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Judicial Watch • Joint Status Report JW v State 0688

Joint Status Report JW v State 0688

Joint Status Report JW v State 0688

Page 1: Joint Status Report JW v State 0688

Category:Legal Document

Number of Pages:9

Date Created:June 25, 2015

Date Uploaded to the Library:June 30, 2015

Tags:0688, Joint, hillary, Foundation, documents, responsive, Hillary Clinton, Secretary, production, defendant, clinton, filed, State Department, plaintiff, document, records, FOIA, department, court, IRS, report, CIA


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Case 1:15-cv-00688-RC Document Filed 06/25/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 15-cv-688-RC
JOINT STATUS REPORT
Pursuant the Court June 10, 2015 Minute Order, Plaintiff Judicial Watch, Inc. and
Defendant U.S. Department State, and through counsel, respectfully submit this Joint
Status Report: March 17, 2015, Plaintiff submitted FOIA request Defendant seeking
access certain records related former Secretary State Hillary Clinton personal
charitable relationships, and conflicts interests involving the Clinton Foundation. See ECF
No. Plaintiff initiated the above-captioned lawsuit May 2015, and Defendant
subsequently filed its Answer June 10, 2015. date, Defendant has not issued final
response Plaintiff FOIA request. Counsel for the parties conferred telephone June 23,
2015. However, after discussing their respective positions, counsel were unable agree upon
joint language for status report addressing the Court June 10, 2015 Minute Order.
Accordingly, the parties present their separate statements and proposals below.
Case 1:15-cv-00688-RC Document Filed 06/25/15 Page
Plaintiff Statement
Plaintiff has asked Defendant provide estimate the total number
documents likely responsive Plaintiff lawsuit, along with estimates the dates
rolling productions and when production should complete based the total number likely
responsive pages. Plaintiff explained that such estimates are necessary before the parties can
reasonably provide the Court with dates for proposed briefing schedule, instructed.
However, Defendant has not provided these estimates.
Plaintiff FOIA request subject this lawsuit seeks discrete and narrow
category documents related potential conflicts interest between the former Secretary
role Secretary State and any personal Clinton Foundation charitable relationships.
Accordingly, this FOIA request and lawsuit should result the production reasonable
volume documents which should not tax Defendant ability conduct timely review and
production. Plaintiff proposes the following estimates and schedule based its knowledge
its FOIA requests and the nature the anticipated search.
Given the discreteness Plaintiff request, Plaintiff believes that the production
can and should completed promptly. addition, Plaintiff believes records responsive these request are likely
include email communications between former Secretary State Hillary Clinton, other top State
Department officials, and officials the Clinton Foundation. Accordingly, effort
narrow issues before the Court, Plaintiff has asked Defendant certain questions about
Defendant efforts secure records and the scope its anticipated search, both generally and specifically relating the non-state.gov and clintonemail.com records, which have been the
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Case 1:15-cv-00688-RC Document Filed 06/25/15 Page
subject media reports. See Michael Schmidt, Hillary Clinton Used Personal Email Account State Dept., Possibly Breaking Rules, The New York Times (Mar. 2015).
Specifically, Plaintiff has asked Defendant whether the former Secretary ever sent
electronic transmissions over the State Department network, and whether any
clintonemail.com emails might have been captured any State Department computer recording
tape system other back system the State Department uses for backup and recovery
records protect against information loss corruption. This would include both the 55,000
pages clintonemail.com documents from the former Secretary reported have been provided the State Department, and all additional emails from the clintonemail.com account reported
have been deleted from the private server the former Secretary.
Plaintiff has further asked Defendant whether has made inquiries the former
Secretary her representatives concerning whether any backups the reportedly deleted
clintonemail.com data exist, and specifically whether backups the data stored media not
associated with the private server exist, and the nature those inquires and any response thereto.
Plaintiff has further asked Defendant whether has made inquiries any other
senior State Department officials who may have used clintonemail.com emails conduct State
Department business secure copies these government records, including but not limited
Huma Abedin, Philippe Reines, Cheryl Mills, and Jake Sullivan, and the nature those inquiries
and any response thereto.
Plaintiff has asked Defendant whether intends conduct searches for
responsive records including but not limited all the above-described document sets, well keyword searches the email accounts all State Department employees who likely would
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Case 1:15-cv-00688-RC Document Filed 06/25/15 Page
have communicated regarding the Secretary charitable relationships potential conflicts.
Such keyword searches should include, but are not limited to, searches for the email suffix
clintonemail.com.
10.
Accordingly, Plaintiff Judicial Watch hereby requests the Court issue minute
order directing the parties proceed the following schedule:
Parties confer regarding Plaintiff above-requested information regarding scope
search and efforts secure agency records July 15, 2015;
Parties file Second Joint Status Report advising the Court efforts narrow
disputed issues related securing records and scope search July 30, 2015.
Defendant complete its production all responsive records October 30, 2015.
Defendant motion for summary judgment due November 30, 2015.
Plaintiff opposition/cross-motion for summary judgment due December 30, 2015.
Defendant opposition/reply brief due January 21, 2016.
Plaintiff reply brief due February 2015.
Defendant Statement
11. March 17, 2015, Plaintiff submitted FOIA request Defendant U.S.
Department State State seeking access the following:
Any and all records that identify the policies and/or procedures place
ensure that former Secretary State Hillary Rodham Clinton personal
charitable financial relationships with foreign leaders, foreign governments, and
business entities posed conflict interest her role Secretary State; and
Any and all records concerning, regarding, related State Department
review donations the Clinton Foundation for potential conflicts interest
with former Secretary Clinton role Secretary State.
12.
State has concluded that conducting searches for records responsive Plaintiff
FOIA request will require searching, among other locations, the approximately 55,000 pages
emails provided the State Department former Secretary Clinton from her non- state.gov
account, which are the subject another FOIA case presently before this Court, Leopold U.S.
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Case 1:15-cv-00688-RC Document Filed 06/25/15 Page
Department State, civil action No. 1:15-cv-00123 (RC). The Leopold court has ordered State produce all non-exempt portions the Clinton emails the Department website,
rolling basis, January 29, 2016. Consequently, State proposes that the most efficient way
proceed the present case will bifurcated production schedule, follows:
Production records the approximately 55,000 pages emails
provided the State Department former Secretary Clinton. State will complete production
responsive documents this category January 29, 2016, accordance with the scheduling
orders entered Leopold. Upon the completion production, the parties will meet and confer,
and will provide the Court with joint status report regarding whether the parties believe that
further briefing necessary and, so, proposing briefing schedule.
Production all other responsive documents. August 17, 2015, State
will complete its search for responsive documents this category and provide the Court with
status report stating the volume estimated responsive records this category. (1) the
estimated volume potentially responsive records this category consists 250 pages
fewer, State will process all responsive documents and produce any non-exempt, responsive
records Plaintiff within days the filing the August 17, 2015 status report. Upon
completion production, the parties will meet and confer, and will provide the Court with
joint status report regarding whether the parties believe that further briefing necessary and,
so, proposing briefing schedule. (2) the estimated volume potentially responsive records this category consists more than 250 pages, the August 17, 2015 status report will provide estimated date complete the processing any responsive documents and production any
non-exempt, responsive documents Plaintiff. Upon completion production, the parties will
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Case 1:15-cv-00688-RC Document Filed 06/25/15 Page
meet and confer, and will provide the Court with joint status report regarding whether the
parties believe that further briefing necessary and, so, proposing briefing schedule.
13.
Before Defendant completes its search for documents response Plaintiff
FOIA request, Defendant unable provide Plaintiff with reasonable estimate the volume documents that likely responsive that request. And without the ability estimate
the volume responsive documents, Defendant similarly unable, ante, provide any
reasonable estimate the date that production non-exempt responsive documents likely completed. Any such estimates this juncture, prior completing its search, would
speculative.
14.
Furthermore, rather than simply proposing briefing schedule, Plaintiff has
instead sought discovery from Defendant. See 4-9, supra. Specifically, addition
Defendant obligations under FOIA search for responsive documents and produce nonexempt, responsive documents, Plaintiff seeks propound interrogatories Defendant; viz.,
require Defendant respond questions about Defendant efforts secure records and the
scope its anticipated search, information that Plaintiff apparently deems relevant [its]
claim. See Fed. Civ. 26(b)(1) (defining the scope discovery any nonprivileged
matter that relevant any party claim defense including the existence, description,
nature, custody, condition, and location any documents other tangible things and the
identity and location persons who know any discoverable matter Fed. Civ. 33(a)(2) interrogatory may relate any matter that may inquired into under Rule 26(b).
Plaintiff request for discovery particularly inappropriate FOIA case before the
completion production and the completion summary judgment briefing.
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Case 1:15-cv-00688-RC Document Filed 06/25/15 Page
15.
Discovery granted only rarely FOIA cases, and only after Defendant has
submitted declarations and Plaintiff has made some showing that those declarations are
inadequate submitted bad faith. Schrecker U.S. Dep Justice, 217 Supp. 29,
(D.D.C. 2002), aff 349 F.3d 657 (D.C. Cir. 2003). Plaintiff has not indeed, could not
possibly have, given that seeks deny Defendant the opportunity complete production
responsive documents, move for summary judgment, and submit supporting declarations before
discovery ordered made showing sufficient impugn [defendant affidavits
declarations, provide[ed] some tangible evidence that exemption claimed [defendant]
should not apply summary judgment otherwise inappropriate. Carney U.S. Dep
Justice, F.3d 807, 812 (2d Cir. 1994) (citing Goland CIA, 607 F.2d 339, 355 (D.C. Cir.
1978)). Rather than seeking discovery via status report, Plaintiff should present any objections may have concerning any search declarations and when opposes Defendant motion for
summary judgment and, that time, cross-moves for summary judgment. See Miscavige IRS, F.3d 366, 369 (11th Cir. 1993) (finding that [g]enerally, FOIA cases should handled
motions for summary judgment rejecting plaintiff early attempt litigate discovery
before the government has first had chance provide the court with the information
necessary make decision
16.
Even the Court believes that the issues Plaintiff raises should addressed
before the completion production and before summary judgment proceedings have begun,
Plaintiff requests for relief are inappropriate without written motion that states with
particularity the grounds for seeking the order, see Fed. Civ. 7(b), and, under this Court
local rules, without proposed order, Local Civil Rules 7(c), statement specific points
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Case 1:15-cv-00688-RC Document Filed 06/25/15 Page
law and authority included with the motion, id. 7(a), and time for Defendant file written
opposition, id. 7(b). Plaintiff should not seek, nor granted, relief without filing proper
motion. minimum, Plaintiff should required submit proper motion for relief, and
Defendant should allowed enough time file appropriate response.
17. another similar FOIA case another Court this District, Plaintiff made
similar demands for information from Defendant. See Joint Status Report dated June 19, 2015,
Judicial Watch, Inc. U.S. Department State, civil action no. 1:14-cv-01511 (ABJ) (ECF No.
13). Defendant argued there, does here, that demands for discovery are inappropriate before
the Court has had opportunity consider agency affidavits describing the search. Id. The
Court rejected Plaintiff demands without comment and instead issued briefing schedule.
Minute Order dated June 22, 2015, Judicial Watch, Inc. U.S. Department State, civil action
no. 1:14-cv-01511 (ABJ). Notably, the Court rejected these attempts even though they had been
posed more advanced juncture than the present case has reached, viz., the completion
State production responsive documents Plaintiff.
18.
For the foregoing reasons, Defendant respectfully requests that the Court enter the
above-listed schedule for the completion production and processing documents Plaintiff.
Respectfully submitted,
Dated: June 25, 2015
BENJAMIN MIZER
Principal Deputy Assistant Attorney General Chris Fedeli
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
Tel: 202-646-5185
cfedeli@judicialwatch.org
ELIZABETH SHAPIRO
Deputy Director Daniel Riess
DANIEL RIESS
Trial Attorney
Counsel for Plaintiff
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Case 1:15-cv-00688-RC Document Filed 06/25/15 Page
U.S. Department Justice
Civil Division, Federal Programs Branch Massachusetts, Avenue, N.W.
Washington, 20530
Tel: 202-353-3098
daniel.riess@usdoj.gov
Counsel for Defendant