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Judicial Watch • JW v State HRC’s Opposition Compel 01363

JW v State HRC’s Opposition Compel 01363

JW v State HRC’s Opposition Compel 01363

Page 1: JW v State HRC’s Opposition Compel 01363

Category:Clintons

Number of Pages:35

Date Created:November 21, 2016

Date Uploaded to the Library:December 05, 2016

Tags:HRCs, huma employment, Gowdy, Compel, interrogatory, Opposition, Kendall, Hillary Clinton Email Scandal, Chairman, 01363, Counsel, Benghazi, Secretary, filed, clinton, State Department, FBI, document, david, FOIA, department


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Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
No. 1:13-cv-01363-EGS
U.S. DEPARTMENT STATE,
Defendant.
NON-PARTY HILLARY RODHAM CLINTON OPPOSITION PLAINTIFF MOTION COMPEL
David Kendall (D.C. Bar No. 252890)
Katherine Turner (D.C. Bar No. 495528)
Amy Mason Saharia (D.C. Bar No. 981644)
Stephen Wohlgemuth (D.C. Bar. No. 1027267)
WILLIAMS CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
Counsel for Non-Party Hillary Rodham Clinton
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page
INTRODUCTION this Court has recognized, discovery FOIA cases the exception, not the rule.
Feb. 23, 2016 Tr. 8:20 21. Within that framework, this Court took the unusual step
permitting Judicial Watch take limited discovery this case relevant the question
whether former Secretary State Hillary Rodham Clinton use private e-mail account
conduct State Department business was deliberate intent thwart FOIA. Dkt. #124, 12.
Discovery former Cabinet officials rarer still, requiring showing exceptional circumstances. Id. (internal quotation marks omitted). Applying this test, this Court permitted
Judicial Watch pose interrogatories Secretary Clinton, although cautioned Judicial Watch propound questions that are relevant Secretary Clinton unique first-hand knowledge the
creation and operation clintonemail.com for State Department business. Id. (internal
quotation marks omitted). the interrogatories posed Judicial Watch, Secretary Clinton answered them.
Judicial Watch tellingly does not challenge the adequacy Secretary Clinton answers those interrogatories. could not credibly so: Secretary Clinton answered the interrogatories
the best her knowledge good faith, and her answers are consistent with the voluminous public
record.
Since the time the Court authorized Judicial Watch pose interrogatories, even more information regarding Secretary Clinton e-mail has entered the public domain. particular, the
FBI released Form 302 summaries Secretary Clinton interview and other interviews, well its July 2016 investigative report. the public record related Secretary Clinton e-mail
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page
expanded, one conclusion remained constant: there still evidence indicating, even suggesting, that Secretary Clinton used private e-mail account with the intent thwart FOIA.
amount discovery will change that conclusion.
Notwithstanding this immense record, Judicial Watch has moved compel Secretary Clinton answer three interrogatories Interrogatories Nos. 14, and that undersigned counsel
instructed her not answer the basis counsel objections. Counsel objections are wellfounded and should sustained. Interrogatories Nos. and not seek information related
Secretary Clinton use the clintonemail.com system for State Department business; for that
reason, they are irrelevant and outside the scope permitted discovery. for Interrogatory No.
24, Secretary Clinton cannot answer that interrogatory without divulging privileged attorney-client
communications. any event, counsel Secretary Clinton has already disclosed the Benghazi
Select Committee information relevant Interrogatory No. 24; that disclosure, attached hereto
Exhibit should resolve any further dispute regarding that interrogatory. Counsel Secretary
Clinton respectfully request that the Court deny Judicial Watch motion compel.
ARGUMENT
INTERROGATORY NO. IRRELEVANT AND OUTSIDE THE SCOPE
PERMITTED DISCOVERY.
Interrogatory No. asks Secretary Clinton describe the creation the clintonemail.com
system, which Judicial Watch defined the definitions section its interrogatories the system,
server, provider, and infrastructure used host her clintonemail.com account. See Dkt. #137-1, Interrogatory No. contrast, asks Secretary Clinton describe the creation her clintonemail.com account, including the reason for its creation. Id. Secretary Clinton answered
Interrogatory No. stating: the Senate, when Secretary Clinton began using e-mail, she used personal email account for both work-related and personal e-mail. Secretary Clinton decided
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page transition from the account she used her tenure the Senate the clintonemail.com account. She recalls that was created early 2009. Secretary
Clinton did not set the account. Although Secretary Clinton does not have specific knowledge the details the account creation, her best understanding
that one President Clinton aides, Justin Cooper, set the account. She decided use clintonemail.com account for the purpose convenience.
Id. Judicial Watch has not challenged the adequacy that response. apparent from the FBI summary Secretary Clinton interview, the system (or
server) that hosted Secretary Clinton clintonemail.com account during her tenure Secretary
States was system used her husband [i.e., former President Clinton personal staff. Ex. The FBI summary further states that, approximately January 2009, Secretary Clinton
decided move onto [the] system maintained her husband staff. Id. Counsel objection Interrogatory No. reaffirms that [t]he clintonemail.com system consisted equipment set host e-mail for President Clinton staff. See Dkt. #137-1,
Information regarding the creation the clintonemail.com system system created
host e-mail for former President Clinton personal staff not relevant this FOIA lawsuit.
This Court permitted discovery Secretary Clinton the topic the purpose for the creation
and operation the clintonemail.com system for State Department business. Dkt. #124,
(emphasis added).1 The reasons why former President Clinton personal staff set e-mail
server, and the technical details surrounding the creation that server, not bear that narrow
question. The relevant question under this Court order how and why Secretary Clinton used
The Court also permitted discovery Secretary Clinton the topics the State Department
approach and practice for processing FOIA requests that potentially implicated former Secretary
Clinton and Ms. Abedin emails and State processing the FOIA request that the subject this action. Dkt. #124, (internal quotation marks omitted). Judicial Watch does not argue
that Interrogatory No. relevant these topics.
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page
that system for State Department business. Id. Secretary Clinton answered that question
Interrogatory No.
Judicial Watch offers real argument defending the relevance Interrogatory No.
states bare-bones fashion that [u]nderstanding the basic facts surrounding the creation the
system integral part understanding how and why came used for State Department
business, Mot. Compel (Dkt. #141) but provides articulation why that so. The
relevant facts are those surrounding Secretary Clinton decision have account the server,
not those surrounding the creation the server itself. Nor does Judicial Watch identify any
detail what information desires know that not answered Secretary Clinton response
Interrogatory No. argues vaguely that wants know details relating the system itself
opposed Secretary Clinton account the system, see id., but does not explain why such
information relevant its (incorrect) assertion that Secretary Clinton used the system
attempt thwart FOIA. any event, the FBI summary Secretary Clinton interview makes
clear that she has personal knowledge the details surrounding the creation the system.
See Ex. CLINTON had knowledge the reasons for selecting install the basement CLINTON New York residence the hardware, software, and security protocols used construct and operate the server. The Court should deny Judicial Watch motion compel response Interrogatory No.
II.
INTERROGATORY NO. IRRELEVANT AND OUTSIDE THE SCOPE
PERMITTED DISCOVERY.
Interrogatory No. involves March 2009 Information Memo from Assistant Secretary State for Diplomatic Security Eric Boswell Secretary Clinton Chief Staff, Cheryl Mills,
regarding unclassified Blackberry use. The memo, attached hereto Exhibit recommended
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page
against using Blackberries inside the Secretary office (which was Secure Compartmented Information Facility SCIF and further advised that any unclassified Blackberry highly vulnerable any setting remotely and covertly monitoring conversations, retrieving e-mails, and
exploiting calendars. Interrogatory No. 14, Judicial Watch asks whether Secretary Clinton
reviewed this memorandum and, so, why she continued use unclassified Blackberry
access her clintonemail.com account conduct official State Department business. See Dkt.
#137-1, 11.
Judicial Watch question completely irrelevant the purpose for the creation and operation the clintonemail.com system for State Department business. Dkt. #124, 14. The
memorandum that the basis for the question addresses the cybersecurity risks associated with
use unclassified Blackberries whether used access personal state.gov e-mail. This
precisely the type cybersecurity issue[] that this Court expressly carved out the scope
permitted discovery this case. Dkt. #73, 13.
Undersigned counsel appreciate that cybersecurity issues could relevant the reasons
why Secretary Clinton continued using personal e-mail account Secretary Clinton had been
advised about cybersecurity risks associated with using personal e-mail cybersecurity threats
related her account server particular. For that reason, Secretary Clinton counsel permitted
Secretary Clinton answer Interrogatories Nos. 17, 18, and 19, notwithstanding that those interrogatories relate cybersecurity issues. Interrogatory No. 14, contrast, does not relate cybersecurity threats associated with use personal e-mail. instead concerns threats associated
with using unclassified Blackberries, and particular using unclassified Blackberries within
SCIF. thus does not bear this case.
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page
Although undersigned counsel reiterate that Interrogatory No. irrelevant, counsel note
that the FBI asked Secretary Clinton about this Information Memo, and the FBI summary her
response included the released Form 302. See Ex. After reviewing memo written
for CHERYL MILLS ERIC BOSWELL, CLINTON stated she never brought her unclassified
Blackberry into her SCIF for the reasons outlined the memo. She would keep her Blackberry
outside the SCIF and check non-SCIF areas State, when traveling her office,
speeches, and other occasions outside the office. For this reason well, Secretary Clinton
should not compelled answer this irrelevant interrogatory.
III.
INTERROGATORY NO. CALLS FOR INFORMATION THAT PROTECTED THE ATTORNEY-CLIENT PRIVILEGE.
Interrogatory No. asks Secretary Clinton for the basis for her statement during her Oc-
tober 22, 2015 testimony before the U.S. House Representatives Benghazi Select Committee
that percent her e-mails were the State system and they wanted see them,
they would certainly have been able so. Dkt. #137-1, 18. Counsel objected Interrogatory No. the ground that calls for information protected the attorney-client privilege.
Secretary Clinton cannot answer this interrogatory without disclosing privileged communications from her attorneys that were made for the purpose providing legal advice related
Secretary Clinton e-mail advance her testimony the Benghazi Select Committee. The
attorney-client privilege protects confidential communications made between clients and their attorneys when the communications are for the purpose securing legal advice services.
A.N.S.W.E.R. Coalition Jewell, 292 F.R.D. 44, (D.D.C. 2013) (internal quotation marks omitted). The privilege protects communications from attorney client long the communications are based, part least, upon confidential communication the lawyer from the
client. Id. (internal quotation marks omitted); see also Upjohn Co. United States, 449
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page
U.S. 383, 390 (1981) (holding that the privilege protects both the giving professional advice lawyers and the giving information the lawyer enable him give sound and informed
advice This principle reflects the fact that attorneys advice typically informed the client disclosures well other information, and that often impossible separate the one
from the other. See Sealed Case, 737 F.2d 94, (D.C. Cir. 1984). require Secretary Clinton disclose the basis for her testimony during the Benghazi
Select Committee would require her disclose privileged attorney-client communications that
were based, least part, confidential information that she provided her attorneys. Judicial
Watch argues that the attorney-client privilege protects only communications, not the underlying
facts. Mot. But Judicial Watch already knows the underlying fact: that percent
Secretary Clinton work-related e-mails were the State Department system. Its interrogatory
asks Secretary Clinton identify the basis for that statement, well how and whom she
was made aware that fact. Secretary Clinton cannot answer those questions without identifying
the communications themselves.
Secretary Clinton privileged communications with her attorneys remain confidential.
Counsel note, however, that undersigned counsel David Kendall disclosed information relevant
Interrogatory No. the Benghazi Select Committee following the hearing. the conclusion Secretary Clinton testimony, Chairman Gowdy asked her identify the source for the percent [figure]. See Ex. 425. response that question, November 13, 2015, Mr.
Kendall sent letter Chairman Gowdy stating relevant part: December 2014, the Secretary provided the State Department with
30,490 emails consisting all the potentially work-related emails her possession. these emails, more than 27,700 had government email address
field including more than 27,350 that were sent received from State Department email address.
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page have been advised the Department that least 1,240 these emails
are not federal records (i.e., they are personal records); leaving more than 29,250
work-related emails.
Consistent with this information, between percent Secretary
Clinton work-related emails were from State Department email address
and therefore would have been captured the State Department recordkeeping
system.
Ex. This letter should resolve any further dispute regarding this interrogatory. bears reminder that Secretary Clinton not party this action. This Court took the
rare step permitting discovery FOIA action and the even rarer step allowing questioning former Cabinet Secretary. Given that Exhibit provides information relevant Interrogatory
No. 24, Judicial Watch cannot demonstrate that exceptional circumstances justify further inquiry this subject matter. Dkt. #124, (internal quotation marks omitted). would highly
inappropriate for this Court demand further details regarding Cabinet Secretary privileged
communications with her counsel these circumstances.
CONCLUSION
Counsel Secretary Clinton respectfully request that this Court deny Judicial Watch
motion compel.
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page
Respectfully submitted,
/s/ David Kendall
David Kendall (D.C. Bar No. 252890)
Katherine Turner (D.C. Bar No. 495528)
Amy Mason Saharia (D.C. Bar No. 981644)
Stephen Wohlgemuth (D.C. Bar. No. 1027267)
WILLIAMS CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
dkendall@wc.com
kturner@wc.com
asaharia@wc.com
swohlgemuth@wc.com
Counsel for Non-Party Hillary Rodham Clinton
November 21, 2016
Case 1:13-cv-01363-EGS Document 149 Filed 11/21/16 Page
CERTIFICATE SERVICE David Kendall, counsel for Non-Party Hillary Rodham Clinton, certify that, November 21, 2016, copy this Opposition Plaintiff Motion Compel was filed via the
Court electronic filing system, and served via that system upon all parties required served.
/s/ David Kendall
David Kendall
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
EXHIBIT
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-1 Filed 11/21/16 Page
Case 1:13-cv-01363-EGS Document 149-2 Filed 11/21/16 Page
EXHIBIT
Case 1:13-cv-01363-EGS Document 149-2 Filed 11/21/16 Page
UNCLA.SSlFIED U.s;. D~partment St~~ta~~Sffi1ror~~~.-~~.~ll:cQ_oc No. C05891079 Date: 1111212015
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