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JW v State Clinton Deposition State Opposition 01363

JW v State Clinton Deposition State Opposition 01363

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Date Created:July 12, 2016

Date Uploaded to the Library:July 12, 2016

Tags:Bentel, Finney, Opposition, Discovery, deposition, 01363, Abedin, EXECUTIVE, kennedy, Mills, email, order, Hillary Clinton, Benghazi, Secretary, filed, clinton, plaintiff, State Department, FBI, document, account, FOIA, Supreme Court, department


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***NOTE PUBLIC ACCESS USERS*** Judicial Conference the United States
policy permits attorneys record and parties case (including pro litigants)
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U.S. District Court
District Columbia
Notice Electronic Filing
The following transaction was entered Wolverton, Caroline 7/12/2016 12:00 and
filed 7/12/2016
JUDICIAL WATCH, INC. DEPARTMENT STATE
Case Name:
1:13-cv-01363-EGS
Case Number:
U.S. DEPARTMENT STATE
Filer:
Document Number: 103
Docket Text:
Memorandum opposition [97] MOTION for Order Depose Hillary Clinton,
Clarence Finney, and John Bentel filed U.S. DEPARTMENT STATE.
(Attachments: (1) Exhibit 1)(Wolverton, Caroline)
1:13-cv-01363-EGS Notice has been electronically mailed to:
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
____________________________________
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action No. 13-CV-1363 (EGS)
UNITED STATES DEPARTMENT
STATE,
Defendant.
____________________________________)
DEFENDANT OPPOSITION PLAINTIFF
MOTION FOR PERMISSION DEPOSE HILLARY CLINTON,
CLARENCE FINNEY, AND JOHN BENTEL
INTRODUCTION originally seeking leave conduct discovery this Freedom Information Act FOIA case, Plaintiff Judicial Watch, Inc., contended that needed determine whether the
State Department and its former secretary deliberately thwarted FOIA creating, using, and
concealing the clintonemail.com system used former Secretary Clinton conduct State
Department business. Pl. Mot. for Discovery (ECF No. 48). granting discovery, the
Court accepted that Plaintiff allegation intent thwart FOIA goes directly the type
circumstance not addressed the Supreme Court decision Kissinger Reporters
Committee for Freedom the Press, 445 U.S. 136 (1980). May 2016 Mem. and Order
(ECF No. 73). The fundamental question for the discovery authorized the Court thus
whether there evidence intent thwart FOIA.
The parties have now completed all the discovery authorized the Court. Six individual
witnesses have been deposed, the State Department itself has been deposed through 30(b)(6)
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
designee, State has answered Plaintiff interrogatories, and State has voluntarily produced
documents Plaintiff. Plaintiff nonetheless seeks leave conduct more discovery, requesting
permission depose former Secretary State Hillary Clinton; Clarence Finney, deputy director the Executive Secretariat Staff S/ES-S );1 and John Bentel, former director the Executive
Secretariat Bureau Information Resources Management S/ES-IRM
Pl. Mot. for
Permission Depose Hillary Clinton, Clarence Finney, and John Bentel (ECF No. 97) Pl.
Mot.
Plaintiff motion should denied. Plaintiff has not demonstrated need for additional
discovery, which the Court recognized when ordered limited discovery this case, rare
FOIA cases. May 2016 Mem. and Order 8-9. Plaintiff motion presents selective
explanation the evidence. Contrary Plaintiff vague contention that important questions
remain, the discovery that Plaintiff itself designed has not revealed shred evidence
indicating intent thwart FOIA. the contrary, documents that might have been
interpreted reflecting concern about FOIA have been shown, through sworn testimony,
have much more innocuous explanation. Nor have any the other inquiries into former
Secretary Clinton email practices, conducted the FBI, the State Department Inspector
General, and the House Select Committee Benghazi, discovered any evidence intent
thwart FOIA. Plaintiff has answer the question posed; just does not like it. Plaintiff
dissatisfaction with the record that has been able create not valid reason extend the
limited discovery the Court authorized.
Prior January 21, 2013, Mr. Finney was Director the Office Correspondence and
Records within the Executive Secretariat S/ES-CR Effective January 21, 2013, S/ES-CR
was merged with S/ES-S and Mr. Finney job title changed accordingly. His job functions did
not change. See 30(b)(6) Dep. Tr. 14:21-15:1.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
Although Plaintiff seeks only three additional depositions, none justified. With respect former Secretary Clinton, the record evidence does not demonstrate any intent thwart FOIA.
According the sworn testimony, the Secretary had, matter convenience, used single
personal email account for work and personal purposes both during her time the Senate and
her 2008 presidential campaign, and her use personal account State was simply
continuation that practice. the extent that she anyone her staff considered the FOIA
implications her use personal email account, the evidence elicited Plaintiffs shows that
they believed that her emails State Department employees were being retained the State
Department computer systems.
Plaintiff also cannot justify deposing Mr. Finney. undisputed that Mr. Finney never
knew about former Secretary Clinton personal email account during her tenure Secretary
State, and Plaintiff suggestion that Mr. Finney could testify about why did not know what did not know makes sense. Moreover, Mr. Finney supervisor Karin Lang, the Director
the Executive Secretariat Staff, was State 30(b)(6) designee, and she testified length about
Mr. Finney lack knowledge based upon her multiple hours meetings with him
preparation for her deposition. Questions about what Mr. Finney knew and how that related
State processing FOIA requests fell squarely within the 30(b)(6) deposition topic, and the
questions that Plaintiff seeks ask through deposition Mr. Finney should have been asked that time. deposition John Bentel, who longer employee the State Department,
would also inappropriate. There evidence suggest that Mr. Bentel has any knowledge
about why former Secretary Clinton used clintonemail.com for official State Department
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
business, and fact stated, under penalty perjury, during transcribed interview with the
House Select Committee Benghazi 2015 that has such knowledge.
With all the discovery authorized the Court completed, there remains evidence that
the State Department former Secretary Clinton used clintonemail.com thwart FOIA and
basis believe that the additional discovery that Plaintiff seeks would result any such
evidence. The Court should deny Plaintiff request depose former Secretary Clinton, Mr.
Finney, and Mr. Bentel. the alternative, the Court should defer ruling Plaintiff motion
because additional State Department records may received State.
BACKGROUND
Plaintiff responded State motion for summary judgment seeking discovery
challenge the adequacy State search for records responsive Plaintiff FOIA request. The
essence Plaintiff response was that State search was inadequate because, even though
searched the approximately 55,000 pages emails provided State former Secretary
Clinton, failed search the clintonemail.com system itself. Plaintiff argued that Kissinger
possession control holding does not apply where agency official purposefully routed
document out agency possession order circumvent FOIA request. Pl. Mot. for
Discovery (quoting Kissinger, 445 U.S. 155).
Accordingly, Plaintiff sought discovery determine whether the State Department and
former Secretary Clinton deliberately thwarted FOIA creating, using, and allegedly
concealing clintonemail.com. Id. 2-3. Plaintiff set forth evidence that claimed showed
reasonable suspicion that State and former Secretary Clinton deliberately thwarted FOIA
through the use clintonemail.com, id. 7-22, and maintained needed discovery develop
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
further admissible evidence, well determine whether additional, responsive emails exist
and where find them. Id. 22-30.
The Court granted Plaintiff discovery request over State objection that discovery was
not needed determine whether State search was adequate. The Court permitted limited
discovery the creation, purpose, and use the clintonemail.com server that the Court
could decide whether State search for records responsive Plaintiff FOIA request was
adequate. See May 2016 Mem. and Order 12. The discovery thereafter agreed the
parties and ordered the Court was limited scope, extent, and duration, consistent with the
narrow issue determined. See id. 12-15. The Court discovery order specified that
Plaintiff must seek permission conduct any additional discovery. Id. 15. The parties then
conducted the authorized limited discovery over the specified eight-week period, consisting
the seven depositions, including 30(b)(6) deposition the State Department, and
interrogatories set forth the discovery order. addition, State agreed produce certain
documents requested Plaintiff. See June 14, 2016 Minute Order.
While this discovery was underway, just shortly after, three other inquiries into former
Secretary Clinton use personal email account conduct government business concluded,
resulting wealth information being released the public the subject. First, May 26,
2016, the State Department Inspector General released 80-page report entitled Office the
Secretary:
Evaluation Email Records Management and Cybersecurity Requirements,
available https://oig.state.gov/system/files/esp-16-03.pdf. That report was released the
public with redactions. Although the OIG was highly critical the former Secretary email
practices, found evidence, despite extensive inquiry, that anyone the State Department
approved former Secretary Clinton conducting official business via personal email account
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page her private server. The numerous current and former officials interviewed the OIG,
including senior Department officials who served under Secretary Clinton, current and former
Executive Secretaries, and attorneys within State Office the Legal Adviser, were also
unaware the scope extent [former] Secretary Clinton use personal email account,
though many them sent emails the Secretary this account. May 2016 OIG Report 37.
Second, June 28, 2016, the House Select Committee Benghazi released its report,
totaling just over 800 pages. See Report the Select Committee the Events Surrounding the
2012 Terrorist Attack Benghazi, https://benghazi.house.gov/NewInfo.
Secretary Clinton
testified before this Committee, see Hearing Before the Select Committee the Events
Surrounding the 2012 Terrorist Attacks Benghazi (Oct. 22, 2015) Clinton Cong. Tr.
available
https://www.gpo.gov/fdsys/pkg/CHRG-114hhrg98884/pdf/CHRG-
114hhrg98884.pdf, did, among other individuals, Cheryl Mills, Huma Abedin, John Bentel,
and Patrick Kennedy. Each these witnesses testified what she knew about former
Secretary Clinton use personal email account conduct State business, and their interview
transcripts are now publicly available.
See Select Committee Benghazi, Interview
Transcripts, http://democrats-benghazi.house.gov/work/interview-transcripts.
And third, July the FBI completed its investigation, following referral from the
Intelligence Community Inspector General, Secretary Clinton use personal email server
during her time Secretary State and whether classified information was transmitted that
system. See Federal Bureau Investigation, Statement FBI Director James Comey the
Investigation
Secretary
Hillary
Clinton
Use
Personal
Email
System,
https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comey-onthe-investigation-of-secretary-hillary-clintons-use-of-a-personal-email-system. announcing
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
the conclusion the investigation and the FBI recommendation the Department Justice
not pursue criminal charges, Director Comey provided statement that was also critical the
former Secretary email usage. Director Comey acknowledged that the FBI discovered several
thousand work-related emails that were not the group 30,000 that were returned
Secretary Clinton State 2014, but added that found evidence that any the
additional work-related emails were intentionally deleted effort conceal them. July Director Comey testified for over four hours before Congress. This testimony
was broadcast live the public. note, Director Comey testified that the FBI did not believe
that Secretary Clinton had used personal email account shield her correspondence from
public disclosure. Director Comey was asked whether the reason she set her own private
server, your judgment, [was that] she wanted shield communications from Congress and
from the public. Oversight the State Department: Hearing Before the Full House Comm.
Oversight and Government Reform, 114th Cong. 1:00:58-1:01:22 (July 2016), available
http://www.c-span.org/video/?412315-1/fbi-director-james-comey-testifies-hillary-clinton-emailprobe. Director Comey indicated that was not: can say that. Our best information she
set matter convenience. was already existing system that her husband had and
she decided have domain that system. Id. July State sent letter Director Comey asking the FBI provide the recovered
work-related emails State. July letter from Undersecretary Kennedy Director Comey,
attached hereto Ex.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
ARGUMENT
The Court Should Deny Plaintiff Leave Depose Former Secretary
Clinton, Clarence Finney, And John Bentel Because Plaintiff Has Developed Evidence Intent Thwart FOIA, And Other Testimony Exists
About Their Knowledge. The Court Should Deny Leave Depose Former Secretary Clinton. Plaintiff Has Developed Evidence Intent Thwart FOIA.
Plaintiff contends that former Secretary Clinton deposition necessary provide
definitive answer why the clintonemail.com system was created and why former Secretary
Clinton used conduct State Department business. Pl. Mot. the extent that Plaintiff
contends that only the former Secretary could provide definitive answer these questions,
that position flatly inconsistent with Plaintiff representation the Court that former
Secretary Clinton deposition only may necessary based information learned during
discovery. See ECF No. 58-1 Plaintiff fails explain what additional information
learned discovery that makes the former Secretary testimony more necessary now than
was when Plaintiff filed its discovery plan. The fact the matter the opposite: Plaintiff has
learned through discovery why the clintonemail.com system was created and why former
Secretary Clinton used conduct official business, and has nothing with thwarting
FOIA.
The evidence obtained through Plaintiff discovery shows that former Secretary Clinton
had used single, personal email account for both personal and work purposes dating back her
time the Senate and continuing through her 2008 presidential campaign, was her preference,
and her use personal email account the State Department simply represented
continuation that practice. The evidence further shows that the extent that Secretary
Clinton anyone her staff considered the records management FOIA implications the
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
Secretary practice, they believed that was permitted and that emails sent recipients with
state.gov accounts would retained the State Department system. Huma Abedin, who served deputy chief staff Secretary Clinton, testified,
former Secretary Clinton always had personal device since she had started using email, and
thus had neither Senate.gov account during her tenure the Senate nor Hillary Clinton
campaign account during her 2008 presidential campaign. Abedin Dep. Tr. 38:22-39:4.2
Prior using clintonemail.com account, former Secretary Clinton used another email
associated with the Blackberry she was using during the presidential campaign, which was
HR15@AT[]T.BlackBerry.net. Abedin Dep. Tr. 25:17-22. some point, former Secretary Clinton began experiencing technical issues with
that BlackBerry. Id. 26:9-13. server was already place the Clinton[s residence
prior Secretary Clinton becoming Secretary, which was used for [former President
Clinton personal staff, Mills Dep. Tr. 265:6-10; accord Clinton Cong. Tr. 403 (noting
that server was already being used husband team ).3 Thus, facilitate providing
Because the Court ordered all deposition transcripts provided the Court, State does not
attach excerpts deposition transcripts this brief. May 26, 2016 Minute Order.
Plaintiff contrary contention that former Secretary Clinton was the primary driving force
behind [the clintonemail.com system] and was its principal user unsupported any citation the record. Pl. Mot. see also id. 12. The same true for Plaintiff contention that
former Secretary Clinton chose allow one her key aides, Ms. Abedin, use the unofficial
system for official communications well. Id. Ms. Abedin testimony directly refutes
this assertion. She testified that she obtained her clintonemail.com address late 2008
result Mrs. Clinton 2008 presidential campaign and tenure the Senate ending. such,
Ms. Abedin was losing both her Senate email address and her presidential campaign address, reached out the person had generally been touch with President Clinton office
matters and asked him what should do, since was losing email account. always had
email account associated with the Clinton family deal with their deal with their personal
matters. Abedin Dep. Tr. 21:4-10. Justin Cooper mentioned that they there was
@Clintonemail.com address that could provide for me, that was doing similar
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
technical support directly for former Secretary Clinton, she was given @Clintonemail.com
address they could help with issues. Abedin Dep. Tr. 26:13-15; accord id. 37:5-13 [S]he was having problems with that ATT address. Throughout the presidential campaign
she was using it, throughout the 2008 presidential campaign, and was constantly having issues.
And was just natural transition. came with new device and new new email
address. was just technical difficulties.
Thus, according the testimony obtained during discovery, while former Secretary
Clinton transition clintonemail.com account came early during her tenure the State
Department, her use single personal email account conduct business was continuation
past practice. See Abedin Dep. Tr. 38:19-39:8 just saw continu[ing] what she was
doing before she arrived the State Department. She always had personal device since she
had started using email. experienced continuing the practice that she had had prior
arriving the State Department, and continuing use her personal device. accord, e.g., id.
72:4-7 She had always had one BlackBerry device with one email account that she used her
primary email. And was device and account that she provided personally. Similarly,
Cheryl Mills, counselor and chief staff Secretary Clinton, testified that Secretary Clinton
continued practice that she was using her personal email, and Ms. Mills could not recall
specific discussion opposed her continuation practice she had been using when she was
Senator. Mills. Dep. Tr. 45:7-12. This testimony also explains why former Secretary Clinton
arrangement for the Secretary, and that could that could also have that email address. And sent me. Id. 22:9-14.
This also shows absence intent thwart FOIA Ms. Abedin receipt
clintonemail.com account. Ms. Abedin did the vast majority her work the State Department state.gov email account. Id. 39:21-40:12, 219:21-220:7.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
used clintonemail.com account opposed commercial account, see Pl. Mot.
they could help with issues. Abedin Dep. Tr. 26:14-15.4
The relevant witnesses that Plaintiff requested its proposed discovery plan testified
that, contrary Plaintiff assertions plot thwart FOIA, (1) they believed that was
permissible use personal email account device conduct State business, and (2) the
extent they thought about records management issues, they believed that their emails were being
retained State systems. See, e.g., Abedin Dep. Tr. 40:19 assumed was okay do.
id. 117:14-17 understood that everything that was the State.gov system was kept the
system and retained the system. id. 219:5-11 any time during your tenure the
State Department, did you have any concerns about the Secretary use Clintonemail.com for
State Department business? did not. assumed was allowed. Mills Dep. Tr.
183:21-184:4 was impression that when she emailed, because was her practice email
people their State accounts when she was doing State business, that any those
communications would captured and maintained the State Department system. id.
218:5-7; id. 239:13-21 assumed, now know inaccurately, that records that were State
system were ones that were kept forever. Obviously come learn that that not the case.
And thought since the Secretary practice was email people their State records [sic], that
there was resident the department set records with respect her work the
There reason think and Plaintiff provides none that Bryan Pagliano, who provided
information technology support for the clintonemail.com system, would provide any further
insight into why the clintonemail.com system was created and why former Secretary Clinton
used conduct State Department business. See Pl. Mot. 11-12. The fact that invoked
his Fifth Amendment rights his deposition, and therefore provided testimony about his
appoint[ment [to State Bureau Information Resources Management] the work may
have performed the clintonemail.com system, id. 12, has bearing whether former
Secretary Clinton should deposed.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
department. Secretary Clinton similarly testified before Congress that while she now believes
her use personal email account was mistake, she understood have been allowed the Department. Clinton Cong. Tr. 401.
This practice was not appropriate method preserving federal records making
them available for searches under FOIA. See, e.g., May 2016 OIG Report [S]ending
emails from personal account other employees their Department accounts not
appropriate method preserving any such emails that would constitute Federal record.
Former Secretary Clinton also sent some work-related emails people outside the State system.
Witnesses repeatedly indicated that they wished they had considered these issues. See, e.g.,
Mills Dep. Tr. 190:19-20 wish that had been something thought about. Abedin Dep.
Tr. 119:2-3 Honestly, wish thought about the time. The key point, however, that
according the sworn testimony, one was deliberately seeking thwart FOIA. See Abedin
Dep. Tr. 195:15-19 Did the Secretary not want her personal email account accessible
pursuant FOIA? absolutely not believe that, no. id. 220:22-221:3 you
have any reason believe that Clintonemail.com was used anyone thwart FOIA
obligations? Absolutely Not. Mills Dep. Tr. 263:7-11 you have any reason
believe that Secretary Clinton used Clintonemail.com conduct government business because
she anyone else the State Department was seeking avoid FOIA? Absolutely not.
Indeed, Plaintiff speculation about intent thwart FOIA makes little sense for least
two more reasons. First, former Secretary Clinton used her email account email dozens
State Department officials, all whose email accounts are subject FOIA and Congressional
oversight. See, e.g., Mills Dep. Tr. 189:11-12 (noting that former Secretary Clinton emailed
more than hundred State employees). Had anyone focused the FOIA implications
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
former Secretary Clinton use personal email account, would have been obvious that her
use this email account would eventually become public knowledge. And second, ample
testimony confirms that former Secretary Clinton did the overwhelming majority her State
Department work through standard channels that are subject FOIA. See, e.g., Mills Dep. Tr.
257:20-258:8 She also received enormous amount paper. She vociferous reader, and she would read through all the different memorandas and materials [M]ost the day she
was meetings reading through briefing materials. Kennedy Dep. Tr. 92:9-94:12
(similar); Clinton Cong. Tr. 401 (similar).
ii. Discovery Has Refuted The Basis for Plaintiff Theory
Intent Thwart FOIA.
When Plaintiff sought discovery this case, pointed certain documents that,
Plaintiff view, suggested intent thwart FOIA.
Discovery has revealed that these
documents cannot properly interpreted this way. Plaintiff has also not developed evidence State Department knowledge the scope and extent former Secretary Clinton use
clintonemail.com for work purposes.
The August 30, 2011 Mull-Abedin Exchange.
Plaintiff reply memorandum
support discovery pointed August 30, 2011 email exchange between Huma Abedin and
Ambassador Stephen Mull, former Executive Secretary the State Department, which Amb.
Mull wrote follows:
Separately, are working provide the Secretary per her request Department
issued Blackberry replace her personal unit which malfunctioning (possibly
because [sic] her personal email server down). will prepare two versions
for her use one with operating State Department email account (which
would mask her identity, but which would also subject FOIA requests), and
another which would just have phone and internet capability.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
ECF 14.
Ms. Abedin subsequently responded that the State Department Blackberry
doesn make whole lot sense. ECF 51-3 Plaintiff cited this exchange contend that
senior management the State Department was well aware that Mrs. Clinton was using nonstate.gov system conduct official government business and was concerned that records
the clintonemail.com system were not being managed way that would allow for the State
Department search those records response FOIA requests. ECF No. 14. The
Court also discussed this email exchange its discovery order reason compelling discovery.
May 2016 Mem. and Order
Testimony about this email exchange does not support Plaintiff interpretation. Amb.
Mull testified that could recall conversations about former Secretary Clinton personal
email server during his time executive secretary, Mull Dep. Tr. 74:13-1, and that
suggested masking the Secretary identity merely ensure that her email address was not
available every employee the State Department, id. 77:22-78:-12. Amb. Mull further
testified that could recall communications with anyone the State Department about
Mrs. Clinton email and FOIA requests. Id. 79-18:22.
Ms. Abedin also testified about her comment that State Department Blackberry would
not make sense. Ms. Abedin explained that the initial request the Executive Secretariat arose
because communications issues that the Secretary was having the midst hurricane.
According Ms. Abedin, did not make sense provide former Secretary Clinton with
additional device because [w]e were the middle hurricane, Abedin Dep. Tr. 176:14,
and [t]here were generally communication issues that were pretty widespread New York
the time. Id. 176_19-24. Because the issues would resolved once connectivity was
restored and once the phone lines were and systems were back and running, id. 177:4-
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page Ms. Abedin thought that adding additional devices something that was going
corrected didn seem make lot sense me. Id. 177:6-8. Ms. Abedin testified
unequivocally that there was intent thwart FOIA. Id. 220:22-221:2.
Plaintiff fails mention its motion Ms. Abedin explanation for why she thought
State Department Blackberry did not make whole lot sense comment that constituted
key reason why the Court ordered discovery begin with. May 2016 Mem. and Order
Instead, Plaintiff highlights recently produced email forwarded Ms. Abedin, which John
Bentel and Monica Hanley, aide former Secretary Clinton, are discussing what former
Secretary Clinton email address would State Department Blackberry. Pl. Mot.
Mr. Bentel remarks Ms. Hanley that [y]ou should aware that any email would through
the Department infrastructure and subject FOIA searches. Id. Plaintiff makes much
the fact that this email was forwarded Ms. Abedin before she made her comment Amb.
Mull that State Department Blackberry doesn make whole lot sense. Id. But Mr.
Bentel comment that State Department email account would subject FOIA searches
practically identical what Amb. Mull said Ms. Abedin the email already the record,
and which Ms. Abedin directly responded that State Department email account would
subject FOIA requests. Id. This email from Mr. Bentel therefore provides additional,
relevant information. What relevant the testimony Plaintiff ignores, which Ms. Abedin
explains that she did not think providing former Secretary Clinton with additional device
the form State Department Blackberry made sense because the problem with her personal
Blackberry was likely resolved the near term once the hurricane ended.
Ms. Abedin explanation also applies other instances Plaintiff points disruptions service clintonemail.com. initial matter, Plaintiff claim that the clintonemail.com
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
system suffered multiple and repeated technical problems, weather-related disruptions, and
known incidents hacking, based mere three instances when former Secretary Clinton
had trouble receiving email over the course four years, questionable. Pl. Mot. 5-7.
any event, made sense not pursue long-term solution switching email accounts and
providers fix the short-term problem intermittent disruptions email service. Ms.
Abedin testified regarding Secretary Clinton missed call with foreign minister due failed
email communication, once the system was back and running, that was [it] just
proceeded with business the way was before. Abedin Dep. Tr. 188:5-8.5
The January 23-24, 2009 Kennedy-Lukens-Mills Email. Plaintiff has also pointed email exchange among Patrick Kennedy, Lewis Lukens, and Cheryl Mills which the
participants discussed the possibility former Secretary Clinton checking her email through
computer her desk her office. See ECF No. 52. the email exchange, Amb. Lukens
suggests putting stand alone the Secretary office, connected the internet (but not
through our system) enable her check her emails from her desk. ECF No. 52-1
Undersecretary Kennedy responds that the stand-alone separate network [sic] great
idea. Id. Plaintiff has suggested that this email shows that senior management the
State Department was well aware that Mrs. Clinton was using non-state.gov system
conduct official government business. ECF No. The Court also cited this email
exchange its discovery order. May 2016 Mem. and Order the email chain regarding the missed call, Secretary Clinton stated Ms. Abedin that she
did not want any risk the personal being accessible through State email address,
response Ms. Abedin suggestion getting State account possible solution the
problem that caused the missed call. Ms. Abedin testified that she understood this mean that
Secretary Clinton did not want her private, non-work related emails accessible. Abedin
Dep. Tr. 188:17-189:16.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
Discovery has not supported Plaintiff theory. Both Amb. Lukens and Undersecretary
Kennedy testified their understanding that Secretary Clinton was seeking communicate with
friends and family during the work day (i.e., not conduct State business) and that their
suggestion put separate network her desk was made that context. See Lukens Dep.
Tr. 82:21-22 understanding was for her stay touch with family and friends. id.
83:22 (same); Kennedy Dep. Tr. 48:13:15 recollection, there was discussion with the
Secretary about her desiring able communicate with her family. id. 49:18-20 [I]t
was resolved that the Secretary State had means communicating with her family.
Undersecretary Kennedy could recall conversations about her wanting communicate
email with State Department employees. Kennedy Dep. Tr. 50:4-6.
State Department Knowledge/Approval. Discovery has produced evidence that
Secretary Clinton use personal email account was approved State.
Plaintiff
acknowledges that has discovered evidence regarding the State Department knowledge
about the creation the clintonemail.com system and Secretary Clinton decision use the
clintonemail.com system conduct official government business. Pl. Mot. While
Undersecretary Kennedy received maybe 30-or-so-odd exchanges during the course four
years with the Secretary, Kennedy Dep. Tr. 10:15-16, testified that did not focus
the from line but instead the subject matter, which included things like ongoing
evacuation American citizens from place grave danger, Kennedy Dep. Tr. 17:11-14,
and the death American citizen abroad, id. 28:11-13.6 See also Abedin Dep. Tr.
52:13-21 (testifying that she was not aware Secretary Clinton requesting authorization from
Undersecretary Kennedy also testified that typically receives between 500 and 700 emails
per day. See Kennedy Dep. Tr. 94:19-20.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
anyone the State Department use her clintonemail.com account for State Department
business).
This consistent with the extensive inquiry performed the Inspector General. May
2016 OIG Report (numerous current and former officials, including the Under Secretary for
Management (i.e., Undersecretary Kennedy) were not asked approve otherwise review the
use Secretary Clinton server and had knowledge approval review other
Department staff and were unaware the scope extent former Secretary Clinton use personal email account, though many them sent emails the Secretary this account.
Records Retention Meeting. Nor did Ms. Abedin testimony about meeting with Mr.
Finney near the end Secretary Clinton tenure discuss record retention issues suggest any
intent thwart FOIA. See Pl. Mot. 9-10.7 Ms. Abedin explained that Mr. Finney met with
her and other members Secretary Clinton staff provide guidance what materials could taken upon departure and what materials should remain the Department. Abedin Dep. Tr. 136:5-137:2. She named four other staff members being present the meeting and stated
that Cheryl Mills was not there. She also said that Secretary Clinton was not the meeting. Id. 142:11. See also id. 141:18-21 The people that room were the support staff managing
the the paper records that Secretary Clinton had had accumulated over her time the State
Department.). There reason think that Secretary Clinton would know what was said
during this meeting that Ms. Abedin already testified about, that she would know why none
Plaintiff erroneously states that the meeting took place few months before Secretary Clinton
took office. Pl. Mot. (emphasis added). clear from Ms. Abedin testimony the
meeting that took place few months before Secretary Clinton left office. Abedin Dep. Tr.
140:6-9 (Q: you remember when how soon prior leaving the State Department this
meeting took place? remember was few months
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
the staff members told Mr. Finney about Secretary Clinton work-related emails
clintonemail.com, either the meeting afterwards.
Finally, former Secretary Clinton deposition not necessary determine whether the
State Department ceded control over the emails the system.
Pl. Mot. (citing
Competitive Enterprise Institute Office Science and Technology Policy, No. 15-5128, slip
op. 6-9 (D.C. Cir. July 2016) CEI )).8 uncontested that the State Department
requested that Secretary Clinton provide with any potential federal records contained her
private email account, and has again requested the same the FBI with respect the several
thousand work-related emails recovered, negating inference that State ceded all control over
those records.
*****
The discovery authorized the Court failed reveal any evidence that former Secretary
Clinton sought thwart FOIA using clintonemail.com, and there reason believe that deposition her would reveal any such evidence. The Court should deny Plaintiff request
depose former Secretary Clinton. The Court Should Deny Leave Depose Clarence Finney, Whose
Knowledge Was Described Detail State 30(b)(6) Witness.
Plaintiff has also asked for leave depose Clarence Finney, the Director the Office
Correspondence and Records within the Executive Secretariat during Secretary Clinton tenure Secretary State.
30(b)(6) Dep. Tr. 14:10-15.
That office had responsibility for
processing FOIA requests with respect the Office the Secretary. Id. 14:1-9. While
The Department Justice the process reviewing the CEI decision, which was issued
less than week ago. its face, however, the D.C. Circuit focused not whether there
intent thwart FOIA, but rather whether the agency has ceded control the records. Slip
Op. 6-7.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
conceding that all the evidence record indicates that Mr. Finney was not aware the
clintonemail.com system, Pl. Mot. 14, Plaintiff nonetheless argues that Mr. Finney
deposition necessary answer remaining questions about how and why [he] was not made
aware the clintonemail.com system. Id. Plaintiff recognizes, Mr. Finney and the S/ES-CR office were unaware former
Secretary Clinton use personal email account conduct State Department business during
her tenure. the 30(b)(6) deposition revealed, Mr. Finney periodically asked S/ES-IRM
whether former Secretary Clinton had state.gov email account. 30(b)(6) Dep. Tr. 61-13:17.
Mr. Finney did not think ask Mrs. Clinton was going using another email nonState.gov email account for work related purposes. Id. 63:1-4. After photograph appeared the news media former Secretary Clinton appearing use mobile device, Mr. Finney
checked with S/ES-IRM confirm whether the answer was still that she did not have
State.gov email account. Id. 64:4-9. S/ES-IRM informed Mr. Finney that she still did not
have State.gov email account.
Id. 64:15-16.9
Thus, the 30(b)(6) witness testified
definitively that Mr. Finney was not aware email usage the former Secretary, id. 67:45 and, that never received email from her, id. 67:6-8; accord id. 165:19-166:1 Clarence Finney told that was not aware former Secretary Clinton use nonState.gov email account conduct government business throughout her tenure, not for quite
Plaintiff complains that State objected and instructed the 30(b)(6) witness not answer
[w]hen asked about specifics Mr. Finney conversation with S/ES-IRM. Pl. Mot. 15.
After the witness testified that S/ES-IRM told Mr. Finney that Secretary Clinton still did not
have state.gov email account, counsel for Plaintiff asked the open-ended question, [W]hat else
did they discuss that time? 30(b)(6) Dep. Tr. 64:20-21. was this question that prompted objection from State that the question was vague and exceeded the bounds the 30(b)(6)
notice deposition, and instruction not answer that basis. Id. 64:22-65:2. Counsel
for Plaintiff responded, Sure and continued with his questioning. Id. 65:3-4.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
some time after her tenure. State 30(b)(6) witness further testified that Mr. Finney did not
believe [that] anyone who worked for him had conversations about that topic with S/ES-IRM
during that time period. Id. 186:16-18. the Court has recognized, the State Inspector
General also found evidence that personnel involved responding FOIA requests were
aware Mrs. Clinton clintomemail.com email address. May 2016 Mem. and Order
(citing Jan. 2016 Report 14-15).10 Because Mr. Finney did not know that former Secretary
Clinton was using personal email account conduct government business, makes little sense imagine that could testify how and why did not know what did not know. Pl.
Mot. 14. any event, Plaintiff had ample opportunity ask such questions the 30(b)(6)
deposition.
The topic that deposition was the processing FOIA requests, including
Plaintiff FOIA request, for emails Mrs. Clinton and Ms. Abedin both during Mrs. Clinton
tenure Secretary State and after. May 2016 Mem. and Order 13. State 30(b)(6)
designee was Karin Lang, Director the Executive Secretariat Staff and Mr. Finney
immediate supervisor. Ms. Lang prepared for her testimony speaking with Mr. Finney three four times, for several hours, 30(b)(6) Dep. Tr. 66:9-18, and she even contacted Mr. Finney
during the 30(b)(6) deposition obtain additional information from him. Id. 186:15-18.
Plaintiff complaint that had learn about what Mr. Finney knew and did not know
through the filter Ms. Lang [the 30(b)(6) witness], limited the scope the 30(b)(6)
While the OIG stated its May 2016 report that did find evidence that various staff and
senior officials throughout the Department had discussions related the Secretary use nonDepartmental systems, suggesting there was some awareness Secretary Clinton practices,
none the examples discussed the report involved personnel involved responding FOIA
requests, including requests directed the Office the Secretary. May 2016 OIG Report
38-40.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
deposition, rings hollow. Pl. Mot. 15. was Plaintiff own strategic decision propose
30(b)(6) deposition, the scope which drafted, lieu depositions individual State
Department employees, including Mr. Finney, and other forms discovery, such requests for
production documents. See Pl. Proposed Discovery Plan 1-2 (ECF No. 58-1). Rule
30(b)(6) intended streamline the discovery process, McKesson Corp. Islamic Republic Iran, 185 F.R.D. 70, (D.D.C. 1999), allowing the examining party accomplish
single deposition what otherwise may have taken dozens depositions achieve. Contl
Transfert Technique Ltd. Fed. Gov Nigeria, 308 F.R.D. 27, (D.D.C. 2015). Plaintiff
obtained the benefits the 30(b)(6) deposition, including receiving extensive testimony about
Mr. Finney knowledge and actions. State and the Department Justice, the other hand, had expend significant time and resources prepare the 30(b)(6) witness. See Ex. 30(b)(6)
deposition (indicating the witness spoke dozens individuals preparation for the
deposition). Plaintiff could and should have posed its remaining questions regarding Mr. Finney the 30(b)(6) witness. The Court Should Deny Leave Depose John Bentel, Who Not Likely Have Relevant Knowledge.
Plaintiff has also proposed deposing John Bentel, who retired the director the
Executive Secretariat information technology office, known S/ES-IRM, 2012. The Court
should deny Plaintiff leave depose Mr. Bentel for the same reasons stated above that further
discovery unnecessary because Plaintiff has developed evidence intent thwart FOIA.
Nor has Plaintiff pointed any evidence suggesting that Mr. Bentel would know whether not
Secretary Clinton the State Department used clintonemail.com deliberately thwart FOIA.
Plaintiff claims that the evidence shows that Mr. Bentel his staff failed inform Mr.
Finney that Secretary Clinton was conducting official government business unofficial
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
email system. Pl. Mot. 16. But the 30(b)(6) witness specifically testified that Mr. Finney
did not recall who S/ES-IRM spoke about whether former Secretary Clinton was using
state.gov email account, 30(b)(6) Dep. Tr. 65:10-21, and there evidence suggesting was
Mr. Bentel.
Plaintiff also asked certain the deponents whether they discussed former
Secretary Clinton use personal email with Mr. Bentel, Lukens Dep. Tr. 56:18-57:4; Mull
Dep. Tr. 62:16-19; those witnesses said they did not; and other witness indicated that
she discussed this topic with Mr. Bentel. Plaintiff notes, Mr. Bentel did not speak with the 30(b)(6) witness part her
preparation. Pl. Mot. 17-18.11 Mr. Bentel was interviewed, under penalty perjury,
Congress about these issues. See Select Committee Benghazi, U.S. House Representatives,
Interview Executive Secretariat Director Information Resources Management (June 30,
2015),
available
http://askedandanswered-democrats.benghazi.house.gov/transcripts/
2015_06_30_SCB_INTERVIEW_EX_IRM_Director.pdf Bentel
Cong.
Tr. ).12
Most
importantly, Mr. Bentel testified that had knowledge why former Secretary Clinton
elected use personal email account conduct State Department business. Id.
any time did Secretary Clinton her representatives explain anyone your staff why she
believed her private email system was necessary preferable using official State
government account? Not that aware
Mr. Bentel represented private counsel. with many other witnesses who testified before the Select Committee, Mr. Bentel name
was redacted from the publicly available transcript. See Report the Select Committee the
Events Surrounding the 2012 Terrorist Attack Benghazi, Appendix fn. The fact his
interview, however, already publicly known.
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
II. The Alternative, The Court Should Defer Ruling Plaintiff Discovery
Motion. noted above, last Friday, July State sent letter Director Comey asking the FBI provide State with the work-related emails the FBI recovered.
Undersecretary Kennedy Director Comey.
July letter from State obtains additional State Department
records, intends search them for records responsive Plaintiff request. This has the
potential provide Plaintiff the relief seeks this case. See, e.g., Feb. 23, 2016 Hearing
Transcript 10-11 asking that [the clintonemail.com system records] turned over the State Department that the State Department can conduct the search should have
conducted originally. The Court should therefore, the alternative, defer ruling Plaintiff
request for additional discovery allow this process play out, given that ultimately may
render moot Plaintiff claims regarding the adequacy State search.
CONCLUSION
For all the foregoing reasons, the State Department respectfully requests that Plaintiff
Motion for Permission Depose Hillary Clinton, Clarence Finney, and John Bentel denied,
or, the alternative, deferred.
Dated: July 12, 2016
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Director
/s/ Caroline Lewis Wolverton
CAROLINE LEWIS WOLVERTON (DC 496433)
Senior Trial Counsel
STEVEN MYERS (NY 4823043)
Trial Attorney
Case 1:13-cv-01363-EGS Document 103 Filed 07/12/16 Page
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel.: (202) 305-8648
Fax: (202) 616-8460
Email: steven.a.myers@usdoj.gov
Attorneys for Defendant
Case 1:13-cv-01363-EGS Document 103-1 Filed 07/12/16 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
____________________________________
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action No. 13-CV-1363 (EGS)
UNITED STATES DEPARTMENT
STATE,
Defendant.
____________________________________)
EXHIBIT
DEFENDANT OPPOSITION PLAINTIFF
MOTION FOR PERMISSION DEPOSE HILLARY CLINTON,
CLARENCE FINNEY, AND JOHN BENTEL
Case 1:13-cv-01363-EGS Document 103-1 Filed 07/12/16 Page