Skip to content

Judicial Watch • JW v State opposition to discovery 01242

JW v State opposition to discovery 01242

JW v State opposition to discovery 01242

Page 1: JW v State opposition to discovery 01242

Category:

Number of Pages:17

Date Created:September 18, 2015

Date Uploaded to the Library:March 29, 2016

Tags:Declaration, 01242, Opposition, Judgment, Discovery, Sullivan, summary, Abedin, search, Civil, motion, Secretary, Benghazi, defendant, filed, document, plaintiff, State Department, request, White House, records, FOIA, Supreme Court, office, CIA


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.
Plaintiff,
Civil Action No. 14-cv-1242 (RCL)
U.S. DEPARTMENT STATE,
Defendant.
DEFENDANT OPPOSITION PLAINTIFF MOTION ALLOW TIME FOR
LIMITED DISCOVERY PURSUANT RULE 56(D)
INTRODUCTION court may issue relief pursuant Rule 56(d) [i]f nonmovant shows affidavit
declaration that, for specified reasons, cannot present facts essential justify its opposition.
Fed. Civ. 56(d). Plaintiff Judicial Watch request for limited discovery pursuant Rule
56(d) should denied because Plaintiff has not met the standard for granting such relief. First,
Plaintiff has not submitted affidavit stating with sufficient particularity why additional
discovery necessary. U.S. rel. Folliard Gov Acquisitions, Inc., 764 F.3d 19, (D.C.
Cir. 2014) (quotation omitted). Rather than outlining the particular facts [it] intends discover
and describe[ing] why those facts are necessary the litigation required, id., Plaintiff lists
several broad subject matters inquiry. Pl. Mot. Allow Time for Limited Discovery
Pursuant Rule 56(d) Pl. Mot. ECF No. 22; Decl. Counsel Support Pl. Mot. Permit Discovery Pursuant Rule 56(d) 56(d) Decl. ECF No. 22-1. this basis
alone, Plaintiff request should denied. listing broad topics rather than specific facts,
-1-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
Plaintiff has not limited its request discovery that necessary oppose Defendant Motion
for Summary Judgment.
Moreover, Judicial Watch has not shown, and cannot show, that the information seeks necessary oppose Defendant Department State State Motion for Summary
Judgment, ECF No. 19, because courts routinely resolve disputes over the adequacy
agency search based summary judgment briefing. Discovery generally not ordered unless plaintiff presents evidence that the agency acted bad faith the processing the FOIA
request. Despite insinuation and speculation the contrary, Plaintiff has not made and cannot
make that showing here. Finally, Plaintiff request for discovery should fail because has not
shown that the information seeks fact discoverable. U.S. rel. Folliard, 764 F.3d
(citation omitted). Most the topics Plaintiff identifies are irrelevant the issues presented
Defendant Motion for Summary Judgment, and the remainder are based pure speculation
that inquiry into the subject matter will provide the evidence required create issue
material fact. For the foregoing reasons, further discussed below, Plaintiff motion for Rule
56(d) discovery should denied.
BACKGROUND
This case involves Plaintiff FOIA request the Office the Secretary State
seeking: Copies any updates and/or talking points given
Ambassador Rice the White House any federal agency
concerning, regarding, related the September 11, 2012 attack the U.S. consulate Benghazi, Libya. Any and all records communications concerning, regarding, relating talking points updates the Benghazi attack
given Ambassador Rice the White House any federal
agency.
-2-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
Complaint (ECF No. 1). the time State filed its Motion for Summary Judgment, July
2015, had conducted searches reasonably calculated uncover responsive records its
possession and control. See Def. Mot. for Summ. 5-12, ECF No. 19. Those searches
included, among other things, searches emails provided State former Secretary State
Hilary Clinton and the state.gov email accounts Jacob Sullivan, Cheryl Mills, and Huma
Abedin. Id.
The searches also covered records that had been provided State Mr. Sullivan and
Ms. Mills less than two weeks before State filed its Motion for Summary Judgment; the
Motion, and contrary Plaintiff allegations, see Pl. Mot. State informed the Court and
the Plaintiff that State could receive additional documents the future from Mr. Sullivan, Ms.
Mills, and Ms. Abedin. Def. Mot. for Summ. 10. State then received additional
documents from all three individuals after the Motion for Summary Judgment was filed, and
informed the Court and the Plaintiff that development. See Mot. Stay Pending Resolution Mot. for Designation Coordinating Judge Mot. Stay ECF No. (Sept. 2015).
Despite the fact that had obligation under the FOIA so, State was willing stay
summary judgment briefing and ask the Court set schedule allow search those
documents for records responsive the FOIA request, notwithstanding that those records were
not State possession and control the time the FOIA search was conducted. See Judicial
Watch FHFA, 646 F.3d 924, 926 (D.C. Cir. 2011) (citing U.S. Dep Justice Tax Analysts,
492 U.S. 136, 144-45 (1998)) The Supreme Court has held that FOIA reaches only records the
agency controls the time the request. The parties were unable reach agreement
regarding schedule for such search. Ms. Mills, Mr. Sullivan, and Ms. Abedin have already
stated that that they have provided all potential federal records their possession State. See
-3-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
Exhibit August 12, 2015 Letter from Beth Wilkinson Patrick Kennedy have
produced all potential federal records identified Ms. Mills possession Exhibit August
2015 Letter from Beth Wilkinson Patrick Kennedy July 30, 2015, Mr. Sullivan
provided electronic version all potential federal records his possession from his tenure
the Department State from 2009 through 2013 the Department. September 2015 Letter
from Karen Dunn and Miguel Rodriguez Patrick Kennedy write further reply your request for Ms. Huma Abedin assistance preserving any potential federal records
her possession relating her work with the Department from 2009 2013. Enclosed with this
letter are documents Ms. Abedin possession that have identified responsive
potentially responsive your request. August 21, 2015, Plaintiff filed motion for discovery pursuant Rule 56(d). See
ECF No. 22. this motion, Plaintiff seeks [a]t minimum order requiring Defendant
complete its review the records from Ms. Mills, Ms. Abedin, Mr. Sullivan and [Phillippe]
Reines1 before Plaintiff can oppose summary judgment. Pl. Mot. Defendant has
expressed its willingness perform searches the documents provided Ms. Mills, Ms.
Abedin, and Mr. Sullivan, set forth above. However, Plaintiff also seeks discovery related
the emails former Secretary Clinton and the other former employees the following topics:
How emails and email servers were managed the Defendant,
including, but not limited the clintonemail.com server and
backup server;
How files and file servers were managed Defendant;
How Defendant implemented system backups;
Mr. Reines was not employed the Office the Secretary; his records, therefore, are outside the bounds the
original FOIA request, which was directed the Office the Secretary. See Kowalczyk Dep Justice, F.3d
386, 389 (D.C. Cir. 1996) (the agency obligation search limited the four corners the request).
-4-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
Information identify individuals (custodians) outside the
Secretary office who were likely communicate and/or
from the Secretary office about the subject matter
Plaintiff FOIA request;
Information about former officials use email accounts and
systems outside the state.gov servers, including the
clintonemail.com server and email accounts;
Information about what electronic and computing devices
(BlackBerrys, iPhones, iPads, laptops, desktops, etc.) were
used key officials, their locations and Defendant ability
search for potentially responsive records; and/or
What other ad-hoc backups data USB devices were used
for government business.
Rule 56(d) Decl. Pl. Mot. Plaintiff does not specify the exact type discovery
seeks from whom would seek it. September 2015, Defendant filed Notice its Motion for Designation
Coordinating Judge, and September 2015, State filed Motion for Stay pending
resolution the Motion for Designation Coordinating Judge. See Def. Notice Mot. for
Designation Coordinating Judge, ECF No. 23; U.S. Dep State FOIA Litig. Emails Certain Officials, Misc. No. 15-1188 (D.D.C. Sept. 2015) Coordination Motion Mot.
Stay, ECF No. 25. the Motion Stay, State sought stay the briefing schedule set forth
the Court order August 11, 2015 (ECF No. 21) regarding Plaintiff Motion for Discovery
Pursuant Rule 56(d). See ECF No. 2.2 September 2015, Judge Huvelle, behalf the Calendar and Case Management Committee, issued order Miscellaneous Case 15-
This stay would, the Coordination Motion granted, allow the Coordinating Judge rule issues raised
Plaintiff motion that are common across many the cases, including the discovery sought Plaintiff, preventing
duplicative arguments being made and adjudicated across various cases and avoiding conflicting rulings such
issues. would also allow the Coordinating Judge set schedule for searches documents that have been
received State since filed its motion for summary judgment this case July 2015. See ECF No. 23.
-5-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
1188 requiring plaintiffs the various FOIA actions implicated State Consolidation Motion file any opposition that motion the miscellaneous case September 14, 2015. See
Notice Order Entered Misc. No. 15-1188, ECF No. 24. Several plaintiffs filed oppositions State Consolidation Motion. See Misc. No. 15-1188, ECF Nos. 16, 17, 19, 21, 23, 24, 25,
26, 28. This Court has not ruled Plaintiff Motion for Stay this case. the absence
such ruling, Defendant therefore submits this opposition Plaintiff Motion for Discovery.
ARGUMENT court may issue relief pursuant Rule 56(d) [i]f nonmovant shows affidavit
declaration that, for specified reasons, cannot present facts essential justify its opposition.
Fed. Civ. 56(d). obtain the relief that Plaintiff seeks here discovery must submit affidavit which states with sufficient particularity why additional discovery necessary.
U.S. rel. Folliard, 764 F.3d (quoting Convertino U.S. Dep Justice, 684 F.3d 93, (D.C. Cir. 2012)).3 This affidavit must satisfy three criteria: (1) [I]t must outline the
particular facts [plaintiff] intends discover and describe why those facts are necessary the
litigation; (2) must explain why [the plaintiff] could not produce the facts opposition the
motion for summary judgment; and (3) must show the information fact discoverable. Id.
(quoting Convertino, 684 F.3d 99-100). District courts should resolve each request based
its application the Convertino criteria the specific facts and circumstances presented the
request. Id. 26-27. Plaintiff request for discovery should denied because its affidavit
does not fulfill the criteria for granting the relief requested. the Court noted U.S. rel. Folliard, 764 F.3d n.3, Convertino discussed what was then Rule 56(f) and now Rule 56(d). Rule 56(d) carrie[d] forward without substantial change the provisions former subdivision
(f). Fed. Civ. advisory committee notes 2010 Amendments.
-6-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
Plaintiff Does Not Set Forth Particular Facts Intends Discover
First, Plaintiff affidavit insufficient because does not outline the particular facts that
Plaintiff intends discover, but rather lists several broad topics subject matters inquiry.
See 56(d) Decl. Rule 56(d) requires more particularity demonstrate that the inquiry
necessary respond Defendant Motion for Summary Judgment. See U.S. rel. Folliard,
764 F.3d (request depose two individuals regarding entity sales the federal
government the open market lacked the particularity required Convertino because the
vague request did not indicate why the depositions would reveal any information beyond what
the relator already had). Plaintiff also does not specify the exact type discovery seeks
from whom would seek it. See Hudson River Sloop Clearwater, Inc. Dep Navy, 891
F.2d 414, 422 (2d Cir. 1989) (holding that affidavit supporting Rule 56(d) discovery must
explain what facts are sought and how they are obtained This lack specificity
demonstrates that Plaintiff request not limited seeking information that necessary
oppose Defendant Motion for Summary Judgment. this basis alone, Plaintiff Motion
should denied.
Plaintiff Does Not Explain Why the Subject Matters Inquiry Are
Necessary the Litigation
Even Plaintiff affidavit did set forth the particular facts intends discover which does not the affidavit does not explain why those facts are necessary the litigation. See
56(d) Decl. The discovery issues raised Plaintiff its motion are not specific the FOIA
request issue this case. They are, rather, general requests about the information technology
practices State and the specifics how certain former employees sent, received, and stored
email. See Pl. Mot. 56(d) Decl. This further evidenced the fact that the
-7-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
discovery issues raised Plaintiff its Motion are virtually identical information Plaintiff
has sought, improperly, way status reports other cases currently pending this district.
See, e.g., Supplemental Joint Status Report 14-16, Judicial Watch U.S. Dep State, Civil
No. 13-772 (D.D.C. Sep. 2015) (seeking discovery with substantial overlap the discovery
sought Plaintiff Motion for Discovery here); Joint Status Report 3-4, Judicial Watch
U.S. Dep State, Civil No. 15-688 (D.D.C. June 25, 2015) (outlining questions Judicial Watch
had posed State). The request Civil Case 15-688 was denied. See Scheduling Order,
Judicial Watch U.S. Dep State, Civil No. 15-688 (D.D.C. July 2015) (entering
scheduling order and not ordering discovery). The Court has not issued order based the
status report filed the parties Civil Case 13-772.
Moreover, [d]iscovery generally unavailable FOIA actions. Wolf CIA, 569
Supp. (D.D.C. 2008) (quotation omitted). Defendant Motion for Summary Judgment
demonstrated that State conducted searches reasonably calculated uncover responsive
documents its possession and control. See ECF No. 19-1 2-12. Plaintiff disagrees with
this assertion, the proper way resolve that dispute follow the same course action that
would undertaken any FOIA case when the parties find themselves such impasse:
Plaintiff should file brief opposing Defendant Motion for Summary Judgment. that brief,
Plaintiff free argue that State should have searched other systems records its
possession and control, should have searched the records additional custodians, and should
have searched systems outside its possession and control (even though the law clearly states
that State has such obligation). Defendant will then file reply brief responding any
arguments raised Plaintiff opposition brief, and the Court will decide the issue. Even the
Court were determine, when deciding Defendant Motion for Summary Judgment, that the
-8-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
declaration submitted State support its Motion for Summary Judgment was somehow
deficient the sufficiency the search, courts generally will request that agency
supplement its supporting declarations rather than order discovery. Wolf, 569 Supp.
(quotation omitted).
Generally, FOIA plaintiff entitled discovery only has provided evidence that
the agency has acted bad faith the processing the request. See id. Despite Plaintiff
insinuations and speculation the contrary, Plaintiff has provided evidence that State has
acted bad faith. For example, the fact that State did not note that had not searched former
Secretary Clinton emails when responded Plaintiff FOIA request, see Pl. Mot. was
neither misrepresentation nor material omission, because those documents were not its
possession and control when the original search was completed. See Declaration John
Hackett Support Mot. for Summ. 17, ECF No. 19-2. Once those emails were provided State and thus entered State possession and control, State, its own initiative, searched
them for records responsive the FOIA request. This search complete. Id.
Moreover, State has provided the Court and Plaintiff with current information regarding
the documents has received from Ms. Mills, Mr. Sullivan, and Ms. Abedin. State informed
Plaintiff and the Court, its Motion for Summary Judgment, that respective counsel for Ms.
Mills, Ms. Abedin, and Mr. Sullivan had informed State that these individuals might provide
further response State request make available State any federal records their
possession that may not otherwise preserved State recordkeeping system. See ECF No.
19-1 n.4. its Motion Stay, State told Plaintiff and the Court that had received
additional documents from all three individuals since the Motion for Summary Judgment was
filed. See ECF No. discussed above, State was willing stay summary judgment
-9-
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
briefing and ask the Court set schedule allow search those documents for records
responsive the FOIA request, notwithstanding that those records were not State possession
and control the time the FOIA search was conducted, but the parties could not agree
schedule for these searches.
Therefore, Plaintiff has provided reason why discovery necessary, and this Court
should assess the sufficiency State search the appropriate time, after Defendant Motion
for Summary Judgment fully briefed. See North U.S. Dep Justice, 729 Supp. 74,
77-78 (D.D.C. 2010) (denying request for discovery until Court considered motion for summary
judgment and requiring plaintiff challenge adequacy agency search way opposition the agency motion); Minute Order, Judicial Watch U.S. Dep State, Civil No. 14-1511
(June 22, 2015) (rejecting Plaintiff request that State perform certain actions and searches
set forth the parties Joint Status Report, see ECF No. 3-4, and granting State request
set schedule for briefing its motion for summary judgment because State took the position
that its search was adequate).
Plaintiff Has Not Shown that the Information Seeks Discoverable
Even Plaintiff could show that the discovery seeks necessary respond
Defendant Motion for Summary Judgment, its request should still denied because Plaintiff
has not shown that the information seeks discoverable. Much the information Plaintiff
seeks not relevant the issue whether Defendant conducted reasonable search, and
Plaintiff request for the remaining information based nothing more than speculation,
rather than facts showing that the discovery sought will provide the evidence required.
First, information regarding custodians outside the Office the Secretary, see 56(d)
Decl. irrelevant the issue whether Defendant conducted adequate search because
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
Plaintiffs FOIA request sought records only from the Office the Secretary. See Kowalczyk
Dep Justice, F.3d 386, 389 (D.C. Cir. 1996) (The agency not obliged look beyond
the four corners the request. course, the requester discovers leads the documents receives from the agency, may pursue those leads through second FOIA request.
Second, Plaintiff requests for information regarding Defendant management
emails, email servers, files, file servers, system backups and electronic and computing devices
State possession and control based pure conjecture regarding the existence information
that would demonstrate that Defendant search was inadequate. State electronic records
systems and accounts, such state.gov email accounts, are generally housed State servers.
See Declaration Joseph Macmanus Judicial Watch U.S. Dep State, Civil No. 131363 (August 19, 2015) (ECF No. 29-1). respond Plaintiff FOIA request, State searched
the state.gov email accounts for the relevant custodians.4 See Hackett Decl. 11, ECF No. 19-2.
State also searched those electronic records systems the Office the Secretary reasonably
likely contain responsive records. Id. 10. Plaintiff provides facts support its assertion
that discovery into Defendant management emails, Defendant email servers, file servers,
and system backups, electronic and computing devices issued State and used relevant
custodians would yield any information relevant whether State made good faith effort
conduct search for the requested records, using methods which can reasonably expected
produce the information requested that was State possession and control. Oglesby Dep the Army, 920 F.2d 57, (D.C. Cir. 1990).
Former Secretary Clinton did not use state.gov email account. See Hackett Decl. n.6, ECF No. 19-2. Thus, the extent that Plaintiff criticizes State for failing search that account, its contention unpersuasive. See
Declaration David Sun 10, ECF 22-2.
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
Whether certain relevant custodians used non-State systems conduct official business
has bearing whether State search the systems under its possession and control was
reasonable, especially given that Plaintiff FOIA request was limited the Office the
Secretary. Yet these are the only facts Plaintiff offers justify its request for discovery. See
Pl. Mot. 6-8. Speculation and conjecture are not sufficient grant discovery under Rule
56(d). See Messina Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006) (affirming denial request
for Rule 56(d) discovery where the requesting party has offered only conclusory assertion
without any supporting facts justify the proposition that the discovery sought will produce the
evidence required (internal quotation omitted); SafeCard Servs., Inc. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991) (citation omitted) (in evaluating the adequacy search under FOIA,
courts accord agency affidavits presumption good faith that cannot rebutted
plaintiff speculation about the existence and discoverability other documents ).5
Third, information regarding custodians use email accounts and systems outside the
state.gov servers not relevant whether State conducted reasonable search. State not
obligated under FOIA produce documents that State neither possesses nor controls. See, e.g.,
Kissinger Reporters Comm. for Freedom the Press, 445 U.S. 136, 152, 154-55 (1980); Nat
Sec. Archive Archivist the U.S., 909 F.2d 541, 545 (D.C. Cir. 1990); Competitive Enter. Inst. Office Science Tech. Policy, Supp. --, 2015 967549, 4-5 (D.D.C. Mar.
2015). State lacks possession and control over servers used third parties, including former
See also CareToLive FDA, 631 F.3d 336, 345 (6th Cir. 2011) [FOIA] requester not entitled discovery
based its hope that might find additional documents its belief that the agency withholding information.
Exxon Corp. FTC, 663 F.2d 120, 128 (D.C. Cir. 1980) (upholding denial FOIA Plaintiff request for Rule
56(f) discovery because requester provided evidence that parte communications took place, and [i]t not the
intent Rule preserve purely speculative issues fact Wright Miller, 10B Fed. Prac. Proc. Civ.
2741 (3d ed.) [T]he hope hunch that evidence creating issue fact will emerge insufficient.
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
Secretary Clinton server. Therefore, this Court should not order discovery into the
management this other non-State servers, accounts, hard drives, devices because State
not position provide that information. See Declaration John Hackett 12, Judicial
Watch U.S. Dep State, Civil No. 13-1363 (August 14, 2015) (ECF No. 26-1).
Moreover, even this information was relevant and could sought from State, Plaintiff
has not met its burden show that the discovery will provide the evidence required. Former
Secretary Clinton has provided affidavit under penalty perjury stating that she directed that
all her emails clintonemail.com her custody that were potentially were federal
records provided the State Department. See Declaration Hillary Rodham Clinton,
Exhibit Supplement Defendant August 2015 Status Report, Judicial Watch U.S.
Dep State, Civil No. 13-1363 (August 10, 2015) (ECF No. 22-1). Plaintiff provides
reason beyond mere speculation question this testimony non-party. See Strang U.S.
Arms Control Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989) (where plaintiff
provided evidence contradict affidavit, her desire test and elaborate the testimony
through deposition was insufficient require Rule 56(f) discovery). Counsel for Ms. Mills, Ms.
Abedin, and Mr. Sullivan have also stated that their clients have provided copies all potential
federal records their possession State. See Ex. have produced all potential federal
records identified Ms. Mills possession Ex. July 30, 2015, Mr. Sullivan provided
electronic version all potential federal records his possession from his tenure the
Department State from 2009 through 2013 the Department. Ex. write further
reply your request for Ms. Huma Abedin assistance preserving any potential federal
records her possession relating her work with the Department from 2009 2013. Enclosed
with this letter are documents Ms. Abedin possession that have identified responsive
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page potentially responsive your request. Plaintiff provides evidence counter these
statements non-parties. Therefore, Plaintiff request for this discovery should denied.
The Sun Declaration Irrelevant and Should Disregarded
The Declaration David Sun, ECF No. 22-2, does not cure any the deficiencies
Plaintiff Rule 56(d) affidavit and should summarily rejected. Mr. Sun does not purport expert FOIA; purports expert computer forensics. See Declaration David
Sun 2-6 Sun Decl. ECF No. 22-2 (discussing experience computer forensics). Plaintiff
has presented evidence that any data State possession and control that responsive its
FOIA request has been lost; therefore Mr. Sun purported expertise data recovery irrelevant determining the adequacy Defendant search. Moreover, because Mr. Sun not FOIA
expert, does not analyze State search efforts under the legal standard governing FOIA
actions, which requires reasonable search. When suggesting additional searches that
Defendant could run, Mr. Sun also does not account for the fact that, under FOIA, Defendant
only has obligation search for records its possession and control. See, e.g., id. (listing potential search locations such social media accounts). addition, Mr. Sun does
not acknowledge that State cannot required broaden Plaintiff FOIA request conducting search all inboxes State because Plaintiff limited its FOIA request the Office the
Secretary. See id. 16-20. Without any personal knowledge regarding the subject matter the
FOIA request, Mr. Sun also ill positioned question the custodians whose records State
searched, see id. 16, issue that, like all the others raised Mr. Sun, can challenged
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
opposition Defendant Motion for Summary Judgment any event.6 Finally, the extent
Plaintiff and Mr. Sun suggest specific actions that State should take, opposed facts Plaintiff
intends discover, id. 25, these suggestions are not proper requests for discovery pursuant Rule 56(d).
The Burden the Discovery Outweighs the Likely Benefit
Even the Court were find that Plaintiff had made sufficient showing under Rule
56(d), still should deny Plaintiff inquiry into the broad subject matters outlines because the
burden expense the proposed discovery outweighs its likely benefit, particularly
considering State limited resources. See Fed. Civ. 26(b)(2)(C)(iii); Sun Decl.
(stating that his recommendation for additional searches made based [t]he relative ease
searching the location, [t]he probability finding responsive information the location, and
[t]he ability perform the equivalent searches using easier methods other locations
Declaration John Hackett 10-14, Associated Press U.S. Dep State, Civil No. 1500345, ECF No. 11-1 (July 21, 2015) (discussing State FOIA caseload, resources, and
process). For the reasons described above, Plaintiff has not shown that the broad subject matters inquiry outlines its requests will yield any relevant information. Moreover, the burden
involved providing information the broad subject matters inquiry would extensive,
especially given that Plaintiff request lists broad topics, rather than specific facts, that intends discover.
Mr. Sun also acknowledges that Fed. Civ. 26(f) does not apply FOIA actions, but analogizes the type
collaboration that says should occur FOIA case information exchanged the parties Rule 26(f)
report. See Sun Decl. This Court has exempted FOIA actions from the requirements Rule 26(f), see LCvR
16.3(b)(9), and FOIA does not require agencies answer questions from requesters, see Landmark Legal Found.
E.P.A., 272 Supp. 59, (D.D.C. 2003).
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page addition, explained above, Mr. Sun suggestions regarding particular actions State
could perform not constitute proper requests for information pursuant Rule 56(d). Even
they were, however, Plaintiff has not met its burden show that such actions should ordered.
Mr. Sun states that State should conduct enterprise-wide search all email accounts
State email server for all emails from State and external accounts for the key individuals.
See Sun Decl. 18-20, 25. preliminary matter, this suggestion ignores the fact that
Plaintiff FOIA request was limited the Office the Secretary, and that State has provided affidavit stating that searched the state.gov email accounts individuals selected
members the Office the Secretary based their understanding which staff members
within the Office the Secretary during former Secretary Clinton tenure worked issues
related the Benghazi attacks and whose records may therefore reasonably expected
contain responsive records. Declaration John Hackett 11, ECF No. 19-2. Plaintiff also
has provided evidence suggest that search all State Department email accounts will
yield any responsive records, let alone records sufficient justify such search. Searching the
email accounts tens thousands employees across State based speculation that
additional responsive records could located inconsistent with FOIA and Fed. Civ. 56(d).
Mr. Sun also relies pure speculation that such search would even possible. See
Transcript Status Hearing 55:22-56:1 (testimony John Hackett), Associated Press U.S.
Dep State, Civil No. 15-345 (July 29, 2015) (saying that don have big central archive emails where could search across everybody email account, going involve
searching specific email accounts former employees and then searching offices State has
already explained, this and other cases, the process that required follow respond
Case 1:14-cv-01242-RCL Document Filed 09/18/15 Page
FOIA request. See Declaration John Hackett 6-8, ECF No. 19-2; Declaration John
Hackett 12-14, Associated Press U.S. Dep State, Civil No. 15-00345, ECF No. 11-1
(July 21, 2015) (discussing State FOIA caseload, resources, and process). the extent any
searches suggested Plaintiff and Mr. Sun exceed that, this relief should not granted.
CONCLUSION
For the above-stated reasons, State respectfully submits that Plaintiff Motion Allow
Time for Limited Discovery Pursuant Rule 56(d) should denied.
Date: September 18, 2015
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
ELIZABETH SHAPIRO
Deputy Branch Director
/s/ Jennie Kneedler
ROBERT PRINCE (D.C. Bar No. 975545)
JENNIE KNEEDLER (D.C. Bar No.
500261)
Trial Attorneys
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave., N.W.
Washington, 20530
Tel: (202) 305-3654/(202) 305-8662
robert.prince@usdoj.gov
Jennie.L.Kneedler@usdoj.gov
Counsel for Defendant