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JW v State Opinion Clinton Deposition 01363

JW v State Opinion Clinton Deposition 01363

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Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
______________________________
JUDICIAL WATCH,
Plaintiff, Civil Action No. 13-1363
U.S. DEPARTMENT STATE
Defendant.
______________________________)
MEMORANDUM OPINION
Pending before the Court Judicial Watch motion for
permission depose three additional individuals this
Freedom Information Act FOIA case. Pl. Mot., ECF No.
97. This Court previously granted Judicial Watch motion for
discovery pursuant Rule 56(d) the Federal Rules Civil
Procedure, agreeing that questions surrounding the creation,
purpose and use the clintonemail.com server needed
explored through limited discovery before the Court could
decide, matter law, whether the State Department
conducted adequate search response Judicial Watch
FOIA request. See Mem. Order, ECF No. Tr., ECF No. 78: 9-25. For the following reasons, and upon
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
consideration the parties submissions, oral argument heard July 18, 2016, and the applicable law, the motion GRANTED PART and DENIED PART. Specifically: (1) Judicial Watch may
serve interrogatories Former Secretary State Hillary
Clinton; (2) Judicial Watch may not depose Mr. Clarence Finney;
and (3) Judicial Watch may depose Mr. John Bentel.
Background Procedural History detailed procedural history provided this Court May 2016 Memorandum and Order. Mem. Order, ECF No. 2-5. For
the purpose the pending motion and summary, Judicial Watch
filed this lawsuit September 10, 2013 seeking obtain,
pursuant FOIA, certain employment records related former
State Department employee Huma Abedin. Compl., ECF No. The
State Department then conducted search, produced certain nonexempt records, and the parties stipulated the dismissal
the case March 14, 2014. Mem. Order, ECF No. After
media reports that Secretary Clinton and members her staff
used personal email accounts conduct agency business, and
because those records may not have been covered the State
Department searches for documents responsive this FOIA
request, this Court granted Judicial Watch unopposed motion
This includes the recent notices filed this case ECF Nos.
115, 116, 117, 120.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
re-open this case. Minute Order, June 19, 2015. The State
Department then searched records Secretary Clinton voluntarily
produced from the clintonemail.com system, among others, and
produced responsive documents. Def. Mot. Summ. J., ECF No. 10, 14; Mem. Order, ECF No. 3-4. The Court Authorizes Limited Discovery
Following its production documents, the State Department, November 13, 2015, filed motion for summary judgment. ECF
No. 47. response, Judicial Watch moved for discovery,
pursuant Rule 56(d) the Federal Rules Civil Procedure,
for two reasons: (1) uncover and present admissible evidence the court about whether the State Department and Secretary
Clinton deliberately thwarted FOIA and (2) learn about the
system itself determine possible methods for recovering
whatever responsive records may still exist. Pl. Mot.
Discovery, ECF No.
Based key facts related the clintonemail.com server, the
Court concluded that Judicial Watch had raised sufficient
questions about whether the State Department processed the FOIA
request good faith, and granted Judicial Watch motion for
discovery. Mem. Order, ECF No. The Court authorized
The Court denied the State Department Motion for Summary
Judgment without prejudice light the Court consideration the parties discovery proposals. Minute Order, Mar. 16,
2016.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
limited discovery the creation and operation
clintonemail.com for State Department business, well 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. Id. 12. Discovery Conducted Date
Consistent with the parties joint proposal for limited
discovery, Judicial Watch deposed seven current and former State
Department employees:
Karin Lang, Director the Executive Secretariat Staff
the State Department, who testified behalf the State
Department 30(b)(6) deponent regarding the processing FOIA requests, including Plaintiff FOIA request, for
emails Secretary Clinton and Ms. Abedin both during
Secretary Clinton tenure Secretary State and
after
Stephen Mull, Executive Secretary the State
Department from June 2009 October 2012;
Lewis Lukens, Executive Director the Executive
Secretariat from 2008 2011;
Patrick Kennedy, Under Secretary for Management since
2007 and the Secretary State principal advisor
management issues, including technology and information
services;
Cheryl Mills, Secretary Clinton Chief Staff
throughout her four years Secretary State;
The Court recognized that the State Department did not waive
its objection discovery.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Huma Abedin, Secretary Clinton Deputy Chief Staff and senior advisor Secretary Clinton throughout her four
years Secretary State, who also had email account clintonemail.com; and
Bryan Pagliano, State Department Schedule employee who
reportedly set and maintained the server that hosted the
clintonemail.com system during Secretary Clinton tenure Secretary State.
Mem. Order, ECF No. 13-14. The State Department also
answered interrogatories and voluntarily produced documents.
Def. Opp ECF No. 102 1-2. Other Inquiries Involving the Clintonemail.com System
Since the Court granted Judicial Watch request, large
public record related Secretary Clinton use the
clintonemail.com server has become available, including, but not
limited to: (1) testimony Secretary Clinton and current and
former State Department employees before the U.S. House
Representatives Select Committee the Events Surrounding the
2012 Terrorist Attack Benghazi Benghazi Committee
(2) depositions six fact witnesses, including the State
Department Rule 30(b)(6) witness, and verified
interrogatories; and (3) the State Department Office
Mr. Pagliano invoked his Fifth Amendment rights and did not
substantively answer any questions posed him during his
deposition.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Inspector General OIG Report regarding email management
the Office the Secretary. Clinton Opp ECF No. 102 July 2016, the Federal Bureau Investigation FBI announced that had completed its investigation
Secretary Clinton use the personal email server
Secretary State. Id. FBI Director James Comey stated
that part that investigation the FBI discovered several
thousand work-related emails that had not been returned the
State Department. Id. response the State
Department request that the FBI transmit the emails it, the
FBI, July 21, 2016, and August 2016, provided the State
Department with the records. Def. Status Report, ECF No. 122 1-2. The State Department anticipates completing its initial
search all the documents later than August 26, 2016.
Id.
II.
Discussion The Purpose FOIA and Standard for Discovery
FOIA was enacted provide statutory right public
access documents and records held agencies the federal
government. Citizens for Responsibility Ethics Washington Dep Justice, 05-cv-2078, 2006 1518964, (D.D.C.
June 2006)(citing Pratt Webster, 673 F.2d 408, 413 (D.C.
The Court applauds the State Department request that the FBI
provide those documents State. See FBI Letter, ECF No. 105.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Cir. 1982)). such, FOIA embodies general philosophy
full agency disclosure unless information exempted under
clearly delineated statutory language. Pratt Webster, 673
F.2d 413. See also Dep the Interior and Bureau Indian
Affairs Klamath Water Users Protective Ass 532 U.S. 7-8
(2001) (noting that the basic objective FOIA disclosure,
not secrecy).
FOIA actions are typically and appropriately resolved
summary judgment. Landmark Legal Found. EPA, 959 Supp.
175, 180 (D.D.C. 2013)(citing Brayton Office the U.S.
Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011)).
prevail, the agency must show beyond material doubt that has conducted search reasonably calculated uncover all
relevant documents. Morley CIA, 508 F.3d 1108, 1114 (D.C.
Cir. 2007)(quoting Weisberg U.S. Dep Justice, 705 F.2d
1344, 1351 (D.C.Cir.1983)).
Discovery rare FOIA action. Thomas FDA, 587
Supp. 114, 115 n.2 (D.D.C. 2008). this Court has stated,
Typically, FOIA actions are resolved without
discovery. Voinche FBI, 412 F.Supp.2d 60, (D.D.C.2006). See also Pub. Citizen Health
Research Group FDA, 997 Supp. 56,
(D.D.C.1998) Discovery sparingly
granted FOIA actions. However, discovery
may granted when plaintiff has made
sufficient showing that the agency acted
bad faith, Carney DOJ, F.3d 807, 812 (2d
Cir.1994), has raised sufficient question the agency good faith,
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Inc. Export-Import Bank, 108 Supp.
19, (D.D.C.2000), when factual dispute
exists and the plaintiff has called the
affidavits submitted the government into
question, Pub. Citizen Health Research Group,
997 Supp. 72-73. the other hand,
discovery not granted when discovery sought for the bare hope falling upon
something that might impugn the affidavits
submitted the government. Founding Church Scientology NSA, 610 F.2d 824, 836-37
101 (D.C.Cir.1979).
Citizens for Responsibility Ethics Washington Dep
Justice, 05-cv-2078, 2006 1518964, (D.D.C. June
2006)(footnote omitted).
When discovery granted FOIA case, the scope
necessarily limited the genuine issue(s) dispute. See
Weisberg U.S. Dep Justice, 627 365, 371 (D.C. Cir.
1980). Rule 56[d] motion for additional discovery not
designed allow fishing expeditions. Doe U.S. Dep
Justice, 660 Supp. 31, (D.D.C. 2009)(quoting Graham
Mukasey, 608 Supp. 2d. 50, (D.D.C. 2009)).
Pursuant this authority, and based the record this
case, the Court granted limited discovery, noting that [b]ased information learned during discovery, the deposition Mrs.
Clinton may necessary. Mem. Order, ECF No. 14. The
Court then authorized Judicial Watch request permission
depose Secretary Clinton should believe that necessary.
Id.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page Standard for Deposing Current Former High-Ranking
Government Official the Court determines that Secretary Clinton testimony necessary, the Court must then consider the request depose
her light the apex doctrine. Judicial Watch and
Secretary Clinton agree that, pursuant that doctrine, the
Court must determine whether extraordinary circumstances are
present before ordering current former high-ranking
government official sit for deposition. Pl. Mot., ECF No. 12-13; Pl. Reply, ECF No. 106 12-14; Clinton Opp
ECF No. 102 17-18. Specifically, the party seeking depose current former high-ranking government official must
demonstrate [e]xceptional circumstances justifying the
deposition for example, that the official has unique first-hand
knowledge related the litigated claims that the necessary
information cannot obtained through other, less burdensome
intrusive means. Federal Deposit Insurance Co. GalanAlvarez, No. 15-MC-752, 2015 5602342, *3-*4 (D.D.C. Sept.
The State Department does not take position this argument.
See generally Def. Opp ECF No. 103.
The three primary rationales for the apex doctrine are:
(1) respecting the integrity the administrative process;
(2) allowing government officials perform their tasks without
disruption; and (3) not discourage individuals from public
service. Federal Deposit Insurance Co. Galan-Alvarez, No. 15MC-752, 2015 5602342, (D.D.C. Sept. 2015).
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page 2015) (quoting Lederman N.Y.C. Dep Parks
Recreation, 731 F.3d 199, 203 (2d Cir. 2013)) (other citations
omitted); see also United States, Civ. No. 14-5146, 2014
U.S. App LEXIS 14134, (D.C. Cir. July 24, 2014) (granting
writ mandamus quash the deposition the Secretary
Agriculture absent showing extraordinary circumstances Judicial Watch May Obtain Secretary Clinton
Testimony
Pursuant FOIA, the ultimate question this Court will
need decide whether the State Department can show beyond
material doubt that has conducted search reasonably
calculated uncover all relevant documents. Morley, 508 F.3d 1114 (internal citations omitted). The Court authorized
discovery this case because there factual dispute about
whether the State Department conducted such search. Indeed,
the State Department conceded that the prior search conducted
was inadequate. Tr., 96:19-22, July 18, 2016. the usual
case, FOIA authorizes the Court grant very limited relief:
the Court can enjoin the agency from withholding records and
order the production records that are improperly withheld. U.S.C. 552(a)(4)(B). However, were the Court conclude
that the State Department violated FOIA intent and purpose,
FOIA imposes limits the courts equitable powers
enforcing its terms. Payne Enterprises, Inc. United States,
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
837 F.2d 486, 494 (D.C. Cir. 1988)(quoting Renegotiation Bd.
Bannercraft Clothing Co., 415 U.S. 19-20 (1974)).
Judicial Watch argues that deposing Secretary Clinton
necessary complete the record this case. Pl. Reply, ECF
No. 106 Judicial Watch states that needs explore the
following issues: (1) the purpose for the clintonemail.com
system; (2) why the system was used even though times
interfered with her job; (3) Secretary Clinton claim over the
records the clintonemail.com system; (4) Secretary Clinton
inventorying records upon the completion her tenure
Secretary; (5) why clintonemail.com was non-archival; and
(6) details about Mr. Pagliano role creating and operating
clintonemail.com. Pl. Mot., ECF No. 3-12. Judicial Watch
recognizes the significance asking former agency head
sit for deposition but argues that, based the record
developed thus far, her testimony crucial understanding
how and why the system was created and operated. Id. 12.
Both Secretary Clinton and the State Department oppose
Judicial Watch motion. Secretary Clinton argues that Judicial
Watch has not demonstrated need depose her because the six
issues about which Judicial Watch seeks question her have
either already been answered the extensive record related
the clintonemail.com system, are irrelevant the limited
scope discovery authorized the Court, which was
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
resolve dispute fact regarding whether there was
deliberate intent thwart FOIA. Clinton Opp ECF No. 102
7-16. the latter point, Secretary Clinton contends that
there evidence that the purpose the clintonemail.com
system was thwart FOIA. Id. oral argument, counsel
for Secretary Clinton also pointed FBI Director Comey July 2016 testimony before the House Committee Oversight and
Government Reform which stated that the FBI asked
Secretary Clinton why she set the email system she did and
that her answer was convenience. Tr. 95:15-22, July
18, 2016, referring Clinton Opp ECF No. 102-2, Exhibit 74.
Secretary Clinton makes two additional arguments: (1) the
deposition would futile because the ultimate relief Judicial
Watch seeks that the clintonemail.com account searched
the State Department Secretary Clinton not possible
because Secretary Clinton does not have possession control
the equipment; and (2) that the Court reconsider its prior
ruling granting discovery the grounds that the Court lacks
jurisdiction order discovery this case because Secretary
Clinton private email server equipment was not the
possession control the State Department when Judicial
Watch submitted its FOIA request. Id. 15-20. With regard
the first argument, regardless any ultimate relief, the
underlying question before the Court and the reason the Court
ordered discovery enable the Court decide,
matter law, whether the Government conducted adequate
search response Judicial Watch FOIA request. With regard the second, the Court declines reconsider its prior ruling
for the reasons articulated that Opinion. See Mem. Op., ECF
No. 73.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Arguing that her deposition would entirely cumulative
and unnecessary due the discovery already conducted this
case, well her testimony before the Benghazi Committee,
Secretary Clinton urges the Court wary Judicial Watch
request depose former cabinet official because [l]itigants
are not typically permitted depose high-ranking government
officials the requested information can obtained
elsewhere, including from lower-ranking government officials.
Clinton Opp ECF No. 102 17-18. Secretary Clinton proposes
that, should the Court decide that further discovery
necessary, she allowed provide the information writing
rather than [r]equiring her sit for deposition for the
purpose repeating her prior statements stating that she
has knowledge certain topics. Id. n.6. The State
Department opposes the motion the grounds that the discovery
that Plaintiff itself designed has not revealed shred
evidence indicating intent thwart FOIA Secretary
Clinton the State Department, making additional discovery
futile moot. Def. Opp ECF No. 103 8-19.
Judicial Watch responds that although there may
extensive record relating the clintonemail.com system, none the investigations focused whether the creation and use the system was intended deliberately thwart FOIA
otherwise prevent[] the State Department from complying with its
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
FOIA and federal recordkeeping obligations and thus the record incomplete. Pl. Reply, ECF No. 106 2-3. oral
argument, Judicial Watch disagreed that discovery had not
resulted any evidence that the email system was created
thwart FOIA. Tr. 21:22 22:1, July 18, 2016. initial matter, the Court notes that the parties
disagree about whether the discovery conducted date has
resulted any evidence intent thwart FOIA. That
issue, however, not before the Court this time for
resolution. Therefore, the Court rejects Secretary Clinton and
the State Department arguments that there basis for
additional discovery because there evidence intent thwart FOIA.
The Court persuaded that Secretary Clinton testimony necessary enable her explain the record the purpose
for the creation and operation the clintonemail.com system
for State Department business. The Court recognizes that
Secretary Clinton has stated publicly and the FBI that she
used one email account for convenience. See, e.g., Clinton Opp
ECF No. 102-4 When Clinton got the Department, she
opted use her personal email account matter
convenience. Clinton Opp ECF No. 102-3 (FBI Director
Comey testifying that Secretary Clinton was asked why she set the email system she did the first place and the
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
answer was convenience that was already there
However, Secretary Clinton has not answered questions relevant the limited scope discovery authorized this case the
purpose for the creation and operation the clintonemail.com
system for State Department business. The scope discovery
authorized the Court limited, but certainly broader
than the single question why Secretary Clinton used her
personal email account when she arrived the State Department.
Moreover, her closest aides the State Department,
their depositions this case, did not have personal knowledge Secretary Clinton purpose using the system. Ms. Abedin
testified follows: response the question, you know
why Secretary Clinton did not want use state-issued e-mail
account for her state-related work? Ms. Abedin responded,
[F]rom understanding, just saw continue [sic] doing
what she was doing before she arrived the State Department.
Abedin Dep. 38:11-21. response the question, But you
didn actually have conversations with the secretary about her
wanting continue [her practice using personal account] the State Department? Ms. Abedin responded, can only
tell you what observed, which her continuing use one
device and one e-mail account. Abedin Dep. 72:21-73:1.
Ms. Mills testified follows: response the
question, Did you discuss with [Secretary Clinton] with respect
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page what e-mail she was going use Secretary State for
the next four years? Ms. Mills responded, the Secretary
has spoken about the fact that she had made determination that
she would use her personal account, and that exactly what she
did. Mills Dep. 44:14-20. Ms. Mills elaborated follows, Secretary Clinton continued practice that she was using
[sic] her personal e-mail. And don know that could
articulate that there was specific discussion opposed
her continuation practice she had been using when she was
Senator. Mills Dep. 45:7-12. response the question,
[W]hy did Secretary Clinton choose not have State.gov email account? Ms. Mills responded, don know that can
speak for her. think she spoken for this herself and said
that part what she was seeking was obviously the convenience being able use common device, and that what she
did. Mills Dep. 172:20-173:4
Because Secretary Clinton has not answered for the record
and under oath questions relevant the limited scope
discovery authorized this case the purpose for the
creation and operation the clintonemail.com system for State
Department business and because her closest aides the
State Department not have personal knowledge her purpose using the system, the Court will permit testimony from
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Secretary Clinton consistent with the limited scope
discovery. Judicial Watch May Serve Interrogatories Secretary
Clinton
Because Secretary Clinton former cabinet level
official, the Court must determine whether, response
Judicial Watch request, she should deposed. Pursuant the
apex doctrine, Judicial Watch must demonstrate that there are
[e]xceptional circumstances justifying the deposition for
example, that the official has unique first-hand knowledge
related the litigated claims that the necessary
information cannot obtained through other, less burdensome
intrusive means. Federal Deposit Insurance Co., 2015
5602342, *3-*4 (internal citations omitted). Clearly, and
her counsel acknowledged oral argument, Secretary Clinton has
unique first-hand knowledge the purpose for the creation and
operation the clintonemail.com system for State Department
business. Tr. 82:10-14, July 18, 2016. Counsel proposes
that, should the Court determine that additional discovery
necessary, Secretary Clinton allowed provide the
information writing rather than sit for deposition. Clinton
Opp ECF No. 102 18. Judicial Watch argues that the
exceptional circumstances justification has been satisfied
because Secretary Clinton used non-governmental system
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
conduct official government business. Pl. Reply, ECF No. 107 5-6. response the Court questions regarding whether
interrogatories would appropriate, less burdensome
alternative deposition pursuant the apex doctrine,
Judicial Watch responded that interrogatories would not
appropriate this case because the follow-up questions. Tr. 46: 16-18, July 18, 2016. Judicial Watch did,
however, acknowledge that questions regarding Secretary
Clinton motivation for using the system throughout her tenure Secretary State could responded through
interrogatories. Id. 49: 13-17. Judicial Watch also stated
that the deposition would longer than three hours, but
may even shorter than that. Id. 49: 21-23.
Judicial Watch has failed demonstrate that cannot
obtain the discovery seeks through other, less burdensome
intrusive means such interrogatories. First, Judicial Watch
has acknowledged that can obtain some the discovery
seeks from Secretary Clinton through interrogatories. Second,
Judicial Watch argument that deposition preferable
this case because the ability ask follow-up questions
not persuasive. Given the extensive public record related the
clintonemail.com system, record which Judicial Watch has
acknowledged, Judicial Watch will able anticipate many
follow-up questions. For those follow-up questions that Judicial
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Watch unable anticipate, can move this Court for
permission serve additional interrogatories. Finally, because
Judicial Watch seeks deposition three-hours less,
likely has very limited number questions for Secretary
Clinton.
During oral argument, the Court questioned whether the six
issues Judicial Watch listed its basis for needing additional
discovery fell within the narrow scope discovery permitted
this case and were not cumulative. Tr. 22-50, July 18,
2016. granting Judicial Watch request part, the Court
not necessarily agreeing that all the issues listed
Judicial Watch fall within the scope the discovery the Court
has authorized. The Court directs Judicial Watch propound
questions that are relevant Secretary Clinton unique firsthand knowledge the creation and operation
clintonemail.com for State Department business, well 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. Mem. Order, ECF No. 12. the extent the parties are unable resolve issues
amongst themselves regarding the interrogatories, the Court will
address and resolve objections the normal course.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
For all these reasons, Judicial Watch authorized
serve interrogatories Secretary Clinton. Additional Discovery Mr. Finney Necessary
Judicial Watch also seeks depose Mr. Finney, current
State Department employee, who served the Director Office Correspondence and Records the Executive Secretariat S/ES-CRM during Secretary Clinton tenure. Pl. Mot., ECF
No. 13. Mr. Finney had responsibility for day-to-day
records management and research response FOIA requests.
Id. Judicial Watch argues that deposing Mr. Finney necessary understand: (1) how Secretary Clinton records were managed
and how FOIA requests for Secretary Clinton records were
processed; and (2) whether knew about the clintonemail.com
system, what efforts made find out what systems Secretary
Clinton was using for her official emails, what was told
about the use the unofficial system Secretary Clinton and
Ms. Abedin conduct official government business, and, perhaps
most significantly, what was not told about the system. Id. 13-15.
The State Department opposes Mr. Finney deposition
because: (1) Mr. Finney knowledge was described detail
the State Department Rule 30(b)(6) deponent; (2) Judicial
The State Department Rule 30(b)(6) designee Mr. Finney
supervisor.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Watch conceded that the record this case indicates that Mr.
Finney was not aware the system and thus makes little
sense imagine [Mr. Finney] could testify how and why
did not know what did not know and (3) was Judicial
Watch own strategic decision propose Rule 30(b)(6)
deposition and cannot now complain that had learn
what Mr. Finney knew through the filter the Rule 30(b)(6)
witness. Def. Opp ECF No. 103 19-22. Judicial Watch
responds that had known Mr. Finney role the time,
would have sought depose him. Pl. Reply, ECF No. 107
Judicial Watch also states that the State Department should have
identified Mr. Finney key witness, id., but did not raise
this point oral argument. See generally Tr., July 18,
2016. The State Department responds that Judicial Watch [was] notice Mr. Finney existence and role long before
compiled its list proposed deponents March 2016
result the OIG January 2016 report regarding the
Department processing FOIA requests involving the Office
the Secretary. Def. Surreply, ECF No. 110 6-7.
The Court approved Rule 30(b)(6) deposition provide
testimony regarding the processing FOIA requests, including
Plaintiff FOIA request, for emails Secretary Clinton and
Ms. Abedin both during Secretary Clinton tenure Secretary State and after. Mem. Order, ECF No. 13. Judicial
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
Watch first reason for its request depose Mr. Finney
learn how Secretary Clinton records were managed and how FOIA
requests for Secretary Clinton records were processed was
within the scope the Rule 30(b)(6) deposition. With regard
Judicial Watch second reason for deposing Mr. Finney, has
conceded that the record evidence supports the conclusion that
Mr. Finney did not know about the clintonemail.com system until
2015, after Secretary Clinton left the State Department.
Tr. 56:12-17, July 18, 2016. Consequently, there little
reason engage that line questioning. oral argument, Judicial Watch made two primary arguments support deposing Mr. Finney. First,
Mr. Finney may have [additional information]
about the conversations had with the
[Information Technology] department when
saw Secretary Clinton photo, using
BlackBerry, and then inquired about whether not she was using State Department State
Department BlackBerry, State Department email. You know, more conversations, more
details specifically, exactly what asked,
what was told, you know, how that
conversation went. Tr. 52:10-17, July 18, 2016 (emphasis added). Second,
learned during discovery that either Mr. Finney Mr. Bentel
would have been the State Department staff person approve
Secretary Clinton use private email and server. Id. 53:854:4.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
With regard the first argument, Judicial Watch
clearly speculating about conversations that may may not have
occurred. The Court declines authorize additional discovery
that amounts fishing expedition. With regard the
second, the OIG concluded after investigation there was
evidence that Secretary Clinton requested received formal
approval conduct official business via personal account
her private server. U.S. DEP
ESP-16-03, OFFICE
AND THE
STATE, OFFICE
SECRETARY: EVALUATION
INSPECTOR GENERAL,
EMAIL RECORDS MANAGEMENT
CYBERSECURITY REQUIREMENTS (May 2016),
https://oig.state.gov/system/files/esp-16-03.pdf STATE DEPARTMENT
OFFICE
INSPECTOR GENERAL REPORT Consequently, deposing Mr. Finney
(or Mr. Bentel) this topic moot. Finally, the Court
persuaded that Judicial Watch was notice Mr. Finney role
and could have proposed deposing him its original discovery
proposal. For all these reasons, Judicial Watch request for
permission depose Mr. Finney DENIED. Judicial Watch May Obtain Deposition Testimony from
Mr. Bentel
Finally, Judicial Watch seeks depose Mr. Bentel, who
served Director S/ES-IRM during Secretary Clinton
tenure. Pl. Mot., ECF No. 16. Mr. Bentel office was
Mr. Bentel retired 2012. Def. Opp ECF No. 103 22.
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
responsible for information technology for the Office the
Secretary. Id.
Judicial Watch argues that deposing Mr. Bentel necessary
because the record includes contradictory evidence about Mr.
Bentel knowledge Secretary Clinton private server and
email practices. Pl. Mot., ECF No.97 16-18. The State
Department responds that deposing Mr. Bentel not necessary
because there evidence indicate that will have more
information about whether there was effort deliberately
thwart FOIA about Secretary Clinton motivation for using
private server. Def. Opp ECF No. 103 22; Tr. 65:
19-23.
The Court persuaded that Mr. Bentel should deposed
because the record this case appears contradict his sworn
testimony before the Benghazi Committee. That testimony
relevant the operation the clintonemail.com system.
Specifically, Mr. Bentel testified that was not aware that
Secretary Clinton email account was housed private server
until media reports 2015. See SELECT COMMITTEE
HOUSE
REPRESENTATIVES, INTERVIEW
BENGHAZI, U.S.
EXECUTIVE SECRETARIAT DIRECTOR
INFORMATION RESOURCES MANAGEMENT (June 30, 2015),
http://askedandanswered-democrats.benghazi.house.gov/
transcripts/2015_06_30_SCB_INTERVIEW_EX_IRM_Director.pdf.
However, several emails indicate Mr. Bentel knew about the
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
private server early 2009. For example, March 17, 2009,
Mr. Bentel received email about Secretary Residential
Installation Hotwash which identified the location
unclassified partner system and server the basement
telephone closet. Pl. Mot., ECF No. 97-2, Doc. December
17, 2010, email was sent SES-IRM_Tech and SES-IRM_FO_Mgt
about problems with the clintonemail.com server. Id., Doc.
25. Presumably, the Director S/ES-IRM, Mr. Bentel would
have been included one both those group emails.
The Court relies three other facts authorizing the
deposition Mr. Bentel. First, Mr. Bentel declined assist
the Rule 30(b)(6) deponent preparation for her deposition.
Def. Opp ECF No. 103 23. Second, the OIG May 2016 report
found that Mr. Bentel told employees his office that
Secretary Clinton email arrangement had been approved the
State Department legal staff and also instructed his
subordinates not discuss the Secretary email again:
Two staff S/ES-IRM reported OIG that,
late 2010, they each discussed their concerns
about Secretary Clinton use personal
email account separate meetings with the
then-Director S/ES-IRM. one meeting, one
staff member raised concerns that information
sent and received Secretary Clinton
account could contain Federal records that
needed preserved order satisfy
Federal recordkeeping requirements. According the staff member, the Director stated that
the Secretary personal system had been
reviewed and approved Department legal
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
staff and that the matter was not
discussed any further. According the
other S/ES-IRM staff member who raised
concerns about the server, the Director stated
that the mission S/ES-IRM support the
Secretary and instructed the staff never
speak the Secretary personal email system
again.
STATE DEPARTMENT OFFICE
INSPECTOR GENERAL REPORT 40,
https://oig.state.gov/system/files/esp-16-03.pdf.
Finally August 2011, Mr. Bentel informed State Department
staff person that anything sent the Secretary her
state.gov Blackberry address would subject FOIA
searches. Pl. Mot., ECF No. 97-2, Doc. sum, the record suggests Mr. Bentel has knowledge the
operation the clintonemail.com system, which within the
scope discovery authorized the Court. Because Mr. Bentel
declined assist the Rule 30(b)(6) deponent preparation for
her deposition, well the other reasons discussed above,
the Court GRANTS Judicial Watch request depose Mr. Bentel. The Court Declines Defer Ruling Judicial Watch
Discovery Motion, but Requires the State Department
Release all Remaining Documents Responsive Judicial
Watch Request Date Certain the alternative, the State Department had proposed that the
Court stay its decision additional discovery until the State
Department receives and searches the additional work-related
documents the FBI recovered. Def. Opp ECF No. 103 24.
oral argument, Judicial Watch objected this proposal
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
primarily the grounds that was unclear how long would
take the State Department process the documents received from
the FBI, and also because regardless what additional
documents are released, the additional discovery Judicial Watch
has requested would still necessary complete the record. Tr. 90:4 91:2, July 18, 2016.
The Court not persuaded that necessary defer
ruling the pending discovery motion, and, discussed supra,
has concluded that some additional discovery warranted. The
Court the opinion that Judicial Watch should have the
opportunity review the remaining responsive documents
enable it, pursuant the limited scope discovery authorized this case, prepare appropriate interrogatories and
deposition questions. The State Department has informed the
Court that anticipates completing its initial search the
remaining materials received from the FBI later than
August 26, 2016. Def. Status Report, ECF No. 122 Because
the State Department has not indicated date certain which will complete processing these documents and release them
Judicial Watch, and because the State Department has committed prioritizing this FOIA request, Tr. 16: 8-11, July
18, 2016, the Court will order the State Department release
all remaining documents responsive Judicial Watch FOIA
request later than September 30, 2016. Judicial Watch may
Case 1:13-cv-01363-EGS Document 124 Filed 08/19/16 Page
then serve interrogatories Secretary Clinton later than
October 14, 2016. Secretary Clinton shall respond later
than thirty days thereafter. Mr. Bentel may deposed
later than October 31, 2016.
III. Conclusion
For the reasons discussed above, Judicial Watch Motion
GRANTED PART and DENIED PART. appropriate Order
accompanies this Memorandum Opinion. ORDERED.
Emmet Sullivan
United States District Court
August 19, 2016