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Row erupts as US Department of Justice sends Lance Armstrong’s lawyers documents in error

Government says papers are subject to legal privilege – disgraced cyclist’s attorneys tells DOJ where they can stick them

Lawyers acting for the US Department of Justice (DoJ) have erroneously sent Lance Armstrong’s lawyers dozens of documents relating to the whistleblower case against him – and the disgraced cyclist’s defence team are refusing to return or destroy them.

The case was originally brought by the rider’s former US Postal Service team mate Floyd Landis, with the DoJ subsequently joining it, and alleges misuse of government funds, in the shape of sponsorship money, to finance the team’s doping programme.

In January last year, following his life ban from sport and losing results including the seven Tour de France titles he won between 1999 and 2005, Armstrong admitted having doped while at the team.

According to the New York Daily News, lawyers acting for the Department of Justice mistakenly shared a number of documents, thought to include summaries of witness statements, with Amrstrong’s attorneys in June.

The exchange of certain documents is a usual part of pre-trial procedure but the DOJ says that some of those sent in June to a law firm working for Armstrong are protected by legal privilege and should not have been shared, putting the mistake down to “administrative error.”

Robert Chandler, who is heading up the DOJ’s team, wrote to the San Francisco-based Keker and Van Nest, saying: “We request that you immediately refrain from reviewing, copying, or disseminating the privileged documents, and that you return or destroy all copies of those documents in your possession.

“We further request that you destroy the portions of any other documents or work product generated that use, refer to, or summarize any of the privileged documents.”

The law firm’s Elliot Peters wrote back to him in July telling him in no uncertain terms telling him what the DOJ could do with its request for the return or destruction of the documents.

He said: “You need to take responsibility for your own error, and stop making unfounded accusations against other lawyers who actually have professional reputations they have earned and value.

“It merely suggests that you like to bully people and abuse your power as a government lawyer by leveling serious accusations without any factual basis,” he added.

Prior to that acrimonious exchange, Keker and Van Nest is reported to have told the DOJ that is does not believe that the documents in question benefit from legal privilege, while the government claims that one of them has already been used by his lawyers to support one of its motions in relation to the case.

“Exhibit R to Armstrong’s motion,” said the DOJ in a separate motion, “contains information elicited during an interview conducted by government attorneys and summarized at their direction by a federal law enforcement agent.

“The United States wishes to protect the confidentiality of this document and to mitigate the harm to the Government from its disclosure by Armstrong.”

That document was sealed by a federal judge the following day, 10 July, and a day after that, the DOJ’s Chandler wrote again to the law firm, saying: “I am concerned that Keker and Van Nest’s cavalier disregard for the rules in this instance is part of an emerging pattern in which your firm ignores its legal and ethical obligations, in an effort to gain a tactical advantage in this litigation.”

In reply, the law firm said that the DOJ attorney was making “legally baseless accusations” and that “the documents appeared to be memoranda reciting factual information given by percipient witnesses, in some case transcribed by non-lawyers in the presence of third parties.”

The stakes in the case are high, with the False Claims Act providing that penalties can be assessed for as much as three times the amount in question – meaning that Armstrong could be looking at having to pay a potentially ruinous $90 million, as well as legal fees.

Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.

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14 comments

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Bryin | 9 years ago
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It is likely the "mistake" was a legal tactic. The DOJ wants the LA camp to settle and they showed them part of their hand as warning about what to come. The DOJ is going to win this thing easily and they simply don't see the need and expense of a trail. It will be so funny to see Landis get 1/3 of the total judgment. Even if LA settles for $30 million Landis will walk with $10M. Bet that will not sit well with LA.

How do all of you LA fanboys feel now?

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Colin Peyresourde replied to Bryin | 9 years ago
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Bryin wrote:

It is likely the "mistake" was a legal tactic. The DOJ wants the LA camp to settle and they showed them part of their hand as warning about what to come. The DOJ is going to win this thing easily and they simply don't see the need and expense of a trail. It will be so funny to see Landis get 1/3 of the total judgment. Even if LA settles for $30 million Landis will walk with $10M. Bet that will not sit well with LA.

How do all of you LA fanboys feel now?

The fanboys are awfully awfully quiet.

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hairyairey | 9 years ago
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Just hoping that at some point this sorry escapade will end with Lance in prison for fraud and/or perjury and/or obstruction of justice. I've even written to Obama suggesting that he repeals the statute of limitation on perjury. It can be done and it makes a mockery of any justice system that a person can lie as long as they don't get found out for five years (in some states it's less than that).

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Colin Peyresourde | 9 years ago
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This is typical MO of Lance and his team. I read Juliet Macur's book recently and it really brought it all home how much bullying and cajoling he did - there's the suspicion by both Hamilton and Landis that he spiked their blood bags on the tour - they don't say as much as they have no evidence, except Lance's comment to Landis about doing his BB on the planned stage.

But he and his team were/are excellent at manipulating people into doing what they want. This includes getting the federal case into Armstrong (not the whistleblowers case) dropped after lobbying his senator and congressmen buddies.

I was watching 'Slaying the Badger' and the part that interested me the bit where Armstrong calls up Greg Lamond and asks 'can I rent your house in Belgium now that Greg is finished?' - Lamond hadn't retired or anything.....

But let us not forget what a nice guy he is: when his best friend died of cancer (they were friends before Lance's cancer, they just happened to both be diagnosed and suffer at the same time) Lance turned up in casual clothes and tells the daughter of his dead friend "I don't do funerals".

Jaw droppingly insensitive. This man has never had any shame, and does whatever he wants.

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Cheekyjohn | 9 years ago
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Like many people I used to admire the guy. But he deserves everything he gets now in my opinion, and his money obsessed lawyers too! Mistake or no. They will take advantage of this "administrative error". Throw away the bloody key that's what I say! Feckin bully that's all he is anyway. God he makes my blood boil! Right that's it I'm stopping writing cos I is getting mad now!  13

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cat1commuter | 9 years ago
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I don't quite understand what it is in these files that Armstrong's team wouldn't get to see during the trial anyway. What's the worry? That they'd have a bit longer to prepare a defence?

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notfastenough | 9 years ago
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the article wrote:

“It merely suggests that you like to bully people and abuse your power as a government lawyer by leveling serious accusations without any factual basis,” he [Armstrong's legal team] added.

My my, what's that taste? Mmm, Irony. Delicious, no?!

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farrell | 9 years ago
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It's probably the same sort of cock-up that makes people accidentally send the text or email to the person they are slagging off.

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zanf replied to farrell | 9 years ago
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farrell wrote:

It's probably the same sort of cock-up that makes people accidentally send the text or email to the person they are slagging off.

One of the guys at work is called "CC" because of that.

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RobD | 9 years ago
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Anyone else think it was an inside job? That Armstong's team got someone at the DoJ to 'accidentally' send the files, or are they really that incompetent?

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zanf replied to RobD | 9 years ago
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RobD wrote:

Anyone else think it was an inside job? That Armstong's team got someone at the DoJ to 'accidentally' send the files, or are they really that incompetent?

Hanlon's Razor dictates that we should always presume the latter, especially considering that the CPS regularly makes major fuck ups that would seem beyond incompetence and verging on what appears as conspiratorial deliberateness.

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DavidC | 9 years ago
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“You need to take responsibility for your own error, and stop making unfounded accusations against other..."

This is interesting advice from Armstrong's lawyers.

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andyp replied to DavidC | 9 years ago
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DavidC wrote:

“You need to take responsibility for your own error, and stop making unfounded accusations against other..."

This is interesting advice from Armstrong's lawyers.

proper lol

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harman_mogul | 9 years ago
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Dull stuff.

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