IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARA LESLIE ALEXANDER, et al., )
)
Plaintiffs, )
)
v. ) Civil Action Nos.
) 96-2123/97-1288 (RCL)
FEDERAL
BUREAU OF )
INVESTIGATION,
et al., )
) CONSOLIDATED
ACTIONS
Defendants. )
____________________________________)
)
JOHN
MICHAEL GRIMLEY, et al., )
)
Plaintiffs, )
)
v. )
)
FEDERAL
BUREAU OF )
INVESTIGATION,
et al., )
)
Defendants. )
____________________________________)
PLAINTIFFS’
PROPOSED FINDINGS OF FACT
Plaintiffs
respectfully submit the attached Proposed Findings of Fact concerning the
evidentiary hearing on obstruction, perjury, and threats concerning
non-produced e-mail of the Clinton-Gore White House.
A. The
Automated Records Management System Was Created By Daniel Barry and John
Podesta to Help Records Manage Clinton-Gore White House E-Mail.
B. Court
Allows Discovery In Filegate, And Clinton-Gore White House Obstruction Begins.
C. Clinton-Gore
White House Obstructs E-mail Discovery with False Barry Testimony About
Reliability of ARMS System.
D. Daniel
Barry -- The Key Man in Clinton-Gore White House E-Mail Searches and Coverup.
E. Barry
Discovers Mail2 Problem in Midst of Lewinsky Crisis.
F. Barry,
Clinton-Gore Administration Lawyers Prepare and Submit False Testimony.
G. Court
Unknowingly Relied on False Clinton-Gore White House Testimony In Planning
E-mail Discovery.
H. Mail2
Problem “Rediscovered” In May/June 1998.
I. To
Keep the E-mail Hidden from the Court, the Office of Independent Counsel, and
Congress, Clinton-Gore White House Officials Threatened Northrop Grumman
Contractors.
J. Clinton-Gore
White House Threats Obstructed Court’s Processes and Testimony of Witnesses.
K. As
a Result of the Threats and Fraudulent Secrecy Requirements Imposed on Some Who
Knew about the Mail2 Problem, E-mail Evidence Was Lost Forever.
L. Daniel
Barry and Clinton-Gore Justice Department Lawyers Present False Deposition
Testimony to This Court.
M. Top
Clinton-Gore White House and Justice Department Officials Knew of Mail2 But Did
Nothing to Correct the Problem or Alert the Court and Other Proper Authorities.
N. Failures
of Memory, Contradictory Testimony By Clinton-Gore White House Lawyers Belie
Claims of Good Faith Concerning E-mail Scandal.
O. The
Fact That Lower Level Clinton-Gore White House Employees and Contractors Knew
of Mail2’s Continuing Impact on Document Production, Shows Top Officials and
Lawyers Knew As Well.
P. Plaintiffs
Repeatedly Put Clinton-Gore White House and Department of Justice on Notice
Concerning Mail2.
Q. Northrop
Grumman Officials and Their Counsel Were Notified of the Threats, Obstruction
of Justice, And Worked With The
Clinton-Gore White House To Coverup These Ongoing Crimes
R. Despite
Warnings from Plaintiffs and Others about Mail2, Clinton-Gore White House
Continued to Present False Testimony and Withhold Information from the Court,
Congress, and the Office of Independent Counsel.
S. Despite
Being on Notice, Barry, Clinton-Gore White House, and Justice Department
Continue to Obstruct Justice and Commit Perjury By Filing An Additional False
Declaration With This Court.
T. Clinton-Gore White House Lied To Court
About Hillary Clinton’s E-mail.
U. Whistleblowers
Expose Clinton-Gore White House’s Obstruction of Justice, False Testimony.
V. Obstruction
of Justice Continues.
W. The
President and Mrs. Clinton Must Have Known of the E-Mail Coverup.
A. The Automated Records
Management System Was Created By Daniel Barry and John Podesta to Help
Records Manage Clinton-Gore White House E-Mail.
1.
Daniel “Tony”
Barry (hereinafter “Barry”) was hired by the Office of Administration
(hereinafter “OA”) as a computer specialist in the Information and Systems
Technology Division (hereinafter “IS&T” or “IS&T Division”). See E-mail Hearing Testimony of
Daniel Barry (hereinafter “Barry Testimony”), August 3, 2000 Tr. at 24, 32-33.
2.
In 1993, Barry
reviewed the ruling and agreements in Armstrong v. EOP, requiring
the Executive Office of the President (hereinafter “Clinton-Gore White House”
or “EOP”) to put an electronic records management system in place. See Barry Testimony, August 3, 2000
Tr. at 33-34.
3.
John Podesta,
who is now White House Chief of Staff,
helped design and implement the ARMS system and was heavily involved in
negotiating the settlement of the Armstrong litigation. See
E-mail Hearing Testimony of John Podesta Testimony (hereinafter “Podesta Testimony”),
October 10, 2000 Tr. at 11-16. See
also E-mail Hearing Testimony of Jason Baron (hereinafter “Baron Testimony”)
August 31, 2000 Tr. at 33-34.
4.
Podesta
recommended the filing of false court declarations with a federal court in the Armstrong
litigation. See Hearing Exhibit
(hereinafter “H. Ex.”) 86, Declaration of Jane Weaver at ¶5.
5.
John Podesta
had been active in the management of the Armstrong litigation and
formulating guidelines for storing electronic records pursuant to the
Presidential Records Act. He worked
with Jason Baron, Esquire in the Justice Department who was handling the Armstrong
case. See Podesta Testimony,
October 10, 2000 Tr. at 11-13.
6.
Podesta
participated in the coordination of efforts to develop a more sophisticated
system for the archival of e-mail.
These efforts resulted in the development of the ARMS system. See
Podesta Testimony, October 10, 2000 Tr. at 13.
7.
This system was
designed to receive and archive electronic messages and was required by both
the Presidential Records Act and the Federal Records Act. See Barry Testimony, August 3, 2000
Tr. at 45-46.
8.
In the middle
of 1993, after reviewing information on the legal ruling in Armstrong v. EOP,
Barry wrote a functional requirements document for what became the Clinton-Gore
White House’s Automated Records Management System (hereinafter “ARMS” or “ARMS
system”), which he presented to OA Counsel for review. See Barry Testimony, August 3, 2000
Tr. at 33, 48-49.
9.
After receiving
approval for the concept, Barry began development of ARMS. ARMS began operation in July, 1994. See Barry Testimony, August 3, 2000
Tr. at 34.
10.
Barry
conceived, designed, developed, wrote, implemented and tested ARMS, and
currently manages ARMS. By his own
admission, he is the most expert person to talk to about ARMS. See Barry Testimony, August 3, 2000
Tr.
11.
ARMS stores
three types of records: electronic mail (hereinafter “e-mail”), calendars and
pagers. See Barry Testimony,
August 3, 2000 Tr. at 42.
12.
At the time
that ARMS became operational, the Clinton-Gore White House was using the
All-in-One e-mail system. In 1997 the Clinton-Gore White House
converted from the All-in-One e-mail system to the Lotus Notes e-mail
system. At the same time, a separate
software program, known as the Notes ARMS Interface was developed which allowed
Lotus Notes e-mails to be communicated to and stored on ARMS. See Barry Testimony, August 3, 2000
Tr. at 43.
B. Court
Allows Discovery In Filegate, And White House Obstruction Begins.
13.
In its Memorandum Opinion and Order of June 12, 1997, this Court deferred ruling on
Plaintiffs’ Motion for Class Certification until Plaintiffs had had an
opportunity to take discovery. See Memorandum Opinion, June 12, 1997, at
1.
14.
In order to
investigate Rule 23(a) requirements of commonality, numerosity, typicality of
claims, and adequacy of representation, this Court allowed discovery as to
Plaintiffs’ Privacy Act claims (Id. at 7-8, 14-15), the substitution of
the United States for defendants Nussbaum, Livingstone, and Marceca (Id.
at 18), and the definition of classes and subclasses for certification which
was to include how files were improperly acquired by the Clinton-Gore White
House Id. at 19-21.
15.
On August 12,
1997, this Court granted Plaintiffs an initial six months in which to complete
all discovery relating to class certification and scope of employment
issues. See Memorandum Opinion,
August 12, 1997, at 1.
16.
The Court also
provided for “an additional period of discovery” after resolution of the class
certification and substitution issues. Id. at
2.
17.
Plaintiffs
filed their First Request for Production of Documents on October 9, 1997.
18.
On November 10,
1997, the Clinton-Gore White House produced documents in response to this First
Request for Production.
19.
Among the
documents the Clinton-Gore White House purportedly searched to respond to the
First Request for Production were documents produced to the Office of
Independent Counsel for its Filegate investigation. These documents included Clinton-Gore White House e-mail produced
by Daniel “Tony” Barry (hereinafter referred to as “Barry”). See Barry Testimony, August 21, 2000
Tr. at 36-39; see also March 4, 1999 Declaration of Sally Paxton at ¶3,
attached as Exhibit B to Motion by Executive Office of the President For a
Protective Order, H. Ex. 19.
20.
During a status
conference on December 19, 1997, the Court sharply rebuked the Clinton-Gore
White House for attempting to engage it what it described as “rolling
production” of documents by which it purported to produce documents to
Plaintiffs as they located them. See
Transcript of December 19, 1997 Status Call at 6-9.
C. Clinton-Gore White House
Obstructs E-mail Discovery with False Barry Testimony About Reliability of
ARMS System.
21.
At a January
13, 1998 status conference, Clinton-Gore Justice Department lawyer James
Gilligan represented that e-mail after July 1994 was being records managed
properly. See January 13, 1998
Transcript at 55.
22.
On January 16,
1998, Plaintiffs served a Rule 30(b)(6) Notice of Deposition on the
Clinton-Gore White House concerning “the system of files maintained and other
things...including electronic mail...” Notice of Rule 30 (b)(6) Deposition at 1.
23.
Searching
e-mails related to persons who were involved in or had made allegations
regarding the many scandals of the Clinton-Gore White House was a routine task
frequently assigned to Daniel Barry by White House Counsel. See Barry Testimony, August 21, 2000
Tr. at 31, 81, 111, 112, 116.
24.
The ARMS system
was used to perform these searches. See Barry Declaration of July 9,
2000 (H. Ex. 42).
25.
Barry testified
that “everybody” at the Clinton-Gore White House knew ARMS was not capturing
e-mail properly. See Barry
Testimony, August 3, 2000 Transcript at 150.
26.
In addition to
the Mail2 and Letter D “problems” (described below) which were kept from this
Court, numerous other material failures by ARMS to records manage e-mail were
also kept hidden from it. Exhibit 64
from the evidentiary hearing shows the massive scope of the ARMS system
failures. In this exhibit, which
contains over five-hundred pages and is labeled “Barry E-mails Documenting
Problems with the Notes/ARMS interface Back to 1996,” e-mail specialist Daniel
Barry documents exhaustively several persistent problems with the ARMS
system. See generally H.
Ex. 64.
27.
Barry
documented these problems in hundreds of e-mails to his superiors and
colleagues (including OA Counsel). See,
e.g., H. Ex. 64 at E-2355-2366, E-2422-2423, and E‑2441.
28.
Barry knew, at
least as early as February 27, 1996, that the “interface” which allowed ARMS to
records manage e-mail “was not robust enough for a production environment. It is going to need redesign to make it
so.” See H. Ex. 64 at E-2123.
29.
Barry
acknowledged on September 13, 2000 the loss of 3,000 e-mails from the
Clinton-Gore White House computer systems.
See H. Ex. 64 at E-2197.
30.
In 1997, there was a loss of 10,000 e-mails from the
Clinton-Gore White House computer systems.
See H. Ex. 64 at E-2234, E-2301; see also H. Ex. 9-17.
31.
Barry still
cannot account for these missing e-mails.
See Barry Testimony, August 3, 2000 Tr. at 55.
32.
The Court did
not become aware and was never advised by the Clinton-Gore White House of these
10,000 lost e-mail until the subject evidentiary hearing. Id. at 55-56.
33.
Barry and the
Clinton-Gore White House had knowledge that ARMS, as early as August 28, 1997,
failed to properly place e-mail in proper agency “buckets.” See, e.g., H. Ex. 64 at E-2152-2155, E-2162, E-2200,
E-2402-03, and E-2410-2411; see also
H. Ex. 9-21; E-mail Hearing Testimony of Kathleen Gallant (hereinafter
“Gallant Testimony”), August 1, 2000 Tr. at 154-57.
34.
ARMS failed to
capture material information such as whether a particular document was read or
unread by an e-mail recipient and any users to whom an e-mail was “blind carbon
copied.” The Clinton-Gore White House
even knew that ARMS failed to capture the text of certain e-mail messages. See H. Ex. 64-E-2152-2155, 9-35,
Barry Testimony, August 21, 2000 Hearing Transcript at 27-29.
35.
ARMS also
failed to records manage the Office of the Vice President’s e-mail. See H. Ex. 64 at E-2134.
36.
Plaintiffs had
never excluded the Office of the Vice President’s e-mail from any document
request. (It was not until June 5,
2000, that the Court ruled that Plaintiffs could not have access to Vice
Presidential e-mail which related to Filegate.
See June 5, 2000 Memorandum Opinion at 35-36. In response to the Court-ordered search of
the non-records managed e-mail, the Clinton-Gore White House produced one
e-mail which showed that staff in the Vice President’s office received
information about the Filegate scandal.)
37.
The President’s
Assistant for Management and Administration, Mark Lindsay, admitted that
generally the entire Clinton-Gore White House computer system (which would
necessarily include ARMS) was a nightmare.
See E-mail Hearing Testimony of Mark Lindsay (hereinafter “Lindsay
Testimony”), August 23, 2000 Tr. at 152-153.
38.
In 1997, Howard
“Chip” Sparks, a computer specialist at the Clinton-Gore White House,
complained to his colleague Barry and many others in OA about the failure of
ARMS to capture e-mails – and the resulting negative impact on searching for
document requests. See E-mail
Hearing Testimony of Howard Sparks (hereinafter “Sparks Testimony”), August 16,
2000 Tr. at 71-78.
39.
Barry
acknowledged that he had a conversation with Sparks about the fact that ARMS
did not contain certain e-mail information that it should have. See Barry Testimony, August 21, 2000
Tr. at 26-29.
40.
Barry
acknowledged to the Court that ARMS does not contain certain e-mail information
that it should have. Id.
41.
Barry
acknowledged that he did not tell the Court that ARMS did not contain certain
e-mail information that it should have.
See Barry Testimony, August 21, 2000 Tr. at 29.
42.
Based on the
volume of the evidence, it is inconceivable that Clinton-Gore White House
Counsel and their Department of Justice lawyers in this case were not informed
about and did not have know of the substantial problems with ARMS, particularly
since they consulted with Barry and others for lengthy periods. See infra.
D. Daniel Barry -- The Key
Man in Clinton-Gore White House E-Mail Searches and Coverup.
43.
Barry conducted
searches for all of Harold Ickes’ schedules at the request of Dimitri Nionakis,
Associate Counsel to the President; concerning Karl Racine and Bruce Overton at
the request of Mike Imbroscio;
concerning Bayonne Nevis at the request of Michelle Peterson (hereinafter
referred to as “Peterson”); concerning Monica Lewinsky at the request of
Peterson for Robert Bennett; concerning the Lippo Group, James Riady, and James
Woods; concerning United States Congressman Bob Barr at the request of
Peterson; and concerning Dennis Sculimbrene at the request of Dimitri
Nionakis. See Barry Testimony,
August 21, 2000 Tr. at 31, 81, 111, 112, 116; H. Ex.40-2878, 40-2879, 40-2899,
40-2907, 40-2911, 40-2912, 40-3050, 40-3055, and 40-3111.
44.
Barry was even
contacted regarding searches pertaining to the Alexander case in
December, 1997 by Sally Paxton, Special Associate Counsel in the Clinton-Gore
White House Counsel’s Office and Kate Anderson of the OA Counsel’s Office
because “[w]hen there was a search for document requests in lawsuits or
Congress or Independent Counsel, [Daniel Barry was] the person people went to
with regard to [ARMS and] e-mail [archived on ARMS].” See Barry Testimony, August 21, 2000 Tr. at 36-39; H.
Ex.40-2869.
45.
Barry also met
with Sally Paxton and James Gilligan regarding e-mail searches on ARMS for this
Alexander case in December 1997.
See Barry Testimony, August 21, 2000 Tr. at 39-40; H. Ex.40-2872.
E. Barry
Discovers Mail2 Problem in Midst of Lewinsky Crisis.
46.
In January of
1998, shortly after the Monica Lewinsky scandal broke, Barry was contacted by
Mike Imbroscio, an attorney in the Clinton-Gore White House Counsel’s
Office. See Barry Testimony,
August 3, 2000 Tr. at 56-58.
47.
The
Clinton-Gore White House knew that if the Lewinsky scandal were true, with its
underlying allegations of Bill Clinton’s affair with an intern, perjury,
witness tampering, and obstruction of justice were true, it could be the end of
the Clinton presidency.
48.
Imbroscio
instructed Barry to search the e-mail accounts of Betty Currie, Nancy Heinrich,
and others from between December, 1995 and January 20, 1998 to and from
Lewinsky within the Clinton-Gore White House.
See Barry Testimony, August 3, 2000 Tr. at 56-58.
49.
Barry’s search
for the e-mails to and from Lewinsky was quite time consuming and was a high
priority assignment. See Barry
Testimony, August 21, 2000 Tr. at 49-50; H. Ex. 40-2880, 40-2883, 40-2879, and
40-2888.
50.
Barry spent
several long days working nights and weekends on this task. See Barry Testimony, August 21, 2000
Tr. at 49-50; H. Ex. 40-2880, 40-2883, 40-2879, and 40-2888.
51.
Barry kept
Imbroscio and Peterson informed of his progress, which was considerable. See Barry Testimony, August 21, 2000
Tr. at 49.
52.
Barry found
over 5,000 e-mails and nine boxes of responsive documents. See Barry Testimony, August 21, 2000
Tr. at 53; H. Ex. 40-2881.
53.
In the course of his search, Barry discovered
the Mail2 problem in January of 1998. See
Barry Testimony, August 3, 2000 Tr. at 56-58; H. Ex. 9-49.
54.
In January of
1998, Barry discovered that incoming e-mails from Lewinsky to Ashley Raines, a
Clinton-Gore White House e-mail user, had not been captured by ARMS, whereas
the reply e-mails from Raines to Lewinsky had been captured by ARMS. See Barry Testimony, August 21, 2000
Tr. at 42-46; H. Ex. 9-49.
55.
Working with
Northrop-Grumman contractor John Spriggs (hereinafter referred to as
“Spriggs”), Barry was able to confirm that the incoming e-mails had made their
way into the Clinton-Gore White House system, as they had made it to and
through the firewall and into the Mail2 server, but were not captured by and
stored on ARMS. See Barry
Testimony, August 21, 2000 Tr. at 42-46; H. Ex. 9-49.
56.
Barry
documented his findings in a memorandum prepared by him on or about January 30,
1998. See Barry Testimony,
August 21, 2000 Tr. at 42, 43-44, 46; H. Ex. 9-49.
57.
Barry reported
the problem to his Clinton-Gore White House supervisor Jim Wright and gave him
a copy of his report of this event. See
Barry Testimony, August 3, 2000 Tr. at 73-74.
58.
The problem
with the non-archiving of incoming e-mail which Barry and Spriggs found in
January of 1998 eventually came to be known as the Mail2 problem or Project
X. See Barry Testimony, August
21, 2000 Tr. at 54; H. Ex. 40-2882.
59.
By January of
1998, it was known by Barry and others within the Clinton-Gore White House that
there was a serious problem which caused incoming e-mail not to be captured by
and stored on ARMS and, therefore, not to be produced in response to document
requests from various sources. See
Barry Testimony, August 18, 2000 Tr. at 21-22, 64, 122-123, 171.
F. Barry,
Clinton-Gore Administration Lawyers Prepare and Submit False Testimony.
60.
Shortly after
discovering the Mail2 problem, Barry had discussions with Sally Paxton, an
attorney in the Clinton-Gore White House Counsel’s Office, Department of
Justice attorneys James Gilligan and Julia Fayngold-Covey during the
preparation of a March 4, 1998 declaration submitted in this case. See Barry Testimony, August 3, 2000
Tr. at 122-124.
61.
These
conversations were “related to searches, how searches are performed, how long
they take, what kind of searches we can do in ARMS, all related to ARMS.” See Barry Testimony, August 3, 2000
Tr. at 125.
62.
Following these
discussions, an initial draft of what became Barry’s Declaration of March 4,
1998 was prepared by the attorneys Fayngold-Covey, Gilligan, and Paxton. See Barry Testimony, August 3, 2000
Tr. at 125; H. Ex. 46.
63.
Given the
intense public interest in and the high-stakes concerning the Lewinsky scandal,
the legal ramifications of e-mail in the scandal, and the concurrent issue of
possible testimony by Barry on topic of EOP e-mail, an evidentiary inference
can be drawn that Barry discussed the Mail2 and other ARMS problems with
Paxton, Gilligan, Fayngold-Covey in the course of the preparation of the March
4, 2000 declaration.
64.
Barry did not
tell them what to put in the Declaration; instead, the attorneys “decided that
themselves” without telling Barry the reasons Plaintiffs “had requested a
30(b)(6) representative witness[.]” See Barry Testimony, August 3, 2000
Tr. at 132-133.
65.
Paragraph 11 of
the March 4, 1998 Declaration, which states “[s]ince July 14, 1991, e-mail
within EOP has been archived weekly in an on-line format that is susceptible to
being word-searched in the manner described below,” was written by the
Clinton-Gore White House and Department of Justice lawyers, not Barry. See Barry Testimony, August 3, 2000
Tr. at 144, March 4, 1998 Declaration of Daniel A. Barry at ¶11.
66.
Barry spent
thirty (30) to forty (40) hours preparing this Declaration, with the assistance
of Clinton-Gore Justice Department counsel James Gilligan and Julia Fayngold
Covey, and Clinton-Gore White House Counsel Sally Paxton. See June 11, 1998 Deposition of
Daniel A. Barry at 8; see also
Barry Testimony, August 3, 2000 Transcript at 122-24.
67.
Barry was told
“that the idea was that if I gave these written declarations that I wouldn’t
have to give a deposition.” Id.
at 122.
68.
The initial
draft of this Declaration was prepared in the White House Counsel’s Office
(without input from Barry) and then faxed by Paxton to Lindsay on February 11,
1998 with a note on the cover sheet that she would see Lindsay at 1:00
p.m. This draft was then transmitted to
Barry who made handwritten notes and changes.
See H. Ex. 46; Barry Testimony, August 3, 2000 Tr. at 132 - 136;
August 22, 2000 Tr. at 32 - 35
69.
What became
paragraph 11 in the final version of the Declaration was paragraph 6 in the
first draft. Compare H. Ex. 46,
¶6 to E-mail H. Ex. 18, ¶11.
70.
In the initial
draft, this paragraph stated “Since July 14, 1994, EOP email has been stored on
computer tapes in a format that is susceptible to a word search” (emphasis added). In the margin next to this language, Barry added the words “on
line and on tape” to clarify that the e-mail was not just on the tapes but on ARMS
as well. See H. Ex. 46 at 4,
Barry Testimony, August 22, 2000 Tr. at 35.
71.
By adding “on
line and on tape,” Barry was indicating that both ARMS and the back-up tapes
had to be searched to cover all post-July 1994 e-mail.
72.
However, since
Barry had designed ARMS to archive all EOP e-mail as required by the Armstrong
decision and the Presidential and Federal Records Act, he knew that the
reference to “on line” by itself would have been sufficient unless ARMS was not
archiving all e-mail due to an error such as Lewinsky/Mail2 problem he found in
January, 1998 and the numerous other problems ARMS had archiving e-mail. See Barry Testimony, August 3, 2000
Tr. at 33 - 34, 45 - 46; H. Ex. 9-49, H. Ex. 64.
73.
While the first
draft of Barry’s March 4, 1998 referred to “computer tapes” and Barry’s
corrections added “on line and,” the word “tapes” has been deleted from every
subsequent draft and the final version of this Declaration. See H. Exs. 18, 49, 67, 69, 70, 71,
73, 74, 75.
74.
Barry was
working closely with Lindsay and attorneys in the White House Counsel’s office
and the Department of Justice in drafting and revising this declaration. See H. Exs. 46 (Lindsay and Paxton),
49 (Paxton), 67 (Gilligan), 69 (Shapiro), and 70, 71, 73, 74, and 75 (Giles).
75.
The interaction
between Barry and these attorneys was extensive and detailed. See, e.g., H. Ex. 46 (extensive
handwritten changes by Barry) and H. Ex. 49 at 2 - 3 (February 24, 1998 e-mail
from Barry to Paxton with detailed, 2 page discussion of various changes).
76.
Barry did
discuss paragraph 11 of his March 4, 1998 with Clinton-Gore White House and
Justice Department attorneys Lindsay, Paxton, Gilligan, Shapiro, and
Giles. See H. Exs. 46 (Lindsay
and Paxton), 49 (Paxton), 67 (Gilligan), 69 (Shapiro), and 70, 71, 73, 74, and
75 (Giles).
77.
Before signing
the Declaration of March 4, 1998, Barry reviewed it thoroughly. See Barry Testimony, August 3, 2000
Tr. at 120.
78.
When Barry
signed the March 4, 1998, Barry knew that some inbound e-mail messages and many
other e-mails inside the Clinton-Gore White House were not in ARMS. See Barry Testimony, August 3, 2000
Tr. at 145, H. Ex. 9-49, H. Ex. 64.
79.
Paragraph 11 of
Barry’s March 4, 1998 Declaration is false.
The Clinton-Gore White House and its legal counsel knew it was and is
false. Lindsay Testimony, August 223,
2000 Tr. at 166 - 168.
80.
Barry also
knows this language in Paragraph 11 of his March 4, 1998 Declaration, also used
in Paragraph 4 of Barry’s July 9, 1999 declaration, is false. Barry says he was pressured Paxton to sign
this false document.. Heissner
Testimony, August 15, 2000 Tr. at 101 - 102;
see also H. Ex. 39-1 051639-40, 051646; Paragraph 4 of Barry’s
July 9, 1999 Affidavit, H. Ex. 42
81.
The
Clinton-Gore White House filed its Motion by Executive Office of the President
for a Protective Order Quashing Plaintiffs’ Notice of Deposition and Request
for Documents Pursuant to Rule 30(b)(6) & (b)(5) on March 4, 1998
(hereinafter “Motion for 30(b)(6) Protective Order”). See H. Ex. 19.
82.
Daniel Barry’s
March 4, 1998 Declaration, and the Declaration of Sally Paxton, an attorney in
the Clinton-Gore White House Counsel’s Office, were attached to the Motion for
30(b)(6) Protective Order (as Exhibits D and B respectively) to support the
Clinton-Gore White House’s argument that its search in response to the First
Request for Production of Documents was complete, covering all potential
sources and producing all potentially relevant documents, and that an oral
deposition should not proceed. Id. at
8-11.
83.
The
Clinton-Gore White House Motion for 30(b)(6) Protective Order stated that
“[t]he declarations [from Paxton, Laura Crabtree, the Desktop Systems Branch
Chief of the IS&T Division, and Barry which were attached to the Motion]
also render unnecessary plaintiffs’ broad discovery requests regarding e-mail
and computer files.” See H. Ex.
19 at 11.
84.
By this
statement, the Clinton-Gore White House and its counsel were representing that
all information relevant to the method and completeness of the e-mail searches
that had been or were to be performed in this case was contained in the
attached Declarations, including Tony Barry’s Declaration of March
4, 1998. Obviously, they were
worried that an oral deposition would reveal the Mail2 and other e-mail
problems.
85.
On March 18,
1998, Plaintiffs filed their Opposition to the Clinton-Gore White House’s
Motion for 30(b)(6) Protective Order (hereinafter “Oppositon”).
86.
Plaintiffs’
Opposition to the Clinton-Gore White House’s Motion for 30(b)(6) Protective Order
stated that the purpose of the Rule 30(b)(6) deposition was “to find out how
personnel at the Clinton White House communicate, exchange information and
store communications and information” and “to confirm that the Clinton White
House’s e-mail, computer files and electronically-stored information were
readily accessible.” See Id. at 2, 3.
87.
A copy of this
Opposition was faxed from Sally Paxton in the White House Counsel’s Office to
Tony Barry on March 23, 1998. See
H. Ex. 48.
88.
Tony Barry then
faxed the Opposition to Mark Lindsay with a note that stated “Please
review. I will need guidance.” See H. Ex. 48.
89.
Tony Barry
confirmed in his Declaration of March 30, 1998 that he had “reviewed the
Plaintiff’s Opposition to the Executive Office of the President’s Motion for
Protective Order....” See H. Ex.
44 at 1.
90.
Paragraph 1 of
this Declaration states that “I previously provided a declaration in this case”
and paragraphs 3 and 5 refer to “[m]y previous declaration” indicating the
Barry March 4, 1998 Declaration. See
H. Ex. 44 at ¶¶ 1, 3, 5.
91. Barry March 30, 1998 Declaration fails to correct the fals