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The RecorderBy May 18, 2006 Tanned and toupeed, it was the ready-for-primetime TV press corps that dominated U.S. District Judge Vaughn Walker’s San Francisco courtroom Wednesday. They filled the benches, staked out the federal building with cameras, and, with their print and radio colleagues, sought to find some new bit of information coming out of the suit accusing AT&T of illegally giving government spies access to customers’ phone and Internet communications. Indeed, media involvement was a theme throughout the first hearing in the case, which is rooted in documents provided by a former AT&T engineer purportedly showing how the phone company diverted communications to a government computer. In addition to the press corps, a pair of media lawyers told Walker they wanted to intervene in the case to keep proceedings open and try to gain access to the plaintiffs’ evidence, which has been under seal. And Walker, too, was well-aware of the press attention: After ruling that the documents could remain in plaintiffs’ hands � but under seal � he admonished Maria Morris, an associate at Lerach Coughlin Stoia Geller Rudman & Robbins, to be cautious with the documents, which Wednesday morning found their way onto the Web site Wired News. “This is not a public relations operation, and I hope counsel understands that,” Walker said. Morris said the documents � provided to the Electronic Frontier Foundation by former phone technician Mark Klein � were provided only to plaintiff lawyers and two of their experts, although Klein had earlier given them to The New York Times. David Anderson, a Pillsbury Winthrop Shaw Pittman partner representing AT&T, had argued that plaintiff lawyers had an obligation to notify defendants of the documents, rather than file them with the court, because they contain proprietary information. “It’s not the finders-keepers, losers-weepers rule that applies to this case,” Anderson said. “They’re bound to respect our intellectual property.” Walker agreed, but only to the extent that before deciding which portion of documents should be unsealed, he wants plaintiff and defense counsel to determine which portions of the documents are proprietary. Walker also declined to place any restrictions on what Klein may say publicly, despite Anderson’s request that he do so under the court’s “inherent authority.” Walker said he disagrees with the “view of federal judicial authority by Mr. Anderson,” and that the court did not have the power to control what Klein, who is not a party to the litigation, says outside court. Nonetheless, Klein gave only a brief post-hearing statement to the press, and his lawyers said he wouldn’t give out any more documents. Judging by its legal team, AT&T seems prepared to fight the case on all fronts. Anderson � a former assistant San Francisco U.S. attorney well-respected in the federal building and familiar to Walker � argued the case Wednesday. Pleadings have largely been handled by Bruce Ericson, a Pillsbury partner and class action litigator well-versed in opposing the Lerach firm. And a portion of the Wednesday arguments were handled by Bradford Berenson, a partner at Sidley Austin who was an associate White House counsel from 2001 to 2003. While AT&T is marshalling heavy legal firepower, recent events seem to be beefing up the plaintiffs’ case. Last week, Qwest said it chose not to comply with government requests for data, suggesting that AT&T and other telecom companies did so voluntarily. After the hearing Wednesday, plaintiff lawyers said they would listen to settlement offers that involved a simple promise by AT&T to not give data to the government. But, they said, no talks have occurred. Marc Bien, a spokesman for AT&T, said he didn’t see a settlement on the horizon. “When the government asks for our help in protecting American security, and the request is within the law, we provide assistance,” he said. While plaintiffs said the hearing was a victory � “it was a good day,” Lerach partner Reed Kathrein said after the hearing � Walker left open the question of whether the government can jettison the case by invoking the state secrets privilege. Carl Nichols, a deputy assistant U.S. attorney general, said the government has classified pleadings, stored in a secure location, that argue why the case would jeopardize national security. Walker seemed inclined to review the documents � after asking all parties to submit briefs on how to weigh such evidence � but was also wary of what he called a conflict between the common law state secrets privilege and plaintiffs’ constitutional right to litigate the issue. Nichols acknowledged this “tension between private litigants’ rights and the need to maintain national security.” Walker was also troubled that plaintiffs won’t be able to counter an argument outlined in classified documents. “How will they be in a position to respond?” he asked. “They won’t, your honor,” Nichols said, adding “unfortunately, or fortunately, that is the way it is done.” But Cindy Cohn, the EFF’s lead lawyer, said she felt the state secrets issue was beside the point: It applies to the NSA’s program, but not to AT&T’s policy of turning over information. “The case can be litigated without any reference to state secrets,” she said. As the hearing wrapped up, Walker scheduled a brisk series of deadlines. “I’m thinking about moving the case along pretty quickly,” he said. And that should be welcome news to the press, which after the hearing gathered by the courtroom steps to hear what the various lawyers had to say. Alas, the Turk Street entrance to the Federal Building is fronted by just two inauspiciously low steps. And while there was plenty coming from the plaintiffs and Klein’s attorneys, the biggest dog in the fight wasn’t talking. “Can you just make a brief statement on national security and that stuff,” one local TV correspondent asked Nichols, in an attempt to get him before the cameras. “I have nothing to say,” he said.

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