Irving v. Lipstadt

 1MR RAMPTON:    Not by us.
 2MR IRVING:    It was given by you because it was in the footnote
 3of one of your expert reports as being the source.
 4MR JUSTICE GRAY:    As I understand it, and do not let us talk
 5over each other too much, my understanding is that first
 6time around the wrong file number was given, but then
 7later the correct file number is thought to have been
 8discovered, which then prompted Dr Longerich to write to
 9or to fax Dr Aaron Reich, asking if he could say what the
10other documents in this file are.
11MR IRVING:    The correct file number was then notified to me
12this last weekend, which of course gave me no time
13whatsoever to do the kind of research that I would have
14had to do.
15MR JUSTICE GRAY:    Anyway, your position is you do not deny its
16authenticity, but you do say that the provenance is
17unsatisfactory.
18MR IRVING:    I do say it has been improperly produced to me in a
19manner which has made it impossible for me to attack its
20meaning, but I have attacked its meaning nevertheless in
21my submission.
22MR JUSTICE GRAY:    I know you have.
23MR IRVING:    I am not seriously worried about it because I am
24sure that your Lordship will accept what I said about the
25meaning.
26MR JUSTICE GRAY:    Do you mind if I ask Mr Rampton what the

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 1explanation of----
 2MR RAMPTON:    I do not see it that any criticism at all can be
 3made ----
 4MR JUSTICE GRAY:    When was Dr Aaron Reich asked the question?
 5MR RAMPTON:    Where is that, my Lord?
 6MR JUSTICE GRAY:    It is paragraph numbered 4 on the second
 7page.
 8MR RAMPTON:    I think that, unless I have completely
 9misunderstood this clip of papers, I confess I have not
10paid it a terrific lot of attention recently, there is,
11I think, actually a page of the little clip showing that a
12fax was sent or received -- I can see. It has my own fax
13number right at the top of it so I think it is what
14Dr Longerich says he sent from my chambers. It looks like
1516.48 on Friday, but unfortunately I cannot read it.
16MR JUSTICE GRAY:    That was the problem I had which is why
17I asked when it had been sent. Leave aside when it was
18sent. What was the answer?
19MR RAMPTON:    I do not know when it was sent.
20MR JUSTICE GRAY:    Sorry, what was the answer from Aaron Reich?
21MR RAMPTON:    There was one in the Washington archive as well.
22The reply says, whatever its date may be -- I can see it
23is 10th March. It is from somebody called Anna Row. She
24is writing to both Aaron Reich, who I think might be in
25New York, I really do not know, and to Dr Longerich. What
26she says is: "After some searching and help from Jurgen,

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 1we were able to find a copy of the document in question.
 2The citation in Moscow is, according to the two records"
 3etc. etc., and gives the reference. "If a fax copy is
 4desired we can send it along".
 5MR JUSTICE GRAY:    I follow all that and, as I understand it,
 6not making too much of a meal of it all, there are two
 7copies of this document, one in Moscow and another in
 8Germany, the German copy having been provided from
 9Moscow. That may or may not be satisfactory, but what
10I was really concerned to know is what attempts, if any,
11have been made to discover what other documents were in
12the same file, because I think the request was not an
13unreasonable one, that the other documents in the file
14might cast some light on the significance of Muller.
15MR RAMPTON:    I simply do not know. If that is not addressed in
16Dr Longerich's note, I cannot give an answer about it
17because I was not a party to it.
18MR JUSTICE GRAY:    That was one of the things that I think
19I suggested on day 30 or day 31, I cannot remember,
20Mr Irving should be given an answer to.
21MR RAMPTON:    Plainly, I would submit, the position must be
22this. The reason why, not including the November 1941
23document, Mr Irving tendered the other Schlegelberger
24documents is that, on one view of its dating, the other
25documents might be of some relevance. I assume -- this
26is an assumption -- that a distinguished and respectable

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 1historian like Dr Longerich would not produce a single
 2document from a file if there were other surrounding
 3documents which, to his knowledge, had a bearing on its
 4interpretation.
 5MR JUSTICE GRAY:    Yes, but he does not say so, that is the
 6problem. He does not say that he has looked, or tried to
 7look and failed.
 8MR RAMPTON:    In any event, since Mr Irving accepts the
 9authenticity of the document, the fact that there are not
10any other documents around it leads nowhere.
11MR JUSTICE GRAY:    We do not even know that, do we? We do not
12know whether there are other documents in the same file.
13MR RAMPTON:    There might be a source, I do not know. In fact,
14I think I may have been guilty of not reading the message
15carefully enough. I read paragraph 1 of Dr Longerich's
16note which was prepared yesterday: "I am familiar with
17this document. A copy is available in the archival
18collection of the Zentralstelle in Ludwigsburg. This is a
19collection of documents which was handed over by the
20Soviet authorities in 1969 to the Federal Republic". It
21begs the question, I interpose there, how on earth it is
22that Mr Irving has never seen it. It has been there since
231969. "The document is accompanied by a covering page
24with an archival reference to the file where the original
25is kept 500.1.25. This is an archival reference from the
26Soviet archive in Moscow. Fons" -- whatever that

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 1means -- "security police and SD, part 1 of the
 2collection, file 25. I was in Moscow", says Dr Longerich
 3"in 1992 for four weeks, and I looked at documents from
 4this fons extensively. At the moment I cannot remember
 5whether I saw the original of this document during my stay
 6in Moscow, but I kept notes about this day and could
 7reconstruct what I saw there. The notes are at the moment
 8in Munich". That plainly does not suggest that he
 9believes that there are any other relevant documents in
10that file.
11MR JUSTICE GRAY:    It does not say one way or the other. He
12says he cannot remember. It probably is a point of
13absolutely no significance but, since it is something that
14Mr Irving has raised and I did indicate that I thought he
15ought to have an answer, I would still like such
16information as can be obtained from Dr Longerich to be
17communicated to him and to me.
18MR RAMPTON:    I will try again. Given that it is accepted to be
19an authentic document, and given also that it is not
20perhaps a document that lies at the heart of the case
21though it has some significance obviously, I will do
22it. That leads me to make an enquiry, if I may, of your
23Lordship.
24MR IRVING:    Can I just finish?
25MR JUSTICE GRAY:    Yes. You have some other points?
26MR RAMPTON:    My Lord, I am sorry, this is a connected enquiry,

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 1if I may. That may take time. I do not know myself at
 2the moment what date judgment is likely to be because
 3obviously, if your Lordship is going to consider any
 4additional documents, they will need to be got sooner
 5rather than later.
 6MR JUSTICE GRAY:    I do not know either. I hope it will not be
 7as long as you might fear. That does not tell you very
 8much, does it. That is not intended to be delphic,
 9but think in terms of a small number of weeks rather than
10a large number of months.
11MR RAMPTON:    I was not trying to put any pressure on at all.
12For the sake of this exercise, I obviously need to know.
13If it is going to be in three or four days time,
14I probably will not be able to achieve it.
15MR JUSTICE GRAY:    I think that will be unlikely. That is all I
16can do. If you can obtain it as soon as possible -- if
17you cannot, so be it. We will have to manage without.
18MR RAMPTON:    We will do what we can.
19MR JUSTICE GRAY:    Mr Irving, you have listed some other
20matters.
21MR IRVING:    I wish to conclude on page 104, if I may.
22MR JUSTICE GRAY:    I am so sorry. Hang on, why are you telling
23me about that now?
24MR IRVING:    Okay, then it is wrong that I should let your
25Lordship know.
26MR JUSTICE GRAY:    

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