Skip to content

Judicial Watch • JW v State discovery motion 01242

JW v State discovery motion 01242

JW v State discovery motion 01242

Page 1: JW v State discovery motion 01242


Number of Pages:9

Date Created:August 21, 2015

Date Uploaded to the Library:March 29, 2016

Tags:Philippe, Reines, 01242, Discovery, Sullivan, summary, Abedin, motion, Emails, Mills, email, Hillary Clinton, Benghazi, Secretary, defendant, filed, clinton, plaintiff, document, State Department, FBI, White House, records, FOIA

File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page THE UNITED STATES DISTRICT COURT
Civil Action No. 14-1242 (RCL)
Plaintiff Judicial Watch, Inc., counsel, pursuant Rule 56(d) respectfully requests
that the Court deny, or, the alternative, defer ruling Defendant premature motion for
summary judgment and permit time for limited discovery facts Plaintiff needs substantively
oppose Defendant motion for summary judgment. Plaintiff respectfully submits the
accompanying Rule 56(d) Declaration support Plaintiff motion. Defendant has
represented, through counsel, that opposes Plaintiff request for the limited discovery.1
grounds therefor, Plaintiff submits its memorandum law below.
This case involves unprecedented removal entire system records from
agency the agency head. Only through some limited discovery can Plaintiff ascertain
necessary facts determine what sources are available for reasonable search the records
Plaintiff requested. Defendant motion for summary judgment premature and should
Pursuant LCvR 7(f), Plaintiff requests oral hearing Plaintiff Rule 56(d) Motion.
Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page
Factual Background
Plaintiff FOIA request and Defendant initial search. May 13, 2014, Plaintiff submitted FOIA request Defendant Office the
Secretary seeking access to:
Copies any updates and/or talking points given Ambassador Rice
the White House any federal agency concerning, regarding, related
the September 11, 2012 attack the U.S. consulate Benghazi, Libya.
Any and all records communications concerning, regarding, relating talking points updates the Benghazi attack given Ambassador
Rice the White House any federal agency.
(hereinafter also referred the Benghazi talking points See Compl. Relevant
records requested Plaintiff include, but are not limited to, emails sent and/or received
former State Department officials Hillary Rodham Clinton, Cheryl Mills (chief staff), Huma
Abedin (deputy chief staff), Jacob Sullivan (deputy chief staff) and Philippe Reines (senior
advisor). response the filing this lawsuit, Defendant produced four responsive records with
redactions November 12, 2014. See 7/7/15 Decl. John Hackett Hackett Decl.
(ECF No. 19-2); see also Pltf. Mot. for Status Conf. (ECF No. 12). Defendant did not
disclose that never searched Mrs. Clinton emails part its response Plaintiff FOIA
request. Id. Nine months since Defendant first claimed its search was complete, still unclear
where potentially responsive records are reasonably expected reside. June 30, 2015, when Defendant motion for summary judgment was due, Defendant
requested one-week extension review federal records received about June 26, 2015
Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page
from Ms. Mills and Mr. Sullivan (chief staff and deputy chief staff). See 6/30/15 Def.
Notice 2-3 (ECF No. 17). that time, Defendant did not disclose that additional
productions were expected only matter weeks. Id.; See Ex. Mills Ltrs. and Ex.
(Abedin Ltrs. attached Declaration Counsel Support Plaintiff Motion Permit
Discovery Pursuant Rule 56(d) Rule 56(d) Decl. 7-8. Defendant appears have
received additional records from Ms. Abedin least July 2015 and August 2015 and her
final production expected August 28, 2015. See Abedin Ltrs. (Ex. 3). Ms. Mills
purportedly returned her final production about August 10, 2015.2 See Mills Ltrs. (Ex. 2).
Reports about Mrs. Clinton government emails and server. March 2015, the New York Times first reported that Mrs. Clinton used least one email account exclusively for government business while she was secretary state.3 was also then reported that all accounts were routed through
separate email server installed Mrs. Clinton house Chappaqua, New York. Ms. Abedin
also used email account the email server for government business.
8/10/15 Status Rpt., Judicial Watch Dep State, Case No. 13-1363 (D.D.C.) (ECF No. 22).
Plaintiff asked Defendant whether Mr. Sullivan and Mr. Reines used email accounts the server but Defendant refused provide the information. November 12, 2014, Defendant requested that Mrs. Clinton provide any federal
Philippe Reines, another senior advisor Mrs. Clinton, was also involved the Benghazi talking points. Def.
SJM 14. appears email exchange with Mr. Sullivan, Ms. Mills and Ms. Abedin that Defendant
discovered the June 26, 2015 production either from Ms. Mills, Mr. Sullivan, both about the Benghazi
talking points. Id. appears that Mr. Reines produced twenty boxes potential federal records Defendant
July 28, 2015. See Josh Gerstein, Gawker Presses Philippe Reines Emails., Politico (August 2015). Plaintiff
does not have any facts available determine whether Mr. Reines allegedly returned complete production
potential federal records Defendant.
See Michael Schmidt, Hillary Clinton Used Personal Email Account State Dept., Possibly Breaking Rules,
the N.Y. Times (March. 2015).
Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page
records she may have, such emails sent received personal email account while serving secretary state, which may not otherwise have been preserved the Defendant
recordkeeping system. response the request, Mrs. Clinton allegedly instructed her attorneys review emails her email account and determine which emails are
federal records and which are personal. result, the 62,320 emails stored her account, 30,490 those emails were provided [Defendant December 2015] and 31,830 were [deemed] private, personal records. Mrs. Clinton chose not keep
her private, personal emails she someone else believed were not federal records. Id. Mrs.
Clinton does not address whether she used any other email accounts for government business
even whether government related emails remained the BlackBerry and/or iPad she admitted
have used for government business. Id.
While Mrs. Clinton counsel, David Kendall Williams Connolly LLP, has asserted
that there are emails from Secretary Clinton tenure secretary state the server for any review, also does not address whether Mrs. Clinton used other
email accounts for government business and whether the server contained Mrs. Clinton emails
from any other email account she may have used for government business.5 Mr. Kendall
comments also not address any copies, clones, duplication the server hard drive any
backup tapes backup servers.6
Since Defendant filed its motion for summary judgment, news reports indicate that the
See Statement from the Office Former Secretary Clinton (Mach 2015), available
See Michael Schmidt, Copies Clinton Emails Server, Lawyer Says, New York Times (March 27,
Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page server was serviced and maintained Specialist from the State
Department. Bryan Pagliano, the former director for Mrs. Clinton presidential campaign
2008, was hired Defendant May 2009 Specialist. employee the
Defendant, Pagliano continued act the lead specialist responsible for [the server].
reported have been called fix problems with the server, including after Hurricane Sandy
October 2012.9
The Court Should Grant Plaintiff Rule 56(d) Motion and Deny Defendant
Premature Motion for Summary Judgment Order Allow Adequate Time for
Defendant motion for summary judgment premature.
Defendant moved for summary judgment, yet its face, clear that the motion
premature. Hackett Decl. (ECF No. 19-2). Defendant knew its production potentially
responsive records was incomplete, that scheduled productions were imminent, and that its
request for extension time would provide for only partial review potentially responsive
records.10 See 6/30/15 Def. Notice 3-4 (ECF No. 17). Defendant also knew that least
some these records were being reviewed and/or returned response the Plaintiff FOIA
Carol Leonning, Rosalind Helderman, Tom Hamburger, FBI Looks into Security Clinton Private Email Setup, Washington Post (Aug. 2015).
Contrary Defendant assertion, Defendant motion for summary judgement did not provide[] the latest
available information concerning the letters sent [Mills, Abedin and Sullivan] about their productions federal
records Defendant. See Def. SJM Mills Ltrs. (Ex. 2); and Abedin Ltrs. (Ex. 3). about June 25, 2015,
Defendant knew that Ms. Mills attorneys hope[d] provide additional documents Ms. Mills possession from
the broader time period rolling basis next month. See Mills Ltr. (June 25, 2015) (Ex. 2). about June 29,
2015, Defendant knew that Ms. Abedin attorneys were working diligently respond and that they [were]
track provide documents within the next several weeks and hope work closely with the Department
timetable for providing any other potential federal records Ms. Abedin possession. See Abedin Ltr. (June 29,
2015) (Ex. 3).
Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page
request this lawsuit. 11.
For government agency obtain summary judgment under FOIA the adequacy
the search, the agency must demonstrate beyond material doubt that its search was reasonably
calculated uncover all relevant documents. See Nation Magazine U.S. Customs Serv.,
F.3d 885, 890 (D.C. Cir. 1995) (emphasis added), (quoting Truitt Dep State, 897 F.2d 540,
542 (D.C. Cir. 1990)). Defendant had knowledge these potentially responsive federal records,
was the process their productions, yet moved for summary judgment before this was
complete. minimum, Defendant should ordered complete its review the records
from Ms. Mills, Ms. Abedin, Mr. Sullivan and Mr. Reines before Plaintiff can oppose summary
Limited discovery necessary and appropriate.
Even the review the records discussed above was complete, which not, Plaintiff
needs limited discovery about Defendant recordkeeping systems during Mrs. Clinton tenure
before the Court and Plaintiff can determine whether reasonable search has been conducted
under the facts presented here. explained the supporting declarations, facts about the
recordkeeping system are necessary for the Court and Plaintiff determine where potentially
responsive records are reasonably expected reside. See Rule 56(d) Decl.; 8/21/15 David Sun
Decl. (Sun Decl.) attached thereto Ex.
Ms. Abedin attorneys note their letter June 29, 2015 Under Secretary Patrick Kennedy that date,
they had not identified documents responsive Plaintiff FOIA request this lawsuit. Ms. Abedin attorneys
have made are making determinations whether federal record responsive Plaintiff FOIA request this
case, then such determination Ms. Abedin attorneys third parties would improper. official who likely communicated with the Secretary office about the Benghazi talking points, Mr. Reines
records should searched well. Def. SJM 14. Defendant position that his records are not relevant
because allegedly was assigned separate office unavailing when emails from the Secretary office were
routed outside the email system.
Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page
Plaintiff should not have rely piecemeal information provided public news
reports other pending lawsuits gather the facts needs oppose Defendant motion.
Information recently became available unrelated pending lawsuit before the Hon. Emmet Sullivan about the use emails and productions federal records from
Ms. Mills and Ms. Abedin. 7/31/15 Minute Order, 8/10/15 Def. Status Rpt. (ECF No. 22).
Judicial Watch Dep State (Case No. 13-1363) (D.D.C.). While information disclosed
that case about the use emails and productions federal records from Ms.
Mills and Ms. Abedin relevant this case, Plaintiff requires the same information relates Mr. Sullivan and Mr. Reines.
Rule 56(d) prevents Defendant from railroading Plaintiff into premature motion for
summary judgment. Celotex Corp. Catrett, 477 U.S. 317, 326 (1986).13 party faced with
premature summary judgment motion required file affidavit outlin[ing] the particular
facts [it] intends discover and describe why those facts are necessary the litigation. Id.
(citing Byrd U.S. Envtl. Prot. Agency, 174 F.3d 239, 248 (D.C. Cir. 1999)). Plaintiff has
attached such affidavit this motion. See Rule 56(d) Decl. the known facts already
demonstrate, this the rare FOIA case where discovery necessary. See Landmark Legal
Found. Envtl. Prot. Agency, 959 Supp. 175 (D.D.C.) date, Plaintiff not aware all the email accounts Mrs. Clinton used for
government business. Plaintiff not aware Mrs. Clinton ever identifying how she
others, for that matter searched for and decided which emails provide Defendant. noted earlier, recent reports suggest that the server Mrs. Clinton house was maintained
Rule 56(f), which applies Celotex Corp., the equivalent the current Rule 56(d). This applies several
cases cited herein.
Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page
and serviced State Department Specialist. All these facts are necessary determine
Defendant system records available, whether any backups exist and where potentially
responsive records reside. Rule 56(d) Decl. Plaintiff explains its accompanying Rule 56(d) declaration, the limited subject
matters inquiry are:
Information identify officials (custodians) outside the Secretary office who
were likely communicate to/from the Secretary office about the subject
matter Plaintiff FOIA request (e.g. Philippe Reines);
Information about their use email accounts and systems outside the
servers, including the server and email accounts;
Information about what electronic and computing devices (BlackBerrys, iPhones,
iPads, laptops, desktops, etc.)15 were used key officials, their locations and
Defendant ability search for potentially responsive records;
How emails and email servers were managed Defendant, including, but not
limited the server and backup server;
How files and file servers were managed Defendant; and/or
How Defendant implemented system backups.
See Rule 56(d) Decl. Sun Decl. 12-14, (Ex. 1). Pointed and limited discovery
facts about these issues, well the productions federal records Defendant from Mr.
Sullivan and Mr. Reines necessary before summary judgment motions.
For the foregoing reasons, the Court should grant Plaintiff Rule 56(d) motion and deny, the alternative, defer ruling on, defendant motion for summary judgment allow time for
Leonning, Helderman, and Hamburger, supra.
Mrs. Clinton recently admitted that she used Blackberry and iPad Secretary for her government email. See
Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page
limited discovery.
Dated: August 21, 2015
Respectfully submitted,
/s/ Ramona Cotca________________
Ramona Cotca, D.C. Bar No. 501159
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Attorneys for Plaintiff