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Judicial Watch • JW v IRS 01559 discovery reply

JW v IRS 01559 discovery reply

JW v IRS 01559 discovery reply

Page 1: JW v IRS 01559 discovery reply

Category:IRS Scandal

Number of Pages:9

Date Created:October 27, 2014

Date Uploaded to the Library:November 05, 2014

Tags:01559, IRS

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  • demand_answers

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Plaintiff, Civil Action No. 13-1559-EGS  
Plaintiff Judicial Watch, Inc. (Judicial Watch), counsel, respectfully submits this reply support its motion for limited discovery. grounds thereof, Judicial Watch states follows.    
Limited discovery appropriate this case because the declarations submitted Defendant Internal Revenue Service (IRS) fail answer important questions about the missing emails Exempt Organizations Director Lois Lerner and other key IRS officials. addition, has become apparent that the IRS did not undertake any significant efforts obtain the emails from alternative sources following the discovery that the emails were missing.  The emails are potentially responsive Plaintiffs FOIA requests, and the IRSs failure search for them other recordkeeping systems raises material questions fact about whether the agency has conducted reasonable search.  The limited discovery proposed Plaintiff would help answer these questions and necessary enable Judicial Watch and the Court assess what constitutes reasonable search under the extraordinary circumstances this case. The extraordinary circumstances this case require limited discovery. 
The adequacy agencys search measured standard reasonableness and dependent upon the circumstances the case. Weisberg U.S. Dept Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (quoting McGehee Central Intelligence Agency, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983) and Founding Church Scientology National Security Agency, 610 F.2d 824, 834 (D.C. Cir. 1979)).  The agency cannot limit its search only one record system there are others that are likely turn the information requested.  Nation Magazine U.S. Customs Serv, F.3d 885, 890 (D.C. Cir. 1995) (internal citations omitted). apparent that the search conducted the IRS response Plaintiffs FOIA requests relies the same initial, data collection efforts undertaken the agency response congressional investigations into the IRSs inappropriate targeting conservative Tea Party groups.  Opp. 2-3; 8/11/2014 Kane Decl.,  Def. Ex. (9/17/2014 Koskinen Written Testimony); 7/10/2014 Status Conference Tr. pp. 20-21.  This initial data collection effort resulted the creation what the IRS has identified the Congressional database.  Id.  Importantly, data was collected for the Congressional database and searches the database were completed August 2013, long before the IRS even realized that Ms. Lerners emails and emails other key agency personnel were missing.  Id.  Although the IRS discovered February 2014 that some Ms. Lerners emails were missing, continued rely this same, incomplete database when searched for records responsive Plaintiffs FOIA requests. has not searched for backup tapes for email servers hard drives that may contain the missing emails.  Nor has searched disaster recovery tapes government-wide backup systems.  All the IRS appears have done search this same database for emails from persons who sent received emails from Ms. Lerner.  The IRS will not even definitively state 
whether the emails Ms. Lerners assistant(s), who may have monitored managed Ms. Lerners email account for her, are included the database.  This remarkable fact alone sufficient basis permit limited discovery the adequacy the agencys search efforts date.    
Limited discovery also necessary because the IRS has refused describe its declarations how the missing emails  electronically stored information custodians hard drives and Blackberries  were backed and preserved during the relevant time period before they were discarded.  The IRS has detailed guidelines requiring the preservation agency emails and electronically stored information.  Mot. for Discovery  see infra pp. 7-8.  Presumably, the IRS also had systems place for ensuring that its employees followed these directives.  The IRS has not demonstrated how the hard drives Ms. Lerner and other key agency personnel were backed-up how Ms. Lerner and the employees whose emails are missing complied with directives requiring that their email stored and preserved.  Nor has the IRS said whether Ms. Lerner and these employees printed out and stored their email paper files whether any such paper records were included the Congressional database.  Again, this information highly relevant the Courts inquiry during the Status Conference and its July 10, 2014 and August 14, 2014 orders.  7/10/2014 Status Conf. Tr. pp. 25-26, 38.  Without this information, neither Judicial Watch nor the Court able ascertain whether the agencys search efforts are reasonable under the circumstances.  Mot. for Discovery    
The IRS nonetheless chides Plaintiff for citing incomplete transcripts and hearsay statements and for alleged misunderstandings its motion for discovery.  Def. pp. 12, 15-17.  Yet Plaintiff has choice but rely the limited, public information available precisely because the IRS has failed provide complete information.  Rather than detracting 
from Plaintiffs motion, the IRSs failure provide complete information highlights the need for limited discovery.  Neither Judicial Watch nor the Court should have rely incomplete transcripts, out-of-court conversations, the other, limited information Judicial Watchs attorneys have been able glean from congressional correspondence, media reports, and the internet determine what system records the IRS should reasonably search recover the missing emails. all FOIA litigation, asymmetrical distribution knowledge exists between the IRS, the one hand, and Judicial Watch and the Court, the other. precisely because the IRS has refused provide pertinent, complete information that limited discovery necessary.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006).  
Nor does the Office Chief Counsel Notice, submitted Exhibit the IRSs opposition, alleviate this asymmetric knowledge explain how electronically stored information retained individual hard drives was preserved comply with the agencys Internal Revenue Manual (IRM).  Def. Opp. Ex. see also IRM,,, and  The Notice also became effective September 13, 2012  subsequent the hard drive crashes Ms. Lerner and IRS officials Julie Chen, Judy Kindell, Justin Lowe, and Rob Shoemaker.  See 9/10/2014 Def. Notice Ex. pp. 2-5.  Limited discovery into how individual hard drives were backed during the relevant time frame essential determine what record systems are reasonably available searched.   
Defendants argument that discovery cannot authorized based hearsay statements members Congress also without merit.  Def. Opp. pp. 17.  Defendant cites authority, and Plaintiff aware none, supporting Defendants argument that hearsay inappropriate discovery motion.  Hearsay may not admissible trial, but such rule 
bars hearsay from discovery motion.  Likewise, Defendants argument that identifying the IRS officials whose emails are missing academic because FOIA does not provide relief for agencys failure preserve documents entirely misses the point.  Def. Opp. pp. 18.  Limited discovery necessary identify the universe missing emails and where these missing emails may located.  Doing essential part assessing the sufficiency the IRSs search. not attempt seek relief from the IRS for failing comply with federal recordkeeping statutes and/or the IRSs own recordkeeping policies  indeed such failures occurred. sum, material questions fact exist regarding the missing emails and whether the missing emails may retrieved from reasonably available, alternative sources.  The IRS has failed refused answer these questions despite having multiple opportunities so, and, result, limited discovery necessary.  Landmark Legal Found. Envtl. Prot. Agency, 959 Supp. 175 (D.D.C. 2013) (permitting limited discovery determine adequacy agencys search); Public Citizen Health Research Group Food and Drug Admin., 997 Supp. 56, (D.D.C. 1998) (permitting discovery for investigative scope the agency search for responsive documents). Limited discovery appropriate this time.   
The Court has already determined that important address the issues surrounding Ms. Lerners missing emails and the missing emails the other IRS personnel this time.  7/10/2014 Order and 8/14/2014 Order.  Defendants attempt delay resolution these factual issues until some uncertain time the future inefficient use the Courts resources. also ignores the substantial public interest both the issues surrounding the missing emails and the IRSs targeting conservative and Tea Party groups seeking 501(c)(4) tax exempt 
status.  Plaintiff has obvious interest having this litigation proceed timely and expeditious manner, and judicial economy dictates that limited discovery should permitted now rather than some unknown, indeterminate time the future following the IRSs submission more, unilateral declarations with summary judgment motion.   
While questions fact pertaining the adequacy agencys search may more commonly the subject discovery after the agency files declarations support summary judgment motion, questions fact plainly exist already and the IRS has already provided multiple declarations directed these questions. this regard, Defendants reliance Murphy Federal Bureau Investigation, 490 Supp. 1134, 1135 (D.D.C. 1980) misplaced. Murphy, the Court held that discovery was appropriate FOIA lawsuit after factual dispute had arisen.  Id. (emphasis added).  When Congressman Murphy filed his notice depose the Director the Federal Bureau Investigation, the agency had not even had the chance file answer responsive pleading Plaintiffs FOIA complaint.  Id. 1136.  Neither the congressman nor the Court yet knew whether the agencys response would suggest inadequate search raise factual question about the agencys search.  Id.  That obviously not the case here. 
Unlike Murphy, the IRS has already submitted total eight declarations.1  These declarations raise multiple, material questions fact about the adequacy the IRSs search light the discovery the missing emails.  See Ancient Coin Collectors Guild U.S. Dept State, 641 F.3d 504, 514 (D.C. Cir. 2011) (finding that the agency failed demonstrate beyond material doubt that its search was reasonably calculated uncover all relevant documents, when failed address whether searched the archive emails former employee and eighth declaration was submitted IRS official Neguiel Hicks another FOIA lawsuit against the IRS, Judicial Watch, Inc. Internal Revenue Services, Case No. 1:14-cv-01039 (RMC) (D. District Columbia).  The Hicks declaration attached Exhibit the IRSs opposition this matter.  (DKT. No. 35-9).   
back-up tapes for those emails) (emphasis added) (quoting Valencia-Lucena U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)).  The Court plainly has the discretion order limited discovery and should given the extraordinary circumstances this case. Judicial Watch seeks limited discovery. 
Judicial Watch has clearly represented agency counsel that the discovery seeks limited issues surrounding the missing emails.  While difficult state precisely which tools discovery are most appropriate until Judicial Watch permitted take initial discovery, minimum Judicial Watch seeks depositions fact witnesses and corporate designees with knowledge about the agencys initial search and the agencys record keeping system for Ms. Lerner and the other relevant IRS officials.  The subject matters for inquiry depositions fact witnesses corporate designees include: Records and information management system, programs, and personnel Exempt Organizations and, particular, the office the Director 2010-2012, including: the Records Management Program implemented the Directors office per IRM; the responsible Area Records Manager per IRM; the responsible Business Unit Information Resource Coordinator per IRM; the responsible Information Resource Coordinator per IRM; the specific recordkeeping systems place the Directors office, including electronic recordkeeping systems for email and other electronically stored information per IRM and and all backup systems for electronically stored information; whether recordkeeping systems for email place the Directors office included printing out and retaining hard copies per IRM; and the governing Record Control Schedule/Retention Periods place the Directors office for correspondence, email, and any other types communications. Whether the IRS had undertaken any searches Lois Lerners email, electronically stored information, recordkeeping systems before the search undertaken response the May 2013 congressional inquiries, whether the results any such earlier searches were searched response the May 2012 congressional inquiries, and, not, whether the results any such searches are retrievable. Procedures used the IRS for gathering records for the Congressional database and the timing when the records the database were collected. Details when and how, early 2014, the IRS discovered that Ms. Lerners computer had malfunctioned and its hard drive had been affected. Whether the IRS made any efforts recover records stored Ms. Lerners hard drive other than undertaking search the Congressional database. Whether any systems were place the Directors office for backing hard drives the office, whether hard drives were backed up, and whether any such backups were located and searched are retrievable. Whether the hard drive Ms. Lerners assistant(s) was captured the creation the Congressional database, backed some fashion, otherwise identifiable. Whether Ms. Lerner, her assistant(s), others the Directors office made use any type removable storage device and whether such devises were located and searched are retrievable. Whether any systems were place the Directors office for backing Blackberries before they were discarded the agency. 
10. The 760 exchange server drives tapes referenced the House Committee Oversight and Government Reform, including when and where the drives/tapes where located, what the drives/tapes are believed contain, the present location the drives/tapes, and whether they are retrievable and searchable. 
11. The parameters IRSs Continuity Operations efforts regarding recordkeeping systems and backups for email and electronically stored information. Conclusion.  
For all the foregoing reasons and the facts and arguments raised Plaintiffs motion for discovery, limited discovery necessary and appropriate this time and the motion should granted.   
Dated:  October 27, 2014    Respectfully submitted, 
       JUDICIAL WATCH, INC.     
       /s/ Ramona Cotca    
       Paul Orfanedes, D.C. Bar No. 429716 
       Ramona Cotca, D.C. Bar No. 501159 
       425 Third Street SW, Suite 800 
       Washington,  20024 
       (202) 646-5172 
       Attorneys for Plaintiff