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Judicial Watch • Judicial Watch v IRS SC Complete Transcript – 7/10/14

Judicial Watch v IRS SC Complete Transcript – 7/10/14

Judicial Watch v IRS SC Complete Transcript – 7/10/14

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UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INCORPORATED, 
Plaintiff, Civil Action No. 13-1559 July 10, 2014 
INTERNAL REVENUE SERVICE, 11:10 a.m. 
Defendant. Washington, D.C.  

TRANSCRIPT STATUS CALL PROCEEDINGS BEFORE THE HONORABLE EMMET SULLIVAN UNITED STATES DISTRICT COURT JUDGE 
APPEARANCES: 
For the Plaintiff:	 Ramona Raula Cotca, Esq.JUDICIAL WATCH, IN425 Third Street, SWSuite 800 Washington, 20024
(202) 646-5172 Fax: (202) 646-5199Email: Rcotca@judicialwatch.org 
Paul Orfanedes, Esq.
JUDICIAL WATCH, INC.425 Third Street, SWSuite 800 Washington, 20024
(202) 646-5172 Fax: (202) 646-5199 

For the Defendant:	 Geoffrey John Klimas, Esq.
U.S. DEPARTMENT JUSTICE 
P.O. Box 227 Washington, 20044
(202) 307-6346 Email: Geoffrey.j.klimas@usdoj.gov 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
APPEARANCES: (Cont.) behalf the  Carmen Banerjee, Esq. 
Defendants:  U.S. DEPARTMENT JUSTICE  
Tax Division Civil Trial Section  
555 Fourth Street, 
Suite 6810  
Washington, 20001 
(202) 307-6423 
Email: Carmen.m.banerjee@usdoj.gov  
Court Reporter:  Scott Wallace, RDR, CRR 
Official Court Reporter 
Room 6503, U.S. Courthouse 
Washington, D.C. 20001 
202.354.3196  

scottlyn01@aol.com 
Proceedings reported machine shorthand, transcript producedby computer-aided transcription. 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 

MORNING SESSION, JULY 10, 2014 
(11:10 a.m.) 
THE COURTROOM CLERK: Your Honor, this Civil Action 13-1559, Judicial Watch, Inc. versus Internal Revenue Service. Will all parties please come forward and identify yourselves for the record, please. 
MS. COTCA: Good morning, Your Honor, Ramona Cotca for Judicial Watch, and Paul Orfanedes, also counsel table. 
THE COURT: Good morning you both. 
MR. KLIMAS: Good morning, Your Honor, Jeff Klimas for the defendant Internal Revenue Service. With counsel table Carmen Banerjee, also with the Department Justice, Tax Division. 
THE COURT: Good morning you both. Let hear from plaintiff's counsel. You asked for status hearing, tell why you wanted it. 
MS. COTCA: Certainly, Your Honor. The reason that submitted this motion because were alarmed the recent weeks find out this FOIA litigation, you know find out that substantial number the records that were requested part this lawsuit have apparently gone missing. were alarmed. 
THE COURT: Your request was for records from what, January 2010 the present; that right? MS. COTCA: Correct, correct, Your Honor. were alarmed 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com learn that Our request covered three-year span records, and, apparently, almost two years those records have gone missing. That's substantial
THE COURT: How did you learn that? 
MS. COTCA: learned through the news, Your Honor. didn't learn from defense counsel, and that's the second part this issue and the reason requested this status conference, because have conferred, per the Court's order January. have been engaging conversations with defense counsel during the course this litigation and never has the IRS, the defendant here, disclosed that they're missing large chunk these e-mails. 
THE COURT: Was the government under legal obligation make that disclosure? 
MS. COTCA: Well, Your Honor, is. It's substantial number the records that have that were requested and
THE COURT: Let rephrase that. 
MS. COTCA: Okay. 
THE COURT: some point, course the government under obligation, but during the requisite timeframe we're talking about, the last six months what's the timeframe that you've described being the relevant timeframe for the government's obligations disclose the fact that e-mails were missing? 
MS. COTCA: When the government found out about it, and 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
the news reports and the testimony that the IRS commissioner has provided before Congress that the government, the IRS, knew about this February. 
THE COURT: February this year? 
MS. COTCA: February this year. 
THE COURT: Right. 
MS. COTCA: That's the same time that the IRS had initially started produce documents our case here. That Two months later, April, the government had produced status report this Court with respect the progress the search and the production this case. 
THE COURT: All right. either February April, was the government under some legal obligation say the plaintiff, just discovered that some e-mails are missing? And so, what does that legal obligation come from? 
MS. COTCA: Well, the legal obligation, Your Honor, comes from the fact that they have conduct search that reasonably calculated discover and uncover all relevant information. 
THE COURT: got that, have that, but I'm saying, what's the legal obligation? what point does this legal obligation, and I'm interested where this obligation springs from, what point does that require the government say, and behold, just learned that some e-mails are missing? What's the precedent for that? 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
MS. COTCA: Well, they're material questions fact here with respect the search that's being conducted, and that's the legal precedent here, because don't have any confidence that proper search being conducted. 
THE COURT: understand what you're saying, but I'm concerned about what the legal authority that would have required the government, matter law, have told you either February January some day prior today's date that there are e-mails that the government can't find? Where that legal what point does the legal obligation make that disclosure kick in? 
MS. COTCA: Well, our position that one the places where that legal obligation comes from from the Court's order that the government has provide disclosure with respect the status its search, and the fact that the IRS, the defendant here, has not disclosed that, raises serious questions that the search that they're doing inadequate. 
THE COURT: Aside from order, though, are you aware any precedent authority, any Circuit authority, District Court authority Supreme Court authority that would have required the government, matter law, say just found out that e-mails are missing? 
MS. COTCA: Your Honor, think would stand the Court's order that think
THE COURT: the Court's order
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
MS. COTCA: that the obligation
THE COURT: stand orders also. there any other authority other than order? I'm not minimizing order either, now, all right. 
MS. COTCA: understand, Your Honor, understand. 
THE COURT: But you raise interesting issue. mean, there are lot moving pieces here. understand it, and don't know everything about what's going Capitol Hill, but there Congressional inquiry going on; that correct? 
MS. COTCA: Correct, Your Honor. 
THE COURT: And don't know what representations the government has made the inquiring committee about lost e-mails. That's ongoing that ongoing
MS. COTCA: from our understanding
THE COURT: process? 
MS. COTCA: The information that have that gather from the press from listening the news that this ongoing investigation. There was TIGTA report that had come out May 2013 with respect the IRS treatment tea party's applications tea party organizations' applications the IRS, and that what prompted and that's the reason that submitted our FOIA request requesting Ms. Lois Lerner's e-mails for this timeframe, and since then there has been number investigations and hearings that have been conducted the Hill with respect the IRS and Lois Lerner's involvement with 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
respect the tea party
THE COURT: Should the Court just wait until those --until that investigation has been completed, the Congressional inquiry, since that started some time ago, think, didn't it? 
MS. COTCA: don't believe Well, our position no, the Court should not wait until
THE COURT: Because FOIA separate and apart from whatever may proceeding Capitol Hill. 
MS. COTCA: Absolutely. 
THE COURT: When you found out from news reports that the government had represented Congressional investigators that e-mails were missing, did you pick the phone and call your opposing counsel and say, Why didn't you tell this? 
MS. COTCA: Well, first what did, what personally did got online and conducted significant research understand what the news reports were all about. 
THE COURT: Did you find those e-mails? 
MS. COTCA: No, Your Honor, they're didn't find them. 
THE COURT: All right. You did some research. Did you reach out opposing counsel, though? 
MS. COTCA: Yes, did, did. 
THE COURT: Good, good. 
MS. COTCA: And opposing counsel this case had absolutely information, and this the reason stress why believe there's inadequate search being done. They weren't 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
even able identify the individuals whose computers had been crashed. They were unable provide absolutely anything, other than what the testimony was provided the IRS commissioner Congress. That shows us, Your Honor, that they have done nothing, they have not looked see who else may have been monitoring Ms. Lerner's e-mails, indeed these e-mails are missing, so, perhaps, can look somewhere else. They didn't have any those questions answered when spoke with them, and that was very troubling. 
THE COURT: Well, what that you're asking the Court do? want the record clear, there's not there's motion pending before the Court for any related it's status hearing, and read and thought was appropriate grant status hearing give the plaintiff opportunity heard and give the government chance respond. 
MS. COTCA: Right, and that was our first step, and thought this was prudent. This material information with respect this case, and that's why thought was appropriate bring before the Court for status hearing. Because and would like hear from the IRS and from the defendant what happened, what the status. 
But past that, this raises number questions, material questions fact with respect the search, would ask the Court conduct some form investigation permit some very limited discovery with respect what happened, who knows about 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
it, where are there other sources that defendant can look retrieve these e-mails, when did the government know about this? Because again, that's pertinent with respect their disclosure the Court and Judicial Watch, would very limited, but would ask for some form investigation discovery. 
THE COURT: All right. just became aware the day before yesterday that one colleagues, Judge Walton, has similar case. I'm not going say it's related within the meaning the rules because don't know that much about that case all, but just raise the question. First all, are you familiar 
with that case?  
MS. COTCA: know it, yes, Your Honor.  
THE COURT:  All right. analogous case?  
MS. COTCA:  Well, Your Honor, has with the True  

the Vote case against the IRS, it's the case that I'm thinking that's before Judge Walton tomorrow, but they have direct cause action with respect True the Vote's application, it's little bit different because that point they're the juncture motion, motion dismiss. 
THE COURT: They asked for preliminary injunctive relief. 
MS. COTCA: Correct, correct. are the process, and the reason this case different it's FOIA litigation, but we're already the process the government producing documents. 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
THE COURT: And the government producing documents. 
MS. COTCA: And the government producing documents, and the government conducting its search the records, but have serious questions the adequacy and reasonableness that search. 
THE COURT: Right. Well, the point was getting whether not under our local rules the two cases should consolidated before one judge related. And again, don't know enough about Judge Walton's case have informed opinion about that. 
MS. COTCA: Um, don't think would appropriate. 
THE COURT: try preserve judicial resources, he's pursuing the same issues, according whether not one judge should devote that judge's limited resources the issue. 
MS. COTCA: Right. And again, it's the juncture the cases that's different, and this point the government and the and the Court would permit some limited discovery with the search, there's definitely question being raised whether it's appropriate this time for that limited discovery take place. There may and believe there may question this issue the other case that's before Judge Walton, may slow down our case. 
THE COURT: the answer no, the cases aren't related then within the meaning the local rules? that what
MS. COTCA: That's what think. think would slow 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
down our case, and don't think would appropriate consolidate. 
THE COURT: Should two judges devoting significant limited resources resolve the same issue? 
MS. COTCA: know some the case, don't know 
THE COURT: don't know either.  
MS. COTCA: the details it.  
THE COURT:  Maybe I'll direct the parties address that writing, because one thing certainly would want avoid contradictory ruling issues that may relevant both cases. 
MS. COTCA: Sure. 
THE COURT: All right. Thank you. All right. I'll hear from government counsel. Good morning. 
MR. KLIMAS: Good morning, Your Honor. May please the Court. 
THE COURT: Yes. Let ask you this: Was the government under obligation the time that learned that e-mails were missing, e-mails that were arguably the subject within the scope this FOIA request, say something either the Court plaintiff? 
MR. KLIMAS: The Internal Revenue Service's position no, and it's kind two-part answer. Judicial Watch has accused the government material omission the Court, and would make two arguments, first all, that this was not 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
material the case, that was not material that had affirmative obligation disclose it; and then, secondarily, was not omission the part myself predecessor attorney this case because did not actually know about it, and I'll talk little bit about those prongs the Court would like. 
THE COURT: Well, what point does boil down when the attorney assigned case became aware that the e-mails were missing the principles that the attorney represents? What's the triggering event there? 
MR. KLIMAS: Sure. Starting with whether not this material all, the hard drive crash, Lois Lerner, occurred 2011, two years before Judicial Watch made its FOIA request. Under Supreme Court, D.C. Circuit, and D.C. District Court precedent, the IRS's obligation preserve documents and produce documents commences the time that perfected FOIA request submitted. That's May 2013. And the extent that these documents were lost, damaged, not preserved two years earlier, does not create any remedy under the FOIA and it's irrelevant under FOIA. 
THE COURT: What case are you relying for that? 
MR. KLIMAS: Yes, Your Honor. Specifically the Supreme Court Department Justice versus Tax Analysts indicated that for documents agency records subject the FOIA, quote, The agency must control the requested material the 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
time the FOIA request made." 
Similarly, the Supreme Court case Kissinger versus Reporters Committee For Freedom the Press, the Supreme Court held that, "An agency's obligation under FOIA commenced upon receipt FOIA request, end quote. "There FOIA obligation retain records prior that request." addition, that consistent with the holding the 
D.C. Circuit the case Wilbur versus CIA, 2004 D.C. Circuit case. It's consistent with the D.C. Circuit case Weisberg versus Department Justice, D.C. Circuit case from 1983. It's consistent with the holdings numerous judges within this Court the District Court level. 
For example, the late Judge Oberdorfer the case Budwar versus Department Air Force indicated that FOIA, quote, does not authorize the reconstruction documents sanctions for failure preserve them, end quote. then said that that case believed the agency had been lax failing meet its obligations preserve records that was required law reserve. However, indicated further that, the extent that was the case, that would, quote, matter for the Inspector General, the Comptroller General, and Congressional oversight committees, end quote, not matter for court adjudicating FOIA case. 
THE COURT: all right. the short answer the crash occurred before the FOIA request, and the government was 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
under obligation to, guess, retain e-mails that were the --that crashed; that right? 
MR. KLIMAS: Correct. There was crash 2011 that resulted loss information, and because that information did not exist 2013 when the request was made
THE COURT: These are just the representations counsel. Would discovery appropriate this point get the sworn testimony some individual about these allegations lost e-mails? 
MR. KLIMAS: Your Honor, there's we're talking about preservation and the IRS's obligation preserve documents, obviously the IRS under obligation preserve documents that are potentially responsive Judicial Watch's FOIA request. you would like, can talk you through the steps that the IRS has taken make sure that its obligations are fulfilled. 
THE COURT: Just answer question first. What about discovery? 
MR. KLIMAS: There think that discovery would premature and specifically inappropriate this instance, premature insofar that initial matter discovery rare exception FOIA cases. It's rarely allowed
THE COURT: Why isn't this the rare FOIA case where the government doesn't dispute that there are relevant Well, you dispute that there are relevant e-mails that have been lost the context this FOIA case? 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
MR. KLIMAS: don't think that they would agency records that the IRS would obligated could produce because they were destroyed two years the extent they were destroyed
THE COURT: But that's what you say. There's sworn declaration anyone this record. Those are just representations counsel. why isn't this the rare case where discovery would appropriate? 
MR. KLIMAS: cases where courts have found that discovery appropriate FOIA cases, its almost almost all those cases it's after the government has moved for summary judgment and then there's issue. 
THE COURT: Why should wait, though? You don't dispute that there are lost e-mails, you? 
MR. KLIMAS: Correct, certainly admit that Lois Lerner's hard drive crashed
THE COURT: why should through this process the government producing everything that wants produce can produce and then asking file motion for summary judgment and then tee Rule 56(f) year from now when the Court could order appropriate limited discovery now effort determine what was lost, how was lost, and what efforts were being made retrieve, cetera, the relevant questions? Why have wait year into that? 
MR. KLIMAS: Well, Your Honor, specifically this case, 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
the reason why believe would inappropriate and certainly spoke Ms. Cotca Ms. Cotca for the first time Tuesday about this issue, and understand that there were number questions that she wanted answers that was unable provide Tuesday, and I'm probably not better position provide answers those explanations today, but can give better explanation why cannot provide those answers. can certainly ask the IRS questions about the loss Lois Lerner's hard drive, what happened, details about that. 
THE COURT: Are just talking about one hard drive are talking about multiple employees' hard drives know? And because don't know may not know, doesn't that also give rise the propriety discovery this juncture? 
MR. KLIMAS: There's Lois Lerner's hard drive, and the commissioner the Internal Revenue has testified that there are six other hard drives. 
THE COURT: And they all crashed well? 
MR. KLIMAS: That his testimony, correct. Now, certainly
THE COURT: the same time? 
MR. KLIMAS: That's answer that cannot give, and would like explain why cannot give answer. It's certainly question that asked the Internal Revenue Service. 
THE COURT: It's relevant question. 
MR. KLIMAS: It's certainly question would like 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com  have answer today.  THE COURT:  Well, the plaintiffs would like have  answer that, too, and probably the Court, well, probably. ahead.  
MR. KLIMAS:  When spoke the IRS and asked that  question, when did these hard drives crash, whose hard drives,  was after the IRS took steps preserve the information from  those individuals?  What was told that the Inspector  General, who investigates tax matters for the IRS, the Treasury  
Inspector General for Tax Administration TIGTA has commenced investigation into this issue about the potential loss  information from hard drive malfunctions.  THE COURT:  When did the Attorney General commence that  investigation?  
MR. KLIMAS:  Not the Attorney General, the Inspector  General.  THE COURT:  I'm sorry, the Inspector General.  MR. KLIMAS:  Correct. know was ongoing least June this year.  
THE COURT:  Could the IRS not tell you when started?  MR. KLIMAS: did not specifically ask when the  investigation started. know that the IRS was informed that the  investigation had started June this year.  THE COURT:  All right.  
MR. KLIMAS: 
THE COURT: And does the Inspector General plan file public report? 
MR. KLIMAS: The Inspector General not position this juncture say whether the final report would public not. depends how the
THE COURT: that pursuant congressional directive? 
MR. KLIMAS: don't believe Congress directed the Inspector General initiate this investigation, but not know that for fact. 
THE COURT: All right. 
MR. KLIMAS: spoke the IRS and said, Okay, there's this investigation going on, what does that mean terms your ability answer questions, and what the IRS said that the Inspector General directed the IRS not contact potential witnesses about the subject matter the investigation and not try obtain documents that were relevant the subject matter that investigation because the Inspector General had indicated that that could interfere with his ability conduct the investigation. 
Not only did talk the IRS about that, have reached out TIGTA and the investigator working the case. TIGTA has confirmed that there's ongoing investigation into this exact issue. TIGTA has confirmed instructed the IRS not contact those witnesses potential witnesses individuals, and has further instructed the IRS not try collect documents that 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
are relevant the TIGTA investigation. 
THE COURT: And that would arguably include FOIA documents, correct? 
MR. KLIMAS: The documents that the IRS has segregated, preserved and taken appropriate steps preserve are documents that have already been collected, already been segregated, and there are already steps that have been taken preserve them, the IRS does not have out and get those documents this juncture, the IRS has already collected those documents. 
THE COURT: So, correct saying that the documents that are the subject this plaintiff's FOIA request have all been collected? 
MR. KLIMAS: the IRS has represented that they issued preservation letters May and June 2013 and then proceeded over the course the next several months collect any potential responsive documents, believe that the answer that any potentially responsive documents have been collected, the extent that reasonable search would capture those documents. Obviously, agency can never say that it's collected every single potentially responsive document from agency with 90,000 employees and the FOIA doesn't require that, requires reasonable search. The IRS has collected the documents that believes would constitute reasonable search. 
THE COURT: All right. more precise, pursuant the IRS's obligations under FOIA precedent, your answer yes, 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
that the IRS has completed its search for relevant e-mail documents this case? your answer yes? 
MR. KLIMAS: depends what you mean search. you mean collecting the universe potentially responsive documents
THE COURT: didn't limit it, said pursuant its obligation FOIA its obligations under relevant FOIA precedent, has the IRS completed its search for documents that are the subject this FOIA request this plaintiff? 
MR. KLIMAS: Sure. think that it's two-step answer. So, terms collecting the universe potentially responsive documents, conducting reasonable search create that universe potentially responsive documents, believe that the IRS has completed that search. 
Now, that overbroad universe documents. There are documents that are not responsive, there are documents that would exempt from disclosure, and the IRS the process conducing review that universe documents that have been gathered and preserved, and that has not
THE COURT: I'm just breaking down. So, the government has thrown out broad net, the IRS has thrown out broad net capture documents that are arguably produceable, but there may otherwise privileged exceptions other exceptions, national security, whatever, that preclude production the plaintiff. the broad universal search has been completed, 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
then. 
MR. KLIMAS: That's correct, Your Honor. 
THE COURT: All right. 
MR. KLIMAS: That's understanding. 
THE COURT: And the government producing documents, the IRS producing documents this plaintiff? I'm just concerned about this case right now. 
MR. KLIMAS: Correct, the IRS has been producing documents since February. It's produced over 3800 pages documents and produced documents recently as, believe, June 30th this year. 
THE COURT: All right. All right. With respect the documents that have been captured, that have been located, when the when you envision that the further documentation review, categorization whatever, will complete? 
MR. KLIMAS: Correct, Your Honor. That question that asked the IRS well. There are four separate FOIA requests that are issue this lawsuit. 
THE COURT: Right. 
MR. KLIMAS: The first FOIA request deals with communications from Lois Lerner broadly. That essentially what being sought. And the IRS has indicated that they believe that they are roughly halfway through the review and production those documents Judicial Watch. 
The second FOIA request specifically deals with the number 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 501(c)(4) applications that were submitted the Internal Revenue Service. predecessor this case conferred with Ms. Cotca about that particular request, and there was agreement that instead producing all documents related the number applicants, that instead the IRS would produce would provide number Ms. Cotca. believe that that will done the end the month, and potentially sooner than the end the month. There are two additional FOIA requests. One that broadly deals with communications between the IRS and Congress agencies. The IRS the process taking that broad universe documents that talked about and doing what referred batching, taking that broad universe documents, searching limit more probably number potentially responsive documents, and then having people and then having IRS employees review those documents for responsiveness and for exemptions. 
And then with respect the fourth FOIA request, the IRS has already batched, already broken into manageable segments the potentially responsive documents, and those documents are currently being reviewed IRS employees for responsiveness and exemptions. far concrete answer when that process will done, asked that question and was told that the IRS hopeful have answer the next status report August, but they were unable provide target end date this week 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
when spoke them. 
THE COURT: All right. You mentioned that the Inspector General was involved conducting investigation. the way, who the investigating attorney? have name? 
MR. KLIMAS: have name. haven't personally spoken with him. requested that not mention his name open court just because would prefer work his expedited investigation rather than deal with phone calls from the press for the next several days. 
THE COURT: But does the public have right know the name this person? 
MR. KLIMAS: This request that received from him. Obviously, the Court would like provide his name, I'm not going disobey order from the Court provide provide in-camera, necessary, but that's the request that received from him. 
THE COURT: All right. know whether not that person has ordered forensic examination? 
MR. KLIMAS: can't tell you the status the investigation far what steps has taken what facts has found. 
THE COURT: What mean that there examination the computers, the relevant computers. 
MR. KLIMAS: can what can represent that that would part what TIGTA doing, not only interview 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
people, not only find out factually what happened, but also examine the particular equipment and take steps restore information, the extent that was lost. That would also part what TIGTA trying accomplish with this investigation. 
THE COURT: All right. know whether not the Department Justice has requested the FBI conduct investigation? 
MR. KLIMAS: not know whether the Department Justice has requested the FBI conduct investigation. 
THE COURT: Have you asked that question? 
MR. KLIMAS: have not asked that question. 
THE COURT: All right. And one's volunteered that information you that the FBI may investigating this well? 
MR. KLIMAS: Correct. don't know there's been Congressional testimony about whether the FBI investigating what the FBI investigating. can't say whether the FBI investigating this particular issue not, don't know. 
THE COURT: All right. Let's get back the question discovery. Why not discovery now, then? Why wait? Because the scenario you allude one which the government would say some point the Court, we've completed our search for relevant documents, we've produced documents, we've invoked privilege with respect certain documents, would like 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
opportunity file motion for summary judgment, which the 
normal course, right? 
MR. KLIMAS: Yes. 
THE COURT: Which would probably trigger Well, Judge --from the plaintiffs three months ago year ago three years ago, the government said that there were found out that there were, arguably, lost documents, don't know whether they fall within relevant timeframe. Arguably, they could within relevant timeframe, but we'd like some limited discovery that point and they file 56(f) affidavit saying can't really we're not position oppose summary judgment because need some discovery, and your argument few minutes ago was that would more appropriate that juncture consider discovery, right? 
MR. KLIMAS: Correct, Your Honor. 
THE COURT: that still your answer? 
MR. KLIMAS: That still our answer, addition the concerns that have about the TIGTA investigation which ongoing. minimum, think that the the Department thinks that would more appropriate for that investigation
THE COURT: More appropriate for whom, though, for the Department for the public? mean, this action filed organization that seeks documents under the theory that the public likes know what its government doing, more 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
appropriate for whom? How would delaying discovery assist this plaintiff and assist the public learning what happened here? 
MR. KLIMAS: would submit that letting the Inspector General conclude his investigation serves the public interest. The Inspector General
THE COURT: First all, don't know who this Inspector General is; secondly, don't know whether his her report going public, right, right? 
MR. KLIMAS: That's correct. 
THE COURT: what's let's just stop there. Whose interest does that benefit, other than the IRS and not the public? 
MR. KLIMAS: would note that the Inspector General independent the IRS, that the Inspector General the same Inspector General who issued the report regarding 501(c)(4) issues that launched the Congressional investigations that are ongoing. The Inspector General the same one who commenced this particular investigation. think it's clear that this Inspector General has the interest, the authority, and the resources conduct more thorough review than what could with discovery, even extensive discovery, but certainly better than what could with limited discovery this action. can't imagine that limited discovery would this the first time I've heard that this something that the plaintiff sought. It's not something that discussed earlier this week when 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
spoke, but certainly don't think that the limited discovery that Ms. Cotca was proposing involved forensic examination computer hard drives. don't think would extensive successful terms getting the bottom this issue. 
THE COURT: What about question that the Court raised with plaintiff's counsel few minutes ago about whether not this case should consolidated transferred colleague Judge Walton under our related case rules? 
And again, don't know enough about his case know whether not they're, indeed, related under the meaning our local rules, but just raise the question for your response. 
MR. KLIMAS: Sure. have some familiarity with the True the Vote case. There are Department Justice Tax Division attorneys who are assigned that case, and I'm not one those attorneys, but it's understanding that the True the Vote case not FOIA action, it's case which there would the motion dismiss filed the government denied, then there would potentially discovery schedule and discovery which would unique and different from
THE COURT: There's pending motion dismiss that case; that correct? 
MR. KLIMAS: believe that's correct, Your Honor. 
THE COURT: But you're not involved that? 
MR. KLIMAS: Correct. 
THE COURT: And that's not FOIA case, that's action 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
for damages, it, declaratory injunctive relief and damages also, recall? briefly read the pleadings. It's action for declaratory and injunctive relief and believe collateral request for damages, think, but not FOIA. 
MR. KLIMAS: believe that's correct, there not FOIA claim that lawsuit. certainly there would some synergies having one judge who familiar with these issues. certainly don't think it's related case the way that that term used this Court's rules, but see there would some efficiencies having one
THE COURT: But you would not precluded from transfer consent one the two judges. Are there any other actions this Court? 
MR. KLIMAS: Any other actions? 
THE COURT: Similar arguably related lawsuits this Court pending before other colleagues? 
MR. KLIMAS: terms FOIA cases
THE COURT: No, no, know that. We're inundated with FOIA cases. terms this e-mail issue, anyone else will filed anything? 
MR. KLIMAS: don't specifically know the e-mail issue germane any the other pending lawsuits this Court. know that there are other pending lawsuits this court that relate 501(c)(4) lawsuits. Many those are FOIA lawsuits, but don't know the issues are germane those cases not. 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
THE COURT: All right. Thank you. 
MR. KLIMAS: Thank you, Your Honor. 
THE COURT: Anything further? 
MS. COTCA: Thank you, Your Honor. 
THE COURT: Why shouldn't you wait? Why shouldn't this wait until the government says, We've finished our process, we've produced everything, and want file motion for summary judgment that point and then give you opportunity file your 56(f), that's appropriate, and you can persuade the Court there's need for discovery? That's the normal course, isn't it? 
MS. COTCA: Right, and that's the normal course because that's when this sort information becomes available. This case different from that because this information became available through public resources and the news with respect what the plaintiff believes issue with
THE COURT: The media getting some high marks from you today, huh? 
MS. COTCA: Well, that's where got this information, Your Honor. 
THE COURT: The Congressional investigation public proceeding; that correct? 
MS. COTCA: Correct. that's why think this distinguishable from the other cases. And that's right, when --in the normal course FOIA litigation, you have the summary 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
judgment motions and you have the declarations, and that's when objection raised challenge raised the search because that's when the evidence the record becomes clear. already have this information. doesn't make sense wait. 
First all, who knows what's going still available two years down the line. don't have timeline yet when this will over. could three years from now, could three months, don't know. don't have much confidence that will three months from now, but and that's why think would appropriate this time have the limited discovery. With respect
THE COURT: Suppose would you satisfied someone filed declaration the FOIA case under oath effort persuade the Court and the plaintiff that these documents that you're seeking the course this litigation aren't even within the scope the documents that are missing? 
MS. COTCA: Well
THE COURT: Would that enough? 
MS. COTCA: No, Your Honor, because and this the point. The Lois Lerner e-mails First all, Your Honor correctly pointed out that don't actually have any declaration any statement actually made the IRS, the defendant this case, whether, indeed, these e-mails are missing not. 
THE COURT: You learned through the publicly available media that there are e-mails that are missing. You don't know 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
what timeframe they cover not, you?  MS. COTCA: don't know what timeframe.  THE COURT:  You don't know what timeframe the missing  e-mails are 
MS. COTCA:  The timeframe for the e-mails?  THE COURT:  Yea, for the e-mails that are arguably  missing, right?  MS. COTCA:  What's been disclosed e-mails from 2010  2012.  That's what believe the information with respect  
the missing e-mails, which covers the specific period time  that requested for the e-mails.  THE COURT:  Right, but that's what you believe.  MS. COTCA:  That's what the testimony that the IRS  Commissioner that's the information the IRS provided  
Congress and that's where got the information from. But going  back the issue here, this information becoming available  now. don't have set timeline when the IRS will complete  its production can move the briefing phase the  litigation, and don't know what will available and what  
will not available that point. doesn't make sense  for wait.  And with respect and this point, know  there's this issue with respect these e-mails, and still  don't know what the IRS has done, what the defendant has done  
try see were there other potential sources where these e-mails  
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
can retrieved because they have the burden conduct search that's reasonably calculated reach uncover the requested records. 
One particular e-mail that the IRS has produced this case this point from Ms. Lerner herself from 2012 where she identifies and asks actually the TIGTA officer the TIGTA investigator copy someone her office because she monitors her e-mails. One obvious question is, Well, has the IRS gone back see this individual's computers and this individual's records have been searched can retrieve the records that requested this case that mechanism and through those means, and that's reasonable. That's plaintiff's position this case. 
THE COURT: What about the government's statement that discovery would be, arguably, duplicitous now what this IGA attorney doing? 
MS. COTCA: Well, don't know what the attorney doing, don't know who the attorney is, and this the first time we've heard this, and Judicial would have, would suggest, very limited and only specific not with respect much with respect the obligations and whatnot that's going Congress maintaining and keeping these records, but with respect what are the reasonable mechanisms that the IRS has try get these e-mails that we're requesting this litigation. That's much more narrow than the investigation the way that understand what this 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
investigation would cover. 
THE COURT: All right. I'm going take about 
ten-minute recess. 
UNIDENTIFIED SPEAKER: Your Honor, may heard one question that Your Honor posed another case? 
THE COURT: I'm sorry? 
UNIDENTIFIED SPEAKER: I'm not counsel this matter. 
THE COURT: No, no. Thank you very much, though. some 
point you're certainly welcome speak with counsel during the recess, but thank you very much. I'm going take ten-minute recess. All right. Thank you. (Thereupon, recess the proceedings occurred from 
11:52 a.m. until 12:06 p.m.) THE COURT: either side? MR. KLIMAS: THE COURT:
 MR. KLIMAS: 

All right. Anything further from counsel, 
Your Honor, may heard briefly? Yeah, sure. just wanted briefly address Ms. Cotca indicated that she didn't know what efforts the IRS has taken either recover Ms. Lerner's hard drive obtain the information, the lost e-mails from other sources within the IRS. would indicate that, fact, Judicial Watch attached their motion statement statement from the IRS that details the fact that the IRS had, fact, taken those steps; that after Ms. Lerner's hard drive crashed, the department attempted 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
restore the information and was unsuccessful. was then sent the IRS criminal division, which attempted restore the information. was unsuccessful. Furthermore, the IRS has obtained over 20,000 e-mails which Ms. Lerner was not the custodian going other IRS employees and obtaining the e-mails from those sources. That attached exhibit their motions. 
THE COURT: Have those e-mails been produced plaintiff? 
MR. KLIMAS: don't know the answer that question no, and the reason why because the IRS producing Lois Lerner's e-mails and reviewing them reverse chronological order. the IRS started with e-mails from 2013, the most recent, and working backwards. The IRS had not even gotten 2011, the point which there would have been any recognition the part the IRS FOIA processing team that there was issue. That's large part the reason why was not made aware this issue, because the IRS employees processing the FOIA requests had not even gotten point where they could have realized potentially that there was issue. 
THE COURT: All right. Thank you. response? 
MS. COTCA: Just very briefly, Your Honor, with respect the efforts that opposing counsel just referring to. Those are the efforts that the IRS had gone through try retrieve the hard drive and/or maybe, perhaps, backup tapes. That was back 2011. I'm talking about what efforts have been done now 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com this litigation identify other sources that potentially 
could have these lost e-mails, that there's difference, 
and I'm highlighting 
THE COURT: Isn't this normally the subject meet and confer, though, cases among counsel, for counsel meet and 
talk about this? All right, there's problem with Lois Lerner's 
e-mails, how can get this information, what other sources, 
what about her list bcc list whatever? Have you had any 
discussions like that effort find out how you can get this information from other sources? MS. COTCA: have, Your Honor. That was actually this week Tuesday, and those questions haven't THE COURT: MS. COTCA: THE COURT: MS. COTCA:
 THE COURT:
 MS. COTCA: 

Just Tuesday, though? Tuesday specifically
That's just telephone conversation, right? 
That was telephone conversation, yes. 
All right. 
Just and going back very briefly related 
cases, Judicial Watch actually has another pending FOIA litigation that relates records with respect personal 
audits, audits personal individuals that were referred 
because information that was Tea Party's applications. 
That's actually case number, believe, 13-1759. this point It's also before this Court. that's that may this issue may related may come 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
that case, but just wanted missed and just wanted make the Court aware. 
THE COURT: All right. Thank you. Thank you, both. thank the four you. Let just say this: First all, the Court would loathed grant oral motion for discovery. may well be, plaintiff counsel indicated, this one the rare cases that, because developments, counsel's favor some limited discovery. It's premature this point know that. think that how this case should proceed follows: The government going required file declaration signed the appropriate IRS official, under oath, under penalties, addressing the Lois Lerner e-mail/computer issues, and I'll just leave broad that right now because, you know, have idea what the relevant timeframe insofar this FOIA request. 
Counsel has indicated that there may e-mails that predate the crash that are somehow impacted don't know that fact not, that's why I'm saying, and I'll put this writing minute order, declaration signed the appropriate official under oath addressing the Lois Lerner issues. That's about broad can make this point. 
The fact that there's investigation ongoing important, it's significant. don't think it's relevant all who's conducting the investigation. think it's probably 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
everyone's best interest that the investigation commence, has commenced, according government counsel, and can conclude soon possible, and hopefully some point there's public report voluntarily produced the Inspector General, and I'll just leave that, that would address the relevant issues this litigation. want very careful. I'm just focusing this FOIA case and the production documents that this plaintiff has requested this litigation and nothing else. think that once the declaration the declaration should also include information that may assist the parties recovering the subject matter the lost e-mails from other sources. think that's highly relevant. there will two main parts, and will the Lois Lerner part, and will be, how get this information that's been lost from other sources, and that's going highly relevant well, and that's also going inform the Court whether there's need for limited discovery. 
Now, don't think this declaration should filed the conclusion discovery. The declaration shall filed, and I'm not going extend the time. I'll little generous setting forth appropriate timeframe recognizing this mid-July, people have plans vacation, don't want anyone's spouses, significant others, kids mad because she has cancel vacation. There are limits judicial authority, and don't want any phone calls from family members, it's going days from today's date. Today 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
the 10th, August 10th, and I'm not going extend it. want that declaration filed and signed the appropriate official under oath, all right, and I've said that least three four times. Then that's going inform the Court and plaintiff well whether not there need for any discovery, limited discovery. that time, plaintiff wishes pursue discovery, then plaintiff can file request for discovery addressing any inadequacies the declaration and it's entitlement, has entitlement, matter law, discovery this very interesting juncture where discovery still ongoing, it's not been concluded, we're not the 56(f) stage, but the same token think it's appropriate give plaintiff chance address whether not there's need for discovery. 
Now, having said that, I'm going direct that the parties meet and confer with respect the part that declaration, how does the government obtain this information from other sources, and I'm going ask colleague Judge Facciola preside over discussions, meet and confer discussions about how that objective obtained; that is, how are the lost documents otherwise retrievable, all, from other sources, you're not going able file motion for discovery immediately August the 11th. don't know Judge Facciola's calendar. fact, didn't even think about assigning asking him help anything until few minutes ago, but think 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 
that the parties' best interests, best respective interests would served having disinterested third party judicial officer assist you, and because he's expert this area E-discovery, cetera, assist the parties obtaining accomplishing that objective, how you get that information from other sources. don't know how much time that's going take. Again, don't know his schedule. Hopefully, he'll some nice beach August 11th and for the rest the summer. what I'll I'll say until September 10th I'll refer the matter Judge Facciola that will month after the government's filing its declaration and the parties can meet and confer with him effort determine how this information can otherwise recoverable discoverable, and think that's all that the Court needs this point, and I'll issue appropriate order that addresses that, and I'll probably issue that today tomorrow. 
The third part shall the investigation. the government contends that discovery would somehow another compromise impact adversely the investigation, then the government needs provide that information again under oath declaration. there are three sections there. think fourth section, I'll put the minute order, but those are the three sections that want the government address, and that's I'm not going schedule another status hearing now. Again, don't know the availability Judge Facciola. may 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com 

well that you folks are going vacation, too, don't know, but there may have some modest adjustments, but I'm going hold tight that August 10th deadline, though, for the filing that declaration. think that days from today most appropriate, and that's what the Court will do. All right. Any other matters that have address today? I'm not precluding you all from filing your motion, it's just that the timing not right now, and you might get lot additional information result the government's ability proceed with alternative sources for recovery this information. don't know what's being produced other cases, and counsel, you don't know either, you? You're not involved all the other cases? 
MR. KLIMAS: I'm not involved all the other FOIA cases, but I'm involved several the FOIA cases. 
THE COURT: All right. That's all have say. 
(Proceedings adjourned 12:19 p.m.) 

CERTIFICATE Scott Wallace, RDR-CRR, certify thatthe foregoing correct transcript from the record ofproceedings the above-entitled matter.
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Scott Wallace, RDR, CRR Date Official Court Reporter 
Scott Wallace, RDR, CRR, Official Court Reporter (202)354-3196 scottlyn01@aol.com