NARCO-SYSTEM ON TRIAL
IN NEW YORK CITY!
Akin
Gump To Narco News:
"You are a Defendant in a
Lawsuit"
Narco
News to Akin Gump:
"We look forward to the truth
coming out"
Narco
News Publisher's Response:
"Let the Readers
decide who is telling the truth"
The Narco News Bulletin
"The
Name of Our Country is América"
--
Simón Bolívar
The Latest Chapter in the...
Narco-System on Trial
Case
The First Exchange
of E-mails Between Akin Gump and Narco News
Banamex Lawyer
Tom McLish's Letter to Narco News and Our Response
DEAR TOM McLISH:
You have written to Narco News and its
publisher, Al Giordano, requesting retraction of a piece posted
on Narco News on or about December 10, 2000, because you claim
it contains "knowing falsehoods." In order that our
readers can decide for themselves whether that letter -- or your
letter -- contains "knowing falsehoods," I am printing
your letter in full with the response of Narco News.
McLISH WRITES:
To: Al Giordano/Narco
News Bulletin:
Mr. Giordano:
As you are aware, you
are a defendant in a lawsuit brought by Banco Nacional de Mexico,
S.A. ("Banamex") that is currently pending in the United
States District Court for the Southern District of New York.
As you are also aware, Banamex has been trying for some time
to locate you in order to formally serve you with the summons
and complaint. Unlike your co-defendant Mr. Menendez, you have
been evading such service. Neither you nor the Narco News Bulletin
has known physical addresses.
GIORDANO REPLIES:
Mr. McLish:
There has been absolutely no attempt to
avoid service.
The Narco News Bulletin has a known email
address of narconews@hotmail.com and has had this address posted
prominently on our front page ever since we began publishing
on April 18, 2000.
I think you have a lot of nerve accusing
me of “evading service” when it was I who contacted
you about three weeks ago, by telephone, when I heard of the
lawsuit. You began asking me questions and, given your hostile
tone, I told you that I wished to seek legal counsel, like any
citizen has a right to do before answering questions. You have
mischaracterized the invoking of my legal rights to an attorney
as “evading service.”
I told you in that telephone conversation,
and I quote from my notes, “I am not evading service. I
have a right to speak with a lawyer before answering questions.”
McLISH CONTINUES:
In fact, when you telephoned
me directly about the lawsuit, you refused to tell me where you
could be found so that we could serve you with the legal documents.
In addition, you arranged
for a lawyer, Mr. Lesser, to write us a letter stating that you
reside somewhere in Mexico, and that we should communicate with
you by e-mail. Mr. Lesser subsequently informed us that you did
not reveal your location even to him.
GIORDANO REPLIES:
Thank you for admitting that it was I
who contacted you (although your description of that conversation
is knowingly false, as I stated above).
Also, I have not seen any letter from
attorney Tom Lesser – who is not on retainer from me, but
is longtime friend whom I admire very much for his ethical practice
of law - to you. He did inform me that he wrote a letter to explain
to you that I am not evading service. Nor has Tom asked me for
my residential address. But, again, I suppose it is your job
to paint everything in the worst possible light to try and bolster
your attempts to interfere with my public participation and practice
of journalism.
McLISH CONTINUES:
As your representative
invited, we e-mailed copies of the appropriate legal documents
to you at agiordano2000@hotmail.com. We also e-mailed copies
to the other e-mail address that we understand you use, narconews@hotmail.com.
Our first e-mails, however, did not go through successfully,
so we tried again from a different e-mail account at msn.com.
Apparently, the file attachments were too large for your Hotmail
accounts to accept at one time, so the msn.com e-mail program
broke the messages up into smaller pieces that your account would
accept. We had no reason to expect that this would result in
your receipt of a large number of separate e-mails, or that these
e-mails would be converted to snippets of unreadable MIME computer
code, which is apparently what happened. Any problems that you
might be having with your Hotmail accounts are likely resolvable
by simply deleting those e-mails.
GIORDANO REPLIES:
Listen, Mr. McLish, you are always welcome
to write me a letter by email just as all readers are invited
to do. I am publishing yours as a letter to the editor so that
our readers can make their own assessment of the veracity of
your claims, because even you, sir, have a voice on Narco News.
But nobody in the history of Narco News
– or in my email experience since 1995 when I was an editor
for a major online service – has ever mail-bombed us with
10 mb worth of text and attachments, in over 100 emails at once,
as your firm did last week.
I certainly never authorized anyone to
invite you to cripple our account for more than 24 hours and
cause a “bouncing effect.” That bouncing effect apparently
triggered a six-day lack of access to the Narco News mailing
list provided by another free service, Egroups. That service’s
computer system informed me that my access was denied because
its computer thought that narconews@hotmail.com was on “auto-respond”,
which it was not. It is my view that the same “bouncing
effect” that caused, as you say, some of your emails to
be bounced back to you, also triggered our denial of access to
the mailing list of our subscribers.
To make it clear, although I welcome individual
emails of reasonable size like this letter you have sent, I demand
that you cease and desist sending me emails with a combined storage
use that exceeds what Hotmail allows. If you continue to do so,
you will be simply harassing me.
Furthermore, your agent, Mr. Sal Mancuso
who sent the majority of those emails from hamlet000@msn.com
ought to know better: I believe that msn.com, owned by the same
company as Hotmail, also places these kinds of limits on storage
capacity in email accounts. Thus, I believe that your agent,
Salvatore Mancuso of Akin Gump, had prior knowledge that his
mail-bombing would cause problems for my account. Maybe you didn’t
understand that, which I find hard to believe, since your website
states:
"New media, e-commerce,
microelectronics, Internet solutions, software, telecommunications,
biotechnology or any of the dozens of other digital age domains--we
are knowledgeable in your space, and ready to provide the solutions
you need, when you need them."
Nonetheless, your agent, Mr. Mancuso,
surely should have. If I had simply returned all those emails
to him, I believe the same problems would have plagued his account.
I did not do that, because I am not in the business of harassment.
You write, Mr. McLish, that “Any
problems that you might be having with your Hotmail accounts
are likely resolvable by simply deleting those e-mails.”
Any further emails that you send of similar
large size as the prior ones will be deleted in accordance with
your counsel.
McLISH CONTINUES:
We then used another approach
to e-mail the documents to you. We separated the various legal
documents and their supporting exhibits into distinct files that
did not exceed any size limits set by Hotmail…
GIORDANO REPLIES:
That is untrue, Mr. McLish. Only one of
those emails arrived here and it used 800k of storage capacity:
40% of the total allowed by Hotmail. And I have not had the technical
capacity to open it.
Because narconews@hotmail.com is a public
email address that has received thousands of pieces of correspondence
from our readers, we are usually quite close to that 2,000k limit:
we must delete emails every five to ten days to abide by our
agreement with hotmail. That one email of 800k in size is too
large for us. Ten of them would be just another harassing form
of mail-bombing. Apparently, as you state below, nine of the
ten were bounced back to you. Doesn’t that tell you something
about how those emails do, and indeed did, exceed size limits
set by Hotmail?
McLISH CONTINUES:
…and sent them as
a series of ten separate e-mails (the subject lines read "1
of 10," "2 of 10," "3 of 10," and so
on through "10 of 10"). We e-mailed these documents,
along with a notice explaining what they were and how to contact
us should the files be delivered incomplete, to narconews@hotmail.com
and agiordano2000@hotmail.com. These e-mails were sent from the
address jma@akingump.com. The e-mails containing the notices,
contact information, summons, complaint and some of the exhibits
to the complaint were successfully delivered. The e-mails containing
the remaining exhibits, however, were returned to us because
your mailbox was full. We will be making additional attempts
to e-mail these remaining exhibits to you.
GIORDANO REPLIES:
Mr. McLish, I again demand upon you and
all agents of Akin Gump to cease and desist sending documents
of that size. We are not going to dedicate our entire storage
capacity to your firm because we have a bigger job to do reporting
on the drug war from Latin America. If your intent is to prevent
us from reporting – I inform you that any further attempts
to fill our mailbox will be seen by any reasonable party as “cyber-attacks.”
You have pled ignorance on the first round. I give you the benefit
of the doubt, but to repeat the mail-bombing would be a knowing
act of harassment and interference with our First Amendment rights
to publish and our other constitutional rights to petition our
government for a redress of grievances.
McLISH CONTINUES:
In any event, as explained
in the e-mails, we separately mailed complete copies of the documents
to the Narco News Bulletin post office box in New York, P.O.
Box 20743, New York, New York 10019, and to your attention at
P.O. Box 1, Lake Pleasant, Massachusetts, 01347.
GIORDANO REPLIES:
The latter address, in Massachusetts,
has not been used by me since 1992, when I moved from that town.
I do not have access to that post office box. I presume that
somebody else uses that post office box in Lake Pleasant and
that your letter will be returned.
The former address in New York City –
your private investigators can confirm this easily with the local
postmaster – has not been opened since March 2000. The key
was lost in March. And before you cite this in a knowingly false
matter as evidence of “evading process”, please check
the facts. The box was not opened in April, May, June or July,
before your August lawsuit was filed and long before I heard
anything about it in the late Autumn of this year.
McLISH CONTINUES:
Please confirm your receipt
of these documents, or provide us with an alternative means of
delivering them to you.
GIORDANO REPLIES:
Mr. McLish, I confirm that I have not
received these documents in any form in which I can read them.
You are no doubt aware that judges in
Mexico, on multiple occasions, rejected charges of defamation
and threw their cases out of court. So I do look forward to seeing
how you plan to prevail in suing don Mario, The Narco News Bulletin
and I, in the United States.
Once I am served, I look forward to getting
on with the discovery process and deposing your clients and their
agents. I am sure this will be an educational process not only
for those of us who are directly involved, but for the public
and its right to know.
However, there are laws. To the best of
my knowledge, I have no responsibility to respond until served.
Also, unless I am incorrect, under the laws of New York and the
United States, persons are not required to alter their lives
to present themselves available for service.
I will answer your questions when served,
however I need time to retain legal counsel. One attorney I consulted
asked for “$100,000 to $200,000 up front” before he
would advise me on these matters. Another wanted “$50,000”
and offered to file for an extension while I raised the money.
Mr. McLish, I do not make that kind of money. I live simply and
inexpensively precisely so I do not have to make that obscene
amount of money. I do not own a house, a car or a credit card.
Don’t get impatient if I am not going to drop my real work
to be at your beck and call. I don’t work for you. I work
for our readers.
McLISH CONTINUES:
We have learned that the
Narco News Bulletin website is ludicrously portraying this law
firm's legitimate attempts to serve you with formal legal documents
by e-mail, as invited by your own representative, as a "cyber-attack"
and a deliberate effort to disrupt your e-mail service.
GIORDANO REPLIES:
Mr. McLish, I am surprised at your knowingly
false statement that your mail-bombing of our email address constituted
“legitimate attempts to serve” (me) “with formal
legal documents by email.”
The exact words in the letter I received
on December 4, 2000 from Sean O'Donnell of your firm, Akin Gump,
were:
"This is not a formal
summons or notification from the court, but rather Plaintiff's
request that you sign and return the enclosed waiver of service
in order to save the cost of serving you with a judicial summons
and an additional copy of the complaint."
How can you now say that the letter was
an attempt to serve me?
You, as a legal professional, ought to
know that the law makes no provision for service of process by
email. US Law and the Hague Convention are very clear in the
instructions for how to do it. I have been in countries that
abide by the Hague Convention ever since you filed this lawsuit.
With regard to the waiver, I have taken
the request under advisement. You will have to respect that I
have a right and wish to attain full legal counsel before I answer
your lawsuit.
McLISH CONTINUES:
Not only are these and
the other accusations in your "article" obviously false,
but you were well aware that they were false when you published
them.
GIORDANO REPLIES:
I think you are referring not to an “article”
but to an open letter from our volunteers with a Cease and Desist
order to your firm to stop jamming our email account.
And what “other accusations”
are false?
That your firm represents the Colombian
government, a foreign power, in lobbying congress for $1.3 billion
in US taxpayer money?
That your firm represented members of
the Mansur Family?
That a US Congressman called persons like
your firm and others who tried to weaken anti-white-collar drug
trafficking laws "narco-lobbyists”?
I would appreciate a specific response
if these statements are claimed to be false by yourself.
McLISH CONTINUES:
You knew that Akin Gump
represents Banamex in a lawsuit against you.
GIORDANO REPLIES:
I have been told that, but what confuses
me is that Banamex is the plaintiff and not its majority owner,
CEO, and president Roberto Hernández Ramírez. Our
reports are directed at Roberto Hernández, who by owning
a bank of that size appears to have great powers of immunity
and impunity.
McLISH CONTINUES:
You knew that we were
trying to serve you with formal legal documents in that lawsuit.
You knew that your own representative had invited us to do so
by e-mail.
GIORDANO REPLIES:
No, I did not know, and still do not know,
that a representative of me has invited you to do that. I have
not authorized anyone to invite you to serve me by email. And
my representative says he suggested you write me, not serve me,
by email. Meanwhile, Sean O’Donnell, apparently more intellectually
honest than you are, sir, admits that in his email: This is not
an attempt to serve process, he informed. He knows that the law
requires a specific process. So take a deep breath, calm down,
and consult your law books on service of process.
McLISH CONTINUES:
The messages you received
clearly indicated that they were efforts to forward legal documents
to Al Giordano and the Narco News, and that the documents would
be in the form of e-mail attachments. The messages also contained
instructions on how to contact Akin Gump to provide us with an
alternate address in the event that the attachments could not
be opened or were unreadable. It is clear that you were able
to read these instructions, as your "article" refers
to Sean O'Donnell and Jim Ma, who were not referred to at all
in any of the unreadable e-mails sent from msn.com. Your attempt
to portray this as some sort of "cyber attack" appears
to be nothing other than an elaborate effort to deny that you
have received the summons and complaint.
GIORDANO REPLIES:
There is nothing “elaborate”
about it: You have not yet served me with this lawsuit. You sent
a bunch of unopenable documents.
McLISH CONTINUES:
Your additional suggestions
that Akin Gump and/or Banamex may somehow be responsible for
other technical problems that the Narco News website may have
recently experienced are also completely false.
GIORDANO REPLIES:
We have suggested that Akin Gump, not
Banamex, is responsible for our technical problems, for the reasons
stated above: the “bouncing effect” that you yourself,
in this email, admitted. Others received bounced emails and have
communicated that to us, all as a result of your mail-bombing
of our account, whatever its pretext was.
McLISH CONTINUES:
We have done nothing other
than attempt to serve important legal documents upon you by e-mail
at the invitation of your own representative…
GIORDANO REPLIES:
Again, I never authorized any representative
to invite you to serve me by email, because the law, as I understand
it, sets forth a very simple process for service that does not
mention email.
McLISH CONTINUES:
Because your attack upon
Akin Gump and Banamex is rife with knowing falsehoods, you should
retract it immediately.
GIORDANO REPLIES:
I have published your letter and response
so that our readers can decide for themselves as to errors and
mistakes. I have no interest in knowing falsehoods. I have a
commitment not to litigation, but to the facts and the truth.
You say your mail-bombing was not a cyber-attack,
that it was an attempt at service. I have let the readers see
the words of Sean O’Donnell of your firm, who contradicts
you.
I am sure you do not object to letting
the readers decide. You have been given adequate access to our
audience to claim your corrections, and that is what I judge
to be fair. I make no retraction.
McLISH CONCLUDES:
Very truly yours,
Thomas P. McLish
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
GIORDANO CORDIALLY REPLIES:
Perhaps we will meet in court. If so,
I look forward to the truth coming out.
Al Giordano
Publisher
The Narco News Bulletin
McLish's Address and the following statement
were posted at the bottom of his letter:
Thomas P. McLish, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Ave., N.W.
Washington, D.C. 20036
Tel.: (202) 887-4324
Fax: (202) 887-4288
tmclish@akingump.com
The information contained
in this e-mail message is intended only for the personal and
confidential use of the recipient(s) named above. This message
may be an attorney-client communication and/or work product and
as such is privileged and confidential. If the reader of this
message is not the intended recipient or an agent responsible
for delivering it to the intended recipient, you are hereby notified
that you have received this document in error and that any review,
dissemination, distribution, or copying of this message is strictly
prohibited. If you have received this communication in error,
please notify us immediately by e-mail, and delete the original
message.
The December 4, 2000 letter from Akin
Gump attorney Sean O'Donnell, that contradicts the claims of
McLish, is printed in its entirety below:
To: Al Giordano:
This firm, Akin, Gump,
Strauss, Hauer & Feld, L.L.P. represents Banco Nacional de
Mexico ("Banamex") in a lawsuit Banamex commenced against
you. A copy of the complaint, along with the annexed exhibits
is attached. Also attached to this email is a notice of lawsuit
and request for waiver of service in order to save the cost of
serving you with a judicial summons and an additional copy of
the complaint. If you are unable to view any of these attachments,
please email me your address or call me at 212-872-1093 and we
will deliver these documents to you by overnight mail.
The complaint was filed
originally in the Supreme Court of New York, New York County,
but it has been removed from that court and the action is now
pending in the United States District Court for the Southern
District of New York, and has been assigned docket number 00
Civ. 8941.
This is not a formal summons
or notification from the court, but rather Plaintiff's request
that you sign and return the enclosed waiver of service in order
to save the cost of serving you with a judicial summons and an
additional copy of the complaint. The cost of service will be
avoided if Akin Gump receives a signed copy of the waiver within
30 days after the date designated below as the date on which
this Notice and Request is sent (or 60 days from the date if
your address is not in any judicial district of the United States).
Upon receipt of your address, Akin Gump will send to you a stamped
and addressed envelope so that you may return the signed waiver
(you may forward your address to Akin Gump by replying to the
email by which this notice was sent or by calling me at 212-872-1093).
An extra copy of the waiver is also attached for your records.
If you comply with this
request and return the signed waiver, it will be filed with the
court and no summons will be served on you. The action will
then proceed as if you had been served on the date the waiver
is filed, except that you will not be obligated to answer the
complaint before 60 days from the date designated below as the
date on which this notice is sent (or before 90 days from the
date if your address is not in any judicial district of the United
States).
If you do not return the
signed waiver within the time indicated, Banamex will take appropriate
steps to effect formal service in a manner authorized by the
Federal Rules of Civil Procedure and will then, to the extent
authorized by the Rules, ask the court to require you to pay
the full costs of such service. In that connection, please read
the statement concerning the duty of parties to waive the service
of the summons, which is set forth at the foot of the waiver
form.
This request is being
sent to you on behalf of Plaintiff (Banamex), this 4th day of
December 2000.
Sean O'Donnell
Akin, Gump, Strauss, Hauer & Feld L.L.P.
The information contained
in this e-mail message is intended only for the personal and
confidential use of the recipient(s) named above. This message
may be an attorney-client communication and/or work product and
as such is privileged and confidential. If the reader of this
message is not the intended recipient or an agent responsible
for delivering it to the intended recipient, you are hereby notified
that you have received this document in error and that any review,
dissemination, distribution, or copying of this message is strictly
prohibited. If you have received this communication in error,
please notify us immediately by e-mail, and delete the original
message.
The Information
Contained Here Is to Inform the Public of the True Facts