1 1 BEFORE THE AMERICAN ARBITRATION ASSOCIATION 2 North American Court Of Arbitration For Sport Panel 3 --------------------------------------------------- 4 TRANSCRIPT OF PROCEEDINGS, May 13, 2007 5 ----------------------------------------------------- 6 UNITED STATES ANTI-DOPING AGENCY, 7 Claimant, 8 vs. 9 FLOYD LANDIS, 10 Respondent. 11 ----------------------------------------------------- 12 PURSUANT TO NOTICE, the above arbitration hearing was 13 held at Pepperdine University, Department of Law, 14 Malibu, California, May 13, 2007, commencing at 3:24 15 p.m. before Debra K. Resling, RMR, Certified Realtime 16 Reporter and Notary Public. 17 18 19 20 21 22 23 24 25 RESLING SPORTSCRIPT (719) 632-6391 2 1 AMERICAN ARBITRATION ASSOCIATION PANEL 2 MR. PATRICE BRUNET, 1010 De la Gauchetiere West, 3 #2260, Montreal, Quebec H3B 2N2, Canada. E-Mail: Pbrunet@brunetavocats.com. 4 MR. RICHARD H. MC LAREN, Innovative Dispute 5 Resolutions, Ltd., c/o McKenzie Lake Lawyers, LLP, 300 Dundas Street, London, Ontario N6B 1T6, Canada. 6 E-mail: Mclaren@mckenzielake.com. 7 MR. CHRISTOPHER L. CAMPBELL, Chapman & Intrieri, 2236 Mariner Square Drive, Suite 300, Alameda, CA 94501, 8 United States. E-mail: Ccampbell@chapmanandintrieri.com. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RESLING SPORTSCRIPT (719) 632-6391 3 1 APPEARANCES 2 MR. RICHARD R. YOUNG, Attorney at Law, from the Law Firm of Holme Roberts & Owen, LLP, 90 South 3 Cascade Avenue, Suite 1300, Colorado Springs, Colorado 80903, (719)473-3800, appeared on behalf of United 4 States Anti-Doping Agency. MR. DANIEL J. DUNN, Attorney at Law, from 5 the Law Firm of Holme Roberts & Owen, LLP, 1700 Lincoln Street, Suite 4100, Denver, Colorado 6 80203-4541, (303)866-0365, appeared on behalf of the United States Anti-Doping Agency. 7 MR. MATTHEW S. BARNETT, Attorney at Law, from the Law Firm of Holme Roberts & Owen, LLP, 90 8 South Cascade Avenue, Suite 1300, Colorado Springs, Colorado 80903, (719)473-3800, appeared on behalf of 9 United States Anti-Doping Agency. MS. JENNIFER SLOAN, Attorney at Law, from 10 the Law Firm of Holme Roberts & Owen, LLP, 90 South Cascade Avenue, Suite 1300, Colorado Springs, Colorado 11 80903, (719)473-3800, appeared on behalf of United States Anti-Doping Agency. 12 MR. MAURICE M. SUH, Attorney at Law, from the Law Firm of Gibson, Dunn & Crutcher, LLP, 333 13 South Grand Avenue, Los Angeles, California 90071-3197, (213)229-7388, appeared on behalf of Floyd 14 Landis. MR. DANIEL L. WEISS, Attorney at Law, from 15 the Law Firm of Gibson, Dunn & Crutcher, LLP, 333 South Grand Avenue, Los Angeles, California 16 90071-3197, (213)229-7388, appeared on behalf of Floyd Landis. 17 MR. HOWARD L. JACOBS, Attorney at Law, from the Law Offices of Howard L. Jacobs, 4210 Lewis Road, 18 Suite 5, Agoura Hills, California 91301, (818)442-0408, appeared on behalf of Floyd Landis. 19 MR. PAUL SCOTT, Chief Operating Officer, 2160 Century Park East, #2108, (310)203-0354, Los 20 Angeles, California 90067, Agency for Cycling Ethics. 21 Also Present: Dr. Francesco Botré, Andreas Zagklis, Caroline Hatton, William Geoghegan, Michael Henson, 22 Brent Kay, Denise Demir, Floyd Landis, Maureen Weston, Susan Polakoff 23 24 25 RESLING SPORTSCRIPT (719) 632-6391 4 1 (Commencing Sunday, May 13, 2007 at 3:24 p.m.) 2 MR. BRUNET: Hello, everyone. 3 I will list the items that I have 4 for today, and then if you have anything else 5 that you want to add, please do so. 6 First of all, we'll introduce to you 7 Dr. Botré, who is our Panel expert, and we will 8 have a discussion on Dr. Botré's intervention, 9 and how you see his report being presented and 10 where it fits. 11 We'll speak about the time split 12 between the parties. You have both suggested 13 that -- the number of hours, which we've -- as 14 you saw from our latest order, which we reduced, 15 so we'll address this point as well. 16 We will talk about the public 17 documents. Per the Panel's order, the 18 documents, or some of the documents, will be 19 public as of tomorrow, so we'll go over that. 20 We'll go over, also, the motions 21 that are currently under review. And, without 22 getting into the legal arguments about them, 23 we'll make an inventory, if you excuse the 24 expression. And we'd also like to get an update 25 on the message we received from Carmen Frobos RESLING SPORTSCRIPT (719) 632-6391 5 1 last, I believe it was, Friday, regarding the -- 2 what's still an open issue, with respect to the 3 Pepperdine University agreement. 4 And we'll -- maybe we can address 5 that in order for Susan in the back, who's our 6 media consultant -- that we can release her, 7 we'll go over the seating allocations. 8 And before we get into this, we've 9 been having some discussions about where people 10 will be sitting, so I want to make sure 11 everybody's on the same page as to how we plan 12 to do this. But we're trying to adapt the room 13 as much as we can for our needs. I think it's 14 best that this area, where the jury sits, 15 remains at the convenience of the Panel. We 16 were anticipating to set the witness there, 17 because it's not very convenient for the witness 18 to be testifying behind us. 19 We were thinking that the 20 interpreter could be sitting in the original 21 witness box, and the witness will need to be 22 mic'd, so there's -- we've already asked for a 23 microphone to be where the witness would be 24 sitting. 25 And do you have any other questions RESLING SPORTSCRIPT (719) 632-6391 6 1 or comments or suggestions about seating 2 allocation -- not seating allocation, but where 3 people will be sitting? Are we okay with that? 4 MR. MC LAREN: I should probably -- 5 beside Dr. Botré is Andreas Zagklis, who is my 6 legal assistant, and he'll be here for the first 7 week, 'til Friday night, right? 8 MR. BRUNET: And on Saturday, he'll 9 be replaced by my legal assistant, Rosalie 10 Brunel. She will be there from Saturday on. 11 Okay. Seating allocation. 12 Yes, Maureen. 13 MS. WESTON: If the witnesses are 14 going to stay there, would you like us to clear 15 out some of the chairs? 16 MR. BRUNET: Well, it's only going 17 to be one witness at a time. Perhaps one or two 18 chairs may be cleared on both sides of the chair 19 of the witness -- 20 MS. WESTON: Okay. 21 MR. BRUNET: -- to give us more 22 space? 23 MS. WESTON: And a table? 24 MR. BRUNET: Can a table fit there -- 25 MS. WESTON: It depends what your RESLING SPORTSCRIPT (719) 632-6391 7 1 preference is, if we take out some of the 2 chairs. 3 MR. BRUNET: Well, they may have 4 some documents to refer to, so a table will be 5 helpful. 6 Seating allocation -- Susan, can you 7 update us on how you view the seating allocation 8 behind the parties? 9 MS. POLAKOFF: Well, my primary 10 focus is media. Again, my name's Susan 11 Polakoff, and I've been assigned to handle the 12 on-site media for this. And by the way -- 13 MR. BRUNET: Susan, come on down in 14 front. Don't be shy. 15 MS. POLAKOFF: At last count, we had 16 32 different outlets, 60 individual -- 17 individuals with media accreditation, but all 60 18 will not be here at the same time. You know, 19 some are coming in at the beginning of the week 20 and replaced by people later. That's the latest 21 count. 22 My primary focus is, right now, we 23 have 15 seats assigned to media. Obviously, 24 there are more media than seats, who want to 25 come, but during -- in the workroom, there will RESLING SPORTSCRIPT (719) 632-6391 8 1 be a live feed. So I think a lot of journalists 2 will like being in there; they can use their 3 laptops and cell phones and do their business 4 while they're watching the live feed of the 5 proceeding. 6 I have 15 seats assigned to me, my 7 area, this final row here. So if there are 8 any -- depending on the day, if there are any 9 open seats, or seats that aren't filled, I would 10 like first dibs on those. 11 And it's going to be a day-to-day 12 thing that I know who's, you know, media who's 13 coming and who's not. It's going to change 14 daily. 15 The university has been -- is it 16 Jessica? -- members of the public, who want to 17 attend, have been sending Jessica an e-mail 18 note, because, again, the way I understand it, 19 that, in order to clear security, your name has 20 to be on a list. So Pepperdine has been taking 21 care of that. 22 MR. BRUNET: Just so everyone knows 23 or understands that, you're the go-to person 24 regarding seating allocation? 25 MS. POLAKOFF: Well, I'm the go-to RESLING SPORTSCRIPT (719) 632-6391 9 1 person for media seating allocation. I don't 2 feel comfortable in taking on the whole room. 3 But I will be happy to help, and I think, with 4 Pepperdine, with Jessica, I think we can 5 probably work something out. 6 MS. WESTON: Just in a letter -- I 7 haven't -- we just threw out -- in a letter, I 8 threw out some proposed numbers. I have no 9 authority, or -- we're just posting this. But 10 we had approximately 20 per side, 10 going to 11 Pepperdine, 15 to print, 10 between AAA and 12 USOC. The USOC has offered five more to the 13 media, so you can have 20, and I wasn't sure if 14 that included the jury box. I mean, I think we 15 were counting on the jury box. I'll have to do 16 the math. 17 But we've marked the -- to where 18 it's even. We have USADA and two rows here; 19 Landis, two rows here; Pepperdine, this row; and 20 then the press, the last two rows. 21 I need some tech people right here 22 just in case there are malfunctions, if you need 23 assistance, we want our tech people to be 24 available. But we're -- just tell us what you 25 would like. RESLING SPORTSCRIPT (719) 632-6391 10 1 MR. JACOBS: If I can -- I believe 2 when we proposed that allocation, it was with 3 the understanding that the jury box would not be 4 used, so I think that will still work. 5 MS. WESTON: Okay. 6 MR. BRUNET: Now, each party has a 7 number of seats. Do you think that you're going 8 to fill those seats every single day? 9 MR. SUH: I don't think we'll fill 10 them every single day. I think that there are 11 certain days that certainly they will be filled, 12 in particular, the first and the last, and 13 probably a handful in between. 14 MR. KAY: I'm pretty -- excuse me -- 15 I'm sure we'll fill all the seats in here each 16 day. 17 MR. SUH: Oh, yeah. That's only for 18 the ones in here. I was thinking about the ones 19 in the overflow room. 20 MR. BRUNET: Oh, yeah, in the 21 overflow room, but I mean here. 22 MR. SUH: Yeah. 23 MR. BARNETT: And we expect that, if 24 we don't fill them constantly, we'll have people 25 coming in and out. And we would prefer to avoid RESLING SPORTSCRIPT (719) 632-6391 11 1 having to ask somebody to keep those clear. 2 MR. BRUNET: How come you have sound 3 and I don't? 4 MR. BARNETT: I thought it was just 5 my voice. 6 MR. BRUNET: Okay. Well, we'll go 7 along that way, and hopefully, between Susan and 8 Maureen, you can coordinate all that. I just 9 want to make sure that everything's set up in 10 advance. And then we don't have to deal with 11 those issues as of 9:30 tomorrow morning. 12 MS. WESTON: I think what would be 13 helpful is, if the parties could provide us -- 14 and I don't know if you can -- an idea of who 15 should be allocated. Is it a first-come, 16 first-served basis, and can -- do they have a 17 seat for all day, or is it just reserving for 18 the morning or the afternoon, in case we have 19 more people who want to appear for one -- who 20 want to observe for one side and there are 21 vacant seats, and we say no, you can't take 22 those vacant seats. Just give us guidance on 23 how we should handle that situation. 24 MR. BRUNET: So your contact person 25 for each side, when you're dealing with the RESLING SPORTSCRIPT (719) 632-6391 12 1 parties, do you know who you are dealing 2 with each side, or should -- 3 MS. WESTON: I would like them to be 4 designated. I've been working with lead 5 counsel, or various people, but that's -- that 6 would be helpful. 7 MR. SUH: I think, right now, we'd 8 designate Brent Kay. 9 MS. WESTON: Okay. 10 MR. BRUNET: Okay. And on the USOC 11 side? I'm sorry. On the USADA's side? 12 MR. BARNETT: We'll designate 13 Johncie Wingard. 14 MR. BRUNET: Okay. So everything's 15 set up on that. 16 MS. WESTON: Do we have a 17 clarification on what to do with vacant seats? 18 Who can fill the vacant seats? 19 MR. CAMPBELL: Well, I think that, 20 if you -- if the parties can agree on -- on a 21 cutoff time, if we're going to start the hearing 22 at 9:30, and you can ask your people to be 23 seated by 9:25, for instance, then there's a 5 24 minutes' window where you could allocate those 25 seats, but -- as you may please between RESLING SPORTSCRIPT (719) 632-6391 13 1 yourself. 2 MR. BARNETT: Our concern would be 3 that we may have a witness who will be coming in 4 at 11, after a break. And so, to avoid kind of 5 seat shuffling, and stand-ins that happen at the 6 Oscars, we'd prefer to just keep those two rows 7 clear and know that those are USADA seats and, 8 hopefully, avoid any -- and especially with the 9 overflow room, I think that's less of an issue 10 now than it may have been before. 11 MR. CAMPBELL: So you're saying that 12 you're going to have witnesses here witnessing 13 other witnesses' testimony? 14 MR. BARNETT: One of the items that 15 we were going to suggest the Panel add to its 16 list is the exclusionary rule. What is the 17 Panel's view on that? 18 MR. CAMPBELL: Do you guys agree? 19 MR. BARNETT: We agreed to put it to 20 the Panel, I think, the last time we spoke. So, 21 we raised it during the one call, Howard, and I 22 don't think either of us had a strong -- either 23 of us had a strong solution. If you have one 24 now -- our position, at this point, is that, 25 since it's going to be on TV, it probably RESLING SPORTSCRIPT (719) 632-6391 14 1 doesn't make sense to try to invoke the 2 exclusionary rule. 3 MR. BRUNET: That would be very hard 4 to control. 5 MR. BARNETT: Right. 6 MR. BRUNET: Well, maybe. 7 MR. SUH: Yeah. We don't have 8 any -- we don't have any objection to having the 9 witnesses in the room. Especially given the 10 coverage, whether or not it be TV or other 11 media. 12 MR. BRUNET: So there's no request 13 for exclusion of witnesses then? Okay. 14 So everyone's clear on the seating 15 allocation? There's no -- let's -- we can move 16 on to the next point. 17 Thank you, Susan. That's -- unless 18 any of the parties or my Panel members want to 19 ask any more questions, I think she can leave. 20 Thank you very much. We'll see you 21 tomorrow morning. 22 MS. POLAKOFF: All right. 23 MR. BRUNET: See you tomorrow 24 morning. 25 Dr. Francesco Botré has been RESLING SPORTSCRIPT (719) 632-6391 15 1 designated by the Panel to be the expert. 2 I'd like to have the views of the 3 parties as to how you would view his -- first of 4 all, his report: when you would view it, look 5 for it to be filed, and to be discussed, and 6 questions to be asked on the report? 7 Under the current scenario, 8 obviously, you have USADA, who will present 9 their case, and then, Mr. Landis, who would 10 present his case. So, Dr. Botré doesn't really 11 fit in any of the parties here as a witness. 12 He's a neutral witness. So I'd like to have 13 comments of the parties or suggestions as to 14 where you would see him presenting his report. 15 MR. SUH: One question. Mr. Chair, 16 do you envision Dr. Botré preparing another or 17 supplemental reports as we go along, or -- I 18 mean, is there going to be a process by which 19 there is a time that there would be additional 20 conclusions or findings during the middle of the 21 proceeding? Because I think that would have a 22 big impact. 23 I mean, it certainly -- if he is 24 preparing recommendations as we go through the 25 proceeding, I think we would like to at least RESLING SPORTSCRIPT (719) 632-6391 16 1 have the opportunity to review them and comment 2 on them, and I -- and, at some point, most 3 likely, be able to ask Dr. Botré questions, 4 post-op, with respect to those conclusions, 5 especially if they're being prepared in the form 6 as we perceived. But I wasn't sure of how the 7 Panel would envision this process proceeding. 8 MR. BRUNET: When we first began the 9 discussion of the independent expert, I think 10 back in February, it was, we had -- we'd talked 11 about the independent expert fulfilling a number 12 of different roles, some of which were related 13 directly to the analysis on the EDS, and others. 14 So, again, that -- the scope of his 15 participation certainly is important to know, to 16 respond to your question. 17 MR. BRUNET: Are you suggesting 18 anything? 19 MR. SUH: Well, I mean, what I would 20 suggest is that we have an opportunity to ask 21 Dr. Botré some questions at the end of the 22 proceeding, and, perhaps we could put that -- 23 that at a time after the close of all of the -- 24 our witnesses respectively. 25 Certainly Dr. Botré, I think -- I RESLING SPORTSCRIPT (719) 632-6391 17 1 mean, as we go through this process, and it's -- 2 we've all agreed that he's going to be present 3 to hear all of the evidence and the testimony, 4 but it certainly would be good to be able to ask 5 him particular questions as we proceed. 6 MR. MC LAREN: So, are you saying 7 during the proceeding? 8 MR. SUH: Great. 9 MR. BRUNET: As you proceed, or at 10 the end? 11 MR. SUH: No, I'm sorry. At the 12 end, yeah. 13 MR. BRUNET: Okay. 14 MR. SUH: Assuming that there was no 15 additional -- I mean, again, it kind of depends 16 on how Dr. Botré is going to -- I guess how hard 17 we're all going to make him work, is the first 18 issue. 19 If he's being asked to prepare, you 20 know, a daily summary or report, that's one 21 thing. If he's asked to prepare something at 22 the end, for review, that's another thing. And 23 perhaps he's not asked to prepare anything at 24 all. And basically, the only thing that we have 25 in existence is this report right here. RESLING SPORTSCRIPT (719) 632-6391 18 1 So it seems to me, because of the 2 shortness of time -- I mean, the reality is, we 3 have a lot of ground to cover over the span of 4 the next nine days, nine arbitration days, that 5 we would ask -- we would have the opportunity to 6 ask questions at the very end. 7 MR. BRUNET: Only at the very end. 8 MR. SUH: Assuming that we don't 9 receive other reports as we go -- 10 MR. BRUNET: Just so it's clear, we 11 haven't provided Dr. Botré with any additional 12 instructions other than what you already have in 13 front of you. And we wanted to take this 14 opportunity today to discuss this, what your 15 expectations were, on both sides. And out of 16 that, we'll -- Dr. Botré will also be receiving 17 his instructions as to what we expect of him. 18 MR. SUH: There is one particular 19 expectation -- we heard it and have seen it in 20 some of the pleadings and correspondence from 21 USADA -- that there is -- there was some 22 suggestion along the way that somehow things 23 that Dr. Botré opines on would somehow bar us 24 from introducing evidence in conjunction with. 25 And we never understood that to be the case. RESLING SPORTSCRIPT (719) 632-6391 19 1 We understand that the Panel might 2 very well benefit from having the participation 3 of an independent expert. But certainly, we 4 didn't interpret the retention of an independent 5 expert to mean that we were precluded from 6 introducing evidence during the course of the 7 proceeding itself. 8 And that's the only -- that's one 9 right-off-the-bat comment I think we would have. 10 MR. BARNETT: And if I may respond 11 to that point: From USADA's perspective, it is 12 certainly up to the Panel to use Dr. Botré in 13 any way. 14 Our comment would be that going back 15 to Procedural Order Number 2, Paragraph 6, the 16 Panel indicated that, "To facilitate the 17 discovery process, and to obviate any possible 18 battle of experts on each side, the Panel is to 19 appoint their own expert." 20 And that, we believe, is consistent 21 with expediting the procedures and consistent 22 with the position we took during the oral 23 argument, that this is an independent qualified 24 Panel expert, that both parties agreed to, and 25 we believe that he -- on issues where he's RESLING SPORTSCRIPT (719) 632-6391 20 1 issued a report, he's provided that to the Panel 2 as an independent view; and we would hate to see 3 another battle of experts on top of that in each 4 situation. 5 With respect to whether Dr. Botré is 6 re -- is providing any additional reports, 7 again, we did not have any expectation that he 8 was providing additional reports. We believed 9 he would be available to the Panel, as a 10 resource, to discuss scientific issues. And 11 based on that role, as an independent Panel 12 expert, it was not our expectation that he would 13 be called as a witness or give testimony in the 14 case. 15 MR. BRUNET: It was not your 16 expectation? 17 MR. BARNETT: It was not our 18 expectation that he would serve that role. 19 MR. BRUNET: Dr. Botré's report was 20 sent to the parties last week. Would it be fair 21 for the parties to ask him questions if you have 22 any additional questions, or would you see the 23 report as being a static document? 24 MR. BARNETT: I don't think we 25 object to that, to the extent of clarifying. RESLING SPORTSCRIPT (719) 632-6391 21 1 Again, our concern -- and we'll get into it 2 shortly -- our concern is the amount of time 3 that we have. And I think using that time is 4 going to be a challenge before all of us. And 5 so I worry that attempting to relitigate issues, 6 where the parties already have input going into 7 the process, and I think Dr. Botré did a very 8 comprehensive and detailed report. I guess our 9 preference would be that that report stands and 10 it is the Panel's independent report. 11 MR. BRUNET: Mr. Suh, did you -- you 12 read -- obviously, you read Dr. Botré's report. 13 Do you have any questions or any lingering 14 interrogations in your head after reading that 15 report; and if so -- I see you nodding your 16 head. 17 MR. SUH: Yes, we do. I -- 18 MR. BRUNET: And then, if so, how do 19 you see the process of asking him questions to 20 clarify that, and how long do you think that 21 would take? 22 MR. SUH: I think that -- I'm not 23 exactly sure how long it would take. I mean, I 24 think the point which we would make that -- that 25 we would do, that question would be at the end RESLING SPORTSCRIPT (719) 632-6391 22 1 after Dr. Botré had the benefit of listening to 2 all the witnesses in the case. 3 And the argument by USADA, now, if 4 we're going to really argue this point, I think 5 there's a lot of things that we can talk about. 6 But basically, the first and foremost point is 7 simply this: that Dr. Botré, just like any 8 other witness who is coming into this case, or 9 any other expert, should have the benefit of all 10 of the arguments and the evidence in the case 11 before rendering an opinion, which USADA would 12 hope to make stat at this juncture, and there's 13 some -- there are quite a few issues in this -- 14 in the report that are touched on, but are, 15 certainly deserve further exploration; and that 16 Dr. Botré, himself, might benefit from hearing 17 all of the testimony in the case. I'm sure he 18 himself would not -- did not view the report as 19 a report which would simply end a large swath in 20 the case. I mean, it would prevent us from 21 putting on evidence, which we've already 22 developed about some of the issues, that are 23 present. 24 Just like -- the matters that we're 25 talking about, actually, are quite complex, and RESLING SPORTSCRIPT (719) 632-6391 23 1 I think that it's only fair that we have the 2 opportunity to present those; and it's only fair 3 for Dr. Botré to consider them. 4 If, at the end of it, Dr. Botré 5 thinks that none of them are meritorious, it's 6 entirely up to him to disregard them. But to 7 say from the outset, before the case even 8 begins, that we wouldn't have that opportunity, 9 we think would not -- wouldn't be fair. 10 MR. MC LAREN: Mr. Young, do you 11 have a point? 12 MR. YOUNG: Yeah. It seems to me 13 the Panel has two decisions to make: The first 14 decision is whether Dr. Botré's report precludes 15 a battle of the experts on the points he 16 addresses. 17 The second issue is, for anything 18 else that happens in the hearing that he hears 19 or his opinions, he should -- whether the 20 parties should have an opportunity to examine 21 him on his opinions after having listened to the 22 evidence. You've already heard our position on 23 the first point. 24 The second point, it makes no sense 25 to do that. Dr. Botré is the Panel's expert. RESLING SPORTSCRIPT (719) 632-6391 24 1 It would seem to me very odd to finish a whole 2 hearing with all the witnesses and then ask Dr. 3 Botré. So, what is your opinion after hearing 4 all of that on all these different points? 5 MR. CAMPBELL: Richard, let me ask 6 you this question: Assuming he is our expert, 7 and we have this hearing, we go back in the 8 room; we ask him questions, all right? You 9 don't have an opportunity, therefore, to 10 understand what we're asking him or to clarify 11 or to ask him questions to, perhaps, put your 12 point of view. You're willing to give that up? 13 MR. YOUNG: The answer's yes. That 14 happens all the time when panels have experts. 15 MR. CAMPBELL: Well, we could go one 16 way or the other. I just -- 17 MR. BRUNET: So, in answer to the 18 question I asked before, Mr. Suh, when you read 19 Dr. Botré's report, notwithstanding whatever 20 other testimony that the experts may bring, do 21 you have any -- did you feel that there were 22 some points that Dr. Botré did not address in 23 his report? And do you have any complementary 24 questions to ask him? 25 MR. SUH: Yes, I feel we do. I -- RESLING SPORTSCRIPT (719) 632-6391 25 1 I'd like, again, to have Dr. Botré simply have 2 the benefit of hearing the evidence and 3 testimony in the case before a final 4 conclusion's rendered. 5 MR. BRUNET: No, no, no. That -- 6 that's not what I'm raising; not after he's 7 received the evidence from the other witnesses, 8 but strictly based on the report that he filed. 9 MR. SUH: Do we have questions now? 10 MR. BRUNET: Right. 11 MR. SUH: Yes. 12 MR. BRUNET: And how long do you 13 estimate that those questions will last? 14 MR. SUH: It depends on the length 15 of the answers, but I would assume -- 16 MR. BRUNET: Is it one or two 17 questions, or is it 20 questions? 18 MR. SUH: I think it's more like -- 19 well, 20 questions; I think it would be about 20 that range. The processing of the EDS, without 21 going into the details, has a number of 22 different issues. And there are a number of 23 different document sets within that processing, 24 which I think Dr. Botré himself would want the 25 benefit of having seen, and I think that it RESLING SPORTSCRIPT (719) 632-6391 26 1 would be -- it would make everything clearer. 2 This -- I'm a little mystified about 3 this issue of the battle of the experts. I 4 mean, the reality of it is, is the battle of the 5 experts, we never assumed it to mean that the 6 battle of the experts of the substantive matters 7 in the case. 8 I mean, when we had this discussion 9 in the hearing, to say that there is a battle of 10 the experts, well, this is a technical case in 11 which there are witnesses who are experts 12 testifying on both sides. To say that -- to 13 take away the battle of the experts is simply 14 another way of saying, in this context, that we 15 don't get to have a case. And I don't think 16 anybody -- I don't think anybody assumed that 17 that was the point of this. 18 I mean, we agreed to have a Panel 19 expert to help elucidate some of those issues 20 and to provide guidance to the extent that there 21 is a sense that their experts or our experts 22 have differing views or have different alliances 23 or they're paid or they get WADA grants or their 24 accreditation depends upon WADA for all of that. 25 I think they can be discounted. RESLING SPORTSCRIPT (719) 632-6391 27 1 But the reality is, is that if we 2 had an independent expert, we would be fine. 3 But no one ever assumed that that meant we 4 wouldn't be able to have a case, which is 5 essentially what USADA is arguing. 6 MR. BARNETT: It's certainly not what 7 USADA is suggesting. The EDS reprocessing was a 8 very specific request by Respondent, and that is 9 what Dr. Botré supervised and has rendered a 10 report on. There are, I would assume, plenty of 11 other issues that Respondent has to bring into 12 this case. But we believe that Dr. Botré's 13 report stands on those issues, and that's what 14 the Panel was referring to in its own procedural 15 order. But we'll defer to the Panel. 16 MR. BRUNET: Okay. 17 MR. CAMPBELL: Well, let me -- I've 18 got a question. 19 I mean, you've got -- each of you 20 are going to have certain allocations of time to 21 present your case, as I understand what we're 22 going to do. Why aren't they allowed to use 23 that time however they choose? 24 MR. BARNETT: We will not object if 25 the Panel decides that they should be able to RESLING SPORTSCRIPT (719) 632-6391 28 1 call him as part of their time. My only other 2 question was procedural. 3 We received Dr. Botré's report, and 4 we never -- and I believe we received -- Dr. 5 Brenna received originally the copies of the 6 documents. I wasn't sure if there were other 7 documents that we may not have received due to 8 some technical problems, and if we could just 9 get clarification on that point. 10 MR. MC LAREN: There's one. On 11 Exhibit 3. 12 DR. BOTRÉ: Can I ask something? 13 MR. MC LAREN: Yeah, go ahead. 14 DR. BOTRÉ: There were 206 pages 15 that were produced in the days in Paris, that I 16 think I gave in copies to the parties in Paris. 17 And they did not trust me by e-mail, because it 18 was a 300-megabyte file. 19 MR. MC LAREN: Okay. 20 DR. BOTRÉ: So, I scanned and 21 transmitted by e-mail, the main text of the 22 document that is 12 pages, and two enclosures. 23 The Enclosures 3 is exactly the set of documents 24 that was prepared in Paris on the 26th, for the 25 simple list -- of the content of the single list RESLING SPORTSCRIPT (719) 632-6391 29 1 and on May 4th and 5th. There is nothing else. 2 MR. BARNETT: Okay. With that 3 clarification -- 4 MR. MC LAREN: They already have 5 that. Right? 6 MR. BARNETT: We do. 7 MR. YOUNG: We do. 8 MR. MC LAREN: The only people that 9 don't have it are ourselves, and it's because of 10 the transmission problems. 11 MR. BARNETT: With that -- 12 MR. MC LAREN: We'll get them to 13 you. 14 MR. BARNETT: And with that 15 clarification, our Exhibit 114, I believe, is 16 Dr. Botré's report that we all received by 17 electronic copy. We would just like to add 18 Exhibit 115. We'll bring copies of those 206 19 pages, and then the Panel will have them in hard 20 copy. 21 MR. CAMPBELL: You're going to 22 three-hole-punch them? 23 MR. BARNETT: We'll do that as well. 24 MR. JACOBS: No, we already -- 25 MR. BARNETT: We'll do that as well. RESLING SPORTSCRIPT (719) 632-6391 30 1 It depends on how everything goes. 2 MR. JACOBS: We already marked 3 those. They're in the GDC exhibits, the 206 4 pages. 5 MR. BARNETT: Consecutively? It 6 wasn't clear to us that they were just in 7 consecutively -- 8 MR. JACOBS: Yeah. 9 MR. BARNETT: -- but it may have 10 been because the PDFs were split. 11 MR. JACOBS: I think they're 12 consecutive as we received them. 13 MR. BARNETT: We'll confer and solve 14 that with the Panel. 15 MR. BRUNET: Now, the next point is 16 the time split between the parties. We'll do a 17 little math exercise here. 18 Our latest order provides for eight 19 days of hearing from 9:30 in the morning until 5 20 p.m. If we count an hour of lunch and two 21 breaks of 15 minutes in the morning and the 22 afternoon, that brings us to six hours a day of 23 hearing time, times eight days it's 48 hours. 24 I've deducted the opening statements 25 of 20 minutes each and an hour and a half of RESLING SPORTSCRIPT (719) 632-6391 31 1 closing statements, which brings us down to 2 45.75 hours. Split between the two of you, it 3 comes up to 22.875 hours. 4 Andreas here will be keeping the 5 time, and he will be updating and informing the 6 parties at the end of each day as to the time 7 allocation. We've discussed this between the 8 three of us, as well, that probably the fairest 9 way to allocate the time is in the following 10 way: Obviously, the time from the party that 11 they're using is going to be deducted off their 12 time, and any cross-examination on -- from one 13 of the parties will be deducted off their own 14 time. So, you get the picture? We try to keep 15 it as simple as possible. 16 And, obviously, there will be 17 adjustments as we go along, because nothing's 18 perfect in this world, and we'll try to give you 19 as much of an update -- and if you see any 20 fairness issues as we go along, just bring them 21 up to our attention. 22 Any questions or comments on this 23 process? 24 MR. BARNETT: That's fine with 25 USADA. RESLING SPORTSCRIPT (719) 632-6391 32 1 MR. SUH: That sounds good. 2 MR. BRUNET: Thank you. 3 Public documents. 4 As you know, the Panel ordered that 5 we would designate the documents that would be 6 public, and that would be available as of May 7 14th, which is tomorrow. So I thought we should 8 address that issue today in advance of 9 tomorrow's hearing and receive your comments on 10 the documents that you've already identified as 11 being part of the public domain. 12 Susan, who's now left the room, 13 has -- is currently setting up, and it should be 14 in place by tomorrow, a specific section on the 15 USOC Web site, where those documents will be 16 available to the public and members of the press 17 presumably, through an FTP site. 18 But she will only upload them upon 19 the direction of the Panel. So, what I would 20 like to get from you today is the list of 21 documents, today or tomorrow morning early -- 22 the list of documents that you see could be 23 released as being public, along with the 24 exhibits, so we could take care of that in 25 advance. RESLING SPORTSCRIPT (719) 632-6391 33 1 MR. BARNETT: From USADA's 2 perspective, I believe we're comfortable with 3 all of the documents being posted to that FTP 4 site. 5 MR. BRUNET: All the documents that 6 came from you, or from the -- I mean, all the 7 documents? 8 MR. BARNETT: We've been requesting 9 for quite a while that all the documents finally 10 and completely be released. 11 MR. SUH: Yeah, this is an easy one, 12 yes. We'd like everything public. 13 MR. BRUNET: Okay. 14 MR. MC LAREN: Everything is all the 15 Panel's orders, all the interlocutory decisions, 16 all of the exhibits, and all of the briefs. Is 17 that -- 18 MR. SUH: Everything. 19 MR. JACOBS: Everything. 20 MR. MC LAREN: Well, not discovery 21 material that hasn't been produced in evidence 22 yet. 23 MR. SUH: Well, from our 24 perspective, I think -- well, everything. 25 MR. JACOBS: I think it was all RESLING SPORTSCRIPT (719) 632-6391 34 1 marked as exhibits anyway. 2 MR. SUH: Well, if they're not here, 3 I guess they're -- yeah, I mean from our 4 perspective, we don't have any issue with 5 omitting anything -- with making anything public 6 record, rather. 7 MR. CAMPBELL: I was going to say, 8 you did have a motion to strike. 9 MR. SUH: We had a motion to strike 10 to actually make it part of the case, or the 11 trial. But in terms of making it public, 12 that's -- we don't have any issues with 13 publicizing the events or the advents or 14 anything else. 15 MR. BRUNET: If you had a motion to 16 strike, and we have not resolved that yet, that 17 will be up -- that'll be on the Web site 18 tomorrow. 19 MR. SUH: We can -- I mean, I guess 20 my -- again, this is something for the Panel to 21 decide, and we'll leave it in the Panel's good 22 discretion. But typically, a motion to strike 23 in a publicity issue, that intersection comes in 24 a jury trial where the jurors are not able to 25 separate out what they hear from evidence, from RESLING SPORTSCRIPT (719) 632-6391 35 1 the legal issues in the case. We have ultimate 2 confidence that that is not an issue here, 3 and -- 4 MR. CAMPBELL: But doesn't that -- 5 doesn't that -- what's the point of your motion 6 to strike then? 7 MR. SUH: The purpose of our motion 8 to strike is, like he said, that evidence not be 9 made part of the case, this case, this Panel's 10 decision-making ability. 11 MR. BRUNET: Okay. 12 MR. SUH: Okay. So we don't have 13 any -- we don't have any concern. 14 MR. YOUNG: All right. I 15 think there's one thing that we need to clarify 16 with the Paris lab, and that is that they've 17 produced a number of their SOPs, which are not 18 documents that they would ever share with the 19 public. I mean, you don't normally produce 20 those in cases as we've discussed. From USADA's 21 point of view, we would be perfectly happy 22 making every single document in this case 23 public; but we probably need to talk to LNDD 24 about that, because they -- I doubt that they 25 produced them with the expectation that the RESLING SPORTSCRIPT (719) 632-6391 36 1 world was going to get to look at their SOPs, 2 so... 3 MR. BRUNET: So with your -- if I 4 hear you well, Mr. Young, you're saying that you 5 need to think about some of those things a 6 little bit more? 7 MR. YOUNG: Yeah, I think that's 8 right. 9 MR. BRUNET: What would probably be 10 most helpful would be if I instructed each of 11 the parties to send by e-mail -- and I will 12 advise you later to whom -- those documents so 13 that they can be instantly uploaded to the Web 14 site. 15 Not having heard any opposition from 16 one of the parties regarding the other party's 17 documents, then I understand that a party asking 18 that the documents be uploaded is fine. 19 If I'd heard otherwise, then this 20 would -- my comments would be different, but 21 since there's no objection with respect to the 22 documents from the other party, then the other 23 party can upload whatever documents they 24 consider or they want to make public as part of 25 this. RESLING SPORTSCRIPT (719) 632-6391 37 1 Is this clear enough for everyone? 2 MR. YOUNG: Yes, thank you for that. 3 MR. SUH: Yes. 4 MR. BARNETT: Can we also preserve 5 the right that, technically, it might be easier 6 to provide a disk? 7 MR. BRUNET: Oh, absolutely. The 8 mode of transmission -- I said e-mail, but that 9 should be interpreted the widest way. 10 MR. YOUNG: I assume that Dr. 11 Botré's report would be included in that, and 12 then we're going to give the Panel copies of the 13 PowerPoints that we're going to use in opening. 14 What do you want to do about those? 15 MR. BRUNET: I would expect that the 16 PowerPoint presentation would also be part of 17 the public domain, unless I hear objections from 18 the parties. 19 MR. SUH: Absolutely. 20 MR. CAMPBELL: You mean, if you're 21 giving it to the public... 22 MR. BARNETT: We do have a related 23 question to media confidentiality and publicity. 24 USADA has a pending request for 25 further clarification of the Panel's orders RESLING SPORTSCRIPT (719) 632-6391 38 1 regarding the conduct of parties during the 2 proceedings; and specifically, we think, given 3 the number of issues that there have been with 4 candidly disagreements between Mr. Suh and I as 5 to the interpretation of what the Panel's order 6 has meant in previous instances, including the 7 latest event where the Panel's own orders were 8 released, we would like further guidance on 9 exactly what does control at this point. 10 We still prefer the Panel's original 11 order that the parties and all agents and 12 representatives should not be allowed to speak, 13 but we're candidly concerned that there may be 14 gamesmanship involved with that. And we think, 15 given the events, it would be useful for the 16 Panel to set forth again, and in a very detailed 17 format, what it expects from the parties during 18 the hearing. 19 MR. BRUNET: I think the Panel's 20 expectations are quite clear. What I'd like to 21 hear from Mr. Suh is, what is your understanding 22 of that? 23 MR. SUH: Well, we have read 24 Procedural Rule 1 and 2, of course, and I think 25 we've read the Panel's order with respect -- or RESLING SPORTSCRIPT (719) 632-6391 39 1 the Panel's comment with respect to the 2 interlocutory award not falling within the 3 advent of Procedural Order 1. If -- I'm just 4 going off memory now, but I believe Procedural 5 Order 1 says that the parties making a public 6 comment once the trial begins -- 7 MR. JACOBS: Until a decision is 8 reached. 9 MR. SUH: -- until a decision is 10 reached. 11 Frankly, I think that, that this 12 construct right now, given the fact that we're 13 going to have 30-some-odd representatives of the 14 media at least, and the fact that all the 15 documents and everything else are going to be 16 made public, it's a little bit odd that we 17 wouldn't have the ability to speak to the media. 18 The media is going to have questions. I think 19 the easiest way to resolve this is simply to 20 allow the parties to speak to the media. 21 And if we want to stand on the 22 public comment language of procedural order, 23 that's fine with us too. But typically, when we 24 look at cases in which we have, in essence, a 25 form of a gag order on public comment, it's RESLING SPORTSCRIPT (719) 632-6391 40 1 combined with a closed or nonpublic trial -- 2 usually a trial. I mean, it's rare in 3 arbitration, but usually a trial so that the 4 public discussion does not run ahead of the 5 actual events of the trial. 6 Here, we have the trial -- the 7 arbitration very much a matter of public record, 8 and I don't see what -- I don't see which party 9 is prejudiced by public comment. We certainly 10 couldn't influence the Panel. I mean, the Panel 11 is a Panel of professional arbitrators. We 12 certainly have no ability to influence you. If 13 we can't influence you inside here, we're not 14 going to influence you outside of this room. 15 That's the first thing. 16 And the second thing is, is that the 17 media's going to be here in full force in any 18 case. They're going to see everything, have 19 access to -- I would assume, to almost all the 20 documents. It doesn't seem, at this juncture, 21 to make a great deal of sense. But, of course, 22 we leave that in your hands, your good judgment. 23 MR. BARNETT: It's interesting, but 24 this has been such a fast-moving target for 25 USADA to try to hit. RESLING SPORTSCRIPT (719) 632-6391 41 1 We asked on April 13th, 2007, in our 2 submission, quite reluctantly, that, given the 3 Respondent's conduct, we believed the only 4 appropriate course of conduct at that point was 5 to remove any of these limitations and treat his 6 conduct as a waiver of the requirement 7 preventing USADA from speaking, and to allow 8 public comment. At that point, Respondent 9 wasn't willing to agree to that. 10 We've asked since then for the same 11 result, and heard objections to that request, 12 and now, on the eve of Panel, where Respondent's 13 media consultant sits in the second row, and 14 USADA is here in good faith, silenced, we now 15 have a request to remove what they refer to as 16 the "gag order." 17 I would just remind the Panel that 18 it was the Panel's discretion in considering 19 whether or not to grant the open hearing, and 20 what conditions would occur with the open 21 hearing, to put reasonable restrictions in 22 place; and I think Respondent's response makes 23 us even more concerned that we need very strict 24 guidelines. And we believe, at this point, that 25 it is only fair to keep the order in place that RESLING SPORTSCRIPT (719) 632-6391 42 1 has been from the very beginning. 2 What I did not hear Mr. Suh mention 3 was the extension in Procedural Order Number 2, 4 that it applies to all persons who may have 5 access to the parties, by their consulting 6 agency or other relationship with the parties. 7 MR. BRUNET: So you're objecting to 8 -- Mr. Suh, wouldn't that go against what you 9 have been asking for the past two months? 10 MR. BARNETT: And two months ago, 11 candidly, it would have put USADA in the 12 position where we could have told our story 13 and mitigated much of the nonsense that had been 14 put out there. On the eve of hearing, it does 15 nothing for USADA to now say, Okay, we will end 16 each day with a press conference on the steps of 17 Pepperdine law school. 18 I candidly think this is more 19 strategy. And it does -- certainly does not 20 assist USADA to be trying to deal with that, 21 having no warning or preparation that that might 22 occur, along with trying the case. 23 MR. JACOBS: If I can respond just a 24 little. The point about whether we're going -- 25 there's going to be public comments or not RESLING SPORTSCRIPT (719) 632-6391 43 1 during the hearing, I don't have anything 2 specific to add on that. I think you have the 3 understanding and the positions of both parties, 4 and it's up to you to decide that. 5 But the suggestion all along that 6 USADA can simply ask the Panel to set aside a 7 rule of the USADA protocol is no more 8 appropriate than a suggestion by us that the 9 Panel ignore the strict liability rule. 10 They wrote the rules. It's their 11 rules to follow. It's kind of ridiculous for 12 them to complain about their own rules, and they 13 certainly shouldn't be asking you to ignore 14 their rules. 15 MR. MC LAREN: Okay. 16 MR. BRUNET: So you're saying that 17 you want us to remove the -- to review our order 18 restricting the parties from making comments as 19 of tomorrow, but that would only apply to you. 20 MR. JACOBS: It would be your 21 interpretation. It would be up to your 22 interpretation of their protocol. If their 23 protocol, as you interpret it or they interpret 24 it, would allow them to speak during this 25 proceeding, then that's what the rule says. If RESLING SPORTSCRIPT (719) 632-6391 44 1 it doesn't, it doesn't. 2 MR. CAMPBELL: Mr. Jacobs, here's 3 how I view it. It seems to me that Mr. Landis 4 has had the right to make public comment, and 5 it's his right, and he should, and he's had that 6 right all the way up to the hearing. 7 The Panel put an order in place to 8 sort of try to control what goes on while we 9 have that hearing, and USADA hasn't been allowed 10 to comment, which is part of the rules, and they 11 shouldn't comment. I think it makes you guys 12 look more professional, quite frankly. But 13 to -- now to say that you're going to open this 14 all up, they could get the public relations 15 people, they could get -- be prepared, that 16 doesn't seem fair to me. 17 MR. JACOBS: Well, we also said 18 we're perfectly fine to follow the rule that is 19 in place right now, which is no public comments. 20 The only thing -- the only comment was -- was 21 that in the -- in the constraints of a hearing 22 that's going to be done in the public with media 23 sitting in the courtroom, we just question 24 whether that makes sense. But that's the 25 Panel's order, and we're happy to live with it. RESLING SPORTSCRIPT (719) 632-6391 45 1 MR. BARNETT: But I appreciate 2 Mr. Jacobs' clarification, because it makes 3 clear that what Mr. Suh's requesting was that 4 the Panel's order be removed and that they then 5 be allowed to speak, and USADA would continue, 6 you know, to be in a position where we stand by 7 Rule 12, and USADA would not comment during the 8 pendency of the hearing. And I think it's that 9 type of request that is a little hard for USADA 10 to understand how Respondent can continually 11 trumpet to the media that he wants an open and 12 public hearing, but does not want USADA to be 13 allowed to comment. 14 At this point, we think the only 15 practical solution is to make sure that the 16 Panel's order is followed fully and completely. 17 And we think it's appropriate that the Panel let 18 the parties know, in advance, what the sanction 19 would be to the event -- in the event there's a 20 breach by either of the parties. 21 MR. JACOBS: Mr. Suh's first comment 22 was that we're happy to stand by the procedural 23 order on no public comment. My only point is 24 that it's completely inappropriate for USADA to 25 ask the Panel to pick and choose which rules RESLING SPORTSCRIPT (719) 632-6391 46 1 they wrote should be followed in this case. 2 They can't do that, and they're asking you to do 3 that right now. They've been asking throughout 4 this whole proceeding. It wasn't appropriate 5 then; it's not appropriate now. 6 MR. BRUNET: Well, I think, in all 7 fairness, they're asking whether or not you want 8 to agree that they speak, that that rule has 9 been put in place to protect the athlete. And 10 they're asking whether or not you want -- that's 11 your right not to agree to it -- so, that's -- I 12 think the parties' positions have been quite -- 13 have been set. 14 Okay. 15 Just going back to the public 16 documents, I just want to get both of your views 17 on whether or not you consider the e-mails as 18 being part of the public documents, or are we 19 restricting the public documents as being 20 representations of the documents and the 21 exhibits from the parties? 22 MR. JACOBS: I would think it -- it 23 would be the pleadings and the exhibits, minus 24 any that there might be some objection to, and 25 the motions and the orders of the Panel. RESLING SPORTSCRIPT (719) 632-6391 47 1 MR. SUH: I guess with one -- with 2 one corollary: that some of the Panel's orders 3 have come in e-mail form. I mean, I wouldn't -- 4 there are -- I think we have well used the 5 e-mail system in conjunction with this case. 6 And so there are a ton of e-mails that we have. 7 I don't think we would want to include all of 8 those simply because you can't see the forest 9 for the trees if we do that. But to the extent 10 that there are e-mails that -- we're 11 basically -- Panel's orders, due to the 12 constraints of time, due to the travel schedule, 13 like when, Mr. Chair, you and Mr. McLaren were 14 in China, clearly that -- some of the orders 15 came back in e-mail form. So those, we would 16 agree, would be made part of this public 17 document. 18 MR. BRUNET: My concern would be 19 that some of those e-mails may be taken out of 20 context. There's a history to the e-mails, and 21 there's accelerating things. And as 22 you rightfully pointed, some of those e-mails 23 were sent out as a communication to the parties 24 more than as an order. You may have labeled 25 them as instructions rather than orders. RESLING SPORTSCRIPT (719) 632-6391 48 1 So, if any of the parties want to 2 post or send direction to post e-mail messages, 3 I would like the Panel to be made aware of that 4 before it goes into public domain, so then we 5 can review them and either add to them to put 6 them in context or simply have a discussion with 7 you. 8 MR. SUH: I think we can resolve 9 this on a matter-by-matter basis, as it comes 10 up. 11 MR. BARNETT: And let me suggest one 12 alternative, just because I don't know how much 13 matter-by-matter time we have over the next ten 14 days. 15 I would suggest that all e-mails 16 that were from a party to all of the Panel 17 members, and we all know what that list was, as 18 opposed to e-mails back and forth between the 19 parties, which there were another thousand of 20 them or so of, that those e-mails that were 21 submitted to the Panel in its entirety, or from 22 the Panel to the parties in its entirety, that 23 those just be treated as public documents. 24 I mean, e-mail was one of the ways, 25 that, for example, a request for continuance was RESLING SPORTSCRIPT (719) 632-6391 49 1 filed. I mean, I just think practically both 2 parties filed things by e-mails, and I feel it 3 would be an incomplete record if we didn't just 4 make those part of the record. 5 MR. SUH: Again, that's -- if there 6 is one overarching principle that's going to 7 govern all of the -- our responsiveness, we want 8 as much public as possible. So my only comment 9 went to, there are so many e-mails in the case 10 that it -- we could literally generate a stack 11 of e-mails this tall. So -- but to the extent, 12 obviously, that we have e-mails that are orders, 13 and everything else, we're perfectly happy. 14 E-mails leading up to orders; e-mails that 15 follow orders; all of that; comments; e-mails 16 that went to everyone; that's all fine with us. 17 It really is. So, I don't think there's a 18 dispute here. 19 MR. BARNETT: And again, our only 20 qualification are the LNDD documents, some of 21 those SOPs were sent out by e-mail. 22 MR. BRUNET: That will be for you to 23 determine -- 24 MR. BARNETT: Right. 25 MR. BRUNET: -- because it RESLING SPORTSCRIPT (719) 632-6391 50 1 originates from you. 2 MR. BARNETT: One point of 3 clarification, Mr. Brunet. Does that mean that 4 either Respondent or us should be submitting to 5 the Web site or to the person in charge the 6 Panel's orders, or is that something that the 7 Panel -- 8 MR. BRUNET: No, the Panel will be 9 providing that to the -- to the person in 10 charge. 11 The only two points that are left on 12 my list here -- I'll go in reverse order than 13 what I have in draft and what I announced in the 14 beginning. 15 We received an e-mail from Carmen 16 Frobos on, I believe it's Friday, regarding, I 17 think, some disagreement with Pepperdine 18 University. Is that same -- is that issue still 19 open, or has that been resolved between the 20 parties? Do you still need the Panel's 21 intervention on this? 22 MR. BARNETT: My understanding is 23 that that's resolved, although I haven't seen 24 anything signed. I don't know the status of the 25 signed document. RESLING SPORTSCRIPT (719) 632-6391 51 1 MR. JACOBS: We got an amended 2 letter back that I think needs very minimal 3 changes. Just where it says, "The parties will 4 pay," it should be changed to "The USOC will 5 pay." And the amended letter that was sent out 6 on May 11th, with that change, is fine with us. 7 MR. BARNETT: We'll work on the 8 details. No longer an issue. 9 MR. BRUNET: Okay. And it's -- 10 Ms. Weston, are you taking notes? 11 MS. WESTON: Yes. So we just -- I 12 mean, that's fine. My general counsel had some 13 problems with this language, but, it 14 certainly -- yeah, that's fine with us. We 15 can -- we sorted that out with USOC. 16 It's up to you guys to determine who 17 signs and that, but we would just like to get -- 18 we have a lot of expensive stuff in the 19 courtroom, and we can't have our tuition-paying 20 students bear the cost, so just want some 21 assurance with that. 22 MR. JACOBS: I think we can work 23 that out today. 24 MR. BRUNET: Okay. Thank you. 25 Okay. The last point are the RESLING SPORTSCRIPT (719) 632-6391 52 1 motions that are currently under review. You've 2 received the Panel's order on three of them, 3 which, in my inventory, brings that down to only 4 seven -- seven motions now. 5 And I will list them, not in full 6 title, but you'll know where I'm getting to. 7 And I would like to get an update from the 8 parties as to whether or not these motions are 9 still alive. And we're not going to take any 10 representations today on those motions, but I 11 just want to have a brief discussion on where 12 we're -- where we stand on these things. 13 First of all, the motion from 14 Mr. Landis regarding the leak of the test 15 results. I don't believe that we had -- there 16 was a response from USADA on this one. 17 The following one is on the motion 18 on the preexisting medical condition. That was 19 a motion filed by USADA. 20 The third motion that we have is 21 with respect to unrelated lab errors. 22 MR. CAMPBELL: Patrice, the 23 preexisting medical conditions one, I thought 24 that -- and the reply of Mr. Suh was that 25 they're not going to be bringing any preexisting RESLING SPORTSCRIPT (719) 632-6391 53 1 medical conditions unless some new testimony or 2 new evidence was discovered. Is that right? 3 MR. SUH: That's right. 4 MR. BRUNET: So that's resolved. 5 That goes off. 6 I'm only down to six now. 7 The next motion is about the return 8 of the A and B samples. Again, I don't think 9 that USADA has replied to this one. 10 MR. BARNETT: Actually, we have. 11 MR. BRUNET: You have? Okay. I 12 missed that one. 13 Do you know what date you replied 14 on? 15 MR. CAMPBELL: We replied at our 16 meeting. 17 MR. BARNETT: We replied on Friday. 18 MR. CAMPBELL: You said they replied 19 at our meeting. 20 MR. BRUNET: Did I? I don't have 21 that in my notes. 22 MR. MC LAREN: You were traveling 23 that day. 24 MR. BRUNET: I will look it up. 25 The following motion is the motion RESLING SPORTSCRIPT (719) 632-6391 54 1 to strike and exclude evidence. 2 And the next is the motion to compel 3 production of documents. 4 And, finally, the other motion is a 5 violation of the Panel's confidentiality order. 6 So, where do we stand with those 7 motions? Are any of those motions resolved at 8 this point in time? 9 MR. BARNETT: On behalf of USADA, 10 let me just try to work down the list. 11 In the motion for affidavits where 12 they leaked test results, if the Panel feels 13 that in the Panel's discretion that's something 14 worthy of doing, then USADA has no objection to 15 entering such affidavits. 16 MR. BRUNET: So would you agree to 17 do that? Can we just put that -- and get it 18 done, and just have it done with? 19 MR. BARNETT: We candidly don't 20 think the points raised merit that exercise, but 21 we won't object to it if the Panel asks us to do 22 so. 23 MR. CAMPBELL: Well, I mean 24 confidentiality, I consider very important 25 athlete issues, and it seems like -- I mean, RESLING SPORTSCRIPT (719) 632-6391 55 1 this is not just one case with this athlete; 2 there are a whole bunch of athletes. It seems 3 like there's a problem going on. 4 MR. BRUNET: How long would it take 5 for you to get the affidavits, if that's your 6 position? 7 MR. BARNETT: I don't believe that 8 it will take very long. Our understanding was 9 that Respondent was going to submit their own 10 affidavit confirming that nobody on their side 11 leaked it; and the way I read it, you wanted 12 one, probably, from Mr. Tygart that nobody on 13 USADA's side had leaked it. 14 MR. JACOBS: And one from the LNDD. 15 MR. CAMPBELL: You want each person 16 from -- 17 MR. JACOBS: No, just a 18 representative of the LNDD, Ceaurriz, 19 preferably. 20 MR. CAMPBELL: How would that -- 21 that would just -- I'm just speaking out loud. 22 I mean, if one of the people that 23 were responsible for doing the tests leaked it, 24 and Mr. Ceaurriz -- I think that's his name -- 25 didn't know, then -- RESLING SPORTSCRIPT (719) 632-6391 56 1 MR. BRUNET: Ceaurriz. 2 We've got to get used to those 3 French names. 4 MR. CAMPBELL: -- how would that 5 affidavit be relevant? I mean, it seems to me, 6 I want to know -- I want everybody who's 7 involved in this to get me some affidavits. 8 That's what I want. But, I mean, I'm just one 9 person. 10 MR. SUH: No, I think that's what we 11 want too. 12 MR. JACOBS: I think that's a better 13 suggestion. 14 MR. BRUNET: Can the parties work it 15 out? 16 MR. BARNETT: We'll be happy to 17 confer on that. 18 My Number 2, or your Number 2, Mr. 19 Brunet, was the medical condition, which has 20 been resolved. 21 MR. BRUNET: Has it? Okay. 22 MR. BARNETT: Based on Respondent's 23 representation, USADA considers it resolved. 24 And my understanding is that the 25 remaining motions are all live issues which have RESLING SPORTSCRIPT (719) 632-6391 57 1 been briefed by each side. We do, at the 2 appropriate time, have two more brief issues to 3 raise. 4 MR. BRUNET: Motions? 5 MR. BARNETT: I believe, really, 6 they're questions for the Panel. One, if you 7 want to get technical, could be considered a 8 motion. I'm happy to do that now, if you would 9 prefer. 10 MR. BRUNET: No, that's fine. Let's 11 get back to that one afterwards. 12 Mr. Suh, do you -- 13 MR. SUH: Agree? 14 MR. BRUNET: -- agree that those 15 other motions are still alive? 16 MR. SUH: Yes. 17 MR. BRUNET: So that we're -- so 18 that would be five motions: Unrelated lab 19 errors, return of the A and the B sample, motion 20 to strike and exclude evidence, and failed 21 production of documents and violation of the 22 Panel's confidentiality order. 23 Unless I have missed it, the only 24 motion that I don't think the Panel has 25 representation -- written representations on, is RESLING SPORTSCRIPT (719) 632-6391 58 1 the one from USADA to compel production of 2 documents. 3 Was there a response that was 4 filed -- 5 MR. JACOBS: Yes, there was. 6 MR. BRUNET: -- in connection with 7 this one? 8 MR. SUH: In the order, it sounds 9 like due to travel or other situations, maybe 10 the whole record may not be easily at hand. So, 11 what I would suggest is this: This evening, we 12 will resend -- as soon as we're out of this 13 area, we will resend everything from our side on 14 all of these issues so you have it in one 15 e-mail. 16 MR. BRUNET: Okay. That'd be 17 helpful. 18 MR. SUH: That way you just -- you 19 don't have to go look for it. 20 MR. BRUNET: Okay. Thank you. 21 MR. BARNETT: We'll be happy to do 22 the same. 23 MR. BRUNET: Okay. I guess the only 24 thing I can say about those motions, we'll have 25 discussion between the three of us in our nice RESLING SPORTSCRIPT (719) 632-6391 59 1 new room in the back, and we'll update you on 2 the progress. 3 That's the end of my list. 4 Mr. Barnett, did you want to raise 5 something? 6 MR. BARNETT: One just very 7 procedural question. The parties had originally 8 offered to the Panel two different schedules for 9 exhibit objections. I mean, USADA's preference, 10 at this point, would be that all the exhibits 11 are considered evidence and the Panel can 12 certainly afford weight to it and make those 13 decisions. 14 Really, just an open question, if 15 there are any exhibit issues, and otherwise, 16 we'll consider them admitted, starting tomorrow 17 morning, as we proceed with our case. 18 MR. CAMPBELL: Mr. Suh, on that 19 issue, it seems to me in your motion to strike 20 you were talking about perhaps some exhibits 21 with the medical records that justify certain 22 validation of certain studies that you may have 23 had issues to? 24 MR. SUH: Right. 25 MR. CAMPBELL: But other than that, RESLING SPORTSCRIPT (719) 632-6391 60 1 are there any others? 2 MR. SUH: I'm going to let Mr. Weiss 3 answer that question. Because he's taken that 4 up directly. 5 MR. WEISS: No; besides the exhibits 6 mentioned in the motion to strike. 7 MR. CAMPBELL: So which would those 8 be? Can we get some sort of a list of what 9 those exhibits would be? 10 MR. BRUNET: I think it's in the 11 motion to strike. 12 MR. CAMPBELL: It's in there. 13 MR. WEISS: I will -- in our e-mail 14 with all of our other, we shall provide it, all 15 the exhibits that we object to as part of our 16 motion to strike. 17 MR. CAMPBELL: So, then we would 18 admit all the evidence, except for those 19 exhibits and the SOP, I think, you're talking 20 about. Admit all the evidence, except for the 21 SOP, potentially, those ones that you want. 22 MR. SUH: Mr. Chair, actually, my 23 comment to that, Mr. Campbell, is that why not 24 simply admit items into evidence as we would in 25 any other proceeding? I mean, we don't know how RESLING SPORTSCRIPT (719) 632-6391 61 1 this evidence is going to be talked about or 2 what. I mean, I think that -- why don't -- we 3 can move them into evidence as this -- as this 4 case moves along, and then we'll keep track of 5 what's in evidence and what's not. 6 MR. CAMPBELL: Well, I mean, one of 7 the things with arbitration is usually, you 8 know, the weight of the evidence you hear all 9 the time, and things are just let in. And it's 10 just more convenient, and we don't have to worry 11 about it if it's just let in. 12 If you've got some things that are 13 really outstanding, and you don't know what they 14 are, now that's a different issue, but I mean, 15 it sounds to me like you've got a concrete set 16 of documents that you question; the others, we 17 should just let in. 18 MR. SUH: We have -- and I'm in 19 complete agreement with you about your comment 20 of the admission of evidence and arbitration 21 stuff. Our one live issue, of course -- and 22 this is at the heart of our motion to strike -- 23 is this issue about whether or not this 24 agreement that we struck, which is also 25 contained within Procedural Order Number 2, RESLING SPORTSCRIPT (719) 632-6391 62 1 about if they don't provide it to us, then they 2 don't get to argue it. 3 Frankly, we just want to make sure, 4 when we look at all the other exhibits that they 5 have recently provided, some of which we've just 6 gotten today, that there is not an issue there. 7 I mean, and that's a very live issue for us, 8 because all throughout their evidentiary 9 presentation we have a number of things which 10 they refused to provide or said that they were 11 somehow barred by accreditation, and we didn't 12 get it. And it forms a substance of a lot of 13 their argument, so, you know, to the extent 14 there are pieces of evidence used to support 15 those points during the course of this 16 arbitration, we would not -- well, we couldn't 17 agree until the motion to strike is ruled upon. 18 Now, if we have a ruling upon the 19 motion to strike, I guess it's a different 20 issue. Then we could say, absolutely, with 21 certainty, all of these exhibits are all out; 22 or if we're ruled against, then they're in. So, 23 it's -- that's just something to keep in mind. 24 I'm certainly not suggesting that. As a matter 25 of course, we would want to treat this just like RESLING SPORTSCRIPT (719) 632-6391 63 1 exhibits come up, and we admit them. 2 But it's because we have this 3 outstanding motion that that deals with -- you 4 know, one of the few things that we got out of 5 the discovery was this agreement and all of this 6 stuff is now a part of it. 7 MR. CAMPBELL: Well, let me ask you 8 this: Could we assume that all the exhibits are 9 admitted unless they're objected to? 10 MR. SUH: Yeah. 11 MR. CAMPBELL: Is that a problem 12 with you? 13 MR. BARNETT: Objected to by the 14 motion to strike? 15 MR. BRUNET: No, as they come along. 16 MR. BARNETT: I really do have a 17 problem with that logistically. I mean, we 18 found out from the Panel -- I'm sorry, I forget 19 your exact time, 20 hours. We could spend five 20 hours just arguing about objections that don't 21 make any sense when the formal rules of evidence 22 don't apply. 23 And they've had the exhibits for a 24 long time, and we've conferred between us about 25 the schedule for objecting to exhibits, and RESLING SPORTSCRIPT (719) 632-6391 64 1 their proposal was that any exhibits they 2 objected to, they would bring up today. And 3 what we're hearing now is, let's wait and go 4 through. 5 I mean, that's really another 6 trapping of civil litigation is that it doesn't 7 work on such a tight timeline. And for example, 8 just one more point, so we can make sure all the 9 issues are out in the open. 10 We've told them, we're going to 11 start with Dr. Shackleton and Dr. Brenna. Dr. 12 Brenna is going to testify in part about the lab 13 documents. If this was a civil litigation, we 14 could certainly raise objections about whether 15 or not the foundation has been laid, and you 16 call the lab witness first. We don't believe 17 any of that makes any sense when we're trying to 18 orderly proceed through evidence. Our -- 19 candidly, our concern here is just that the 20 evidence be allowed in in the way that's going 21 to allow us to work within the timeline. 22 MR. CAMPBELL: What about the 23 evidence that they just recently received? They 24 may not have time to -- 25 MR. BARNETT: And to clarify that, RESLING SPORTSCRIPT (719) 632-6391 65 1 the -- most of those are -- I think it's resumes 2 of the LNDD employees; SOPs that were produced 3 back in April but, for some reason, 4 inadvertently were not marked as an exhibit, but 5 that they had; additional chromatograms that 6 were previously produced to them. 7 So, I mean, certainly, if they have 8 an objection with something we produced today, 9 we're happy to talk with them about it. I don't 10 think today's are in issue. 11 MR. CAMPBELL: I'm sorry. I don't 12 think -- 13 MR. SUH: The issues that are being 14 raised by USADA now are not what our concern is. 15 We're not raising foundational issues. It's not 16 like we're trying to raise some other 17 evidentiary issues. 18 Our concern is with the Panel's 19 order that you can't -- that they can't admit 20 evidence which they have refused to turn over or 21 said that, for whatever reasons, that they 22 can't. That's the rule that we're concerned 23 about. 24 We're not concerned about 25 foundational issue. We're not concerned about RESLING SPORTSCRIPT (719) 632-6391 66 1 whatever else that they may consider to be a 2 trapping of civil litigation, because this 3 particular rule is not a trapping of civil 4 litigation. It's a trapping of this case. 5 MR. CAMPBELL: Okay, well, let me 6 ask you this, Mr. Suh. And I would like you to 7 respond too, Mr. Young and Mr. Barnett, if you 8 would. 9 So, how about all the evidence gets 10 let in with the exception of -- if it's excluded 11 or it's objected to on the basis of Procedural 12 Order Number 2? 13 MR. SUH: That's fine. 14 MR. CAMPBELL: And what do you think 15 about that? 16 MR. YOUNG: I think it's -- excuse 17 me -- I think it's going to take up a lot of 18 time dealing with those objections. If there is 19 a document for testimony that, at the end of the 20 day, Respondent thinks violates Procedural Order 21 Number 2, this Panel is used to considering 22 things or not considering things; they can tell 23 you that in closing, and you can disregard it, 24 if you think that's true. 25 MR. SUH: That -- I mean, first of RESLING SPORTSCRIPT (719) 632-6391 67 1 all, we'd save just as much time by not rattling 2 on about things that are not supposed to be part 3 of the case. 4 And secondly, that's what the rule 5 was. That's the Panel's order. That's the 6 relief we got in return for not getting 7 documents. It's not as if they can't -- they 8 can just now decide to admit all the evidence 9 and then say that you can consider whether or 10 not to consider it or not when you get back 11 there and decide. 12 The agreement was that it wouldn't 13 come in. That's the order. I mean -- 14 MR. CAMPBELL: It wouldn't come in, 15 and you wouldn't have any oral testimony about 16 it. We need your -- so, we need the motion to 17 strike to be decided before we can sort of get 18 to the bottom of this. 19 MR. SUH: The order was not, 20 everything comes in, and then you-all have the 21 ability to discern what comes in, or what should 22 be considered or not, at the end of the day. It 23 was that it doesn't come in. 24 That's the basis of our motion to 25 strike. RESLING SPORTSCRIPT (719) 632-6391 68 1 MR. BARNETT: And we have no 2 objection to the motion to strike which -- 3 they've identified the specific issues being 4 resolved by the Panel. What we have concerns 5 about is, on a tight timeline, with television, 6 where Respondent has made media comments that he 7 doesn't expect to receive a fair trial and he 8 would like the American public to see that, and 9 this goes -- this is a consistent concern of 10 USADA dating back to the moment we talked about 11 an open hearing: that there be no gamesmanship 12 and unnecessary objections in order to turn what 13 will be a fair process into a process that 14 becomes dysfunctional because of those types of 15 tactics. 16 MR. JACOBS: Let me answer. This 17 doesn't have anything to do with media. It 18 doesn't have anything to do with gamesmanship. 19 It has to do with the motion to strike. We've 20 identified the issues. 21 MR. BARNETT: And we don't object to 22 the motion to strike. 23 MR. JACOBS: Okay. So, if the -- 24 either the motion is going to be ruled on, in 25 which case it's settled; or if it's not, then RESLING SPORTSCRIPT (719) 632-6391 69 1 we're going to have to bring it up as the 2 evidence comes in. 3 MR. BARNETT: We don't object to the 4 motion to strike being resolved. 5 MR. SUH: One very significant 6 caveat: We don't know, but we have to be able 7 to preserve our right to object when somebody 8 says something, which they have not -- which we 9 have asked for specifically, and they have not 10 given us. That was part of the relief. 11 Again, this is the same thing of 12 saying, Look, the relief that we got is part of 13 discovery. It simply doesn't matter. If the 14 witnesses can get up and testify about whatever 15 they want to testify, and we don't have the 16 right to object to it, then there is no 17 enforcement mechanism to the relief we got in 18 the discovery order. The relief we got is that 19 it doesn't come in. 20 That, of course, implies, by 21 testimony or by documents -- that, of course, 22 implies that we have the right to object when 23 they try to admit it. 24 Now, obviously, we have read their 25 trial briefs and all of their submissions. So RESLING SPORTSCRIPT (719) 632-6391 70 1 we know -- we have some sense of what some of 2 the witnesses will testify about. But we don't 3 have a sense of what all the witnesses will talk 4 about in total detail. 5 They may say something that -- I 6 mean, I'll give you an example: They may say, 7 Well, our -- or a lab person may get up and 8 start testifying, Well, our SOP says 1, 2, 3, 4, 9 5, never before contained in any of their 10 documents that we received, on an SOP that we 11 specifically asked for and they refused to give 12 us. 13 We have a right to object to that 14 right then and there. We won't know what that 15 is in advance, because that person is just being 16 called. 17 I mean, it doesn't make any sense to 18 say that we can't object during the course of 19 the proceeding. 20 MR. CAMPBELL: Well, it seems to me, 21 Richard, if we say we let this stuff in except 22 for they have an opportunity to object based on 23 Procedural Order Number 2, that's not really 24 going to change much. 25 MR. YOUNG: Well, the Panel will RESLING SPORTSCRIPT (719) 632-6391 71 1 have an opportunity to sort that out. What I 2 don't want to have happen with either side or 3 the Panel's precious hearing time is, Objection, 4 that's a document you -- we asked for, and, 5 yes -- and so you can't let it in. 6 Then we go back through this stack 7 of correspondence, Yes, but then you limited the 8 SOPs that you wanted to A through H. 9 MR. CAMPBELL: But that's an issue 10 that we -- to decide as a Panel, right? That's 11 part of your argument? 12 MR. YOUNG: Right. And that 13 we don't use our time going through this battle 14 of, in this discovery request, we asked for it; 15 yes, but in that response, the Panel narrowed 16 it; and then we refused this. I mean, that's 17 going to take a long time in a live hearing. 18 MR. CAMPBELL: So, if the Panel gave 19 their decision on the motion to strike, then -- 20 MR. BRUNET: It's not just about the 21 motion to strike. 22 MR. CAMPBELL: Let me -- let me 23 finish. Because if we gave a decision on the 24 complete motion to strike, then that would 25 eliminate some of your concerns about what we RESLING SPORTSCRIPT (719) 632-6391 72 1 would go into because that would be decided. So 2 it would only be on issues that would be either 3 right on point, in which case they would be 4 taken out, or it would be let in, right? If we 5 made our decision. 6 MR. YOUNG: If you make your 7 decision, it's going to limit the number of 8 those issues, but I would still be afraid that a 9 substantial number of those issues would arise 10 and -- 11 MR. CAMPBELL: But they're going to 12 arise anyway. 13 MR. YOUNG: Right. But the question 14 is whether, in the middle of the hearing, we 15 waste everybody's time going back and forth 16 through all of the orders and all of the 17 correspondence or whether, at the end of the 18 day, you get something in writing on any 19 objection they have, and we'll respond. 20 MR. BARNETT: Let me just clarify. 21 We're not opposed to them reserving their rights 22 to object. I mean, I have no problem with 23 objection as to Procedural Order Number 2, and 24 the flow of the presentation goes on, and the 25 Panel has the wherewithal to then consider that RESLING SPORTSCRIPT (719) 632-6391 73 1 and resolve it. 2 MR. JACOBS: But the Panel has to be 3 able to order -- If the objection is violation 4 of Procedural Order Number 2, the response can't 5 be, Well, go ahead and testify and we'll sort it 6 out later. I mean, it has to be resolved. 7 MR. SUH: It's a relatively simple 8 remedy. If they wouldn't go ahead and try to 9 elicit evidence which is in violation of the 10 procedural order, we wouldn't have to be in the 11 position of constantly objecting. I mean, it's 12 going to fall on the balance one way or the 13 other: Either they're going to be able to ask 14 the question and we don't have the right to 15 object and it just comes in, which would be a 16 violation of Procedural Order Number 2; or we 17 are able to object as it comes up and they 18 can -- and the Panel can rule. 19 The procedural order -- this is not 20 a complex rule. It's set forth in Paragraph 5 21 of Procedural Order Number 2. I mean, we have 22 the discovery responses. We know very well what 23 it is we asked for; we know very well what it is 24 we didn't receive. So, I just, you know -- 25 MR. BRUNET: Okay. Mr. Barnett, RESLING SPORTSCRIPT (719) 632-6391 74 1 last comment, and then I think we have a good 2 understanding. 3 MR. BARNETT: And I don't want to go 4 into arguing the merits of that, so I will let 5 that stand. But those point of views that you 6 must have a ruling before the case continues 7 makes sense, if that box were full of members of 8 the jury; but, if it's not full of members of 9 the jury, we're running competing harms. 10 If they object, and it turns out 11 later that it's a valid objection, the Panel can 12 consider all those objections at once, and they 13 can remove that evidence from their 14 consideration and their order. The competing 15 harm is that, by the process of trying to 16 litigate these objections as we go, we make the 17 process dysfunctional. 18 And I think to say that it's a 19 simple order -- if it were a simple order, they 20 wouldn't be reviving SOPs from their first 21 response, and we wouldn't have had the paper 22 that we do. I mean, I just don't think it's 23 going to be a simple order that can be resolved 24 on the fly by the Panel with this objection. 25 MR. SUH: Mr. Brunet, let me add one RESLING SPORTSCRIPT (719) 632-6391 75 1 more thing, and we can let this go to bed. But, 2 it's not just the issue of having the evidence 3 come in, which would frankly be a violation of 4 Paragraph 5; it's just that we didn't get the 5 documents to cross-examine that witness. 6 MR. BRUNET: No, we understand that. 7 MR. SUH: I think -- 8 MR. BRUNET: It's quite clear. 9 MR. SUH: If we didn't get the 10 documents, there's no way for us to ask any 11 questions. It will just come out of the blue. 12 Our SOP says everything we did was fine. What 13 SOP? We don't have it here. I mean, how is 14 that -- how can we respond to that? 15 That was the point of this rule, and 16 so it's not just that it comes in and you-all 17 can sort it out as time goes on; it's that we 18 won't be able to elicit the other facts from 19 that witness, which will allow you to help sort 20 it out. 21 MR. BRUNET: We understand that. 22 Okay. 23 Thank you. 24 MR. BARNETT: I did have one more 25 issue that was -- RESLING SPORTSCRIPT (719) 632-6391 76 1 MR. BRUNET: Oh, you did? 2 MR. BARNETT: -- a motion, maybe not 3 a motion. It's just something to raise for the 4 Panel's decision. 5 We have sought a stipulation from 6 Respondent on collections in this case. 7 Respondent has never raised any issue with 8 respect to collection in any brief, and they've 9 never identified any issues to us, regarding 10 collection. 11 Mr. Landis signed the collection 12 form, which under the Dickey case, which the 13 Panel is familiar with, means that he's now no 14 longer able to object to collection; but 15 unfortunately, Respondent's most recent response 16 to our effort to stipulate on collection was, 17 Please call your collection witnesses. 18 And so we simply raise it to the 19 Panel that we don't think, given their many 20 concessions in their briefs, that it was, in 21 fact, Respondent's sample, which was identified, 22 and arrived at the lab in the Berlinger bottle, 23 that this is an issue that we should be required 24 to spend time on. And unable to work it out 25 between the parties, we seek the Panel's RESLING SPORTSCRIPT (719) 632-6391 77 1 guidance. 2 MR. BRUNET: Just so I'm clear on 3 this. Mr. Suh's request, or counsel for the 4 athletes, requested that the collection of 5 witnesses for the collection officers would be 6 called as witnesses? 7 MR. SUH: Yes. 8 MR. BRUNET: Did I miss that? When 9 was that requested? 10 MR. SUH: We have had discussions 11 among ourselves. They have asked us. And we've 12 said yes. 13 MR. BRUNET: I did miss it. Because 14 it wasn't brought to the attention of the Panel. 15 MR. SUH: And very brief, I think we 16 can -- you just as well hear about this. But 17 very briefly, the reasons why -- that we are 18 contesting the chain of custody. We also see 19 degradation in the sample. I think we're 20 entitled to hear how this sample was handled 21 before -- 22 MR. BRUNET: Mr. Suh -- Mr. Suh, the 23 list of witnesses is closed. There were dates; 24 there were deadlines. 25 MR. SUH: It's their witnesses -- RESLING SPORTSCRIPT (719) 632-6391 78 1 MR. BRUNET: We identify the 2 witnesses. 3 MR. SUH: -- not ours. 4 MR. BARNETT: We accept that we have 5 the burden on collection. He didn't request of 6 the Panel to order that we provide these 7 witnesses; he simply refused to stipulate on 8 collection. Our position to the Panel is, there 9 is no good faith basis to oppose, or refuse, to 10 stipulate on collection where Mr. Landis signed 11 the form, that it was sealed in the Berlinger 12 bottle. It's undisputed that the Berlinger 13 bottle arrived at the laboratory and was 14 witnessed by their expert, in the case of the B 15 bottle, and we're simply seeking -- whether you 16 call it summary judgment or protective order, 17 we're asking guidance of the Panel to avoid 18 having to waste unnecessary time on an issue 19 that -- 20 MR. BRUNET: I'm sorry. Where would 21 we be going with this with those witnesses? The 22 reports have been in your hands since the 23 beginning on the chain of custody, and how the 24 samples were transported to -- ultimately to the 25 lab over some four hours -- the four-hour RESLING SPORTSCRIPT (719) 632-6391 79 1 period. 2 Why bring this request so late in 3 the game when you have seen that all along? 4 MR. SUH: That -- the request was 5 not ours. We had already -- we had always 6 assumed that they were going to prove 7 collection. The issue for us is, we have 8 contested the chain of custody and the handling 9 of the sample, and furthermore -- 10 MR. BRUNET: Hold on. Let me stop 11 you here. You -- I've seen from the documents 12 that you've contested chain of custody in the 13 lab, but not outside of the lab? 14 MR. SUH: No, we have not. But we 15 certainly would want to ask the witnesses that 16 handled the sample questions about how the 17 samples were handled. Because we have a 18 degradation of urine argument. I mean, frankly, 19 as the Panel is aware from our briefs, the 20 sample was degraded outside of the limitation 21 and specifications of LNDD. It shouldn't have 22 been tested. And one of the things that relates 23 to degradation is how the sample is handled and 24 whether or not it was exposed to heat or other 25 things. RESLING SPORTSCRIPT (719) 632-6391 80 1 We feel we were entitled to hear how 2 the sample was handled, from the beginning. 3 It's not that we believe that somehow the sample 4 is somebody else's sample. It's that we want to 5 hear how the sample was handled from the time it 6 was collected. 7 MR. BARNETT: And if I may, just on 8 that point, in their response brief, at Page 7 9 and 8, to quote: USADA's brief contains a 10 detailed description concerning the collection 11 and transportation of the Stage 17 sample with 12 specific detail on the collection and 13 transportation of Mr. Landis' sample to LNDD. 14 Noticeably absent from its brief, however, is 15 the corresponding detailed description of the 16 chronology of the Stage 17 A and B samples once 17 they arrived at LNDD. 18 They've not -- and then to 19 continue -- they also admit, in their brief, 20 that Mr. Landis's Stage 17 A and B samples were 21 received by LNDD. 22 So, they had the opportunity to 23 raise any of their collection defense, including 24 the idea that there was degradation due to any 25 treatment during that four-hour period, and they RESLING SPORTSCRIPT (719) 632-6391 81 1 failed to do it. And in trying to manage our 2 time, we're simply seeking the guidance of the 3 Panel that we don't believe that that's an issue 4 that should be before the hearing. We believe 5 the burden has been met. 6 MR. BRUNET: Now, there are some lab 7 technicians that will appear as witnesses here. 8 And I don't know the substance of the 9 discussions that you had between the two of you, 10 but, what are we talking about? What have you 11 requested? And where's the disagreement? 12 Since -- I understand that some of those lab 13 technicians will be there to answer the 14 questions. 15 MR. SUH: The lab technicians that 16 were there were not the ones that were involved 17 in the sample collection. These are different 18 people. 19 MR. BRUNET: So you are -- the 20 questions you are asking are about anything that 21 happened before the lab -- the samples got to 22 the lab. 23 MR. SUH: Yes. 24 MR. BRUNET: Oh, okay. 25 I thought that degradation argument RESLING SPORTSCRIPT (719) 632-6391 82 1 you were making were -- was about the samples in 2 the lab. You're saying outside of the lab? 3 MR. SUH: Well, the sample gets 4 degraded from bacterial activity. And there are 5 conditions which may result in that bacterial 6 degradation that occurred prior to the sample's 7 arrival at the lab. Because once it's in the 8 lab, you know, we at least have some 9 documentation as to what I've heard -- although 10 for the record -- 11 MR. BRUNET: It's very difficult for 12 us to understand because we've had discussions 13 on both sides. We haven't received any briefs 14 on this. And I was under the impression for the 15 past ten minutes that we were talking about 16 degradation in the lab. Now, it's outside of 17 the lab. 18