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Judicial Watch • JW v State 1242 Defendant Opposition to Status Conference

JW v State 1242 Defendant Opposition to Status Conference

JW v State 1242 Defendant Opposition to Status Conference

Page 1: JW v State 1242 Defendant Opposition to Status Conference

Category:Legal Document

Number of Pages:13

Date Created:March 27, 2015

Date Uploaded to the Library:March 27, 2015

Tags:Judicial Watch, transparency, email, Hillary Clinton, State Department


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Case 1:14-cv-01242-RCL Document Filed 03/20/15 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC
Plainti Civil Action No. 14-cv-I242 (RCL)
U,S. DEPA TMENT STATE,
Defendant.
DEFENDAN OPPOSITION PLAlNTlFF
MOTION FOR STATUS CONFERENCE
There need. let alone urgent one, for status conference this Freedom
Infonnation Act FOIA) case. The purported need the recent media reports about former
Secretary State Clintons use personal email for official business, but the Department
State the Department) has already searched the emails provided brmer Secretary Clinton
for records responsive plaintiff Judicial Watch FOIA request, enabling meet the
deadlines place this case. Speeificall April 2015 mere week after the status
conference Judicial Watch seeks#the Department will provide Judicial Watch with any
responsive records, draft search declaration, and, necessary, revised Vauglm index. light the Departmenfs intention meet the April deadline, which Judicial Watch aware,
there simply need for status conference this time.
BACKGRO this FOIA case. Judicial Watch sought from the State Department Office the
Secretary copies talking points. given Ambassador Rice the White House any federal
agency, about the September 12, 2012 attacks the U.S. consulate Benghazi. and
.1.
Case 1:l4 cv-01242-RCL Document Filed 03/20 Page
communications about such talking points. Septembe the Department filed motion
seeking revise the Court scheduling order; Judicial Watch did not object the relief sought that motion. The Court adopted the used schedule, setting the following deadlines:
(1) November 12, 2014 for the Department produce Judicial Watch all non-exempt,
responsive documents subject the FOIA; (2) December 2014 for the Department produce Judicial Watch draft Vaughn index; (3) December 19, 2014 for Jud ial Watch provide
the Department any objections the withholdings described the draft aughn index and the
parties confer thereafter attempt resolve this matter without litigation; (4) January 2015
for the parties file int status report. See Def. Mot. for Scheduling Order (ECF No. 8);
Order Sep. 15. 2014 (ECF No. 9).
These deadlines were met: the Department conducted search reasonably calculated
uncover all responsive documents its custody and control and produced four responsive
documents November 12, 2014 and draft Vaughn index December 2014. Judicial
Watch raised objections the withhcldings described the Vaughn index, but asked for
description the search The parties conferred and, effort resolve the litigation. the
Department agreed provide draft declaration describing the searches had conducted.
Judicial Watch agreed allow the Department until February 2015, provide the draft
search declaration. The parties filed joint status report December 31, 2014 reflecting this
agreement. Joint Status Report (ECF No.
Though Judicial Watch expresse surprise the limited number ofrespnnsive documents. Pl. Mot -1. its
FOIA request is, fact, quite limited scope. does not seek all records relating the attacks September
2012 Benghazi. but rather only talking points and updates those talking points, not general intelligence
updates about the Beiighazi attacks (unless those updates were sent furtherance developing updating talking
pomisi, (Email omRamonzi Cotcai Sep. 12,2014) (con mitng scope ofreqiiest). Judicial Watch does not
even allow for the possibil iat there are emails Secretary Clinton responsive the request. See, e.g., Mot. [assuming the cxislence responsive emails within the Office the Secretary)
.2.
Case 1:14-cv-01242 RCL ument Filed 03/20/15 Page
The Depaitinent became aware several additional searches needed conduct.
including search the emails former Secretary State Hillary Clinton that the Department
received after the conclusion the search for. and production of, responsive documents:
discussions between counsel, during counsel for Judicial Watch was informed phone
that the searches involved emails that were not addressed during the initial search, Judicial
Watch agreed give the Department until April 2015 conduct the additional searches,
produce any responsive documents and, cessary, revised Vaughn index, and provide
draft search declaration,
The Department has completed the additional searches. The Department the process drafting declaration describing those searches. well the searches conducted
September, 2014, and will provide counsel for Judicial Watch, agreed, before
April 2015.
When Judicial Watch med the Govemment its intention seek status
conference because news reports about former Secretary Clinton emails, the Government
told Judicial Watch that the Department had searched the emails provided former Secretary
Clinton for responsive records. and that still planned meeting the April deadline. Pl. Given the considerable public interest generally the emails provided b_y former Secretary Clinton the
Department State, the Department plans review the collection for public release and make the documents
available the public posting them Department website. This will make the maximum number records
available the shortest amount oftime, and, general matter, will considerably more efficient than review
the documents piecemeal response gect-specific FOIA requests. this the supplemental search the
records that Clinton provided was completed before the Departments March 015 announcement that
would processing all the records provided former Secretary Clinton for I. release
.3.
Case 1:14-cv-01242-RCL Document Filed 03/20/15 Page
Mot, Ex. Judicial Watch nonetheless pressed forward with its demand for status
conference.3
ARGUME
Judicial Watch provides basis for its request for the Court hold status conference
next week. first contends that status conference necessary because should not have
rely public reports understand what efforts are being undertaken produce all responsive.
non-exempt, records Pl. Mot. But Judicial Watch has not had rely public
reports the Government has been communicating directly with Judicial Watch about its search
efforts. has previously done this case and its practice FOIA litigation. Judicial
Watch also contends that will save the Court and the parties time and resources address
these issues while supplemental search being conducted, zd., but the Government made
clear Judicial Watch before Judicial Watch filed its motion, search the Department the
Clinton emails for records responsive the request this case has already been done.
Nor status conference necessary prevent spoliation. See Pl. Mot. Judicial
Watch provides nothing but conjecture support this assertion, alluding the conduct
former Secretary Clinton, who not party this case. Landmark Legal Fozmdaiian
Enviromnemal Protection Agency. Supp. --. 2015 (D.D.C, 2015)
(Lainberth, Circuit law establishes that the Court may only grant motion for punitive courtesy the Court, and response Judicial Watch request for its availability the Govemment told
Judicial Watch that was available for statu onference during the last full week March, The Government,
however. does not believe status conference necessary, explained more frilly below. Contrary Judicial Watch suggestion, see Pl. M01. the Department not obligated under FOIA
produce documents that the Department neither possesses nor controls. Kissinger Reporters Comm,
Freedom oflhe Press. 445 U.S. 136, 152. l54 (1980); Na! Set Archive Art hwi.rl ofthe 909 541,
545 (DC. 1990}, Competitive Enterprise Institute ice fence and eclmalogy Supp. --,
2015 :49, 4-5 (DD Mar 2015).
Case 1:14-cv 01242-RCL Document Filed 03/20/15 Page
spoliation sanctions the moving party demonstrates clear and convincing evidence that the
apposirigparty destroyed relevant evidence baafaitlz._) (first emphasis added). status
conference discuss spoliation unwarranted
The quickest and least resource-intensive way resolve this case for the parties
proceed according the agreed-to schedule and, unable resolve the issues themselves.
brief them for the Court the normal course litigation. After the Department submits its dra
search declaration Judicial Watch April Judicial Watch will have several options
available it, including conferring with the Department obtain more infomation about the
declarati the Court believes status conference necessary. would make far more sense hold one after the Department has provided its draft search declaration Judicial Watch and
Jud ial Watch has provided its objections, any, per the existing schedule.
Additional issues discussed Jud ial Watclfs motion are beyond the bounds FOIA
case. 01A not proper vehicle for enforcement the Federal Records Act. See Competitive
Enterprise Institute, 2015 49, (reliance FOIA solve problems arising from
the use personal email accounts conduct government business misplaced because
Congress never intended when enacted FOIA. displace the statutory scheme embodied the Federal Records Act and the Federal Records Disposal Act providing for administrative
remedies safeguard against wrongful removal agency records well retrieve
wrongfully removed records. (quoting Kissinger Repartenr Comm. for Freedom ofthe The fact that the Department did not list former Secretary Clinton emails its draft Vauglm index otherwise
note that had not searched those emails, see Plfs Mot was neither misrepresentation nor material
omission. because those documents were not its possession and control when the original search was completed.
Once those emails were provided the Department and thus entered the Department possession and control, the
Department. its own initiative, searched them for records responsive the FOIA request. noted above, this
search complete.
.5.
Case 1:14-cv-01242-RCL Document Filed 03/20/15 Page
Press, 445 U.S. 136, 154 (1980)); Armstrong Bush. 924 287., 294 (DC. Cir. 1991) (In
post-Kissinger amendments the Federal Records Act ongress again decided rely
administrative enforcement. rather than judicial review the behest private litigants
prevent the destruction removal records).
CONCLUSION
Judicial Watch has failed justify its request for status conference. nine business
days. the date the parties already agreed to. the Department will provide draft declaration
describing its searches. Judicial Watch then will able formulate any ohjec ons might
have those searches. status conference before then would not save the parties the Court
time resources. nor would serve any purpose with respect alleged spoliation third
party. Final many the other issues Jud ial Watch raises are beyond the reach IA. these reasons, the Department State respectfully opposes Plaintiffs Motion for
Status Conference.
Case 1:14-cv-01242-RCL Document Filed 03/20/15 Page
Date: March 20, 2015
Respectfully submitted,
BENJAMIN MIZER
Acting Assistant Attorney General
ELIZABETH SHAPIRO
Deputy Branch Director Prince
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave., N.W.
Washington, 20530
Tel: (202) 305-3654
robe1iprince@usdoj. gov
Cowzselfor Defendant
Case 1:14-cv-01242-RCL Document 14-1 Filed 03/20/15 Page
Exhibit
Email from Ramona Cotca, Sep. 12, 2014
Case 1:14-cv-01242-RCL Document 14-1 Filed 03/20/15 Page nce, Robert (CIV)
From: Ramona Cotca 
Sent: Friday, September 12, 2014 9:45
To: Prince, Robert (CIV)
Subject: RE: State 14-1242
All good. Confirmed your language below Dk. Thanks.
Ramona Cotca
Senior Attorney
Judicial Watch, Inc.
425 Third Street,
Suite 800
Washington, 20024
(202)646-5172, ext. 323
(202)646-5199, facsimile
rcotca@ludiciaWatch.org
This email covered the Electronic Communications Privacy Act, U.S.C. Sec. 2510-2521 and may legally
privileged. This email intended solely for the use the individual whom addressed and may contain
information that privileged, confidential otherwise exempt from disclosure under applicable law. This message may attorney-client communication and such PRIVILEGED AND CONFIDENTIAL. you are not the intended
recipient, any dissemination, distribution, copying this communication strictly prohibited. you have received
this communication error, please notify the sender immediately and permanently delete the original message. Thank
you.
Original Message-----
From: Ramona Cotca
Sen Friday, September 12, 2014 9:35
To: Prince, Robert (ClV)
Subject: State 14-1242
Importance: High
Btw, hold off filing anything. Still hearing from the client the scope paragraph below. Will confirm soon, but
wanted broader, understand may have change our proposed deadlines. Thanks.
Ramona Cotca
Senior Attorney
Judicial Watch, Inc.
425 Third Street,
Suite 800
Washington, 20024
(202)646-5172, ext. 328
(202)646-5199, facsimile
rcotca@JudicialWatch.org
This email covered the Electronic Communications Privacy Act, U.S.C Sec. 2510-2521 and may legally
privileged. This email intended solely for the use the individual whom addressed and may contain
Case 1:14-cv-01242-RCL Document 14-1 Filed 03/20/15 Page
information that privileged, confidential otherwise exempt from disclosure under applicable law. This message may attorney-client communication and such PRIVILEGED AND CONFIDENTIAL. you are not the intended
recipient, any dissemination, distribution, copying this communication strictly prohibited. you have received
this communication error, please notify the sender immediately and permanently delete the original message. Thank
you.
--- Original Message
From: Prince, Robert (CIV) [mailto:Robert.Prince@usdoj.gov]
Sent: Thursday, September 11, 2014 4:42
To: Ramona Cotca
Subje State 14-1242
Ramona,
Attached courtesy are drafts the motion and proposed order agreed yesterday regarding the schedule
this case. Can you please let know noon tomorrow (Friday) there any aspect that you feel does not accurately
reflect our agreement? need file before leave trip.
Also, confirm earlier discussion with you about the scope your clients FOIA request, the Department
interpreting the phrases updates and/or talking points and talking points updates focus talking points and
updates those talking points, not general intelligence updates about the Benghazi attacks (unless those updates were
sent furtherance developing updating talking points).
Thanks,
Rob
The information this transmittal (including attachments, any) intended only for the recipient(s) listed above and
contains information that confidential. Any review, use, disclosure, distribution, copying this transmittal
prohibited except behalf the intended recipient. you have received this transmittal error, please notify immediately and destroy all copies the transmittal. Your cooperation appreciated.
riginal Message-
From: Ramona Cotca [maiIto:rcotca@JUDlClALWATCH.ORG]
Sent: Tuesday, September 09, 2014 1:03
To: Prince, Robert (CIV)
Subject: RE: State 14-1242
Sure. Now good
Ramona Cotca
Senior Attorney
Judicial Watch, Inc.
425 Third Street,
Suite 800
Washington, 20024
(202)645-5172, ext, 328
(202)646-5199, facsimile
rcotca@JudicialWatch
Case 1:14-cv-01242-RCL Document 14-1 Filed 03/20/15 Page
This email covered the Electronic Communications Privacy Act, U.S.C. Sec. 2510-2521 may legally
privileged. This email intended solely for the use the individual whom addressed and may contain
information that privileged, confidential otherwise exempt from disclosure under applicable law. This message may attorney-client communic and such PRIVILEGED AND CONFIDENTIAL. you are not the intended
recipient, any dissemination, distribution, copying this communication strictly prohibited. you have received
this communication error, please notify the sender immediately and permanently delete the original message. Thank
you.
riginal Message---n
obert.Prince@usdoj.gov]
Sen Tuesday, September 09, 2014 1:00
To: Ramona Cotca
Subject: RE: State 14-1242 clarify, out the office but can call cell. Just let know when. Original message
From: Ramona Cotca
Dat 09/09/2014 12:52 (GMT rince, Robert (ClV)
Subject: .JW State 14-1242
Rob, spoke with client. will easier discuss phone this point. Let know when you have time for call.
Thanks.
Ramona
Ramona Cotca
Senior Attorney
Judicial Watch, Inc.
425 Third Street,
Suite 800
Washington, 20024
(202)646-5172, ext. 328
(202)646-5199, facsimile
rcotca@JudicialWatch.org
This email covered the Electronic Communications Privacy Act, U.S.C. Sec. 2510-2521 and may legally
privileged. This email intended solely for the use the individual whom addressed and may contain
information that privileged, confidential otherwise exempt from disclosure under applicable law. This message may attorney- ient communication and such PRIVILEGED AND CONFIDENTIAL. you are not the intended
recipient, any dissemination, distribution, copying this communication strictly prohibited. you have received
this communication error, please notify the sender immediately and permanently delete the original message. Thank
ginal Message-
From: Prince, Robert (CIV) [maiIto:Robert.Prince@usdoj.gov]
Sent: Tuesday, September 09, 2014 9:24
Case l:14 cv-01242-RCL Document 14-1 Filed 03/20/15 Page of6
To: Ramona Cotca
Subject: RE: State 14-1242
Ramona, ifyou need get touch with today about this, email will reach much more quickly than voicemail.
Original message amona Cotca
Dat 09/05/2014 2:24 (GMT-0
To: Prince, Robert (CV)
Subject: RE: State 144242
Sure. How about
Ramona Cotca
Senior Attorney
Judicial Watch, Inc.
425 Third Street,
Suite 800
Washington, 20024
(202)646~5172, ext. 328
(202)646-5199, facsimile
rcotca@JudiciaWatch.org
This email covered the Electronic Communications Privacy Act, U.S.C. Sec. 25102521 and may legally
privileged. This email intended solely for the use the individual whom addressed and may contain
information that privileged, confidential otherwise exempt from disclosure under applicable law. This message may attorney- ent communication and such PRIVILEGED AND CONFIDENTIAL, you are not the intended
recipient, any dissemination, distribution, copying this communication strictly prohibited. you have received
this communication error, please notify the sender immediately and permanently delete the original message. Thank
you.
From: Prince, Robert (CIV) [maiIto:Robert.Prince@usdoj.gov]
Sent: Friday, September 05, 2014 1:07
To: Ramona Cotca
Subject: State 14-1242
Importance: High
Are you available for call today about this case? According the Court order, have file disoositive motions
September 29. like talk about the scope the search and disclosure schedule could propose the Court;
think need file next week, absed experience with Judge Lamberth.
Please let know when would good time talk.
Thanks,
Rob
Robert Prince
Trial Attorney
Case1:14-cv-01242-RCL Document 14-1 Filed 03/2 Page 6of6
US. Department ofiustice, Civil sion Federal Programs Branch For U.S. mail:
Post Office Box 883
Washington. D.C. 20044
For courier and hand deliveries: Massachusetts Ave., N.W., Room 5106
Washington, D.C. 20001
(202) 305-3654 (phone)
(202) 616 8470 (fax)
The information this transmittal (including attachments, ifany) intended only for the recipient(s) listed above and
contains information that privileged and confidential. Any review, use, disclosure, distribution, copying this
transmittal prohibited except behalf the intended recipient. you have received this transmittal error,
please notify immediately and destroy all copies the transmittal. Your cooperation appreciated.