Free Statement - District Court of Colorado - Colorado

Case 1:01-cv-02076-LTB-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02076-LTB MARK ALLEN TAYLOR, Plaintiff, v. SOLVAY PHARMACEUTICALS, INC, Defendant.

Civil Action No. 00-cv-00808-LTB BRIAN H. ROHRBOUGH, et al. Plaintiffs, v. WAYNE N. HARRIS, et al. Defendants. POSITION PAPER OF COLORADO ATTORNEY GENERAL JOHN SUTHERS CONCERNING DISPOSITION OF THE DEPOSITIONS IN THE EVIDENCE ROOM Colorado Attorney General John Suthers replies as follows to the Court's proposal to transfer the depositions remaining in the Evidence Room to the National Archives for storage under protective seal.

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I. The Court should allow limited access to the depositions by an appropriate expert on school violence to allow for a comprehensive study of the Columbine tragedy to help prevent future school violence tragedies.

The Attorney General believes that the Court has the authority to determine that the depositions are federal records, as more fully explained below, and can order them transferred to the National Archives. If the Court determines that the depositions should be sealed after they are deposited in the National Archives, the Attorney General requests the Court to allow limited access to the depositions by an appropriate expert in the prevention of youth violence. As the Chief Judge of the United States District Court for the District of Colorado and custodian of the records, the Court has a great deal of discretion as to who has access to the records. The Attorney General suggests that Dr. Delbert S. Elliott, Ph.D, the Director of the Center for the Study and Prevention of Violence at the Institute of Behavioral Science within the University of Colorado, is such an expert who is already engaged in the study of the Columbine tragedy and would be an appropriate and suitable expert. An affidavit of Dr. Elliott explaining the critical importance of this access is attached as Exhibit A. Dr. Elliott is a world-renowned expert in youth violence, a recent Panelist at the White House Conference on School Safety in October 2006, and the Senior Science Editor of the 2001 Surgeon General's Report on Youth Violence, as well as the recipient of numerous other awards and recognitions. Dr. Elliott is among the top most frequently cited scholars in criminology journals. Dr. Elliott has also already had access to the Columbine investigative files and documents through his positive

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working relationship with the Jefferson County Sheriff's Office. Colorado is indeed fortunate that such an esteemed researcher resides and works in Colorado. As Dr. Elliott details in his affidavit, the depositions are critical to his study of the Columbine tragedy in order to allow him some understanding of what was happening in the Harris and Klebold families. The Columbine tragedy is a unique event in the history of youth violence within the United States. Eric Harris and Dylan Klebold grew up with all of the advantages that stable middle-class families, a good suburban school, and a relatively affluent community afford. Their backgrounds did not contain the typical story of abuse, neglect, poverty and gangs leading to violence. Harris and Klebold were not on a developmental trajectory that current studies indicate would lead to serious, violent behavior, and certainly not to their attempt to kill as many of their peers and teachers as they possibly could. This drastic and alarming shift in behavior remains largely unexplained. By examining their family experiences, Dr. Elliott hopes to develop an understanding of what went wrong, and to provide guidance to others in school and family settings that will help prevent another tragedy of this type. Dr. Elliott's goal is to learn lessons, to understand practical implications, and to help families and school personnel watch for warning signs. Dr. Elliott's affidavit also details how he would preserve confidentiality as ordered by the Court, and how his research grant would provide funding for all of the reasonable costs associated with the transcribing and review of the depositions, up to

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$15,000. He also requests access to the depositions for two colleagues who would participate in the study. The Attorney General urges the Court to balance the litigants' private interests in this matter with public and law enforcement's needs to understand the causes of the Columbine tragedy and to prevent future youth violence. The Attorney General is prepared to present testimony from Dr. Elliot at an evidentiary hearing concerning the crafting of an appropriate protective order should the Court desire. II. The depositions remaining in the evidence room constitute "records" under the Federal Records Act that must be preserved. A. Federal Law and Policy encourage a broad reading of the definition of "records". Federal "records" are defined very broadly in the Federal Records Act ("the Act"). They are, in part: all . . . documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government . . . in connection with the transaction of public business and . . . appropriate for preservation . . . because of the informational value of data in them. 44 U.S.C. § 2901(1); See also 44 U.S.C. § 3301 et seq.; Armstrong v. Executive Office of the President, Office of Admin., 1 F.3d 1274, 1283 (D.C. Cir. 1993), cert. denied, 520 U.S. 1239 (1997) (interpreting definition of records). Congress desires efficient and effective records management, accurate and complete documentation of the policies and transactions of the Federal Government, and judicious preservation and disposal of records, among other policies. 44 U.S.C. §

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2902. Indeed, the Federal Records Act was enacted in part to protect the ability of researchers and historians to use the records of the courts and other agencies for historical and other research. Armstrong v. Bush, 924 F.2d 282, 287 (D.C. Cir. 1991), cert. denied, 520 U.S. 1239 (1997) ("We find that the statutory language and legislative history of [the Presidential Records Act and the Federal Records Act] indicate that one of the reasons that Congress mandated the creation and preservation of federal and presidential records was to ensure that private researchers and historians would have access to the documentary history of the federal government."); Am. Friends Service Comm. v. Webster, 720 F.2d 29, 57 (D.C. Cir. 1983) (private researchers trying to use government records fall within the zone of interests of the Federal Records Act). The National Archives and Records Administration has already provided the Court with comprehensive authority encouraging this broad definition of "records" under the Act, and of the necessity of the preservation of the records under the Act. B. The depositions are records that were "received" under the Act because of the circumstances surrounding their creation, supervision and continued preservation. Federal regulations define the term "received" broadly to mean the acceptance or collection of documentary materials by an agency in the course of its official duties regardless of their origin. 36 C.F.R. § 1222.12(b)(4); See NARA Reply Brief, November 24, 2003, p. 5.

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The depositions of the Harrises and Klebolds took place in the Evidence Room within the Courthouse, a federal public building. The Special Master, as an officer of the Court, was present at all times. The Special Master instructed the parties at the outset of each deposition about the limits and protocols of the deposition, and the Special Master made rulings throughout the deposition. The Magistrate Judge also participated from time to time. Each record in the Evidence Room was formally logged into the Evidence Room and tracked in meticulous detail by the Special Master. The Special Master exercised absolute control over each record from the time it entered the room; only he and the clerk of the Court held keys to the room. The Special Master controlled who could view each record, who could copy it, and who could take notes from it. This process is the functional equivalent ­ and more ­ of the docketing of records in the clerk's office in the course of normal litigation. This level of control, as well as their location and continued storage within the Courthouse, merit that the Court find that these documents are records that were "received" under the Act. C. The private proprietary interest in the depositions is outweighed by the public importance of the records. Although the United States Supreme Court has recognized that "pretrial depositions and interrogatories are not public components of a civil trial," Seattle Times Co. v. Rhinehart 467 U.S. 20, 33, 104 S.Ct. 2199, 2207 (U.S. 1984), it is also true that "the courts of this country recognize a general right to inspect and copy

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public records and documents, including judicial records and documents." Nixon v. Warner Communications, Inc. 435 U.S. 589, 597 (1978). Rather than being conducted in private with minimum judicial supervision, See Estate of Martin Luther King Jr. v. CBS, Inc., 184 F Supp. 2d 1363 (N.D. Ga. 2002), these depositions were taken in a public building with intense judicial supervision. Judicial records are presumptively available to the public, but may be sealed by the Court if, on balance, the right to access is outweighed by interests favoring nondisclosure. Nixon, 435 U.S. at 602; United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997), cert. denied, 522 U.S. 1142 (1998) The position of the Attorney General is that the records are of such national significance that they should be preserved. The public interest in this action is great because the records are of substantial historical and public safety importance. E.g. Krause v. Rhodes, 535 F.Supp. 338 (N.D. Ohio 1979), aff'd by Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982), cert. denied, 459 U.S. 823 (1982) (Kent State shootings); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306 (1978) (Watergate); 44 U.S.C. § 2107 (when it appears to the Archivist to be in the public interest, he may accept for deposit with the National Archives of the United States the records of a Federal agency determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation). The unique historical significance of the documents, and the circumstances surrounding

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the creation, supervision and preservation of the depositions, merit the Court finding that these documents are judicial "records" under the Act that must be preserved. III. Conclusion The Attorney General believes that the records in question are of national significance, and that important public interest mandates that they be used in such a fashion as to provide maximum benefit to the public at large, particularly in Colorado. The Court has the opportunity to allow access to the records by one of the world's foremost experts on youth violence who happens to be right here in Colorado. It would be unfortunate to let this opportunity to gain a greater understanding of the causes of this awful event pass without taking advantage of it. WHEREFORE, the Attorney General respectfully requests that if the Court orders that the records be sealed, that the Court allow access to the records by Dr. Del Elliott and two of his colleagues for purposes of a comprehensive study of the Columbine tragedy and implications for the future. Respectfully submitted this 8th day of February, 2007.

JOHN SUTHERS Attorney General /s/ William Allen

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WILLIAM ALLEN MICHAEL McCORMICK MEGAN RUNDLET Assistant Attorneys General Office of the Attorney General Attorneys for Amicus Curiae Colorado Attorney General John Suthers 1525 Sherman Street Denver, Colorado 80203 Telephone: 303-866-5325

CERTIFICATE OF SERVICE I hereby certify that on this 8th day of February 2007, I electronically filed the foregoing Position Paper of Colorado Attorney General John Suthers Concerning Disposition of the Depositions in the Evidence Room with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses and via U.S. Mail, postage prepaid and addressed to the following: Barry K. Arrington [email protected] Writer Mott - [email protected] A. Bruce Jones - [email protected] Mark F. Kennedy - [email protected] Roger F. Johnson - [email protected] Marc D. Flink - [email protected] Franklin D. Patterson - [email protected] C. Michael Montgomery - [email protected] Gregg E. Kay - [email protected] J. Stephen Mullen [email protected] J. Andrew Nathan - [email protected] Michelle R. Prud-Homme - [email protected] Michael B. Sullivan - [email protected] Willaim A. Tuthill III - [email protected] Michael R. Waters - [email protected] James P. Rouse, Sr. - [email protected] William S. Stuller - wstuller @celaw.com Mark F. Kennedy - [email protected] James E. Hooper - [email protected] Kerry Atencio - [email protected] Kevin T. Traskos - [email protected]

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Amy L. Padden - [email protected] Ericka H. Englert - [email protected] Scott Jurdem - [email protected] - [email protected] Heather A. Salg - [email protected] Alaurice M. Tafoya-Modi - [email protected] Craig R. May - [email protected] Special Master Charles Kall Kenney and Kall 3515 S. Tamarac Drive, No. 200 Denver, CO 80237 Randy and Judy Brown 8003 Vance St. Littleton, Co. 80128 Benjamin E. Colkitt, III 2303 E. Dartmouth Ave. Englewood, Co. 80110 John W. DeCamp DeCamp Legal Services, P.C. 414 South 11th St. Lincoln, Nebraska 68508 Richard Lee Everstine Robert Patrick Ingram Dickinson, Prud-Homme, Adams & Ingram, LLP 730 17th St. No. 730 Denver, Co. 80202 Geoffrey N. Fieger Fieger, Fieger, Schwartz & Kennedy P.C. 19390 West Ten Mile Road Southfield, Michigan 48075 Alan Kaminsky Wilson, Elser, Moskowitz, Edelman & Dicker 150 East 42nd St. New York, New York 10017-5639 Ronald V. Miller

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Miller & Zois 7513 Ritchie Highway Empire Tower, Suite 615 Glen Burnie, Maryland 21061 Sharon Eubanks Office of Legislative Services State Capitol, Room 091 200 East Colfax Ave. Denver, Co. 80203 /s/ Sally Ott_________________________

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