David C. Farmer vs. Harmon - Witness Paul Clement, Esq.

David C. Farmer, Successor-Trustee vs. Harmon

(Formerly Woo vs. Harmon & Nicholson vs. Harmon)

CV05-00030 DAE KSC

U.S. District Court For the District of Hawaii

Judges: David A. Ezra; Kevin S. Chang

—

DEFENDANT’S WITNESS

PAUL CLEMENT

Paul Clement in the U.S. Solicitor General who is temporarily replacing Alberto Gonzales as the U.S. Attorney General.

August 27, 2007

Clement to stand-in as attorney general

Associated Press

WASHINGTON - Paul Clement, who will serve as interim attorney general, is a meticulous, affable conservative with friends across the political spectrum.

As solicitor general, Clement holds the fourth-ranking position at the Justice Department. He was asked by President Bush to head the agency until a new attorney general is nominated, then confirmed by the Senate.

With the resignation of Attorney General Alberto Gonzales, as well as earlier departures of the next two officials in line, Clement is the Justice Department's highest-ranking official who has been confirmed by the Senate.

In his current post, Clement is the administration's top lawyer at the Supreme Court. He regularly argues the most important cases that come before the court, defending Bush's anti-terrorism program as well as federal laws imposing limits on abortion and campaign fundraising.

Clement, 41, has worked for former Attorney General John Ashcroft and Justice Antonin Scalia, stalwarts of the right in American politics and law. He once belonged to the conservative Federalist Society and continues to speak often at its events.

Yet liberal Democratic Sen. Russ Feingold of Wisconsin has been among Clement's biggest boosters, principally because of Clement's Supreme Court defense of the landmark campaign finance law that Feingold co-authored. Clement also comes from Wisconsin.

Solicitor generals for the most part have low profiles in the lief of any administration. One of history's great exceptions to that rule was Robert Bork. At the height of the Watergate scandal, then-Solicitor General Bork did what his two superiors would not do — and obeyed President Nixon's order to fire special prosecutor Archibald Cox in 1973.

Clement is not facing a similar crisis, although he has been asked by senators to order an independent investigation of aspects of Gonzales' tenure. So far, he has not publicly answered that request.

Prior to serving as solicitor general, Clement was the deputy to his predecessor in the post, Theodore Olson. He also worked for Ashcroft, then a Missouri senator, and filed supporting briefs with the Supreme Court on behalf of Bush in the dispute over the 2000 presidential election.

He earlier clerked for Scalia and Judge Lawrence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit. Clement quit the Federalist Society when he joined the Bush administration in 2001.

~ ~ ~

January 16, 2004

Point Man

Vanessa Blum, Legal Times

Sometimes it seems that Paul Clement is everywhere at once.

In a three-week span late last year, Clement appeared before the U.S. Supreme Court in a pivotal age discrimination case; before the 2nd U.S. Circuit Court of Appeals in New York defending the detention of enemy combatant Jose Padilla; and before the 4th Circuit in Richmond, Va., in the case of alleged 9/11 conspirator Zacarias Moussaoui.

In the Moussaoui case, while defense attorneys split the complicated two-part argument between them, the 37-year-old Clement handled both halves.

Even Moussaoui's lead counsel, Federal Public Defender Frank Dunham Jr., says he was impressed.

"I felt he did an excellent job," Dunham says. "He can make the unreasonable sound reasonable."

As principal deputy to Solicitor General Theodore Olson for the past three years, Clement has made 14 Supreme Court arguments, prevailing so far in all but three cases.

On Tuesday, Clement argued his first case of 2004, supporting the right of citizens to sue states for violations of the Americans with Disabilities Act in Tennessee v. Lane.

Clement, a former law firm partner and part-time law professor, had never appeared before the Supreme Court when he was tapped for the No. 2 slot in the SG's office.

"There is no feeling in the world like being able to represent the United States before the Supreme Court," Clement says. "It's a privilege and an honor for everyone in this office."

In addition to Supreme Court advocacy, Clement has been tasked with shepherding high-stakes terrorism cases, including those of enemy combatants Padilla and Yaser Esam Hamdi, through the lower courts. (Hamdi's case was accepted by the Supreme Court on Jan. 9.)

The sensitive assignment keeps Clement on the run and is testimony to his stature within the Bush administration.

"Paul Clement is one of the brightest legal minds in the country," Attorney General John Ashcroft said in a statement. "Paul's work in defense of the legal tools and authority needed to protect America has been a necessary and important element of our counterterrorism mission."

If Olson steps down at the end of the Supreme Court term -- as some insiders expect -- Clement is the likely candidate for solicitor general. His name has also been floated as a potential nominee to the D.C. Circuit.

But Clement's record, particularly his defense of the Bush administration's controversial policies in the war on terrorism, has already made him a lightning rod.

"There's no question that [Clement's] activities in the administration, as well as those before, would raise red flags about a nomination," says Elliot Mincberg, legal director for the liberal People for the American Way.

CONSERVATIVE CREDENTIALS

Clement, who grew up in suburban Milwaukee, has a perfectly appointed conservative résumé.

The youngest child of an accountant father and a stay-at-home mother, Clement attended Georgetown University, where he studied international economics and cut his political teeth with two internships, first for then-Sen. Bob Kasten, R-Wis., and then in the Ronald Reagan White House.

After graduating, Clement deferred law school, while earning a masters degree in economics from Cambridge University. In 1989, he began at Harvard Law School, where he served as Supreme Court editor for the Harvard Law Review. Clement went on to prestigious clerkships for GOP appointees Judge Laurence Silberman of the D.C. Circuit and Supreme Court Justice Antonin Scalia.

In 1994, he accepted a job in the D.C. office of Kirkland & Ellis, working in the high-powered appellate group led by one-time D.C. Circuit Judge and Solicitor General Kenneth Starr.

Clement called to take the job on the same day Starr signed on to serve as independent counsel in the Whitewater investigation. The senior partner's absence worked out well for Clement, giving him the opportunity to play larger roles in cases and even argue two appeals as a young associate.

After 2 1/2 years at the firm, however, Clement found himself growing antsy. With Democrats in the White House, he took a job with Ashcroft, then a Republican senator from Missouri. Accepting a staff position on the Hill was an unconventional career move for an appellate practitioner, but ultimately sharpened Clement's focus on pure litigation.

"I'm interested in policy issues, but when push comes to shove, my real love is the litigation and legal issues," he says. "One of the great things about working on the Hill is that it allowed me to sort that out."

Clement left Ashcroft's office prior to the senator's aggressive and controversial opposition to the nomination of Missouri Supreme Court Justice Ronnie White to the federal bench.

Jon Liebowitz, whose tenure as chief counsel to Sen. Herb Kohl, D-Wis., overlapped with Clement's time on the Hill, says Clement was highly regarded and easy to work with.

"Paul was someone to go to for a thoughtful opinion on a constitutional issue" says Liebowitz, now legislative counsel for the Motion Picture Association of America. "He understood if you wanted to get stuff done, you needed to cross the aisle."

In 1999, Clement joined the D.C. office of Atlanta's King & Spalding as a partner, where he was charged with starting an appellate practice.

During his brief return to private practice, Clement collaborated with the conservative American Center for Law & Justice on two amicus briefs in Bush v. Gore, supporting George W. Bush on behalf of Republican voters.

Today Clement lives in Alexandria, Va., with wife Alexandra and their three sons: 5-year-old Thomas, 3-year-old Theo, and 10-month-old Paul Gregory, who goes by P.G.

Clement was at the hospital following the birth of his second son when he learned that Bush had selected Ashcroft for attorney general. He joined a tight-knit group of aides working on Ashcroft's contentious confirmation and laying plans for the transition.

Initially, Ashcroft wanted to place Clement at the helm of the Justice Department's influential Office of Legal Counsel, but the White House had its own candidate and refused to accept Clement for the post. Both Ashcroft and White House Counsel Alberto Gonzales backed Clement for the No. 2 slot in the SG's office.

Last year, Clement applied for a vacant seat on the 7th Circuit. Ultimately, the nomination went to Wisconsin Supreme Court Justice Diane Sykes, but Clement's judicial aspirations have not gone unnoticed.

"This is not a person we want on the federal bench," says Nan Aron, president of the Alliance for Justice, which has aggressively opposed many of Bush's judicial nominees.

"There is no indication in this guy's record that he's an independent thinker or has any sense of balance," Aron adds, citing his work for Ashcroft's Senate staff, his affiliation with Starr, and his legal work in Bush v. Gore.

PAUL WHO?

Back in February 2001, when Clement was tapped for the No. 2 slot in the Office of the Solicitor General, he was a relative unknown.

"I had never heard of Paul Clement before he became principal deputy. Now, I'm an admirer," says Wilmer, Cutler & Pickering partner Seth Waxman, who served as solicitor general under President Bill Clinton.

Even Olson was only marginally familiar with Clement.

Before signing off on Clement's selection by White House officials, Olson first called Clement's former bosses -- Silberman, Scalia, and Starr.

"I was looking for an extremely good lawyer, a hard worker, someone selflessly committed to the heavy-duty work we do here. Also, someone who was likable. Someone I would feel comfortable sending into meetings on my behalf," Olson says. "Paul could not have come more highly recommended."

He adds: "He's got high intelligence and a high legal IQ. He has great instincts for what arguments will work."

Olson, a man not known for effusive praise, says he "thanks his lucky stars" that Clement became his deputy.

Nevertheless, given his ties to Ashcroft, there were those who wondered whether he would amount to more than a political operative.

But Waxman's principal deputy, Barbara Underwood, who ran the SG's office during Clement's first four months, says he "integrated very easily into the office."

"When anybody new comes in, they need to prove themselves. I think he very quickly did," says Underwood, now an Assistant U.S. Attorney in the Southern District of New York. "He was confident in his judgment but not at all arrogant."

Clement is known for being quick on his feet and does not use any notes during oral arguments.

"If you ask him a question he has an answer," says Time Warner European General Counsel Adam Ciongoli, who served as counselor to Ashcroft from 2001 to 2003. "He composes the right answer as the question is being asked, and it comes out flawlessly. It comes out unrehearsed, like he's having a normal conversation."

But while Clement's delivery may be low-key, his preparation is just the opposite. Those who have worked with him praise his ability to quickly master complex cases.

"He just buries himself in the material," says Associate Deputy Attorney General Patrick Philbin, a longtime friend of Clement's. "It's one of those things no one else can do for you."

One of Clement's more daunting challenges came as he prepped for arguments in last year's campaign finance case. The legislation was sprawling, and the lower-court ruling was more than 1,600 pages long.

Olson handled the morning session, defending McCain-Feingold's regulation of soft money. Clement was assigned the afternoon session, dealing with the law's issue ad provisions -- and everything else.

"The scope of the case was just unbelievable," Clement says. "On the one hand, I knew 90 percent of the questioning was going to focus on issue ads because that was the big-ticket item. But I also knew I was likely to get a handful of questions about the other 10 provisions and that there was no rational way of predicting which ones."

He adds: "Somebody in this office analogized it to defending the tax code."

On Dec. 10, the Supreme Court upheld the major provisions of the Bipartisan Campaign Reform Act of 2002.

"People came out of Paul's campaign finance argument saying it was the best argument they'd ever seen," says Thomas Goldstein of D.C.'s Goldstein & Howe, who had no involvement in the case. "Most people would put [Clement] on their top five list of advocates alongside people who have been doing this forever."

Indeed, in D.C.'s clubby Supreme Court Bar, where reputations are built over a lifetime, Clement seems to have achieved remarkably early success.

"He's one of the best I've ever seen," says O'Melveny & Myers partner Walter Dellinger, who served as acting solicitor general from 1996 to 1997.

"Whenever I think of an argument from Paul, the one word that springs to mind is clarity," Dellinger adds. "He has an extremely precise and clear intellect. Paul is never murky in thought or expression."

Aside from Olson, Clement is the only noncareer attorney in the solicitor general's 19-lawyer office. The post for a political deputy was created in the early 1980s, in part to handle cases with an ideological edge. Clement's unique role, as a top appellate litigator and trusted political aide, made him the natural candidate to assume responsibility for the DOJ's terror docket, once it was consolidated in the solicitor general's office.

Publicly, Clement has forcefully argued that the president has broad power in wartime to imprison those he deems enemies, indefinitely and without access to legal counsel. Clement's allies suggest that behind closed doors he may counsel a more moderate stance.

Georgetown University law professor Viet Dinh, former assistant AG for legal policy, says Clement's job is to litigate, not to make policy decisions. According to Dinh, Clement has articulated positions in the enemy combatant cases at the behest of his clients -- the Defense Department and the president.

"Paul and Ted are significant policy players and their voices carry a great deal of weight," Dinh says. "At the end of the day, decisions are made by the client agency."

Those who have confronted Clement in the courtroom are not so sure.

"He couldn't give the arguments he gives, if he didn't believe it," says Dunham, the public defender in Alexandria, Va., and lead counsel to Moussaoui and Hamdi.

Clement will not discuss whether his own views diverge from the positions he sometimes takes in court, saying it's "not that important."

"If you've got a statute to defend, it doesn't much matter how you would have voted on the statute if you were a congressman. You're not," Clement says. "Your job is to marshal the best argument for the defense of the statute or the policy that gets the job done."

Clement adds: "That's the way I approach all the cases."

* * * * *

SPECIAL REPORT

View continuing Washington Post coverage of the 2006 firings of eight U.S. attorneys.

Full Coverage

Documents Released by DOJ and Congress

* * * * *

March 20, 2007

From: stewwebb@sierranv.net

To: thecatbird@kycbs.net

Subject: AGENTS: BUSH OBSTRUCTED JUSTICE OVER FIRINGS

FIRINGS: Foggo sex ring probe linked to forged Iraq dossier, Israeli espionage, convicted lobbyist Abramoff

According to U.S. intelligence sources, President Bush obstructed justice last December when he had senior advisor Karl Rove and White House Counsel Harriet Miers instruct Attorney General Alberto Gonzalez to fire eight U.S. attorneys who were among several others conducting ongoing public corruption and secret national security grand jury investigations connected to an espionage–linked prostitution / pedophile sex ring operating at the Washington Ritz-Carlton and other DC hotels, whose clients included U.S. senators and congressmen, elite Washington news reporters and high government officials—some of whom were named by an intelligence insider.

Central to the scandal is fired U.S. attorney Carole Lam of California who was reportedly conducting testimony before grand juries linking indicted former Bush CIA Executive Director Kyle “Dusty” Foggo and convicted Republican lobbyist Jack Abramoff to the sex ring, Israeli espionage, GOP Under Secretary of Defense for policy Douglas J. Feith, a forged British intelligence dossier used by Mr. Bush to deceive Americans into supporting war against Iraq and an attempt to plant weapons of mass destruction (WMD) in Iraq before the war via an intelligence pipeline through Dubai and Turkey.

During her House testimony before Democrat Chairman Henry Waxman’s House Oversight and Government Reform Committee last Friday, “national security” concerns were given as the reason for prohibiting covert CIA operative Valerie Plame-Wilson from revealing that her CIA energy front company Brewster-Jennings had prevented the planting of WMD in Iraq by the White House-linked intelligence pipeline, resulting in the forged British dossier being used for building an artificial case for war against Iraq.

http://www.stewwebb.com

~ ~ ~

March 19, 2007

Bush Hit-Woman Behind Prosecutor Firings Has
Long History of Purges to Protect Bush

Harriet Miers fired investigator in 1997
to cover Bush draft-dodge

by Greg Palast,
from the original reports for BBC Television and the Guardian (UK)

The Mister Big behind the scandal of George Bush’s firing of US Attorneys is not a ‘mister’ at all. The House Judiciary Committee has released White House emails indicating that the political operative who ordered the hit on prosecutors too honest for their own good was Harriet Miers, one-time legal counsel to the President.

But this is not the first time that Miers has fired investigators to protect Mr. Bush.

In 1999, while investigating Governor George Bush of Texas for the Guardian papers of Britain, I obtained an extraordinary, and extraordinarily confidential, memo to the US Attorney’s office in Austin. It disclosed that, in 1997, Governor Bush secretly suggested to the chairwoman of the Texas Lottery Commission that she grant a contract to the client of a Bush ally.

The Governor’s back-door demand to the Lottery chairwoman was not so easy. Bush wanted the Lottery to grant a multi-billion dollar contract to GTech Corporation. But GTech hadn’t even bid on the contract - and a winner was already announced.

There was only way for the Chairwoman to carry out the fix: fire the director of the Lottery who had discouraged GTech from bidding because of its history of corruption.

The Chairwoman, Harriet Miers, did the deed: fired the Lottery director; Miers then ignored the winning bid — and gave Bush’s favored company the contract, no bidding, in perpetuity.

Miers and the Draft

Neither Miers nor President Bush have ever denied the contents of the memo [I’ve posted it here] despite repeated requests from the Guardian and BBC Television.

Bush’s attempt to appoint Hit-woman Harriet to the US Supreme Court in 2005 surprised many. Not me. Miers, personal and governmental lawyer for George Bush, had quite a file on her boss, and he must have been grateful for her discretion.

Most crucially, she knew why Bush so desperately needed to give GTech the lottery contract. The heart of the matter was the then-successful cover-up of the Bush family’s using its influence to get young George Bush into the Texas Air National Guard and out of the Vietnam war draft.

The memo to the US Attorney reads:

“Governor Bush thru [name withheld] made a deal with Ben Barnes not to rebid because Barnes could confirm that Bush had lied during the ‘94 campaign [for governor of Texas]. Bush was asked if his father … had helped him get in the National Guard Bush said no he had not, but the fact is his dad call then-Lt. Gov. [Ben] Barnes ….”

Lt. Governor Barnes, through a cut-out, called the Texas Air Guard commander and got Bush into the ‘top gun’ seat and out of the war.

You may recall that in 2004, years after we reported this story in Britain, Barnes confessed to the draft-dodge fix on 60 Minutes. [That was the report that brought down Dan Rather; but the Barnes confession was never challenged.]

What 60 Minutes missed is the creepy Miers involvement. Barnes, after he left the post of Lt. Governor, became a lobbyist — for GTech, the lottery company. By using his influence to get and keep the lottery contract for GTech, Barnes picked up quite a nice fee: over $23 million. With those millions in his pocket, Barnes kept a happy and lucrative silence about his saving little George Bush from the draft.

According to the memo from the US Attorney’s office, Barnes met with Bush about GTech and the lottery. Then,“The Governor talked to the chair of the lottery [Miers] two days later and she then agreed to support letting GTech keep the contract without a bid.”

Note something else here: this information was sitting in the hands of the US Attorney. Yet, no action was taken in 1997 though we now know that, from Barnes’ confession in 2004, the accusation about his putting in the fix for young George Bush is true.

An insider told BBC TV that the US Attorney’s office and Justice Department, though under Democratic control, never acted because they discovered that Barnes, a Democrat, had not only manipulated the system to get George Bush into the Texas Air Guard, Barnes did the same for the sons of Democratic big wigs including Congressman (later Senator) Lloyd Bentsen and Governor John Connolly.

In other words, control over a US Attorney and what is called their “prosecutorial discretion” is worth its weight in gold to politicians. They can provide protection for cronies and exact punishment on enemies. And no one knows that better than “Justice” Harriet Miers and her boss, fighter pilot George W. Bush.

This report is adapted from Greg Palast’s New York Times bestselling book, ARMED MADHOUSE: From Baghdad to New Orleans — Sordid Secrets and Strange Tales of a White House Gone Wild.

New edition to be released April 24...

For more information on Miers and clips of the BBC Television reports, go to:

www.GregPalast.com

~ ~ ~

DISPATCHES

TOOTHLESS WATCHDOG BARKS

www.populist.com

As we go to press, George W. Bush was scheduled to give a speech on his administration's newfound probity toward business wrongdoing. His spin doctors are trying to present him as the reincarnation of Teddy Roosevelt, but his actions so far are not encouraging.

Bush shows no signs of clearing out an administration filled with people who succeeded in business by ignoring ethical boundaries, from Army Secretary Thomas White, the vice chairman of Enron Energy Services when it allegedly hid $500 million in losses and manipulated the California energy crisis, to Vice President Dick Cheney, who presided over the cooking of books at Halliburton (and also doing business with evildoer Iraq), White House counsel Alberto Gonzales, who was an attorney for Enron at Vinson & Elkins in Houston, and Securities and Exchange Commission Chairman Harvey Pitt, the former attorney for Andersen, KMPG and Merrill Lynch who started his term at the SEC by asking how he could make things easier for the securities industry.

Bush's own misdeeds as a director of Harken Energy are finally getting the attention of the mainstream press. As Paul Krugman wrote in the July 7 New York Times, Bush was a failed businessman in 1986 with a company losing money and heavily burdened with debt when he was rescued by Harken Energy, which bought his company at "an astonishingly high price" in return, one assumes, for Bush's connections to his father, who was then vice president.

Those connections opened doors for Harken, particularly after W's father became president. But Harken still lost money, although it concealed its failure "just long enough for Mr. Bush to sell most of his stake at a large profit -- with an accounting trick identical to one of the main ploys used by Enron a decade later," Krugman wrote.

A group of insiders, using money borrowed from Harken itself, paid an exorbitant price for a Harken subsidiary, Aloha Petroleum. That created a $10 million phantom profit, which hid three-quarters of the company's losses in 1989. (Yes, Arthur Andersen was the accountant.) Bush was on the company's audit committee, as well as on a special restructuring committee, so if he didn't spot the Aloha maneuver, he was at least "a very negligent director."

Krugman added that Harken's fake profits were several dozen times as large as the Whitewater land deal -- though only about one-seventh the cost of the Whitewater investigation. His father's SEC ignored the staff recommendation and decided not to prosecute young George.

The White House assured us that Bush's failure to file disclosures of his stock trades in Harken Energy until eight months after the deadline amounted to nothing more than driving 60 in a 55-mile-per-hour zone. "That will surely bring good cheer to those Harken shareholders who were left holding the stock that Mr. Bush sold, with no insider's knowledge, of course, just before it tanked," the Times' Frank Rich noted July 6. Bush sold his stock in June 1990 for $4 a share. By year-end it was trading for a little over $1.

Bush has dodged responsibility, claiming first that the SEC lost his papers. Then he blamed Harken's lawyers. Now he says the matter has been "fully vetted," although he won't let the SEC release its file on him. The Center for Public Integrity (www.publici.org) reported in October 2000 that an internal SEC memorandum, prepared by the commission's enforcement division in April 1991, disclosed that Bush also had been tardy in reporting three other transactions involving stock in Harken.

Despite the pattern of late disclosures, the SEC did not press charges against Bush. But the Dallas Morning News quoted a 1993 letter from the SEC to Bush's lawyer emphasizing that its decision "must in no way be construed as indicating that (Bush) has been exonerated."

Reforms that are needed, Rich wrote, include fully independent policing of accounting firms, the complete prohibition of conflicts of interest that encourage both accountants and stockbrokers to cut corners. "No off-balance-sheet or offshore entities, no shell corporations, no sham transactions," added Robert Morgenthau, the Manhattan district attorney, who is pursuing Enron more aggressively than the administration is.

Arthur Levitt, Clinton's SEC chairman whose attempts at reform were undermined by opposition from Republicans and business Democrats like Sen. Joe Lieberman, would increase the legal liability for investment bankers, lawyers and accountants who aid, abet and also profit from corporate Ponzi schemes.

And the SEC needs conflict-free commissioners. Pitt has pledged tough actions but he already has been meeting privately with Xerox and KPMG executives while their companies are under investigation.

"It's like the mob's consigliere running the FBI," Marshall Wittmann, a reform-minded conservative Republican, told Rich.

www.populist.com/02.14.dispatches.html

~ ~ ~

Paul Clement is expected to testify regarding his business, professional, and personal relationships with Alberto Gonzales, Linda Lingle, Mark Bennett, Earl Anzai, Hugh Jones, Ralph Boyd, Jim Nicholson, James Nicholson, Jack Abramoff, Karl Rove, Henry Paulson, Tom DeLay, Richard Rainwater, James Ahloy, Aloha Petroleum, Harken Energy, Chevron-Texaco, Gale Norton, The Nature Conservancy, Faye Kurren, Judge Barry Kurren, Tesoro Petroleum, Quintana Petroleum, Helen Cullen, Michael McKenzie, Dennis Hastert, Mark Foley, Duke Cunningham, Leonard Millman, Stewart Webb, Norman Brownstein, Larry Mizel, Dan Inouye, Daniel Akaka, Mitch McConnell, Elaine Chao, John Peyton, Dubai Ports World, American International Group (AIG), John O’Neill, Scooter Libby, Bill Frist, Frederick Black, John Ashcroft, Donald Hodel, Carol Muranaka, Curtis Ching, Gayle Lau, Carole Lam, Kyle “Dusty” Foggo Robert Kihune, Harriet Miers, Henry Kissinger, David Farmer, and others to be named upon discovery.