, the petitioner largely
knew the substance of the information it sought to preserve based on the written report, this
Court should reason that, despite not knowing the precise nature of Agent Otoyas testimony,
Eyes on Government largely knows its substance based on his letter. Given that the court in
Deiulemar found it reasonable to conclude that, despite the petitioner not knowing the exact

SERVICE BRIEF
nature of the evidence it sought to gather, the petitioner appropriately sought to perpetuate, rather
than discover, evidence generally described in a prior writing, this Court should comfortably find
Eyes on Government is similarly seeking to perpetuate, not discover, evidence generally
described in a prior writing. Thus, based on Deiulemar, this Court should find Eyes on
Government made a narrowly-tailored showing that it largely knows the substance of the
evidence to be preserved and Rule 27 relief is appropriate.
2.

This Court should find that preservation of Agent Otoyas testimony is

necessary to prevent a failure or delay of justice because it contains unique
information that cannot be accommodated by other witnesses.

In Bay County, the court held testimony should be preserved when it is likely to provide
unique material distinctly useful to a finder of fact. Bay County, 171 F.3d at 1047. There, the
petitioner sought to perpetuate the testimony of a landfill employee that might be relevant to
allocating liability to other parties potentially responsible for polluting the landfill. Id. at 1045.
The party opposing perpetuation argued that, based on a decision by the District of Columbia
Circuit, in order to satisfy Rule 27(a)(1)(C), the information held by the proposed deponent had
to be unknown to any other witness. Id. at 1046. The court disagreed and reasoned that
perpetuated testimony did not need to be completely different from what would be available
elsewhere in order to be unique and sufficient to possibly prevent a failure or delay of justice.
See id. at 1047. Instead, because the landfill employees testimony would throw a different,
greater, or additional light on the pollution of the landfill, the testimony was relevant, not simply
cumulative, and likely to provide material distinctly useful to a finder of fact, so preservation
was proper. See id. Therefore, because the testimony could not be accommodated elsewhere,
perpetuating the testimony was necessary to prevent a failure or delay of justice. See id.

SERVICE BRIEF
Based on Bay County, this Court should conclude Agent Otoyas testimony should be
preserved because it is likely to provide unique material distinctly useful to the fact finder. Even
stronger than Bay County, where the petitioner merely asserted that the proposed deponents
testimony might be relevant to a future finder of fact, Agent Otoyas testimony is crucial to a
future finder of fact since he was responsible for denying Eyes on Governments FOIA request.
As the opposing party in Bay County unsuccessfully argued the information held by the proposed
deponent had to be unknown to any other witness to satisfy Rule 27, Eyes on Government
expects the Secret Service to argue that another witness might be able to testify in Agent Otoyas
stead. However, as the court reasoned in Bay County that testimony did not need to be
completely different from what would be available elsewhere in order to be unique and sufficient
to possibly prevent a failure or delay of justice, so, too, should this Court reject an argument that
a substitute for Agent Otoya could suffice. Instead, following the reasoning of Bay County that
preservation was proper because the anticipated testimony would throw a different, greater, or
additional light on the key issue, this Court should similarly find that Agent Otoyas testimony
should be preserved because it is also relevant, not simply cumulative, and likely to provide
material distinctly useful to a finder of fact. Therefore, because Agent Otoyas testimony cannot
be accommodated, perpetuating his testimony is necessary to prevent a failure or delay of justice.
Eyes on Government has made a narrowly-tailored showing that the substance of Logan
Otoyas testimony is known and it is not seeking discovery. Since Agent Otoyas testimony
cannot be accommodated elsewhere and is essential to a finder of fact seeking to understand his
denial of Eyes on Governments FOIA request, perpetuating his testimony is necessary to
prevent a failure or delay of justice. Thus, this Court should find Eyes on Government met the
required showing under Rule 27(a)(1)(C) regarding the facts of Agent Otoyas testimony.

SERVICE BRIEF
B.

This Court should find that Eyes on Government has made the required
showing of the reasons to perpetuate Agent Otoyas testimony because there
is a risk it will be lost as he will be unavailable due to his deployment.

Rule 27(a)(3) requires the court to grant a petition to perpetuate testimony when the
testimony would otherwise be lost or become unavailable before the matter to which it relates
becomes ripe for judicial determination. See De Wagenknecht, 250 F.2d at 416-17. A Rule 27
petitioner must make a particularized showing why the testimony needs to be taken in advance of
the contemplated action. Checkosky, 142 F.R.D. at 7. The petitioner should show that depositions
cannot be taken and perpetuated by the ordinary methods and that preservation of the testimony
is made necessary by the danger that it may be lost by delay. Arizona, 292 U.S. at 348. However,
the right to relief under Rule 27 depends upon the situation of the petitioning party, and its power
to bring its rights to an immediate investigation, rather than on the condition of the witness.
Mosseller, 158 F.2d at 382. It is advisable, although not necessary, to show the existence of
particular circumstances surrounding the condition of the evidence indicating an imminent
danger of its loss due to delay, for a court to be satisfied that the perpetuation of the testimony
will prevent a failure or delay of justice. Ernst, 2 F.R.D. at 451. Eyes on Government has already
shown Agent Otoyas testimony cannot be taken and perpetuated by the ordinary methods, as he
will be in Afghanistan before the administrative appeal is decided, and the additional danger of
loss or delay due to Agent Otoyas deployment constitutes a sufficient showing that preservation
is necessary to prevent a failure or delay of justice.
In Checkosky, the court held that, under the circumstances, perpetuating testimony in
advance of the petitioners ability to bring suit was not appropriate. Checkosky, 142 F.R.D. at 7.
In that case, the SEC objected to the perpetuation of testimony because there was no suggestion
the proposed deponents would not be available to testify after the SEC had ruled on an

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administrative proceeding, expected within the following six months, after which the petitioners
could bring their action. Id. at 5. The court reasoned that because the petitioners had not made a
showing that the proposed deponents would be unavailable to testify after the petitioners were
able to bring suit, denying perpetuation of their testimony would not result in a delay of justice.
See id. at 8. Therefore, because the court was not satisfied there was a showing the testimony
was at a risk of loss, denying the Rule 27 petition did not result in a delay of justice. See id.
Unlike Checkosky, this Court should find that perpetuating Agent Otoyas testimony in
advance of Eyes on Governments ability to bring suit is necessary. Unlike Checkosky, where
there was no evidence the proposed deponents would be unavailable to testify after the
administrative proceeding was complete, Eyes on Government can demonstrate Agent Otoya
will be in another jurisdiction or another country, under military orders, when the administrative
appeal is decided, as he will be undergoing training for six weeks prior to his May 1, 2015
deployment date. Thus, this Court should distinguish Checkoskys finding that denying Rule 27
relief did not result in a delay of justice where there was no suggestion the witnesses would be
unavailable to testify after the petitioners could bring suit and instead find that denying
perpetuation of Agent Otoyas testimony would result in a delay of justice because Eyes on
Government has shown his future unavailability. Thus, Eyes on Government has shown
circumstances indicating imminent danger of the loss of critical evidence, so this Court should be
satisfied that perpetuation of Agent Otoyas testimony will prevent a failure or delay of justice.
In De Wagenknecht, the court affirmed a decision to grant a petition to perpetuate
testimony when there was a risk of its loss. De Wagenknecht, 250 F.2d at 418. There, the
proposed deponent was seventy-four years of age, indicating a 3% chance3 that he would die
within the next year. See id. at 417. The court reasoned that the chance that the deponent would
3

S.S.A., Actuarial Life Table, http://www.ssa.gov/oact/STATS/table4c6.html (last visited Mar. 28, 2015).

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pass away within the next year constituted sufficient proof of risk that he would be unavailable to
testify by the time of any future trial. See id. Therefore, because there was a substantial risk that
the deponent would be unavailable in the future, the court was satisfied that perpetuating his
testimony was necessary to prevent a failure or delay of justice. See id. at 418.
Based on De Wagenknecht, this Court should be satisfied that perpetuating Agent
Otoyas testimony is necessary to prevent a failure or delay of justice. As in De Wagenknecht,
where there was a 3% chance the proposed deponent could die within the next year, prior to any
future litigation, Agent Otoya faces a 7.5% risk of death or injury4 as a result of his deployment
to Afghanistan. Thus, even more compelling than the reasoning in De Wagenknecht that the
chance the deponent would pass away within the next year constituted sufficient proof of risk
that he would be unavailable to testify for a future trial, this Court should be persuaded that Eyes
on Government has provided sufficient indicia of the risk that Agent Otoya will be unavailable
for testimony at an undeterminable future date. While the Secret Service may argue the
difference in risk following the draw-down in forces starting in 2015 or the length of time most
cases take to reach trial in this District5, the Court only needs to note the existence of particular
circumstances surrounding the condition of the evidence indicating an imminent danger of its
loss due to delay to be satisfied that the perpetuation of the testimony will prevent a failure or
delay of justice. Therefore, because there is a substantial risk that Agent Otoya will be
unavailable to testify once the administrative appeal is exhausted, this Court should be satisfied
that perpetuating his testimony is necessary to prevent a failure or delay of justice.

See footnotes 1-3 22,422 casualties from the estimated 300,000 troops equates to a 7.45% chance of casualty.
Based on 2014 data, the median time interval in months from filing to jury trial was 38.5 months. See
http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2014/appendices/T03Sep14.pdf (last visited Mar. 28,
2015).
5

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Because Agent Otoya is leaving soon for training in Indiana, followed by a six month
deployment to Afghanistan, before Eyes on Government can bring suit, this Court should find
Eyes on Government satisfied Rule 27(a)(1)(C)s requirement regarding showing the reasons
necessitating perpetuation of Agent Otoyas testimony to prevent a failure or delay of justice.
CONCLUSION
Eyes on Government has made the requisite showing under Rule 27(a)(1)(C) that the
substance of Agent Otoyas testimony setting out the reasons underlying his denial of its FOIA
request is known, cannot be accommodated elsewhere, and is essential to a finder of fact seeking
to understand his denial of its FOIA request. Eyes on Government has also met its burden under
Rule 27(a)(1)(C) of demonstrating the existence of particular circumstances indicating an
imminent danger of loss of Agent Otoyas critical testimony, due to his military training and
deployment resulting in his unavailability at the time of filing the complaint and, potentially, at
trial. As Eyes on Government can satisfy the remaining requirements of Rule 27(a)(1), this Court
should find that Rule 27 relief will prevent a failure or delay of justice.
WHEREFORE Petitioner, Eyes on Government, prays this Court grant its Petition to
Perpetuate Special Agent Logan Otoyas Testimony Under Federal Rule of Civil Procedure 27.
Respectfully submitted,
Date: March 31, 2015

/s/ XXXXX
Attorney for Petitioner Eyes on Government
CERTIFICATE OF SERVICE

I, XXXXX, attorney for Petitioner Eyes on Government, do hereby certify that on this
date, I have served upon all Meyers LP II students, a complete and accurate copy of Petitioner,
Eyes on Governments Memorandum of Law in Support of Its Verified Petition to Perpetuate
Special Agent Logan Otoyas Testimony under Federal Rule of Civil Procedure 27 via TWEN.
Date: March 31, 2015

/s/ XXXXX
Attorney for Petitioner Eyes on Government
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