Legal jiu-jitsu continued in the Lance Armstrong...

Armstrong case may run into 2016; UCI asked to provide evidence

Unclear if Armstrong will ultimately settle case with DOJ, or if the case will go to court as both sides engage in legal tussle

It may be more than a year before Lance Armstrong and the United States Department of Justice square off in earnest, if ever.

If the DOJ and Armstrong don’t settle the looming whistleblower lawsuit, the court proceedings could run well into 2016.

A ruling issued by United States District Court judge Christopher R. Cooper on October 3 sets the timeline for the proceedings between the parties, and indicates the court expects lengthy and thorough litigation on both sides.

The scheduling order doesn’t tilt the scales toward settlement or more court proceedings but underscores just how much material could come to light. The court and both sides seem to anticipate extensive discovery and a flurry of depositions.

Just how many? A court rule normally limits each side to 10 depositions; in this case, the judge will allow for 70 per side.

“Scheduling orders in routine cases usually have a discovery cutoff of 120-180 days; this order gives the parties almost a year. Given that Armstrong’s resources are not unlimited (as theoretically the government’s are), the extensive discovery could cause Armstrong to consider settlement to avoid the costs of taking and defending discovery,” Mark Stichel, a Baltimore-based attorney who has litigated civil cases in state and federal courts throughout the U.S., told VeloNews in an email. “But, whether it is worthwhile for him to settle to save litigation costs depends on how much money the government would demand for a settlement.”

And that, quite literally, is the millions-of-dollars question. In federal whistle-blower cases like that of the DOJ vs. Armstrong, the government can seek treble damages, meaning it can go after three times the amount it put into the government sponsorship. The government paid roughly more than $30 million to sponsor the United States Postal Service team and could then demand some $100 million. VeloNews understands, however, that the potential settlement amount is much lower, between $10-$20 million.

The DOJ enters the contest heavily armed. It has procured evidence from the criminal investigation into Armstrong that was dropped quietly in February of 2012. Armstrong has since asked to see the grand jury materials, citing unfairness if one party has access to those (the government) and another doesn’t know what to defend against. On that matter, Judge Cooper writes that the Armstrong team will need to track down those documents on its own, from the central district of California.

In one new ruling, Judge Cooper seemed to level the playing field between parties, or at least attempt to. Though Armstrong was told he’d have to dig up the material from the criminal investigation, the now-stripped Tour winner scored other victories from a legal standpoint; the Armstrong team will get to see 26 witness statements — the government already accidentally sent the defense 29 memos — in addition to seeing documents pertaining to the government’s knowledge of PED use on its sponsored team. That much — that the government knew, or should have known, of the doping on the team — is central to Armstrong’s defense.

Recent filings in the Lance Armstrong and U.S. Department of Justice whistleblower suit illustrate the push and pull nature of the case as both parties continue to quarrel over what will be admissible should the case not settle out of court.

Floyd Landis, a former Armstrong teammate who brought the initial whistleblower suit against Armstrong in 2010 and also admitted to doping for a large amount of his career, stands to benefit from the lawsuit. The government joined Landis’ case, bringing with it huge legal teams and, in theory, endless resources.

False Claims Act suits allow whistleblowers to sue those they say defrauded the government, and the government has the right to intervene, which it did in February 2013. Landis could collect up to 25 percent of the money recovered.

The parties involved may want to protecting themselves from deposition, which is another reason to settle the case.

“I have seen many cases settle because a party (or an executive of a corporate party) does not want to have his or her deposition taken. So, the order of depositions and which players do not want to be deposed could have an impact on possible settlement,” Stichel said.

UCI involvement?

Armstrong’s lawyers also responded to a request from the government to see material from the UCI, some of which may concern therapeutic use exemptions.

The filing indicates that if the UCI does produce materials, then the defense wants the opportunity to see them within three business days of receipt “and before he leaks them to the national media so that Armstrong may have an opportunity to designate as confidential …” the filing reads.

Armstrong has reportedly received a backdated therapeutic use exemption for cortisone at the 1999 Tour de France, after testing positive for the banned substance. In his interview with Oprah Winfrey, he said he had cortisone use backdated.

“Given all that is known about Armstrong and his medical condition, I am curious as to what he thinks may be in the UCI records that would be confidential,” Stichel said.

The court also granted the government more time to file its latest response concerning Armstrong’s potential defenses. That should come by October 17.