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Judicial Watch • 13-772 Opposition

13-772 Opposition

13-772 Opposition

Page 1: 13-772 Opposition

Category:Legal Document

Number of Pages:15

Date Created:October 1, 2015

Date Uploaded to the Library:October 02, 2015

Tags:OppositionsList, Hillary Clinton, State Department


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Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
____________________________________)
Civil Action No. 13-00772 (CKK)
PLAINTIFF OPPOSITION DEFENDANT
MOTION STAY
Plaintiff Judicial Watch, Inc. Judicial Watch counsel, respectfully submits this
opposition Defendant Motion Stay Pending Resolution Its Motion for Designation
Coordinating Judge. grounds therefor, Judicial Watch states follows:
STATEMENT POINTS AND AUTHORITIES
Defendant U.S. Department State State Department agency seeks
stay and further delay least portion its response the nearly year old Freedom
Information Act FOIA request issue this litigation.1 The proposed stay would appear
encompass any issues regarding the emails former Secretary State Hillary Clinton and
certain emails and records least four Secretary Clinton top aides, Huma Abedin, Cheryl
Mills, Philippe Reines, and Jacob Sullivan. would not appear encompass the State
Department review and production responsive records located result further search the Office the Executive Secretariat, referenced the State Department letter dated
July 27, 2015. The State Department previously asserted that its initial search the Executive
Secretariat yielded responsive records, but further search apparently located unknown
The request issue was served the State Department May 2011.
Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page
quantity responsive potentially responsive records. The State Department refuses
identify (1) where specifically these records were located; (2) when they were located; (3) why
they were not located previously; (4) the volume the records issue; and (5) when their
review and production will completed. The State Department has committed continued,
rolling productions undisclosed quantities these records for unspecified period time.
Accordingly, the stay would not apply whatever the State Department doing with respect
this unknown tranche unidentified records that have yet produced nearly years after
Judicial Watch requested them.
Judicial Watch raised several issues about Secretary Clinton emails the
parties most recent Supplemental Status Report. See Supplemental Joint Status Report, Sep.
2015 (ECF No. 28) Supp. Status Rpt. 5-18. Judicial Watch possesses even less
information about the emails and records Ms. Abedin, Ms. Mills, Mr. Reines, and Mr.
Sullivan than possesses about Secretary Clinton emails because the State Department has
been even less forthcoming about these other officials records. Judicial Watch has been able
piece together the following information from different State Department filings different
cases: July 2015, the State Department received 338 electronic and hard
copy records from Ms. Abedin. See Defendant Motion for Enlargement Time File its
Motion for Summary Judgment, Citizens United U.S. Dep State, 15-cv-374 (EGS)
(D.D.C.) (Sept. 16, 2015) (ECF No. 13) August 2015, the State Department received one pdf file containing
2,185 pages records from Ms. Abedin. Id.
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Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page September 2015, the State Department received 348 pages
records and 6,714 emails from Ms. Abedin electronic format. Id. June 25, 2015, the State Department received pages hard copy
records from Ms. Mills. Id. August 10, 2015, the State Department received 666 emails records
and 106 attachments from Ms. Mills electronic format. Id. August 12, 2015, the State Department received 100 megabytes
electronic files and hard copy documents, consisting one cubic foot paper records, from Ms.
Mills. Id. July 28, 2015, the State Department received approximately 70,000
pages hard copy records from Mr. Reines, large portion which are press clippings
assembled the State Department daily basis and forwarded Mr. Reines personal email
account. Approximately 16,000 pages these records are not press clippings, but the State
Department has not identified them any greater detail. See Defendant Status Report,
Leopold U.S. Dep State, Case No. 15-123 (RC) (D.D.C.) (Sept. 18, 2015) para. 5.2 June 26, 2015, the State Department received unknown quantity
records from Mr. Sullivan. See Declaration John Hackett Regarding Exemptions Taken
Responsive Documents, Judicial Watch, Inc. U.S. Dep State, Case No. 14-1242 (RCL)
(D.D.C.) (July 2015) (ECF No. 19-2) 18-20.
This same status report, the most recent submission the State Department, also includes descriptions
the volume and types records provided Ms. Abedin and Ms. Mills, but uses different metrics. Id. paras.
and Based this status report, the State Department now estimates that Ms. Abedin returned approximately
23,000 pages records the agency and Ms. Mills returned estimated 11,870 pages records. Id. All 23,000
pages records from Ms. Abedin, approximately 2,045 documents (not pages) from Ms. Mills, and the 16,000
pages non-press clipping materials from Mr. Reines have been loaded onto State Department network and are
now electronically searchable. Id. paras. 4-6.
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Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page the parties most recent supplemental status report, Judicial Watch asked that provided, allowed obtain, certain information about Secretary Clinton emails and
the emails and other records these top advisors. Supp. Status Rpt. 14-16. Judicial Watch
believes this information essential determining whether the State Department has satisfied
its FOIA obligations under the extraordinary, unprecedented circumstances created Secretary
Clinton exclusive use clintonemail.com email server conduct official State
Department business, and, not, how that failure might remedied.3 Instead providing the
requested information, which necessary resolve the host legal questions raised the
State Department failure records manage Secretary Clinton emails properly, the State
Department filed its motion stay. The motion guarantees that resolution these issues will
delayed further.
The parties recently agreed search terms for the approximately 30,490 federal
records returned the State Department Mrs. Clinton. The only issue that remains with
respect these federal records when the search will conducted. Judicial Watch has asked
that conducted expeditiously given that the State Department has acknowledged that the
records are now readily searchable and have been searched response other FOIA requests,
which was not the case when the parties filed their June 22, 2015 joint status report. See Supp.
Status Rpt. 13; see also id. 17-18. The State Department prefers wait until January 2016 commence the search. Id. Judicial Watch offered meet with the State Department try
reach agreement schedule for completing searches Secretary Clinton emails that would
take into account other FOIA cases and other FOIA requestors, but the State Department did not
Ms. Abedin also used clintonemail.com email account conduct official, State Department business.
The State Department has not disclosed whether other agency officials did well.
-4-
Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page
respond.4 See Exhibit Regardless, neither coordinating judge nor stay pending the
designation coordinating judge necessary resolve this relatively simple scheduling
dispute.
The State Department has asserted other litigation that has obligation
search records returned Secretary Clinton top aides. See Joint Status Report, Judicial
Watch, Inc. U.S. Dep State, Case No. 15-692 (APM) (D.D.C.) (July 29, 2015) (ECF No.
11) n.3. Defendant maintains that reasonable search only requires search the
Clinton emails. While true that Defendant has agreed additional discrete search
specifically, search any emails that has received from Ms. Mills, Mr. Sullivan, and Ms.
Abedin did not because believes the FOIA requires such search. Defendant
Opposition Plaintiff Motion Allow Time for Limited Discovery Pursuant Rule 56(d),
Judicial Watch, Inc. U.S. Dep State, Case No. 14-1242 (RCL) (D.D.C.) (Sept. 18, 2015)
(ECF No. 27) Despite the fact that had obligation under FOIA so, State was
willing stay summary judgment briefing and ask the Court set schedule allow
search those documents for records responsive the FOIA request, notwithstanding that those
records were not State possession and control the time the FOIA search was conducted.
see also Defendant Motion Stay Pending Resolution Its Motion for Designation
Coordinating Judge, Judicial Watch, Inc. U.S. Dep State, Case No. 14-1511(ABJ)
(D.D.C.) (ECF No. 17) State willing search [these records] Plaintiff wishes,
notwithstanding that those records were not State possession and control the time the
FOIA search was conducted.
Judicial Watch seeks less and more than what FOIA requires. the
State Department position that must search these materials satisfy its FOIA obligations,
The lack response the State Department constitutes failure meet and confer. LCvR 7(m).
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Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page
the agency should say so. Judicial Watch would then amenable discussing reasonable
schedule for completion this task. the State Department disputes that has obligation
search these materials, should say well. Staying this action indefinitely that
coordinating judge can appointed oversee the completion task the agency disputes
has any obligation undertake puts the cart before the horse.5 also demonstrates that the
motion stay unfounded. September 17, 2015, the State Department had filed motions stay only lawsuits, not the identified its consolidation motion. those motions, have
been denied. See Minute Order, Judicial Watch, Inc. U.S. Dep State, Case No. 13-1363
(EGS) (D.D.C.) (Sept. 11, 2015); Minute Order, Bauer Central Intelligence Agency, Case No.
14-963 (APM) (D.D.C.) (Sept. 16, 2015); Minute Order, Joseph U.S. Dep State, Case No.
14-1896 (RJL) (D.D.C.) (Sept. 10, 2015); Minute Order, Citizens United U.S. Dep State,
Case No. 15-374 (EGS) (D.D.C.) (Sept. 11, 2015); Minute Order, Judicial Watch, Inc. U.S.
Dep State, 15-692 (APM) (D.D.C.) (Sept. 16, 2015); Minute Order, Citizens United U.S.
Dep State, Case No. 15-1031 (EGS) (D.D.C.) (Sept. 11, 2015). Only one motion has been
granted, and that ruling was issued before the requestor even filed response. See Minute Order,
Judicial Watch, Inc. U.S. Dep State, Case No. 14-1511 (ABJ) (D.D.C.) (Sept. 10, 2015). second was granted part and denied part. See Minute Order, Citizens United U.S.
Dep State, Case No. 15-518 (ABJ) (D.D.C.) (Sept. 18, 2015). third being held
abeyance. See Minute Order, Judicial Watch, Inc. U.S. Dep Justice, Case No. 15-321
(CKK) (D.D.C.) (Sept. 2015). the State Department disputes that has obligation search these materials, but asserts that will voluntarily, has provided assurances this effect. voluntary search also would raise substantial questions
about this Court jurisdiction adjudicate issues about the scope the agency search and any claims
exemption.
-6-
Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page
Although the State Department downplays its motion, the agency not only
seeks order designating coordinating judge, but also order transferring ongoing
FOIA cases pending before district judges whomever designated the coordinating
judge. This coordinating judge will then decide common legal, factual, and procedural
issues. The law could not any clearer that one district judge cannot order another district
judge take action case pending before that judge. See, e.g., Klayman Kollar-Kotelly,
2013 U.S. App. LEXIS 10148 (D.C. Cir. May 20, 2013); McBryde, 117 F.3d 208 (5th Cir.
1997). makes difference the district judge issuing the order the chief judge the order order reassignment. McBryde, 117 F.3d 225 [N]ot one case upholds
reassignment pending case chief judge without the consent the presiding judge. result, highly unlikely that the State Department will prevail its coordination/transfer
motion. There reason stay this action pending ruling the State Department
meritless miscellaneous action. See also Respondent Judicial Watch, Inc. Motion Dismiss,
or, the Alternative, Opposition Designation/Transfer Motion, U.S. Dep State FOIA
Litigation Regarding Emails Certain Former Officials, Case No. 15-ms-1188 (Unassigned)
(D.D.C.) (ECF No. 24) (Sept. 14. 2015).
WHEREFORE, Judicial Watch respectfully requests that the motion stay denied.
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Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page
Dated: September 21, 2015
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Paul Orfanedes
PAUL ORFANEDES
D.C. Bar No. 429716
/s/ Jason Aldrich
JASON ALDRICH
D.C. Bar No. 495488
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
porfanedes@judicialwatch.org
jaldrich@judicialwatch.org
Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
No. 1:13-cv-772 -CKK
U.S. DEPARTMENT STATE,
Defendant.
PROPOSED ORDER
Upon consideration Plaintiff Opposition Defendant Motion Stay Pending
Resolution Its Motion for Designation Coordinating Judge, and the entire record herein, HEREBY ORDERED that: Defendant Motion DENIED.
_________________________________
Hon. Colleen Kollar-Kotelly, U.S.D.J.