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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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