IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA



_____________________________________

CARA LESLIE ALEXANDER, et al.,

   Plaintiffs,

   vs.

FEDERAL BUREAU
OF INVESTIGATION, et al.,

   Defendants.
_____________________________________
)
)
)
)
)
)   Civil No. 96-2123/97-1288 (RCL)
)
)
)
)
)

MOTION TO COMPEL DOCUMENTS AND FURTHER DEPOSITION

TESTIMONY FROM LANNY J. DAVIS AND FOR SANCTIONS


Plaintiffs, by counsel and pursuant to Fed.R.Civ.P. 37, respectfully submit this Motion to Compel Documents and Further Deposition Testimony from Lanny J. Davis and for Sanctions. As grounds therefor, Plaintiffs state as follows:

MEMORANDUM OF LAW


I. Introduction.


On July 30, 1998, Plaintiffs deposed Mr. Lanny Davis, Esq., a figure central to the Filegate scandal and essential to Plaintiffs' discovery efforts. Mr. Davis testified during his deposition that he was hired by Clinton White House Counsel's office and worked closely with that office during his tenure as Special Counsel to the President. Depo. 28:20-78:8 (transcript attached as Exhibit 1). This office, which helped to orchestrate the unlawful transfer of hundreds of FBI files, is the very situs of events giving rise to much of Plaintiffs' claims. In remarks made after her grand jury testimony, Ms. Linda Tripp, who worked at the White House Counsel's Office while Mr. Davis was acting as Special Counsel to the President, implicated the White House Counsel's Office in a continuing course of unlawful conduct:


As a result of simply trying to earn a living, I became aware between 1993 and 1997 of actions by high government officials that may have been against the law. For that period of nearly five years, the things I witnessed concerning several different subjects made me increasingly fearful that this information was dangerous, very dangerous to possess.

See "Text of Linda Tripp's Remarks," reprinted in The Washington Post, Wednesday, July 29, 1998, attached as Exhibit 2. In particular, it has been reported that Ms. Tripp witnessed a White House Counsel secretary loading up "handtrucks of FBI files" on a computer. See "Tripp: Telling the Truth's Very Easy," New York Post, July 1, 1998, attached as Exhibit 3.

Mr. Davis, in his role as Special Counsel to the President in the White House Counsel's Office, undoubtedly had access to this and other information relating to Filegate. As announced by White House Press Secretary Mike McCurry, Mr. Davis was "hired to serve as a press spokesman on certain legal issues, including those related to the Whitewater and travel office investigations," a precursor to the Filegate scandal. See White House Press Release dated November 1, 1996, attached as Exhibit 4. Because Mr. Davis worked as a public spokesman for such scandals, it was the very nature of his job to obtain all the facts pertaining to these scandals. Not only did Mr. Davis serve as a spokesman during the Filegate scandal, but he also commented on Filegate both before and after his tenure as Special Counsel. Thus, given his role as a public spokesman and his placement inside the Clinton White House Counsel's Office, Mr. Davis undoubtedly possesses knowledge of the unlawful misuse of government files by the Clinton Administration.

Not only does Mr. Davis possess information pertaining to the unlawful misuse of government files, but it is evident from his own testimony that Mr. Davis has participated in a continuing violation of the Privacy Act by the Clinton Administration. Specifically, Mr. Davis' own testimony shows, at the very least, that he unlawfully maintained a system of records on notable Clinton adversaries without fulfilling the proper notice requirements as mandated by the Privacy Act. It is for these reasons that Plaintiffs now seek to compel Mr. Davis to produce these and related documents and to provide further deposition testimony regarding his tenure at the White House Counsel's Office.

II. Legal and Factual Background.


The protections afforded by the Privacy Act take effect whenever a federal agency maintains a "system of records" containing information on individuals "from which information is retrieved by the name of the individual or by some identifying number, symbol or other identifying particular assigned to the individual." 5 U.S.C. 552a(a)(5). See also Plaintiffs' Motion to Compel Further Deposition Testimony of Terry W. Good and for Sanctions, filed August 5, 1998. Importantly, agencies must "maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President." 5 U.S.C. 552a(e)(1). They must also maintain only information that is accurate, timely and complete. 5 U.S.C. 552a(e)(1).(1)

Each agency maintaining records on individuals must publish, at least annually in the Federal Register, notice of the existence of each system of records it maintains. 5 U.S.C. 552a(e)(4). There is to be no disclosure of any record about individuals maintained in such a system of records "except pursuant to a written request by, or with the prior written consent of," the subject. 5 U.S.C. 552a(b).(2) There are limited exceptions to this general rule of non-disclosure, such as the "routine use" exception. 5 U.S.C. 552a(7). Yet each type of routine use must be published at least annually in the Federal Register, and agencies are required to keep an accounting of such disclosures. 5 U.S.C. 552a(e)(4)(D); 5 U.S.C. 552a(c).

For those who violate these provisions, the Privacy Act provides civil and criminal sanctions. Any officer or employee who willfully discloses subject material in any manner to a person or agency not entitled to receive it shall be guilty of a misdemeanor and fined not more than $5,000. 5 U.S.C. 552a(i)(1). Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) also shall be guilty of a misdemeanor and fined not more than $5,000. 5 U.S.C. 552a(i)(2).

On July 30, 1998, Plaintiffs deposed Mr. Lanny Davis, Esq., former Special Counsel to the President. At his deposition, Mr. Davis admitted that during his tenure at the Clinton White House, he personally maintained files containing information about prominent Clinton adversaries, such as Judge Kenneth Starr, Depo. 195:6-197-15, Senator Fred Thompson, Depo. 197:16-200:2, Rep. Dan Burton, Depo. 200:5-7, Senator Henry Hyde, Depo. 216:16-217:8, Monica Lewinsky, Depo. 221:14-16, Kathleen Willey, Depo. 224:17-225:1, and David Hale, Depo. 233:19-234:3.(3) Mr. Davis also maintained files containing information about Larry Lawrence, Roger Tamraz, Doris Matsuie, Webster Hubbel, Nora and Gene Lums, John Huang, Pauline Kanchanalak, Johnny Chung, and Charlie Trie. Depo. 219:13-221:8-13; 236:2-12; 239:5-11. Many of these files were identified, either in whole or in part, by the individual's name, such as "Starr," "Monica Lewinsky," "Kathleen Willey" and "John Huang." Davis Depo. 195:14-16; 221:18-21; 224:20-225:1; 236:5-6.

Mr. Davis testified that he was "eclectic" in his judgment as to what to put in such files, and that he would generally include any document that he might need to use at some point. Davis Depo. 196:8, 12-14; 197:6-10. Such documents included public statements and stories by the media. Depo. 196:14-19. Yet Mr. Davis admitted that the media "frequently does not" publish accurate information. Depo. 256:14:20.

Mr. Davis maintained these files so that he could disseminate information to the media and thus help them write "good" and "bad" stories. Depo. 237:238:3; 204:16; 204:9-206:1; 238:14-22.(4) Yet before Mr. Davis released information from any of these files to the media, he never consulted with anyone referenced in the materials, never sought their permission, and knew of no one at the Clinton White House who did. Depo. 241:15-242:3.

III. Discussion.


A. The Court Should Compel Mr. Davis to Produce All Documents Relating to the System of Records He Unlawfully Maintained Under the Privacy Act.

It is clear from Mr. Davis' own testimony that during his tenure as Special Counsel to the President, Mr. Davis unlawfully maintained a system of records on named individuals in contravention of the Privacy Act. Many of the files maintained by Mr. Davis were identified, in whole or in part, by a person's name, including such notable Clinton adversaries as Judge Starr, Senator Thompson, Representative Burton, Senator Hyde, Monica Lewinsky, Kathleen Willey, and David Hale. Among the documents included in these files were public statements and media news stories, which Mr. Davis admitted "frequently do not" contain accurate information. Without consulting anyone referenced in these documents, Mr. Davis disseminated the information contained in these files to the media to help them write "good" and "bad" stories. Plaintiffs have searched the Federal Register, but have not been able to locate a single notice published by Defendant Executive Office of the President ("EOP") or any relevant sub-office that identifies any of the information required by the Privacy Act to be published at least annually any time a system of records is maintained. 5 U.S.C. 552a(e)(4). Not only does this failure demonstrate a complete disregard for the Privacy Act, but it likely constitutes a crime.

Mr. Davis testified that he made copies of these files when he left the Clinton White House. Depo. 217:21-218:6. Yet Mr. Davis produced no documents in response to Plaintiffs' narrowed document production requests attached to the subpoena duces tecum. Davis Depo. 82:11-14. Mr. Davis has produced a log of withheld documents in response to request numbers 3, 19, 20, 21, 27, 48, and 49, as well as objections to Plaintiffs' requests. (See Exhibits 5, 6, 7, 8 and 9, respectively.) These modified document requests clearly called for such files, and Mr. Davis' objections thereto have no merit. For example, Document Request No. 20 asks for:

Any and all records, correspondence, notes, communications or other documents concerning or relating to (i) the transfer and acquisition of the FBI files at issue in this litigation; (ii) the request for and release of, the Linda Tripp security clearance information; (iii) any instance of actual or potential obtaining and misuse of government files; (iv) any communications about these events and (v) any investigations of persons who have opposed the Clinton Administration in the media, in court proceedings or before the Grand Jury, including, but not limited to, Kenneth Starr, Larry Klayman, Linda Tripp, Kathleen Willey, Dan Burton, Senator Fred Thompson and Speaker newt Gingrich.


(See Notice of Deposition Duces Tecum, attached as Exhibit 10). Under a plain reading of this request, the system of records unlawfully maintained by Mr. Davis constitute "records, notes, communications or other documents concerning or relating to . . . (iii) any instance of actual . . . misuse of government files." Indeed, they constitute a misuse of government files and demonstrate a wholesale disregard for the Privacy Act by the Clinton White House. See also Plaintiffs' Motion to Compel Further Deposition Testimony of Terry W. Good and for Sanctions, filed August 5, 1998. The Court has already declared that information on the misuse of information in government files is relevant. See, e.g., Transcript of June 30, 1998 Hearing at 23. Consequently, Mr. Davis should be compelled to produce all documents concerning or relating to these files and/or system(s) of records he maintained during his tenure at the White House, including the records and related documents referred to in his deposition and identified on his privilege log.(5)

B. The Court Should Compel Mr. Davis to Reveal What He Was

Told Comprises the WHODB.


Mr. Davis testified that during the first few months of his tenure as Special Counsel to the President, he attended a meeting of Clinton White House counsel, during which Mr. Davis was informed of the White House computer system known as "WHODB." Depo. 251:20-353:8. Counsel for Plaintiffs inquired into what Mr. Davis was told about WHODB, yet Mr. Davis was outrageously instructed not to answer by his counsel, in direct contravention of an order by the Court:

[By Plaintiffs' Counsel]: Did anyone describe at that meeting what the WHODB computer database was?


[By Clinton Justice Department Counsel]: Objection, instruct the witness not to disclose the substance of the conversation.


[By Plaintiffs' Counsel]: There is a court order to get into what comprises the WHODB computer.


[By Clinton Justice Department Counsel]: You are not entitled to get privileged information, and I am asserting privilege over that.


[By Plaintiffs' Counsel]: If you want it from a lawyer it is privileged?


[By Clinton Justice Department Counsel]: I am asserting a privilege.


[By Plaintiffs' Counsel]: If you have a conversation with a lawyer, it is okay not to reveal it?


[By Clinton Justice Department Counsel]: The judge asked that we not engage in argument during these depositions. I am trying no to.


[By Plaintiffs' Counsel]: I am not asking for legal advice. I am asking for facts about what comprises the WHODB computer, and the Court ruled we are entitled to that.

[By Clinton Justice Department Counsel]: I instructed the witness. That is the end of it.


Depo. 354:16-355:20. Clinton Justice Department counsel subsequently identified the basis of the privilege as "attorney-client privilege, presidential communications privilege and potentially work product privilege." Depo. 358:5-9.

It baffles the imagination to discern how the Clinton Justice Department could legitimately invoke any of these privileges. The attorney-client privilege extends to communications between a lawyer and his or her client for the purpose of securing legal advice. In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir. 1992). Clearly, Mr. Davis was not a client at the White House Counsel's staff meeting, nor was he there to secure legal advice. Similarly, there is no discernable nexus between being informed of WHODB and the work product of an attorney in the anticipation of litigation, so the work-product privilege clearly does not apply. And finally, as this Court has stated in it May 28, 1998 Memorandum Opinion, the Court will not consider claims of executive privilege without an "express invocation of the privilege by the President . . . ." May 28, 1998 Memorandum Opinion, at 46 n. 6. No such formal invocation was made. As Plaintiffs' counsel made clear at the deposition, the question was simply designed to elicit factual information which may constitute an admission by Defendant EOP. Depo. 357:2-358:1. Plaintiffs are entitled to discover what WHODB is and to determine whether statements made about WHODB to Mr. Davis contradict his own understanding of WHODB. Consequently, the Court should put aside the spurious objections asserted by Clinton Department of Justice counsel and compel Mr. Davis to answer this and other related questions.


C. The Court Should Compel Mr. Davis to Reveal What He Was

Told His Duties and Responsibilities Were.


At the beginning of Mr. Davis' deposition, Plaintiffs sought important background information regarding what Mr. Davis was told his duties and responsibilities were as Special Counsel to the President. It is clear that such routine testimony is essential to lay a proper foundation for questions relating to his role as Special Counsel to the President. Yet the Clinton Justice Department, in an obvious effort to hinder Plaintiffs' discovery, sought to invoke an executive privilege to such basic testimony:

[By Plaintiffs' Counsel]: Did there come a point in time when someone explained to you what the duties and responsibilities of special counsel to the President would be?


[By Mr. Davis]: Yes.


* * *


[By Plaintiffs' Counsel]: How is it that you learned that that job was open?


[By Mr. Davis]: I didn't' learn it was open specifically.


[By Plaintiffs' Counsel]: Did someone contact you?


[By Mr. Davis]: Yes.

[By Plaintiffs' Counsel]: Who?


[By Mr. Davis]: Mr. Quinn.


[By Plaintiffs' Counsel]: What did he say to you at the time?


[By Clinton Justice Department Counsel]: Objection. He is not going to testify as to his conversation with Mr. Quinn, except if he wants to testify as to whether it was about the obtaining or misuse of government files.


[By Plaintiffs' Counsel]: To discuss what his duties and responsibilities were?


[By Clinton Justice Department Counsel]: That's right. The Court has already ruled on that question that it wasn't relevant. You asked the same question with respect to Mr. Begala and how he obtained his job.


[By Plaintiffs' Counsel]: It is a different circumstance. He wasn't with the government at the time. That was with regard to presidential communication.


[By Clinton Justice Department Counsel]: It is also a presidential communication.


[By Plaintiffs' Counsel]: You claimed executive privilege on--not that it was sustained--it was another basis that the Court made its ruling. I am just trying to get background information. That is a bizarre objection.


[By Clinton Justice Department Counsel]: I don't' think it is a bizarre objection.


[By Plaintiffs' Counsel]: I am not allowed to find out what you have been told as to what this witness' duties and responsibilities are?


[By Clinton Justice Department Counsel]: He can describe what his duties and responsibilities were, but he is not going to tell you specifically his conversation with Jack Quinn.


[By Plaintiffs' Counsel]: I asked a specific question about duties and responsibility.


[By Clinton Justice Department Counsel]: My recollection of the question was what the discussion was.


[By Plaintiffs' Counsel]: What were you told by Jack Quinn in terms of what your duties and responsibilities would be?


[By Mr. Davis' Counsel]: There is an outstanding objection on the table, and I believe there is an instruction to the witness not to answer with respect to privilege. That was precisely to the question that you just asked, Mr. Klayman. You have asked that question twice now. It has been objected to twice now.


[By Clinton Justice Department Counsel]: He can answer the question with respect to duties and responsibilities.


[By Plaintiffs' Counsel]: I will ask that this be certified. We will undoubtedly going to have to go down to the Court at some point today. We will make a list of these various questions, so I don't have to bother the judge over and over again.


Depo. 29:1-32:10. It is clear from the record that the invocation of executive privilege to cloak a conversation between Clinton White House counsel and Mr. Davis on such a basic point as his duties and responsibilities was completely unjustified. Indeed, the Court noted in its May 28, 1998 Memorandum Opinion that without "an express invocation of the privilege by the President in the future, the court will not consider additional claims of this privilege." May 28, 1998 Memorandum Opinion, at 46 n. 6. Consequently, Mr. Davis should be compelled to reveal what Mr. Quinn and others told him his duties and responsibilities were as Special Counsel to the President, as well as any related questions.

It is important to note that Clinton Justice Department counsel's spurious objections relating to the WHODB and Mr. Davis' duties and responsibilities are consistent with other attempts to unreasonably and vexatiously multiply the costs associated with Mr. Davis' deposition and to "run down the clock" so as to minimize the amount of Mr. Davis testimony. For example, in an attempt to seek additional background information regarding Mr. Davis' duties and responsibilities as Special Counsel to the President, Plaintiffs inquired into the process by which Mr. Davis would obtain authorization to appear on television to address certain issues. Clinton Justice Department Counsel wasted much time in arguing that Plaintiffs were not entitled to such foundational testimony. See Depo. 53:5-59:17. Amazingly, Clinton Justice Department invoked the work product privilege in an attempt to prevent such foundational testimony and run down the clock:

[By Clinton Justice Department Counsel]: He described generally, and I have allowed him to answer questions generally, about who he words with and his duties and responsibilities. But the specific workings and work product of the counsel's office, I am going to instruct him not to answer, including the question about on specific issues, how he would obtain approval or requests to appear on television shows. So instruct the witness not to answer.


[By Plaintiffs' Counsel]: Are you saying that to obtain approval to say something publicly is part of a work product privilege?


[By Clinton Justice Department Counsel]: Yes.


[By Plaintiffs' Counsel]: That is in anticipation of litigation?


[By Clinton Justice Department Counsel]: Yes.


Depo. 65:7-68:3. Once again, it is clear from the record that an invocation of this privilege, that is meant to protect an attorney's confidential work product in anticipation of litigation, is wholly unjustified. Clinton Justice Department counsel admits as much when, after running down much of the clock with this line of argument, withdrew the objection altogether. Depo. 76:11-19.


D. An Award of Attorneys Fees and Costs is Appropriate.


As this Court held in its July 10, 1998 Memorandum Opinion concerning Plaintiffs' motion to compel further testimony from Mr. Clifford Bernath, an award of attorneys' fees and costs is warranted under Fed.R.Civ.P. 37(d) where opposition to a motion is not substantially justified. July 10, 1998 Memorandum Opinion at 42-43. Plaintiffs respectfully submit that the objections raised by the Clinton Justice Department in direct violation of a Court order permitting discovery pertaining to WHODB were not substantially justified when raised and cannot be substantially justified in their opposition. Plaintiffs also respectfully submit that Mr. Davis' refusal to produce relevant documents, and all of the spurious objections raised by Clinton Justice Department counsel, unreasonably and vexatiously multiplied the costs of these proceedings to Plaintiffs such that an award of attorneys fees and costs is warranted under 28 U.S.C. 1927 and the Court's inherent powers.

WHEREFORE, Plaintiffs respectfully request that the Court compel Mr. Davis to provide the documents identified in his privilege log and be redeposed so that he may provide complete and accurate responses to Plaintiffs' questions relating to the WHODB and what he was told as to his duties and responsibilities as Special Counsel to the President. In addition, Plaintiffs also respectfully request that Clinton Justice Department's and Mr. Davis' counsel be sanctioned by requiring them to pay the attorneys' fees and costs Plaintiffs were forced to incur in preparing this motion and the attorneys' fees and costs whey will be forced to incur in retaking Mr. Davis's deposition, as well as any other relief the Court deems just and proper.




Respectfully submitted,





________________________

Larry Klayman, Esq.

DC Bar No. 334581




JUDICIAL WATCH, INC.

501 School Street, S.W., Suite 725

Washington, D.C. 20024

(202) 646-5172


Attorneys for Plaintiffs


LOCAL RULE 108(m) CERTIFICATE OF COUNSEL


I certify that on September 9, 1998, I telephoned Timothy B. Mills, Esq., counsel for Lanny J. Davis, Esq., and informed him about Plaintiffs' Motion to Compel Documents and Further Deposition Testimony from Lanny J. Davis and for Sanctions. Mr. Mills refused to take a position on the Motion. Rather, Mr. Mills requested a copy of Plaintiffs' Motion before filing, but would not commit to a day when he would take a position. I also contacted James Gilligan, Esq., Clinton Justice Department Counsel, and was informed that Defendants Executive Office of the President and Federal Bureau of Investigation would oppose the relief requested herein. I also contacted Paul Gaffney, Esq., counsel for Defendant Hillary Rodham Clinton, who also opposed Plaintiffs' Motion.


____________________

Kevin T. Pogoda, Esq.


CERTIFICATE OF SERVICE


I hereby certify that on September 23, 1998 a true and correct copy of the foregoing Plaintiffs' Motion to Compel Documents and Further Deposition Testimony from Lanny J. Davis and for Sanctions was served via first-class mail, postage prepaid, to the following:


Attorneys for Lanny J. Davis, Esq.:


Timothy B. Mills, Esq.

Patton, Boggs, L.L.P.

2550 M Street, N.W.

Washington, D.C. 20037-1350


Attorneys for Defendants Federal Bureau of Investigation and Executive

Office of the President:

James J. Gilligan, Esq.

Elizabeth Shapiro, Esq.

U.S. DEPARTMENT OF JUSTICE

P.O. Box 883

901 E Street, N.W., 9th Floor

Washington, DC 20044


Attorneys for Defendant Hillary Rodham Clinton:


David E. Kendall, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005








_______________________

Kevin T. Pogoda, Esq.




IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA


CONSOLIDATED ACTIONS

Civil Action Nos.

96-2123/97-1288 (RCL)

 

CARA ALEXANDER, et al.,

Plaintiffs,

 

v.

FEDERAL BUREAU OF

INVESTIGATION, et al.,

Defendants.

____________________________________




[PLAINTIFFS' PROPOSED] ORDER


Upon consideration of Plaintiffs' Motion to Compel Documents and Further Deposition Testimony from Lanny J. Davis and for Sanctions, any opposition thereto and the entire record herein, it is hereby ORDERED that:

1. The motion is Granted;

2. Lanny Davis shall produce, within ten (10) days of this Order, the documents identified in his privilege log, as well as all documents concerning or relating to the files and/or system(s) of records he maintained during his tenure at the White House;

3. Mr. Davis shall appear for deposition at the offices of the Plaintiffs within fifteen (15) days of this Order;

4. Mr. Davis shall provide answers to the questions, relating to WHODB and his duties and responsibilities as Special Counsel, he was instructed not to answer during his July 30, 1998 deposition, as well as any related questions, and shall testify to the full and complete extent of his knowledge; and

5. Plaintiffs are entitled to an award of attorneys fees and costs incurred in filing their motion to compel and in continuing the deposition of Mr. Davis, as well as other relief to be determined by the Court upon submission of an itemized, verified statement by Plaintiffs of the attorneys fees and costs they have incurred.

DONE AND ORDERED this ___ day of ___________, 1998 in the District of Columbia.

___________________________

Hon. Royce C. Lamberth

United States District Judge

Copies to:


Attorneys for Plaintiffs:

Larry Klayman, Esq.

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 725

Washington, D.C. 20024

Attorneys for Lanny J. Davis, Esq.:


Timothy B. Mills, Esq.

Patton, Boggs, L.L.P.

2550 M Street, N.W.

Washington, D.C. 20037-1350


Attorneys for Defendants Federal Bureau of Investigation and Executive

Office of the President:

James J. Gilligan, Esq.

Elizabeth Shapiro, Esq.

U.S. DEPARTMENT OF JUSTICE

P.O. Box 883

901 E Street, N.W., 9th Floor

Washington, DC 20044


Attorneys for Defendant Hillary Rodham Clinton:


David E. Kendall, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005

CERTIFICATE OF SERVICE


I hereby certify that on September 23, 1998 a true and correct copy of the foregoing [Plaintiffs' Proposed] Order was served via first class mail, postage prepaid, on the following:


Attorneys for Lanny J. Davis, Esq.:


Timothy B. Mills, Esq.

Patton, Boggs, L.L.P.

2550 M Street, N.W.

Washington, D.C. 20037-1350


Attorneys for Defendants Federal Bureau of Investigation and Executive

Office of the President:

James J. Gilligan, Esq.

Elizabeth Shapiro, Esq.

U.S. DEPARTMENT OF JUSTICE

P.O. Box 883

901 E Street, N.W., 9th Floor

Washington, DC 20044


Attorneys for Defendant Hillary Rodham Clinton:


David E. Kendall, Esq.

Marcie R. Ziegler, Esq.

WILLIAMS & CONNOLLY

725 12th Street, N.W.

Washington, DC 20005






_______________________

Kevin T. Pogoda, Esq.

1. A record maintained in violation of this prohibition need not even be kept in a "system of records." Boyd v. Secretary of the Navy, 709 F.2d 684, 687 (11th Cir. 1983); Clarkson v. IRS, 678 F.2d 1368, 1373-77 (11th Cir. 1982); Albright v. United States (I), 631 F.2d 915, 918-20 (D.C. Cir. 1980).

2. Such a disclosure need not be public to be unlawful; an "intra-agency" disclosure may also violate the Privacy Act where the disclosure is made to officers or employees who have no need for the record in the performance of their official duties. Parks v. U.S. Internal Revenue Service, 618 F.2d 677, 680-81 & n. 1 (10th Cir. 1980); 5 U.S.C. 552a(b)(1).

3. Mr. Davis later acquired the help of interns to help maintain these files, which were kept in a file drawer and in a gray filing cabinet in his office. Depo. 201:22-202:21; 207:19.

4. Mr. Davis also admitted to disclosing information from Starr's file to persons inside the Clinton White House. Depo. 207:1-9.

5. Document production request 19, 21, 27 and 48 also call for the production of these documents. In part, request number 19 asks for documents relating to efforts to gather Privacy Act information about Clinton adversaries, including Starr, Willey, Burton and Thompson--all of whom Davis admits maintaining files on. Request number 21 asks for any files, removed from the premises of the United States, relating to the misuse of government files and any investigations of persons who have opposed the Clinton Administration in the media. Mr. Davis admits that upon leaving the White House, he took away a copy of the files he maintained on individuals specified in his deposition, many of whom are notable Clinton adversaries. Request number 27 asks for information similar to request number 20 (quoted above), but specifically asks for material provided to the media. Mr. Davis has admitted to maintaining his system of records for the benefit of the media. Request number 48 is again similar to request number 20, but asks for documents concerning the misuse of government files as to specific individuals, some of whom Mr. Davis admitted to maintaining files on.