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Judicial Watch • JW v State Kendall ltr 01363

JW v State Kendall ltr 01363

JW v State Kendall ltr 01363

Page 1: JW v State Kendall ltr 01363

Category:Clintons

Number of Pages:60

Date Created:August 25, 2015

Date Uploaded to the Library:August 26, 2015

Tags:Hillary Clinton Email Scandal


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Case 1:13-cv-01363-EGS Document Filed 08/25/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 13-cv-1363 (EGS)
PLAINTIFF NOTICE SUPPLEMENTAL INFORMATION
CONCERNING RECORDS PRESERVATION
Plaintiff Judicial Watch, Inc., counsel, respectfully submits this notice supplemental
information concerning records preservation:
During the August 21, 2015 Status Hearing, the Court recognized that Defendant
has obligation recover records potentially responsive Plaintiff FOIA request that are
not already Defendant possession. August 20, 2015 Transcript 20, attached Exhibit any e-mails pertaining official government business are found the 30,000, quote,
unquote, personal e-mails through the FBI, DOJ search, will those documents returned
State? guess that would the second part that directive. think the State Department
should ask they returned. The Court subsequently directed Defendant confer with the
FBI whether has possession these records. See August 20, 2015 Minute Order.
Based letter from David Kendall, personal counsel former Secretary
Clinton, Senator Ron Johnson, appears that the FBI does not have custody any records
potentially responsive Plaintiff FOIA request that are not already Defendant possession.
See Exhibit
Case 1:13-cv-01363-EGS Document Filed 08/25/15 Page
Based separate letter from Mr. Kendall Defendant, appears though
Mrs. Clinton believes that she does not have obligation return all emails that exist
devices containing official government records. Nor does Mrs. Clinton believe that she has
obligation preserve such emails. See Exhibit Under the FRA and implementing
regulations, she had obligation include that set her personal e-mails, retain such
personal e-mails. Plaintiff knowledge, Defendant has not taken any steps prevent Mrs.
Clinton from destroying records potentially responsive Plaintiff FOIA request that are not
already Defendant possession. Defendant only has requested that Mrs. Clinton not delete
any federal documents. See Exhibit Defendant August 12, 2015 Status Report.
addition, Mrs. Clinton has stated that she will only preserve federal record emails [her]
custody. See Exhibit Defendant August 12, 2015 Status Report (emphasis added).
other words, Mrs. Clinton believes that she has the authority destroy records that she has
unilaterally determined personal.
Any destruction records potentially responsive Plaintiff FOIA request that
are not already Defendant possession disregards the Court concerns expressed during
the August 20, 2015 Status Hearing which Mr. Kendall fully aware.
Whether Mrs. Clinton former employee has the authority determine whether these
records are personal government records well whether these records are personal government records are legal questions not yet resolved the Court.
-2-
Case 1:13-cv-01363-EGS Document Filed 08/25/15 Page
Dated: August 25, 2015
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.
-3-
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
Exhibit
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
Judicial Watch, Inc., Civil Action No. 13-1363
Plaintiff, STATUS CONFERENCE
vs. Washington,
Department State, August 20, 2015 Time: 1:00 p.m.
Defendant.
___________________________________________________________
TRANSCRIPT STATUS CONFERENCE
HELD BEFORE
THE HONORABLE JUDGE EMMET SULLIVAN
UNITED STATES DISTRICT JUDGE
____________________________________________________________
For the Plaintiff:
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street,
Suite 800
Washington, 20024
Peter Wechsler
Robert Prince
UNITED STATES DEPARTMENT JUSTICE
Civil Division, Federal Programs Branch
P.O. Box 883
Benjamin Franklin Station
Washington, 20044
____________________________________________________________
Court Reporter:
For the Defendant:
Janice Dickman, RMR, CRR
Official Court Reporter
United States Courthouse, Room 6523
333 Constitution Avenue,
Washington, 20001
202-354-3267
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
THE COURTROOM DEPUTY:
Judicial Watch, Inc., versus Department State.
Civil case number 13-1363,
Counsel, please come forward and identify yourselves
for the record.
MR. BEKESHA:
Good afternoon, Your Honor.
Bekesha behalf Judicial Watch.
Michael
Farrell, our Director Investigations.
THE COURT:
MR. WECHSLER:
Along with Chris
Good afternoon, gentlemen.
Good afternoon, Your Honor.
Peter
Wechsler the Department Justice.
Along with
Robert Prince, also the Department, representing the
State Department.
THE COURT:
Good afternoon.
Ive got few questions.
last filing, before start asking questions?
MR. WECHSLER:
THE COURT:
approach.
Anything new since the
(Shakes head.)
Let invite government counsel have few questions for you.
Thank you very much for your reply.
Sorry
couldnt accommodate you the request, there were just too
many other matters pending right now.
Whats the sometimes its best recap, get feel for where are now and what direction were heading
with this case. let just recap few things. understanding follows:
The Department
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
State Department continues review the 55,000 pages
e-mails already disclosed Mrs. Clinton.
14th declaration the State identified Department State
identified five offices within State that may also have
records responsive this case, including the Bureau
Human Resources, the Office the Executive Secretariat,
the Office the Legal Advisor, the Officer the Under
Secretary for Management, and the fifth one, the Central
Foreign Policy Records. its August
And understanding that
search those records underway.
MR. WECHSLER:
Yes.
With respect the first
issue, the 55,000 pages that were provided the Secretary the Department have been searched using the search terms
agreed the parties. that completed.
There were responsive records.
With respect the five offices, the searches are process.
potentially responsive records have been located and those
will processed soon possible.
underway.
advising the Court the status with respect the
remaining searches.
Some additional documents have been
And that
And the Department suggests, perhaps, days
THE COURT:
All right.
And that would
remaining searches all right.
You say soon
possible those documents will provided plaintiff.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
Whats your timeframe for that?
MR. WECHSLER: are intending much
possible the next days and would suggest advising the
Court that time the status.
THE COURT: thats the days your
timeframe for work progress?
MR. WECHSLER:
THE COURT:
Yes.
All right.
How many documents were
found that are potentially responsive?
MR. WECHSLER:
Approximately 200 pages.
And there
are some there are
THE COURT:
Those have reviewed now, assume.
MR. WECHSLER:
Yes.
And there are some
additional noted the declaration Mr. Hackett,
there some and Mr. Macmanus, there are some additional
records that are also being searched complete that process.
THE COURT:
Can you little more enlightening
about those?
MR. WECHSLER:
There were two additional former
employees, and basically what
THE COURT:
Can you identify those people?
MR. WECHSLER: dont have the names with me.
But the Department did not want publicize their names
this point, just given the
THE COURT:
Even you had the names, right?
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
MR. WECHSLER: apologize. dont have them front me.
But that was their preference.
THE COURT:
MR. WECHSLER: there reason for not making -Just personal privacy.
Just under
the Courts redaction orders and under exemption six.
The COURT:
All right.
MR. WECHSLER:
And they will make determination whether their names should released with respect
the actual documents.
But that was just with this recent
filing.
So, with respect the five offices, most
those searches have now been conducted and these remaining
aspects are being done diligently the Department. addition, the Department, noted the most
recent filings, the Department has received documents from
Ms. Mills and Ms. Abedin.
were the complete production potential federal records.
Miss Abedin indicated that August 28th she would have
provided those.
Miss Mills represented that those the Department intends process those,
well.
And the Departments position that given the
answers the Courts further questions and the status
reports that have been filed, that that amounts, total, reasonable search records that are the agencys
possession control.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
THE COURT:
All right.
Let back those
individuals, the unidentified individuals. put words your mouth, just trying understand.
Are you saying that official documents have been identified
with respect those individuals?
MR. WECHSLER:
THE COURT:
No. not trying
The declaration
Because that would beg the issue
why dont know their names, right?
MR. WECHSLER:
Yeah.
The declaration Mr.
Macmanus, which was filed yesterday, discusses those
paragraph five. the office the Under Secretary for Management and
the Administrative Officer for the S/ES office.
And basically, these are senior advisor
So, what happened was reviewing the potentially
responsive records some these other the five
offices, these names were located.
diligent and theyre following trying determine now
whether those individuals state.gov files also contain any
potentially responsive documents. they are being from the Departments standpoint, doing
what can canvas the entire field, locate any
additional responsive records.
THE COURT:
All right.
Let ask you this with
respect the server and the thumb drive:
Theyre
possession the Department Justice, correct?
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
MR. WECHSLER:
Well, the report that theyre
the possession the FBI.
letter from the former Secretarys counsel that was filed
one the status reports.
THE COURT:
And that was stated the
Right.
But you represent the
government, you know who possesses what. Department Justice attorney, right?
MR. WECHSLER:
THE COURT: large department
Youre the Department Justice, right?
MR. WECHSLER:
Correct.
The FBI has its own
procedures. mean, youre
THE COURT:
The FBI agency under the
Department Justice.
MR. WECHSLER:
THE COURT:
Yes.
That correct. understand that.
Thats why
asking.
who has these documents. private attorney tell the government who possesses
these documents, it?
MR. WECHSLER:
There have been lot conflicting reports about
The government not relying upon
Well, were talking about two
different things, Your Honor; documents and server.
THE COURT:
drive.
Were talking about server, thumb
those devices?
The question is:
MR. WECHSLER:
What government entity possesses
The State Departments position
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page that contained
THE COURT: not concerned about the State
Departments position.
Youre the Department Justice
attorney.
understanding that the Department Justice possesses
those devices, for want better word.
word for devices?
You can tell whether not
MR. WECHSLER:
THE COURT:
MR. WECHSLER:
THE COURT:
No.
All right. there better correct wrong?
Yes.
Which one? manage both
occasion, but which one?
MR. WECHSLER:
THE COURT:
MR. WECHSLER: sorry?
No, thats all right.
The FBI reportedly has possession the server.
However, the former Secretary has stated,
under oath, document that was filed with this court,
that she turned over the actual copies the e-mails that
are potential federal records.
Departments vantage point
THE COURT:
MR. WECHSLER:
And from the State
She turned those over who? the State Department.
And those
were the 55,000 pages, and those have been searched.
the State Department
THE COURT: not talking about them,
And
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
talking about the server.
MR. WECHSLER: the extent theres something
else that the server, tangible thing, that theres
some information potentially it, that not within the
possession control.
THE COURT: understand that. understand that.
Youre getting ahead it, though.
who has the server, who has the thumb drive.
governments perspective, from the Department Justices
perspective, who possesses the server and the thumb drive?
MR. WECHSLER:
THE COURT: trying determine
From the far know, the FBI. there any doubt about that?
mean, you know, there shouldnt any doubt about that. not trying
MR. WECHSLER:
The FBI not known for sharing
other agencies, the connection with separate civil FOIA
case, its own affairs. the imagination, the possession control.
THE COURT:
And those are not, any stretch you can categorically state then
that the Department Justice, government entity,
not possession either the thumb drive the server
thats been discussed here?
MR. WECHSLER:
THE COURT:
MR. WECHSLER:
That the Department Justice
Right. cannot definitively state
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
indicated paragraph the Hackett declaration,
cannot definitively state what the current status with
respect items that are not the possession control the State Department or, particular, that are the
custody control the
THE COURT: today, think thats clear.
needs get answer the question about what entity possession the thumb drive. need get answer. cant get
But need the Court
You know, the Court should not have rely upon
media reports and the media has reported, and maybe
accurately so, that various occasions that the those
two devices are the possession were turned over the
FBI.
contained
And there have been some references DOJ.
Excuse one second.
(Brief pause proceedings.)
THE COURT:
And
Correct wrong, did the
government did the State Department not say that the
Department Justice probably has the
MR. WECHSLER:
The State Department said that
according the former Secretarys attorney, Mr. Kendall,
those that device, the server was turned over the FBI
and that what the basis our knowledge.
And the FBI the best position answer any questions. suspect
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
theyre not going this stage.
THE COURT:
MR. WECHSLER:
THE COURT:
MR. WECHSLER:
THE COURT:
No. the State Department?
No.
Does the State Department intend
MR. WECHSLER:
Subject Your Honors guidance, this point they not plan interfere the FBIs
operations.
Well, have they been asked
ask the FBI?
THE COURT: didnt say interfere, said just
ask the question.
MR. WECHSLER:
THE COURT:
They not.
Now, State, its submission, agrees
that Mrs. Clintons personal server may have responsive
information the FOIA request issue this case.
MR. WECHSLER:
No, State has not taken that
position.
has said that not position opine whether
the server any other device not its possession
control contains any responsive information.
document number 26-1 page paragraph 12. paragraph the Hackett declaration, State
THE COURT:
All right.
And thats youre not
position know that.
MR. WECHSLER:
However, the Department also notes
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
that the Secretary has declared, under oath, that the
e-mails within that account were turned over the State
Department.
have been processed.
THE COURT:
And, noted, those are the 55,000 pages that
So, the lets assume the server
and the thumb drive were the possession the State
Department.
undertake independent search the server, the server
and thumb drive effort determine whether there are
All right?
Would the State Department
documents responsive the FOIA request?
MR. WECHSLER:
If, under that hypothetical, the
55,000 pages had been printed out paper form and there
was representation such that under oath here, that
those were the potential federal records, the State
Department would not generally then undertake independent
forensic investigation device corroborate that.
terms FOIA request, that would seem
extraordinary. plaintiffs speculation and conjecture.
And far all have base that request mean, have declaration under oath here, the
55,000 pages were provided and that those are the potential
federal records.
the other searches that have been done, that reasonable
search. submit that connection with all
THE COURT:
All right. your answer no, you
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
wouldnt it?
MR. WECHSLER:
THE COURT:
Yes.
All right. suppose the devices
were there and the employee had left the government
employment, and the devices were there and you have this
FOIA request, would the government undertake search then?
MR. WECHSLER:
THE COURT:
Yes. the critical difference what?
The employee longer there?
MR. WECHSLER:
The difference that that work
has been done the same employee who created received
the records.
e-mails, that that person, they are available, who
make the selection potential federal records and personal
records.
And that normal practice printing out
And FOIA does not seek personal records.
THE COURT:
All right.
So, and because you have
statement here from former employee that certain official
documents have either been turned over dont exist, then
thats the end the search, insofar the State
Department concerned?
MR. WECHSLER:
context.
here.
Ms. Abedin.
provided. would say its matter
There were three categories records sought
One, all notification personnel action forms for
Those are the SF-50 forms.
Those were
Two, any contracts between the Department and
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
Miss Abedin. far know, there are contracts per se.
So, comes down the third category; records.
And paraphrasing here.
from Ms. Abedin engage outside employment while
employed the State Department.
personnel records.
involve personnel matters the Department, whether
authorize outside employment.
Records related authorization
So, generally, these are
They involve any exist, they would
The State Department has now searched five
different offices, including human resources.
sought and received documents from the former Secretary and
two other former employees.
diligently.
that were produced not contain any responsive records,
think the concept reasonable search here has been met.
Theyve
They are processing those
So, under that scenario where the 55,000 pages
THE COURT:
Does the State Department has the
State Department established dialogue with any other
government agency and Im, obviously, referring the
Department Justice and/or the FBI effort
determine whether, after examination those devices
those agencies, documents were found that are, arguably,
responsive the FOIA request?
brought the attention the State Department?
you reached out determine what will happen documents
are indeed uncovered?
Will those documents
Its long question. have you
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
understand that?
MR. WECHSLER:
Yes, do.
And document number 26,
defendants status report, responds the Courts directive precisely this issue.
response twofold; that search required
reasonably calculated uncover all relevant documents.
And essentially the Departments
Given that the 55,000 pages did not contain
irrelevant documents, given that there was representation,
under oath, that those are the potential federal records,
and given the agencys search the state.gov files and all the other government files the five agencies and
systems record, that that does not warrant effort
involve itself and potentially interfere with the FBIs work
that ongoing.
been completed.
Theres suggestion here that that has
THE COURT:
You keep using that word, interfere. not talking about anything that would interfere with
ongoing investigation.
not theres indeed obligation the part the State
Department anything else preserve potentially
preserve potential government documents?
MR. WECHSLER: just talking about whether
Well, first all, with respect
preservation, those are the possession the FBI,
nothing could more secure than that.
records, the 55,000 pages have already been preserved and
Secondly, the
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
produced. the question then becomes the legal question
whether the agency required search for process
not even documents now, were talking about devices that are
not its possession and control.
case law directly point that documents such personal
documents such those personal e-mail account are agency not generally required undertake that type extraordinary remedy.
THE COURT:
Right.
And would point
But assuming, though, that
scenario there wasnt violation government policy
either, correct?
anyones random e-mail accounts.
search devices that may have contained official
government documents, thats what were talking about.
wouldnt here today had the employee followed government
policy, right?
Were not talking about search
MR. WECHSLER:
Were talking about
Well, the answer that clear.
And this quote from the Kissinger case, 445 U.S.
154, clear that 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.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page course, point out here, theres allegation
that these were the agencys system records and then
removed.
point more generally this FOIA case not the vehicle
for the plaintiff address that.
Federal Records Act case pending currently front Judge
Boasberg their Federal Records Act claim.
the case explore any these issues that are appropriate that time.
So, its not wrongful removal that.
THE COURT:
But
They have separate
And that that case different from this
case, obviously, because that was the Library Congress
case, right?
Kissinger reports, freedom the press.
MR. WECHSLER:
Correct.
And also the Competitive
Enterprise Institute case, thats Westlaw cite, 2015
967549, page has the same conclusion.
second you know, the point that FOIA not used
resolve problem agency employees use personal
e-mail accounts.
would misplaced use FOIA.
And there
And the term the Court used there was that there case law this. believe that the
department has gone and met its obligations requesting
these documents, obtaining the documents, agreeing
search the documents, and that now request devices would
essentially the tail wagging the dog.
THE COURT: didnt say request devices.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
talking about requesting the information thats, arguably, the devices thats legitimately responsive FOIA
requests. agree, think that theres some sort investigation
being conducted some agency the government.
question whether not the State Department has, the
very least, established dialogue least inquire
those investigating that during the course your
investigation, you need find documents that are,
Thats what talking about. other words,
And
arguably, responsive this FOIA request, least alert that can discharge our obligations the inquirer.
Thats the question. not talking about physically removing those
devices and bringing them over the State.
saying there that sort dialogue thats been
established?
obligation produce documents.
the FBI has obligation now, since those devices are
currently the possession the FBI, does the FBI have
FOIA obligation?
Because the State Department still has
MR. WECHSLER:
And query whether not
Not theyre not party.
But,
agree with Your Honors point
THE COURT:
MR. WECHSLER: just
Not theyre not party? the case.
But agree with Your
Honors suggestion that the Department inquire the manner
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
that Your Honor suggested.
THE COURT:
MR. WECHSLER:
You agree with that? that.
THE COURT: going direct it.
Its legitimate inquiry, right?
MR. WECHSLER:
THE COURT: will suggest that the Department
Yes.
All right.
said wont forget it.
Ill get copy what
But that will the directive,
that the Department Justice indeed establish that
dialogue with the investigating entity, Department
Justice FBI, whatever agency doing that.
thats legitimate inquiry?
MR. WECHSLER:
THE COURT:
Yes.
You agree
Yes.
Because that would consistent with
your obligation under the Federal Records Act 1950,
wouldnt it?
MR. WECHSLER:
have certainly changed over time.
THE COURT:
Well, the laws regarding e-mails understand that.
But that law
still good law, isnt it?
And this what you reminded
Miss Mills about your letter dated November the 12th.
The Federal Records Act 1950, amended Congress,
seeks ensure the preservation authoritative record official correspondence, communications, and
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
documentation. consistent with that then, the State Department
acknowledges that has obligation least establish
that dialogue with the investigating agency and request informed documents that are, arguably, responsive
the plaintiffs FOIA requests.
MR. WECHSLER:
THE COURT:
that regard.
Agree?
Agreed.
Thank you. appreciate the candor
Because, mean, thats consistent with law. surprised the government the State didnt that,
hasnt done that already though.
MR. WECHSLER:
THE COURT:
the State Department it.
candor.
Perhaps theyre being nudged.
Well, all right.
Ill gently nudge
But appreciate your
Thank you. was going get into another area, but not sure need right now.
pertaining official government business are found the
30,000, quote, unquote, personal e-mails through the FBI,
DOJ search, will those documents returned State?
guess that would the second part that directive.
think the State Department should ask they returned.
Lets see. any e-mails
You know, the thing that makes feel little
uncomfortable and not being critical the FBI,
but the State Department going the best position
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page determine whether not there information those
devices that are, arguably, responsive the plaintiffs
FOIA request.
that, arent you?
Youre going the best position
Right?
MR. WECHSLER:
THE COURT:
Yes.
All right.
So, how can the Court
nudge anyone put you that best position?
you any way can.
MR. WECHSLER:
Ill help think the dialogue
established and report the results that status
report, that might helpful the Court.
THE COURT:
All right.
Okay.
But see, the
problem is, dont have any control over the FBI because
the FBI not party this.
MR. WECHSLER:
THE COURT:
MR. WECHSLER:
Should the FBI party?
No.
Why not? dont think so.
This part
their duties.
This not part their recordkeeping.
This would create problems, think, for them.
THE COURT:
MR. WECHSLER:
Nothing that saying should
construed any criticism.
But they have the devices, though.
THE COURT:
They have their own job do. one criticizing the FBI.
No.
No.
MR. WECHSLER:
They have their own job do.
And
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page will initiate the conversation.
THE COURT: understand that.
But you have job do, too.
possession were tiptoeing the head pin here
because theres only one government.
are the possession the Department Justice.
And those documents, those devices are the
MR. WECHSLER: mean, those devices
Perhaps the response will help
inform any next steps that are required.
THE COURT:
All right.
Let raise one more
point.
And maybe this the point pursued down the
road little bit. not encourage more litigation, but make the point
that indeed this dialogue established and its
fruitful, there need expand this litigation
include other entities, like the FBI.
But, raise for reason.
MR. WECHSLER:
THE COURT: raise
Correct. think arguable basis probably
could exist under Rule the plaintiff the
defendant wanted add the FBI party, think theres
probably basis that because that entity before
the Court, then the Courts the best position accord
complete relief among existing parties.
importance Rule thats the significance Rule 19(a).
And thats the
But think willing accept your agreement,
that you can get the information result
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
dialogue with the FBI, information about whats responsive the request and also return the documents the State
Department you can discharge your obligations, think
may satisfied with that, without bringing the FBI
without least allowing party bring the FBI in.
Because either side could bring the FBI effort
enable the Court to, Rule 19(a) says, accord complete
relief among existing parties.
compromise.
MR. WECHSLER:
THE COURT: think that may fair
Yes, Your Honor.
But would like have all this
the other thing the uncertainty the length the
investigation.
very sensitive that.
inappropriate, think, for judges well, think its
inappropriate.
entity, especially one not before the Court, even one
before the Court, that you have number days complete
your investigation.
commenced completed.
timeframe for that. dont know.
And think its think its would feel uncomfortable telling
All right.
now.
And, you know what?
Thats not how investigations should would nice try get dont think have any questions
Thank you very much, Counsel.
MR. WECHSLER:
THE COURT:
Appreciate it.
Thank you, Your Honor.
Let hear from plaintiffs counsel.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
What about that?
MR. BEKESHA:
Would you satisfied with that? shouldnt be, Your Honor.
The
State Departments position appears that FOIA isnt
the proper avenue search personal e-mail accounts.
agree with that.
e-mail account here.
Department Mrs. Clinton did not use State Department
e-mail account.
the opportunity use their server.
But were not talking about personal weve learned, the State
The State Department did not provide her found out yesterday
that Mrs. Clinton wasnt even provided BlackBerry from the
State Department.
So, this isnt personal e-mail account, her
using personal devices.
other cases this court and the D.C. Circuit has heard about
government contractors and third-party vendors.
THE COURT:
This different from many
Are you concerned with, though not minimize all youre concerned with, though,
getting the documents that are responsive request.
dont want lose sight that
MR. BEKESHA:
THE COURT:
Absolutely, Your Honor. those paragraphs the complaint.
And want and the extent that its appropriate for
you get that information, the extent youve not
already received some information, then want make sure
you get it, recognizing there may appropriate government
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
exceptions, etcetera.
basis for the State Department get, from investigating
entity, documents that may responsive your request and
also copies those documents, whats the complaint after
that?
But the Court has established
Why are you complaining?
MR. BEKESHA:
Based reporting, and only
reporting because the State Department hasnt been
necessarily revealing, you know, all the information that
the Court has requested and plaintiff has requested.
Reporting that the thumb drives have only the 55,000
pages them and that the server may have been wiped.
were talking about the same records that have been produced paper form.
THE COURT:
Isnt that next step though?
So,
Lets
talk about couple scenarios.
scenario where information and dont want get
into too many hypotheticals because could spend hours
talking about what if, what if, what if.
the investigating entity ought able conclude its
investigation, determine whether not there are documents
that can recovered that are responsive, and give those
documents the Court the first instance, and the
government.
Lets talk about one
Seems that
Another scenario would investigation that
doesnt reveal anything because for whatever reason, who
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
knows what the reason is.
And that may trigger something
else. outside entity; that may, who knows?
inappropriate focus what right now, indeed
there legitimate basis established pursuant the
Federal Records Act for the government attempt
preserve federal records through this process getting
this information from federal agency, and then see,
the end the day the end the investigation, what
That may trigger independent forensic examination
But think its
exists and what may not exist, which may trigger additional
relief.
happen then; who knows? not going sit here and say whats going actually applaud the governments concession and
agreement establish that dialogue and get that
information. argue.
Now, whats wrong with that?
Whats wrong with that?
MR. BEKESHA: inviting you
No, am.
Thank you, Your Honor. think the
concern dont know what weve heard the media,
the thumb drive
THE COURT:
legitimate.
Thats exactly right.
Thats
You dont know what youre going find.
MR. BEKESHA:
However, know third-party
contractor, this case Mrs. Clinton, had system
records for her e-mail she could conduct official
government business while she was Secretary State.
She
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
had her own BlackBerry, she may have had her own iPad.
has admitted she used iPad.
Clintonemail.com.
statement under oath, Ms. Abedin had e-mail account that
she used for government business the server.
been discussion anywhere that the two thumb drives that
Mr. Kendall had and the server that was turned over had Mrs.
Abedins e-mail.
She
There was server,
Apparently, according Mrs. Clintons
Theres dont know there was other.
This system records that was being managed
and maintained either third-party, Mrs. Clinton, or,
according the Washington Post, specialist within
the State Department traveled New York provide
maintenance the server.
more information that.
havent received response.
Weve sent FOIA request get
Its only been week,
But, there was third party involved.
And
dont know the FBI has the original server, copy the
server, has all Miss Abedins e-mails it, the
30,000 e-mails that Mrs. Clinton deleted.
and based your line questioning before, was this
server, being what appears government server, was
physically the possession the State Department, they
would not have called Mrs. Clinton, former employee,
said, Can you come back the office and review those
records? and allowed her remove delete 30,000 e-mails.
What know,
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
That wouldnt have happened. just because counsel continues use
possession and control well, the Circuit has said,
possession isnt everything, especially its
government contractor third-party vendor.
what have this case.
And thats
And what were looking for for the system
records that was used conduct official government
business searched. hasnt been searched.
Mrs.
Clinton directed unnamed individual review her records
and turned over those records.
under oath that all potentially all potential federal
records were returned. individual review the Clintonemail.com.
begs the question, Well, how come she didnt say, all
potential federal records?
Clintonemail.com because there were additional accounts?
dont know that.
Mrs. Clinton didnt say fact, she said that she directed
That always
Did she limit
The State Department doesnt answer the question
that the Court posed what accounts were used conduct
official government business.
conducted business this server, and dont know
these other two unnamed individuals, whose records are now
being searched, they may have used the Clintonemail.com
server. know least Miss Abedin
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
So, the State Department may not have physical
possession it, but they sure had possession, custody and
control that server, those devices.
BlackBerry may still around.
they issued BlackBerries Ms. Abedin and Miss Mills.
said they cant find them, they believe they were deleted.
You know, that left some room for maybe some interpretation questions.
yesterday, the media, said that they were returned and
Mrs. Clintons
State Department says that
They
But then the State Department spokesperson
they were wiped clean. the spokesperson, appears,
knew more than the specialist that provided declaration this Court. continue learning more information from the
media because the State Department refuses provide
information.
over year ago, that they conducted reasonable search. believe them.
diligent now.
when sent the FOIA request? have reopen the case?
THE COURT:
This case was close case.
They told us,
Counsel today says that theyre being
Well, why werent they diligent two years ago
Why did have sue?
Why
Youre going back over spilt milk now.
Lets forward.
MR. BEKESHA:
dont know.
the servers. sorry, Your Honor. just started asking questions about the accounts,
Where could, potentially, records be?
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
started asking them believe was June 22nd, they
refused answer, had hearing. the similar questions during the hearing.
Department either could not refused answer.
You issued minute order.
Your Honor asked some
The State
You asked for four
things done.
Some those have been done part,
some werent done all.
court. know more clear now, that Mrs. Clinton was not
You know, were back here dont know that much more.
All know what
provided BlackBerry, she was not provided e-mail
address, she used system she set up.
third-party vendor.
Thats
The State Department cant wash their hands now
and say dont have possession, dont have custody and
control.
records all.
would hire contractor, say will you manage our records,
then when Judicial Watch any the media organizations
that are interested that were the case, agencies wouldnt maintain
They would give third-party, they
THE COURT:
What are you asking the Court do?
MR. BEKESHA: are asking the Court determine
where these records are, where the server where this
information stored.
are saying, still have copy all 60,000 her e-mails?
Does she have copies the native original files Ms.
Does Mrs. Clinton, media reports
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
Abedins e-mails used this Clintonemail.com server that
Mrs. Clinton was using Secretary State?
questions need know.
part you know, part this subset, thats great,
its helpful know.
These are
Whether not the FBI has
But again, were back that this the box
documents and the only thing thats this box are what
everybody selecting them.
incomplete, theyre not the entire story.
Theyre still
Theyre not the
entire system records.
Were looking for the system records.
Mrs.
Clinton may have BlackBerry that has that system
records it, she may have copy the server that
that system records.
Abedin.
And that goes the same for Ms.
With respect Ms. Abedin and Ms. Mills, they
occasionally used private e-mail personal e-mail
conduct official business, most likely accident,
counsel said, thats the CEI case.
Kissinger because Kissinger, those records were created
beforehand.
questions there.
you cant hand off document retention, document management,
document maintenance third-party vendor and then have
that agency wipe their hands.
Thats not really
But thats that CEI case.
And there are
But what FOIA law clear about that
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page believe its essential for the State
Department and not the FBI, not the Justice Department
the State Department ask Mrs. Clinton, for this Court ask Mrs. Clinton directly, does she have the records that
she created the server that she was authorized use
Secretary State conduct official government business?
And thats how get the bottom this.
this ends.
investigation, could two years later and were the
This how wait for the FBI conduct their
same place. dont know.
Weve Judicial Watch, the Court
has spent lot time this issue already.
trying get the bottom and, Your Honor, thats
the only way can.
THE COURT:
MR. WECHSLER:
All right.
Thank you.
Were just
Counsel? would like respond what
think are couple erroneous statements.
system records was just used. records.
are the operative terms.
had personal e-mail account does not make that e-mail
account her government contractor third-party
vendor.
The term
And thats agency system
And the term custody control.
And those
The fact that the former secretary
That preposterous.
THE COURT:
The argument is, though, that there
may official documents that personal device though.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
MR. WECHSLER:
And have declaration, under
oath, that was submitted this case. the notion that
this third-party vendor government contractor
simply wrong.
personal e-mail account.
about.
the extent that there are personal e-mails, there
absolutely obligation for those produced FOIA
case because those are not part the agency system
This was the former Secretary using
And thats what those cases are
The Department has obtained the 55,000 pages.
records, theyre not within the agencys possession
control.
THE COURT:
Let ask you this, though:
Consistent with the governments agreement inquire the
investigating entity about documents that may responsive,
why doesnt the government have obligation inquire
the entity that managed that third-party server?
MR. WECHSLER:
inquiry would about.
THE COURT: would unclear what the
What you possess? think you have give copy what you have, because sure
well, dont know, not expert that area.
arguably, there were backups everything that were that
were communicated.
MR. WECHSLER:
But,
Theres evidence that.
the Secretary submitted declaration
Where
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
THE COURT:
No.
The question is:
Why doesnt the
government have obligation consistent with its obligation manage, preserve, etcetera, federal records?
the government have obligation least ask the
provider that server whether not that provider has
backup communications?
MR. WECHSLER:
Why doesnt
Because the correspondence that the
court requested and that was submitted was directly between
the State Department and the former Secretary State.
And
that
THE COURT: understand. understand what
asked.
consistent with what the government said its obligation is, ensure preserve authoritative record official
correspondence, communications, and documentation.
doesnt the government have obligation least
inquire the entity that managed that server, whatever is, provide copy the correspondence that was
backed up, there was correspondence backed up?
But saying now, why isnt there obligation
MR. WECHSLER:
Why
Because both the former Secretary
and her attorney, Mr. Kendall, have informed the Court that
these documents have these potential federal records have
been turned over directly the State Department. them make any reference any company.
contractor, plaintiff calls it, third-party vendor
Neither company was
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
the government.
Theres suggestion that. that had been the case, the State Department
had set account outside its agency systems records,
that would entirely different matter.
evidence that here.
But theres
THE COURT:
Well, suppose the question the
former Secretary follows:
entity that backed communications made those devices,
please identify that entity.
If, indeed, was
And such entity
identified the former employee, would you agree then that
the government has obligation least inquire the
entity provide copy communications backed up?
MR. WECHSLER: would suggest that the State
Department could inquire the initial question, and then
submit response for any further
THE COURT:
Right.
Right.
But question
the answer yes, here is, its ABC Corporation, would
you then agree that the government has obligation,
consistent with its responsibilities under the Federal
Records Act 1950, least inquire and get copy
the communications backed up?
MR. WECHSLER: think its going depend
what that response is.
THE COURT:
Lets assume, hypothetically, the
response yes and the name ABC Corporation.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
MR. WECHSLER:
THE COURT:
MR. WECHSLER:
THE COURT:
And the precise
question would
And sorry. the entity the -To the Secretary.
Please advise whether not now,
have fine-tune this, Counsel.
whether not entity provided backup server, backup
communication backup computer services for personal
devices used you conduct government business.
All right?
Please advise
Words that effect.
MR. WECHSLER:
Yeah.
And think thats going
require discussion with expert determine the
meaning backup.
difficult for someone such myself.
These terms art are somewhat
THE COURT:
MR. WECHSLER:
Lets make easy; copies. think the problem with that
that -THE COURT:
Were just trying determine whether not there indeed another record communications.
MR. WECHSLER: dont think duplicate would
another record. think you could create endless copies
the same piece paper Xerox machine, for example,
that wouldnt create duty third party make
more copies.
copies copies. mean, you would talking that point
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
THE COURT:
But you agree, though, that the
government has obligation ask the FBI, Tell what
information may responsive, would the same
directive this private entity, although the private
entity couldnt provide you with answer whether
their documents response request private entity could
say, You know what? dont know FOIA from whatever, but
heres copy all the communications that that
preserved.
MR. WECHSLER:
No. dont conceive that any
private company would turn over third party the former
Secretarys e-mails.
THE COURT:
MR. WECHSLER: they subpoenaed them they would.
Okay.
But all were talking
about
THE COURT: you subpoenaed them, they would.
MR. WECHSLER:
Certainly.
All were talking about
here the FBI agency that possession,
safekeeping these matters, letter from another agency the government the FBI.
THE COURT: understand what were talking about.
All saying why wouldnt the same inquiry
appropriate with company thats backed communications?
MR. WECHSLER:
Because the State Department has
contractual relation any third party.
Its not vendor
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page the State Department.
THE COURT: understand that.
But you dont have
any contractual relation with the FBI either.
about contracts, its about inquiries.
MR. WECHSLER:
Its not would submit the letter the
FBI entirely appropriate, that they have the server, that
that would have not have whatever the information
were talking about and that from there.
THE COURT:
But you dont think that backup
server communications copied would revealing could revealing?
MR. WECHSLER:
term art.
Backup server, thats another
And not aware any evidence
THE COURT: not expert either.
But theres
some way that people preserve e-mails; thats how people are
able recover them, theyre preserved.
MR. WECHSLER:
Perhaps the answer that the
letter the Secretary the former Secretary that
discussed would also include sentence about whether there additional set potential federal records.
THE COURT: mean just whether not yeah, all
right.
All right.
Ill come with some language.
right.
Anything further?
Yes?
MR. BEKESHA:
Thank you, Your Honor.
Were
All
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
talking not about just any former employee, were talking
about the Secretary State, the head agency.
this idea that the State Department doesnt set her
account, she was Secretary State.
Department.
Department didnt give her another account use.
didnt even give her BlackBerry.
She the State
She chose use this account.
The State
They
According the declaration filed yesterday, the
State Department didnt provide her with computer,
laptop, BlackBerry. State conduct official business?
How did they expect the Secretary what are talking about State Department
system records.
used conduct official State Department business.
talking about laptops, desktops, BlackBerries, because, know, Mrs. Clinton least used the BlackBerry.
sending 60,000 e-mails over four-year period, she probably
used computer, too, because typing all that out
BlackBerry probably little bit difficult.
Were talking about the server that was there are devices out there.
Were
And
The State
Department wont tell us; they say they dont have the
devices.
Clinton should have returned all official government
property back the State Department.
was obligated collect it.
Well, that means Secretary Clinton did.
Secretary
The State Department
Most employees sign
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
separation statement when they leave, saying theyve
returned all federal property.
FOIA litigation for that.
THE COURT:
MR. BEKESHA: have FOIA request and
And far the
Thats another lawsuit somewhere.
But they havent found it.
seems the State Department never asked Mrs. Clinton
return property she was using conduct official government
business.
So, yes, its important know -THE COURT:
Thats why its important for
stay focused the very discrete inquiry that
MR. BEKESHA:
Yes, were looking for yes, were
looking for very specific records.
records about the authorization for Ms. Abedin stay
the State Department, well conduct business, you know, different capacity.
Were looking for
Senator Grassley has written letter Secretary
Kerry stating that knows there are e-mails out there
where this discussion occurred between Ms. Abedin and Ms.
Mills and ended meeting with Mrs. Clinton. belive records exist.
Just because the
government hasnt found them doesnt mean theyre not out
there.
records just havent been reasonable.
other potential devices out there that were used the
Secretary State her official capacity. believe their searches try find those
There are all these
And the
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
State Department didnt provide her with any other equipment devices e-mail account use. doesnt matter she hired another company.
mean, these are either State Department systems, because she
had the authorization, its some type vendor
relationship where shes charge the vendor.
whoever she hired, whether was company one person
herself was managing the server, doesnt matter.
using this server.
But
She was
And also, Ms. Abedin, dont forget, was
using this server conduct official government business.
So, all the systems related all the
equipment, the State Department cant say dont have
possession, dont have custody and control, because this how Mrs. Clinton conducted business.
State Departments declaration, she couldnt have conducted anywhere else.
you know, there that she was rogue Secretary State
and that she was using personal e-mail without anybody
the State Department knowing about it, one, she e-mailed
people the State Department, its probably pretty
difficult for one know.
According the the State Department believes that,
But, lets then take some discovery, lets ask
Patrick Kennedy, the Under Secretary Management who was charge the people, the systems, the management; was
Mrs. Clinton her liaison for all management related
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
issues.
arrangement was.
status hearing, written discovery, written requests dont
seem work because not all the questions are answered,
there are still more questions; the language cagey,
Lets get him discuss, under oath, what the
best. think, weve seen since the last
So, you know, lets ask some questions, whether
thats deposition done Judicial Watch Your Honor
asking Mr. Kennedy come and answer few questions, maybe can resolve this even quicker.
Secretary Clinton had authority, she was rogue
employee, didnt know what she was doing; one helped
manage, one helped maintain the server.
inquiry ends.
the proper way try find these very specific responsive
records because they werent agency records.
Maybe will say
And maybe the
Maybe then counsel right, that FOIA isnt
But based the information have right now,
doesnt appear though nobody knew what Mrs. Clinton was
doing and one the State Department whatever that
means, because she was Secretary State didnt
authorize it, they didnt give her BlackBerry.
THE COURT:
MR. WECHSLER:
THE COURT:
hour ago.
Thank you.
Anything else, Counsel?
(Shakes head.)
Let this: started about
Lets take ten-minute recess.
Theres need
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
for anyone stand.
The court will stand recess for ten minutes.
Thank you.
(Recess.)
THE COURT:
All right.
Counsel, want just
raise one point.
Early asked government counsel
whether not the government had determined that the e-mail
accounts were reasonably likely contain responsive
records.
And thought Mr. Wechslers response was no.
just raise that.
thats paragraph your submission.
The department determined that non-state government e-mail
accounts former Secretary Clinton, Miss Abedin and Miss
Mills were reasonably likely contain responsive records. mean, not trying trick you.
MR. WECHSLER:
But
Ill read it,
That those e-mail accounts which
now the Department has been provided with the copies
potential federal records.
THE COURT:
All right. couple things want
ask you about.
Theres among the many investigations,
theres also Inspector General State Department
Inspector General investigation the e-mail issue, that
right?
MR. WECHSLER:
THE COURT:
There Inspector General.
Will that person report State and
give progress report State, not? will that
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
report made public?
MR. WECHSLER: can inquire. dont know the
answer that.
THE COURT:
The court would like copy that. camera, maybe, its appropriate.
not familiar with the policies and procedure that the
Inspector General dont want overstep authority.
But, would interested what that report has that
report been concluded, you know?
MR. WECHSLER:
THE COURT: not not aware that.
All right.
All right. can inquire. going heres what going do:
order and again, appreciate the governments concession
that dialogue will established.
into the details how that dialogue established, but going direct that the State Department provide the
director the FBI with copy the Courts order that
establishes that directs the State Department
establish dialogue with the FBI.
the government believes investigating, correct?
MR. WECHSLER:
THE COURT: going post not going get
Thats the entity that
Yes.
That establishes dialogue about
recovery potential information that may responsive FOIA request.
information how the FBI goes about sharing information
Now, how you about identifying that
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
with you, think the very least provide the FBI with
copy the request.
MR. WECHSLER:
THE COURT:
Yes.
And, course, DOJ attorneys will
assisting the FBI discharging its responsibility that
regard.
MR. WECHSLER:
THE COURT:
Yes.
Ill leave the details the entities
because the last thing want try micromanage
some agency.
Mr. Comey.
discovery was going surface. the podium.
complicated this case that all the entities, all the
parties, all the principals arent before the Court.
think theres number lawsuits pending before
colleagues.
Contreras, and other judges.
with respect whos entitled what, depending what
the lawsuit all about.
But Ill just direct that copy given
The plaintiff was wondering when that word
But you know what?
And can invite you back all know, whats talked about cases before Judge, think,
Theres probably some overlap
FOIA, the FOIA law, all know, frowns upon
discovery, unless there are exceptional circumstances.
there exceptional circumstances here?
may be, dont know.
the way proceed, though.
There may be.
There may be.
Are
There
But think this
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page want post that minute order today that
establishes that dialogue.
turnaround with respect the FBIs investigation and the
FBI will provide the Department State with the
information that has obligation provide; that is,
with respect materials that are responsive the FOIA
request.
Hopefully theres quick think just need wait and see what that
response before the Court determines whether not
theres any basis for discovery.
file anything any time.
file motion for discovery now, the Court not going
act until sees whats been produced result
the FBI because thats going inform the Courts decision whether theres need for discovery.
Plaintiff parties can
But heres prediction: just asking you hold off.
You you filed
it, thats fine, probably, give the government more time
within which respond.
always suggestion.
filing anything that party believes should filed.
suggestion is, though, hold off for days because
going direct that this dialogue produce relevant
information, any, later than days from todays
date and that status report filed and that talk again.
So, suggestion and its
Ill never dissuade party from
So, strong suggestion hold off.
Lets see
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
what the investigation reveals, anything. reveals, anything, probably going inform the
Courts decision about the need for discovery.
MR. BEKESHA:
And whatever
All right.
Sounds good, Your Honor. still
have scheduled status hearing for September 10th.
THE COURT: do, but wondering just how
fruitful that would be?
for days provide the Court, the parties, and the
public with information about everything thats progress
And thats fine. mean, the government has asked
now.
20th.
mean, look, its great have everyone court, its good see the lawyers, but not sure what could
accomplish September the 10th.
works for everyone now.
20th for the filing the governments status report, bring
the court up-to-date with respect everything.
Maybe the end September?
That would take September
MR. WECHSLER:
Maybe the 30th so?
Lets pick date that
And going pick September the sorry.
September 20th,
believe, Sunday.
THE COURT:
lets see. a.m., Counsel?
All right.
Lets the 21st.
And
Suppose have status hearing October the 1st that good day for everyone?
MR. WECHSLER:
MR. BEKESHA:
THE COURT:
(Nods head.)
Yes, Your Honor.
For the government?
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
MR. WECHSLER:
THE COURT:
Yes.
Yes.
All right.
Anything else need
talk about this afternoon?
MR. WECHSLER:
THE COURT:
No, Your Honor.
Thank you.
The court also recognizes mention
this, there lot overlap all these cases and
want mindful that.
questions case.
recognizes its obligations under the Federal Records
Again, there are very discrete
But, you know, the government
Retention Act and etcetera.
lets see what the investigation reveals, then well from
there.
MR. WECHSLER:
MR. BEKESHA:
THE COURT:
And appreciate that.
Thank you, Your Honor.
Thank you, Your Honor.
Thank you very much, Counsel.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
CERTIFICATE OFFICIAL COURT REPORTER JANICE DICKMAN, hereby certify that the above
and foregoing constitutes true and accurate transcript stenograph notes and full, true and complete
transcript the proceedings the best ability.
Dated this 22nd day August, 2015.
/s/________________________
Janice Dickman, CRR, RMR
Official Court Reporter
Room 6523
333 Constitution Avenue
Washington, D.C. 20001
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
Exhibit
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
LAW OFFICES
WILLIAMS
CONNOLLY
725 TWELFTH STREET, N.W.
DAVID KENDALL
(202) 434 5145
dkendallCwc.com
WASHINGTON, 20005 5901
EOWA,O IINN WILUJMS (I020ISI)
PAUL CONNOUY U~2a .IU78)
(202) 434 5000
FAX (202) 434 5029
August 12, 2015 HAND
The Honorable Ron Johnson
United States Senate
Committee Homeland Security and Government Affairs
Washington, 20510
Dear Mr. Chainnan:
Thank you for your letter dated July 29,2015. December 2014, response October 28, 2014 letter request from the
Department State for assistance ensuring its reGords were complete, attorneys for Secretary
Clinton provided the Department with the 30,490 e-mails (approximately 55,000 pages) from the
Secretarys hdr22@clintonemail.com e-mail account that were identified related potentially
related Secretary Clintons work the Department State. That set was produced paper, provided for Department guidance, while the electronic copies the e-mails were
preserved thumb drive, kept secure storage. Not single e-mail was marked classified.
The set emails provided the State Department was demonstrably over-inclusive, since
are infonned that the Department and the National Archives and Records Administration
detennined that least 1246 the emails submitted were not fact federal records. March 3,2015, received preservation notice from the House Select Committee
Benghazi concerning the documents relevant that Committees work, and assured the
Committee March 2015, that would take such measures were, judgment, and role personal cOWlsel fonner Secretary Clinton, reasonably necessary preserve the
materials identified. continued preserve the original .pst file thumb drive compliance
with subsequent preservation notices have received, including from the Department State
and the Intelligence Community Inspectors General.
Recently, the Department State has retroactively classified certain infonnation the
emails provided the Department December 5,2014. When this information was
upgraded classified May 22, June 30, and July 31, 2015, consulted with the State
Department and took appropriate measures ensure the security the newly classified
infonnation.
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
WILLIAMS
CONNOLLY LLP
The Honorable Ron Johnson
August 12, 2015 connection with our preservation the thumb drive, consulted with the
Department State concerning appropriate measures ensure the security that thumb drive. result, the thumb dri was stored safe provided the Department and installed
Williams Connolly July 2015, for this purpose. and law partner, Katherine
Turner, who represent former Secretary Clinton, are the only two individuals who were
authorized access the safe. both hold Top Secret security clearances issued the
Departm~nt State. advised the Department States Inspector General June 24, 2015 letter,
Platte River Networks retained the server equipment that hosted Secretary Clintons
hdr22@clintonemail.com account during her tenure Secretary State and stored secure
data center. Neither Ms. Turner nor have had access this server equipment. That equipment longer active and, understand. longer contains data from Secretary Clintons
hdr22@clintonemail.com account. All preservation notices related the equipment were shared
with the Platte River NetworksJ which confinued its acceptance and compliance with such
notices. light the State Departments recent retrospective classification some the
infonnation the 55,000 pages, all which had previously been unclassified, voluntarily
transferred the Department JUstice August 6,201 the thumb drive containing the .pst
file the 30,490 emails (and two copies) from the State Department-provided safe after
receiving from the Department Justice assurance that would maintain this file
appropriately secure manner and the Departments opinion that such maintenance would satisfy
8ny preservation obUgations under. SimUarly. Platte River Networks today transferring
the Department Justice the server and related equipment which emails and from
Secretary Clintons clintonemail.com account were stored from 2009 2013 and which PRN
took possession 2013. This transfer occurring after the Department Justices assurance and counsel for PRN that would maintain the server equipment appropriately secure
manner. The Department also gave counsel its opinion that such maintenance would satisfy any
preservation obligations have.
DEKibb
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
Exhibit
Case 1:13-cv-01363-EGS Document 30-1 Filed 08/25/15 Page
125 TWELFTH STREET, N.W.
DAVII> Kl:l AlL
WA5HINCTOlt
(202) 434 5~4!)
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