Lisa: In 1986, the government was caught lying and destroying massive amounts of evidence. How did you overcome such challenges, and how were you able to substantiate the claims of the veterans you represented?
Gordon: That is a good question. It is another issue that I think is a much more commonplace issue than you would think. We were having great difficulty in this. This is the radiation case, and we were having great difficulty getting documents. We got a very small production, like two or three boxes, and we had asked for a lot of stuff. It just seemed very odd to me that there would not be more material.
Well, I was called to testify on a judicial review bill in the spring of ’86. It was before Sonny Montgomery’s committee, the House Veterans’ Affairs Committee, who had been saying for years, “If it ain’t broke, don’t fix it.”
I told them right off the top, I said, “I am here to tell you that the corollary of that rule is if it is broke, do fix it. And it is broke!” I went on and on and on, with examples, drawn from my cases, of all of the violations of due process rights, denials of hearings, delays, the statistics,. I don’t think Sonny was very impressed, but some other people were.
When I got back to San Francisco, I got what we called a “Deep Throat” letter. This is a letter, obviously drawing upon Watergate as an analogy, a letter from somebody at the V.A. who said in the letter, “I attended and saw your testimony before Congress the other day. You are on the right path, but even you don’t know how bad it really is. It is far worse than even you think.” The he said, “I would suggest you request the following documents.” He gave a long laundry list with titles, report numbers, and everything. So I took that and we sent out a document request.
Over the course of the next year, little did I know that what had actually happened, and we finally got to the bottom of this, is when they got the document request, they did their first routine house cleaning of their files since the 1890s, because they had documents in the files back to the 1890s. They stripped away everything that was older than two years old. They sent it all to the shredder.
Lisa: After receiving the document request?
Gordon: Clearly after receiving the document request.
Gordon: Went to the shredder, an estimated three point some million pages went through the shredder. I got a second letter in the middle of that process or near the end actually. “‘You better do something because they are shredding all your documents.” I went out and got a temporary restraining order. It was served on the V.A., and there were 25 boxes left. You know what they consisted of? This was a radiation case. Correspondence between the V.A. and the Defense Nuclear Agency about radiation doses for veterans. This was what they were destroying, amongst the things they were destroying, and they were the most clearly relevant documents in the entire case, and they had all been requested.
Gordon: They saved the last 25 boxes, which is about 50,000 pages. Well, the sanctions motions went on for over a year, because it turned out, not only had they done that, they had lied in their interrogatory responses, they had lied in their responses to the document requests, they had lied in motions filed with the court, submitted false testimony and declarations. It was a huge, huge problem and it just mushroomed. By fighting everything, they fought everything instead of conceding even the most obvious point, they just went down. It was just a good example of how not to defend an issue where the facts are really pretty bad.
Gordon: Sometimes lawyers have influence with their clients, probably less so in government because it is a little different of a situation from a typical setting. But it is case where they should have settled it very early on.
Lisa: That is just astounding. That is amazing.
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