Case 1:10-cv-00976-CRC Document 398 Filed 08/05/15 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES, ex rel.,
FLOYD LANDIS,
Plaintiff,
v.
TAILWIND SPORTS CORPORATION,
et al.,
Defendants.

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) No. 1:10-cv-00976-CRC
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MEMORANDUM OF LAW IN SUPPORT OF

UNITED STATES MOTION FOR ADDITIONAL TIME (FOUR HOURS)
IN CONNECTION WITH LANCE ARMSTRONGS DEPOSITION

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Armstrong has to date spent approximately 17 hours taking testimony from the United
States. Fairness demands that the government be afforded the same right to gather the testimony
it needs to support its claims. Although the Federal Rules create a presumption that a deposition
should be concluded within a single day of seven hours, the Rules also provide that [t]he court
must allow additional time consistent with Rule 26(b)(2) [1] if needed to fairly examine the
deponent or [2] if the deponent, another person, or any other circumstance impedes or delays the
examination. Fed. R. Civ. P. 30(d)(1) (emphasis added); see also Roberson v. Bair, 242 F.R.D.
130, 138 (D.D.C. 2007) (noting that the Court is required to permit more time where
additional time is needed for a fair examination) (emphasis added).1 In the present case,
additional time is warranted for both of the reasons contemplated by Rule 30.
First, additional deposition time is needed to conduct a fair examination. The Advisory
Committee Notes state that courts have discretion to extend the time for a deposition based on a
variety of factors including [i]f the examination will cover events occurring over a long period
of time, or if the witness will be questioned about numerous or lengthy documents . Fed.
R. Civ. P. Advisory Committee notes 2000 Amendments. Here, Armstrongs relevant conduct
took place over two decades,2 and his personal knowledge is relevant to every issue in this case.
Further, Armstrong has made numerous and lengthy public statements that are germane to the
issues in this case. Armstrongs counsel has refused to stipulate even to the authenticity of
Armstrongs prior statements. See Finkelstein Decl. Ex. A (Depo Tr.) at 351:17-353:18 (if you
want to show something to the witness, do it, and dont rely on the fact that we will stipulate to
something ). Therefore, the government should be entitled to make a record of the fact that
Armstrong actually made the statements that have been attributed to him.
The government is also entitled to discover how Armstrong will attempt to explain his
many incriminating prior statements at trial. More than once during the first seven hours of his
1

Rule 26(b)(2) provides that the Court must limit discovery where the discovery sought
is unreasonably cumulative, the party seeking discovery has had an opportunity to obtain the
information, or the burden of the proposed discovery outweighs the likely benefit.
2
In his deposition, Armstrong testified that he started using banned substances in 1993.
Tr. 132:11-13.

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deposition, Armstrong sought to minimize or explain away his most incriminating prior
statements.3 The transcript from the first seven hours of Armstrongs deposition in this case will
show that the government proceeded as expeditiously as possible to discover Armstrongs
explanations for his many relevant prior statements. However, the government was not able to
discover Armstrongs explanations for many additional relevant prior statements. Specifically,
the government did not have sufficient time to ask about the following prior statements:
Armstrongs second SCA deposition; his Larry King Live appearance in August 2005; his
Outside the Lines interview with Bob Ley; the two recent full length documentaries on his
doping scandal; and his January 2015 BBC interview.
Fairness also requires that the government be permitted additional time to inquire into
topics that it was not able to cover during the first seven hours of Armstrongs deposition. First,
because this Court had not ruled on Armstrongs protective order motion at the time his
deposition commenced, the government was not able to ask Armstrong about bank records
showing payments to Michele Ferrari, and others. The government also needs additional time to
explore the current market value of his sponsorship services (viz., after the doping revelations),
the circumstances of Armstrongs separation from his former sponsors, his lawsuits against his
accusers (including David Walsh), and his time outside the country between 2000 and 2010.
Courts routinely allow additional deposition time in circumstances such as these, where the
complexity of the case and the knowledge of the witness merit it. See, e.g., Arista Records LLC
v. Lime Grp. LLC, No. 06-5936, 2008 WL 1752254, at *2 (S.D.N.Y. APR. 16, 2008) (Lynch, J.)
(The presumptive length of depositions provided in Rule 30, which are more than adequate for
the general run of simpler litigation, was not designed for a witness of this significance in a case
of this magnitude ); Kleppinger v. Texas Dept of Transp., 283 F.R.D. 330, 334 (S.D. Tex.
For instance, when he was asked about his 2005 deposition testimony that he was aware
that his sponsors would drop him if he were found to be doping, Armstrong stated that this
remark was no longer correct. Tr. 222:7-12. Armstrong also sought to distance himself from
his remark to Oprah Winfrey that the USPS Teams doping program was definitely
professional. Tr. 137:20-138:12 (that probably wasnt the best use of words ). In
addition, Armstrong attempted to disavow certain statements in his 2000 book Its not About the
Bike, characterizing these statements as Sallyisms (referring to his co-author, Sally Jenkins).
Tr. 243:1-21.
3

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2012) (granting additional deposition time where the defendant sought to examine Plaintiff on
specific areas not covered (in detail) by [counsel] in the previous deposition ).
Finally, additional deposition time is warranted based on Armstrongs counsels repeated
interruptions. See Fed. R. Civ. P. 30(d)(1) (court must allow additional time if another person
impedes or delays the examination). During the first seven hours of Armstrongs deposition,
counsel repeatedly and improperly interrupted the examination. For instance, counsel made
lengthy speaking objections, e.g. Tr. 98:11-99:8, 372:7-374:4, and interfered with the
governments ability to obtain answers to the most routine follow-up questions, Tr. 191:12-18,
207:23-208:8; 264:9-265:2. Indeed, at times, more than one of Armstrongs attorneys objected
to the same question. Tr. 221:10-22.4
Rule 30 requires that any objections during a deposition must be made [1] concisely
and in a [2] non-argumentative and [3] non-suggestive manner. Fed. R. Civ. P. 30(d)(1).
Armstrongs counsel repeatedly violated all three of these requirements, and additional time is
warranted for this reason as well. See Alexander v. FBI, 186 F.R.D. 21, 52-53 (D.D.C. 1998) (It
is highly inappropriate for counsel for the witness to provide the witness with responses to
deposition questions by means of an objection, rephrase or later the question, or engage in an
argument with opposing counsel.); Blumenthal v. Drudge, 186 F.R.D. 236, 242 n.5 (D.D.C.
1999) (noting that speaking objections and soliloquies by counsel may entitle the party taking the
deposition to additional deposition time).
For these reasons, the government respectfully requests four more hours in addition to
whatever time this Court permits the relator to continue the deposition of Lance Armstrong.
4

In addition and contrary to Armstrongs attorneys own deposition practice counsel

instructed Armstrong not to read portions of certain exhibits into the record. Compare Tr.
342:16-344:12 with Finkelstein Decl. Ex. B (Joseph Porporino Deposition) at 34:10-35:20.
Further, when the government attempted to inquire into changes to Armstrongs appearance fees
after the doping revelations, his counsel initially went so far as to instruct the witness not to
answer on the basis of a relevance objection. Tr. 303:6-306:19. After a lengthy colloquy,
Armstrongs counsel relented and permitted certain questioning regarding the appearance fee
issue. In spite of counsels ultimate acquiescence, this pattern of obstructive conduct during the
deposition was highly improper. See Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 1,
6 (D.D.C. 2004) (directing a witness not to answer a question on the grounds of relevance is a
clear violation of the Federal Rules and sanctionable.).

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Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
VINCENT COHEN, JR.
Acting United States Attorney
DANIEL F. VAN HORN, D.C. Bar # 924092
Assistant United States Attorney
s/ David M. Finkelstein
MICHAEL D. GRANSTON
TRACY L. HILMER
ROBERT E. CHANDLER
DAVID M. FINKELSTEIN
ROBERT McAULIFFE
GREGORY A. MASON
Attorneys, Department of Justice
Civil Division
Post Office Box 261
Ben Franklin Station
Washington, D.C. 20044
Tel: (202) 616-2971
DATED: August 5, 2015

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES, ex rel.,
FLOYD LANDIS,
Plaintiff,
v.
TAILWIND SPORTS CORPORATION,
et al.,
Defendants.

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) No. 1:10-cv-00976 (CRC)
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) ECF
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DECLARATION OF DAVID M. FINKELSTEIN

I, David M. Finkelstein, hereby declare that:
1.

I am an attorney with the United States Department of Justice, and am one of the

attorneys responsible for representing the United States in connection with the abovenamed case. I have personal knowledge of the facts set forth herein, to which I could
competently testify under oath if called as a witness.
2.

Attached as Exhibit A are excerpts from the first seven hours of Lance

Armstrongs deposition in this matter, which was taken on July 23, 2015.
3.

Attached as Exhibit B is an excerpt from the deposition of Joseph Porporino, a

former USPS employee, which was taken on July 9, 2015.

I declare under the penalty of perjury under the laws of the United States of
America that the foregoing is true and correct
s/ David M. Finkelstein
DAVID M. FINKELSTEIN
DATED: August 5, 2015

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