JW v. State Pltf ltd discovery 01242 082415
Number of Pages:47
Date Created:August 21, 2015
Date Uploaded to the Library:August 27, 2015
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Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC. Plaintiff, DEPARTMENT STATE, Civil Action No. 14-1242 (RCL) Defendant. PLAINTIFFS MOTION ALLOW TIME FOR LIMITED DISCOVERY PURSUANT RULE 56(d) Plaintiff Judicial Watch, Inc., counsel, pursuant Rule 56(d) respectfully requests that the Court deny, or, the alternative, defer ruling Defendants premature motion for summary judgment and permit time for limited discovery facts Plaintiff needs substantively oppose Defendants motion for summary judgment. Plaintiff respectfully submits the accompanying Rule 56(d) Declaration support Plaintiffs motion. Defendant has represented, through counsel, that opposes Plaintiffs request for the limited discovery. grounds therefor, Plaintiff submits its memorandum oflaw below. MEMORANDUM LAW Introduction This case involves unprecedented removal entire system records from agency the agency head. Only through some limited discovery can Plaintiff ascertain necessary facts determine what sources are available for reasonable search the records Plaintiff requested. Defendants motion for summary judgment premature and should Pursuant LCvR 7(f), Plaintiff requests oral hearing Plaintiffs Rule 56(d) Motion. Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page denied. II. Factual Background (a) Plaintiffs FOIA request and Defendants initial search. May 13, 2014, Plaintiff submitted FOIA request Defendants Office the Secretary seeking access to: Copies any updates and/or talking points given Ambassador Rice the White House any federal agency concerning, regarding, related the September 11, 2012 attack the U.S. consulate Benghazi, Libya. Any and all records communications concerning, regarding, relating talking points updates the Benghazi attack given Ambassador Rice the White House any federal agency. (hereinafter also referred the Benghazi talking points). See Com pl. Relevant records requested Plaintiff include, but are not limited to, emails sent and/or received former State Department officials Hillary Rodham Clinton, Cheryl Mills (chief staff), Huma Abedin (deputy chief staff), Jacob Sullivan (deputy chief staff) and Philippe Reines (senior advisor). response the filing this lawsuit, Defendant produced four responsive records with redactions November 12, 2014. See 7/7/15 Deel. John Hackett ii16 (Hackett Deel.) (ECF No. 19-2); see also Pltf. Mot. for Status Conf. (ECF No. 12). Defendant did not disclose that never searched Mrs. Clintons emails part its response Plaintiffs FOIA request. Id. Nine months since Defendant first claimed its search was complete, still unclear where potentially responsive records are reasonably expected reside. June 30, 2015, when Defendants motion for summary judgment was due, Defendant requested one-week extension review federal records received about June 26, 2015 Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page from Ms. Mills and Mr. Sullivan (chief staff and deputy chief staff). See 6/30115 Def. Notice iii! 2-3 (ECF No. 17). that time, Defendant did not disclose that additional productions were expected only matter weeks. Id.; See Ex. (Mills Ltrs.) and Ex. (Abedin Ltrs.), attached Declaration Counsel Support Plaintiffs Motion Permit Discovery Pursuant Rule 56(d) (Rule 56(d) Deel.) iii! 7-8. Defendant appears have received additional records from Ms. Abedin least July 2015 and August 2015 and her final production expected August 28, 2015. See Abedin Ltrs. (Ex. 3). Ms. Mills purportedly returned her final production about August 10, 2015. See Mills Ltrs. (Ex. 2). (b) Reports about Mrs. Clintons government emails and server. March 2015, the New York Times first reported that Mrs. Clinton used least one clintonemail.com email account exclusively for government business while she was secretary state. was also then reported that all clintonemail.com accounts were routed through separate email server installed Mrs. Clintons house Chappaqua, New York. Ms. Abedin also used email account the clintonemail.com email server for government business. 8/10/15 Status Rpt., Judicial Watch Dept State, Case No. 13-1363 (D.D.C.) (ECF No. 22). Plaintiff asked Defendant whether Mr. Sullivan and Mr. Reines used email accounts the clintonemail.com server but Defendant refused provide the information. November 12, 2014, Defendant requested that Mrs. Clinton provide any federal Philippe Reines, another senior advisor Mrs. Clinton, was also involved the Benghazi talking points. Def. SJM 14. appears email exchange with Mr. Sullivan, Ms. Mills and Ms. Abedin that Defendant discovered the June 26, 2015 production either from Ms. Mills, Mr. Sullivan, both about the Benghazi talking points. Id. appears that Mr. Reines produced twenty boxes potential federal records Defendant July 28, 2015. See Josh Gerstein, Gawker Presses Philippe Reines Emails., Politico (August 2015). Plaintiff does not have any facts available determine whether Mr. Reines allegedly returned complete production potential federal records Defendant. See Michael Schmidt, Hillary Clinton Used Personal Email Account State Dept., Possibly Breaking Rules, the N.Y. Times (March. 2015). Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page records she may have, such emails sent received personal email account while serving secretary state, which may not otherwise have been preserved the Defendants recordkeeping system. response the request, Mrs. Clinton allegedly instructed her attorneys review emails her clintonemail.com email account and determine which emails are federal records and which are personal. result, the 62,320 emails stored her clintonemail.com account, 30,490 those emails were provided [Defendant December 2015] and 31,830 were [deemed] private, personal records. Mrs. Clinton chose not keep her private, personal emails she someone else believed were not federal records. Id. Mrs. Clinton does not address whether she used any other email accounts for government business even whether government related emails remained the BlackBerry and/or iPad she admitted have used for government business. Id. While Mrs. Clintons counsel, David Kendall Williams Connolly LLP, has asserted that there are firstname.lastname@example.org emails from Secretary Clintons tenure secretary state the server for any review, also does not address whether Mrs. Clinton used other email accounts for government business and whether the server contained Mrs. Clintons emails from any other email account she may have used for government business. Mr. Kendalls comments also not address any copies, clones, duplication the servers hard drive any backup tapes backup servers. Since Defendant filed its motion for summary judgment, news reports indicate that the See Statement from the Office Former Secretary Clinton (Mach 2015), available http://www.factcheck.org/ UploadedFiles/2015/03/HRC-staff-Q A-pdf.pdf. See Michael Schmidt, Copies Clinton Emails Server, Lawyer Says, New York Times (March 27, 2015). Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page clintonemail.com server was serviced and maintained Specialist from the State Department. Bryan Pagliano, the former director for Mrs. Clintons presidential campaign 2008, was hired Defendant May 2009 Specialist. employee the Defendant, Pagliano continued act the lead specialist responsible for [the server]. reported have been called fix problems with the server, including after Hurricane Sandy October 2012. III. The Court Should Grant Plaintiffs Rule 56(d) Motion and Deny Defendants Premature Motion for Summary Judgment Order Allow Adequate Time for Discovery (a) Defendants motion for summary judgment premature. Defendant moved for summary judgment, yet its face, clear that the motion premature. Hackett Deel. at~ (ECF No. 19-2). Defendant knew its production potentially responsive records was incomplete, that scheduled productions were imminent, and that its request for extension time would provide for only partial review potentially responsive records. See 6130115 Def. Notice at~~ 3-4 (ECF No. 17). Defendant also knew that least some these records were being reviewed and/or returned response the Plaintiffs FOIA Carol Leonning, Rosalind Helderman, Tom Hamburger, FBI Looks into Security Clintons Private Email Setup, Washington Post (Aug. 2015). Contrary Defendants assertion, Defendants motion for summary judgement did not provide the latest available information concerning the letters sent [Mills, Abedin and Sullivan] about their productions federal records Defendant. See Def. SJM Mills Ltrs. (Ex. 2); and Abedin Ltrs. (Ex. 3). about June 25, 2015, Defendant knew that Ms. Mills attorneys hope[d] provide additional documents Ms. Mills possession from the broader time period rolling basis next month. See Mills Ltr. (June 25, 2015) (Ex. 2). about June 29, 2015, Defendant knew that Ms. Abedins attorneys were working diligently respond and that they [were] track provide ... documents ... within the next several weeks and hope work closely with the Department timetable for providing any other potential federal records Ms. Abedins possession. See Abedin Ltr. (June 29, 2015) (Ex. 3). Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page request awsmt. For government agency obtain summary judgment under FOIA the adequacy the search, the agency must demonstrate beyond material doubt that its search was reasonably calculated uncover all relevant documents. See Nation Magazine US. Customs Serv., F.3d 885, 890 (D.C. Cir. 1995) (emphasis added), (quoting Truitt Dep ofState, 897 F.2d 540, 542 (D.C. Cir. 1990)). Defendant had knowledge these potentially responsive federal records, was the process their productions, yet moved for summary judgment before this was complete. minimum, Defendant should ordered complete its review the records from Ms. Mills, Ms. Abedin, Mr. Sullivan and Mr. Reines before Plaintiff can oppose summary JUd gment. (b) Limited discovery necessary and appropriate. Even ifthe review the records discussed above was complete, which not, Plaintiff needs limited discovery about Defendants recordkeeping systems during Mrs. Clintons tenure before the Court and Plaintiff can determine whether reasonable search has been conducted under the facts presented here. explained the supporting declarations, facts about the recordkeeping system are necessary for the Court and Plaintiff determine where potentially responsive records are reasonably expected reside. See Rule 56(d) Deel.; 8/21/15 David Sun Deel. (Sun Deel.) attached thereto Ex. Ms. Abedin attorneys note their letter June 29, 2015 Under Secretary Patrick Kennedy that date, they had not identified documents responsive Plaintiffs FOIA request this lawsuit. Ms. Abedins attorneys have made are making determinations whether federal record responsive Plaintiffs FOIA request this case, then such determination Ms. Abedins attorneys third parties -would improper. official who likely communicated with the Secretarys office about the Benghazi talking points, Mr. Reines records should searched well. Def. SJM 14. Defendants position that his records are not relevant because allegedly was assigned separate office unavailing when emails from the Secretarys office were routed outside the state.gov email system. Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page Plaintiff should not have rely piecemeal information provided public news reports other pending lawsuits gather the facts needs oppose Defendants motion. Information recently became available unrelated pending lawsuit before the Hon. Emmet Sullivan about the use clintonemail.com emails and productions federal records from Ms. Mills and Ms. Abedin. 7/31/15 Minute Order, 8/10/15 Def. Status Rpt. (ECF No. 22). Judicial Watch Dept State (Case No. 13-1363) (D.D.C.). While information disclosed that case about the use clintonemail.com emails and productions federal records from Ms. Mills and Ms. Abedin relevant this case, Plaintiff requires the same information relates Mr. Sullivan and Mr. Reines. Rule 56(d) prevents Defendant from railroading Plaintiff into premature motion for summary judgment. Celotex Corp. Catrett, 477 U.S. 317, 326 (1986).13 party faced with premature summary judgment motion required file affidavit outlin[ing] the particular facts [it] intends discover and describe why those facts are necessary the litigation. Id. (citing Byrd US. Envtl. Prof. Agency, 174 F.3d 239, 248 (D.C. Cir. 1999)). Plaintiff has attached such affidavit this motion. See Rule 56(d) Deel. the known facts already demonstrate, this the rare FOIA case where discovery necessary. See Landmark Legal Found. Envtl. Prot. Agency, 959 Supp. 175 (D.D.C.) date, Plaintiff not aware all the email accounts Mrs. Clinton used for government business. Plaintiff not aware Mrs. Clinton ever identifying how she others, for that matter searched for and decided which emails provide Defendant. noted earlier, recent reports suggest that the server Mrs. Clintons house was maintained Rule 56(f), which applies Celotex Corp., the equivalent the current Rule 56(d). This applies several cases cited herein. Case 1:14-cv-01242-RCL Document Filed 08/21115 Page and serviced State Department Specialist. All these facts are necessary determine Defendants system records available, whether any backups exist and where potentially responsive records reside. Rule 56(d) Deel. Plaintiff explains its accompanying Rule 56(d) declaration, the limited subject matters inquiry are: Information identify officials (custodians) outside the Secretarys office who were likely communicate to/from the Secretarys office about the subject matter Plaintiffs FOIA request (e.g. Philippe Reines); Information about their 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 Defendants ability search for potentially responsive records; How emails and email servers were managed Defendant, including, but not limited the clintonemail.com server and backup server; How files and file servers were managed Defendant; and/or How Defendant implemented system backups. See Rule 56(d) Deel. Sun Deel. iii! 12-14, (Ex. 1). Pointed and limited discovery facts about these issues, well the productions federal records Defendant from Mr. Sullivan and Mr. Reines necessary before summary judgment motions. IV. Conclusion For the foregoing reasons, the Court should grant Plaintiffs Rule 56(d) motion and deny, the alternative, defer ruling on, defendants motion for summary judgment allow time for Leonning, Helderman, and Hamburger, supra. Mrs. Clinton recently admitted that she used Blackberry and iPad Secretary for her government email. See https://www.hillaryclinton.com/p/briefing/factsheets/2015/07/13/email-facts/. Case 1:14-cv-01242-RCL Document Filed 08/21/15 Page limited discovery. Respectfully submitted, Dated: August 21, 2015 JUDICIAL WATCH, INC. Isl Ramona Cotca RamonaR. Cotca, D.C. Bar No. 501159 JUDICIAL WATCH, INC. 425 Third Street SW, Suite 800 Washington, 20024 (202) 646-5172 Attorneys for Plaintiff Case 1:14-cv-01242-RCL Document 22-1 Filed 08/21/15 Page 1of3 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC. Plaintiff, DEPARTMENT STATE, Defendant. Civil Action No. 14-1242 (RCL) DECLARATION COUNSEL SUPPORT PLAINTIFFS MOTION PERMIT DISCOVERY PURSUANT RULE 56(d) Pursuant Fed. Civ. 56(d), Ramona Cotca hereby declares follows: attorney employed Judicial Watch, Inc. and counsel for Plaintiff the above- captioned matter. have personal knowledge the matters set forth below. Pursuant Rule 56(d), submit this declaration support Plaintiffs motion allow time for limited discovery and attach support hereto the Declaration David Sun, expert the fields computer forensics and electronic discovery, Exhibit Mr. Suns Declaration discusses the types searches that could reasonably done locate the records Plaintiff requested, depending the facts available about the email system and email accounts used the Office the Secretary. required Rule 56(d), this declaration outlines the limited topics inquiries Plaintiff seeks address through discovery able determine available sources for the records Plaintiff requested and reasonable searches Defendant should undertake this lawsuit filed under the Freedom oflnformation Act (FOIA). Plaintiff needs this limited discovery before can oppose Defendants motion for summary judgment. This lawsuit seeks access the following information: Copies any updates and/or talking points given Ambassador Rice the Case 1:14-cv-01242-RCL Document 22-1 Filed 08/21/15 Page 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. The parties agree that emails sent and/or from former Secretary State Hillary Rodham Clinton, Jacob Sullivan, Cheryl Mills, and Huma Abedin, all former officials from the Office the Secretary, are relevant Plaintiffs FOIA request. Plaintiff believes that emails and/or from Philippe Reines are also relevant Plaintiffs FOIA request. Plaintiff seeks limited discovery about the following: How files and file servers were managed the Defendant; How Defendant implemented system backups; Information identify officials (custodians) outside the Secretarys office who were likely communicate and/or from the Secretarys office about the subject matter Plaintiffs FOIA request (e.g. Philippe Reines); 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 Defendants ability search for potentially responsive records; and/or How emails and email servers were managed the Defendant, including, but not limited the clintonemail.com server and backup server; What other ad-hoc backups data USB devices were used for government business. Defendant has been unwilling provide this information Plaintiff. Plaintiff cannot obtain this information from Defendant without Court-ordered discovery. Attached hereto Exhibit are relevant correspondences between Defendant and Cheryl Mills and/or her attorneys about the collection federal records. These are true copies Case 1:14-cv-01242-RCL Document 22-1 Filed 08/21/15 Page correspondences posted the Courts ECF system Judicial Watch Dep ofState, Case No. 131363 (ECF Nos. 18, 20). Attached hereto Exhibit are relevant correspondences between Defendant and Huma Abedin and/or her attorneys about the collection federal records. These are true copies correspondences posted the Courts ECF system Judicial Watch Dep ofState, Case No. 131363 (ECF Nos. Nos. 18, 20). declare under penalty perjury that the foregoing true and correct. Executed Washington, D.C. this 21st day August, 2015. :JivrL Ramona Cotca Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page EXHIBIT (DECLARATION DAVID SUN) Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC Civil Action No.14-cv-1242 (RCL) Plaintiff, U.S. DEPARTMENT STATE Defendant. DECLARATION DAVID SUN The undersigned, David Sun, expert witness for Plaintiff Judicial Watch, Inc., hereby sets forth his declaration follows: Qualifications and personal background. David Sun, state that over the age and competent testify the matters herein. the founder and president Sun Block Systems, consulting firm which specializes digital forensics, electronic discovery, and technology consulting. president, have led and personally conducted numerous computer examinations and have been involved electronic discovery matters. also the president S34A, Inc., company that performs advanced research computer forensics for the Department Homeland Security and other government agencies. the president, responsible for the company overall research efforts and ensuring that they meet the technical and operational requirements forensic practitioners law enforcement well the private sector. Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page Certified Information Systems Security Professional (CISSP), Certified Computer Examiner (CCE) and EnCase Certified Examiner (EnCE). also Adjunct Professor George Mason University and instructor for Virginia and Massachusetts State Bar approved Continuing Legal Education courses, having taught multiple courses computer forensics and electronic evidence. often invited speak technical conferences advancements the field computer forensics. have been awarded multiple patents for inventions the field computer forensics and also authored numerous technical publications the fields computer forensics, electromagnetics, and telecommunications. have Bachelors and Masters degrees Electrical Engineering from Virginia Polytechnic Institute and State University (Virginia Tech). have been accepted testifying expert Computer Forensics multiple jurisdictions. Examples roles the fields computer forensics and electronic discovery include the following: Managed numerous computer investigations and e-Discovery matters involving various legal issues such United States Security and Exchange Commission (SEC) compliance, United States Environmental Protection Agency (EPA) criminal investigations, homicide, black-market drug manufacturing, intellectual property theft, identify theft, corporate malfeasance, system hacking, and wrongful termination. Served computer forensics and e-Discovery expert for various multi-national corporations involved class action and anti-trust litigation. Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page Performed information security assessments for various high profile events and systems such the Games the 2004 Olympiad Athens, Greece; the United Nations 2002 Summit Economic Development Johannesburg, South Africa; and the United States Federal Reserve Bank Dallas, TX. Served interim Chief Technology Officer (CTO) for distressed phone company ordered into receivership federal judge. One particular past matter which may relevant this matter investigation into the loss public records then sitting mayor for the City New Orleans, Ray Nagin. that matter, the City was responding FOIA request for emails from the Mayor. The Citys department was unable produce reasonable set records, the emails longer existed the Mayors email account. The City, therefore, retained SunBJock Systems assist its department identifying alternative locations for Mayor Nagins emails. Our efforts entailed gaining understanding the Citys systems, how they were managed and how they were used employees. With that understanding, were able identify alternative search methods and locations that resulted the recovery thousands additional emails. Purpose and Scope Judicial Watchs Retention. have been retained Judicial Watch review the Defendants Motion for Summary Judgement and its supporting documents well various filings and declarations made other lawsuits behalf the State Department. Specific filings are referenced footnotes appropriate. reviewing this information, have been asked form opinion the thoroughness and effectiveness the Defendants searches and efforts Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page locate records responsive the Plaintiffs FOIA request. form this opinion based professional training and experience and information available this time. Lack Information Confirm Effectiveness Search. any controversial fact finding endeavor, natural tension exists between assurances that responding party conducted thorough search effort, and uncertainty the side the requesting party. Given that the responding party neither compensated nor motivated comprehensive possible their search for responsive documents, the requesting party some external entity generally needs provided enough detail the search order form fully informed opinion about its adequacy. For example, the realm civil litigation and electronically stored information (e.g. emails, computer files, text messages), Rule 26(f) the Federal Rules Civil Procedure requires all parties litigation conduct meet and confer the early stages litigation. Generally, this meet and confer accepted include the sharing information regarding data custodians and locations for readily accessible electronically stored information. While such meet and confers are not always successful, mandating that they occur process has been created which the requesting and responding parties must engage discussion. The result this required discussion ensures requesting parties have better understanding the respondents systems and the data available for searching. This affords the requesting party the opportunity assess the respondent conducted reasonable search. Although the Federal Rules Civil Procedure may not directly applicable the FOIA context, they demonstrate the need for collaboration between opposing parties when exchanging electronically stored information. Another court has even stated that much the logic behind the Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page increasingly well-developed case law e-discovery searches instructive the FOIA search context because educates litigants and courts about the types searches that are are not likely uncover all responsive documents. Inadequate Search Methodology Based Information Available. his declaration, John Hackett, Director the Office Information Programs and Services for the U.S Department State, provides some details the search methodology used. The Declaration specifies that various formal records systems within the Office the Executive Secretariat Staff (S/ES-S) were searched. Specifically, documents from the STARS, STePS, CARS and systems were searched well the state.gov email accounts Cheryl Mills, Jacob Sullivan, and Huma Abedin. However, the state.gov email account for Secretary Clinton was omitted from the search. 11. normal circumstances, the locations specified Director Hacketts declaration may considered suitable individuals work email account typically contains significant portion the messages available. However, this matter, based information and belief that Secretary Clinton and other members S/ES-S (including Ms. Abedin, Ms. Mills and Mr. Sullivan) used external email systems and/or external email addresses conduct official State Department business, search the formal records systems and the state.gov email accounts for only those three individuals cannot considered reasonable scope locate the information specified the FOIA request. This because neither the inbox sent-item folders for their state.gov email accounts can expected National Day Laborer Organizing Network U.S. Immigration and Customs Enforcement Agency, 877 Supp. 87, 109 (S.D.N.Y. 2012). Defendants Motion for Summary Judgement filed July 2015, Declaration John Hackett, pages 3-5. Judicial Watch U.S. Department State, Case Number 13-CV-1363-EGS, Supplement Defendants August 2015 Status Report, Declaration Hillary Rodham Clinton. Judicial Watch U.S. Department ofState, Case Number 13-CV-1363-EGS, Defendants Status Report filed August 2015, Exhibit and Exhibit Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page contain records all emails sent received those individuals which they conducted official State Department business. The use separate, external system means that unknown number messages for these key individuals did not originate terminate their state.gov email account. 12. opinion, based the limited information provided the Defendant well the acknowledged usage key individuals whose email accounts were searched, the Defendant failed apply adequate search methodology locate documents responsive this FOIA request. Specifically, the omission Secretary Clintons state.gov account from the search, the inability the Defendant confidently include all contents from outside email systems used for work purposes key individuals, and the omission other relevant custodians from the search means that the data Director Hackett was able search was incomplete from the onset. Therefore, additional searches include alternative locations are both necessary and reasonable. Supplementary information necessary determine which additional searches would reasonable. Additional Searches Available. 13. The implementation additional searches should start with some common search practices. The most fundamental practice establish reasonable records custodian list- list individuals who may have encountered responsive records part their job responsibilities and duties. general, key individuals well others who would have communicated with them (such their administrative assistants, their direct reports and the administrative assistants for those direct reports) should included the records custodian list. While Director Hacketts declaration indicates that some members Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page Secretary Clintons staff were included, was small number and failed include their assistants direct reports who may have been included email correspondence. addition, Secretary Clinton was not included the list individuals whose accounts systems were searched. such, the records custodian list used the Defendant lacked numerous relevant individuals likely have received responsive emails. 14. Once this list records custodians established, all potential locations where responsive documents could have been stored should identified. Through the normal course operation, computer systems utilize numerous potential locations find responsive records. Examples such typical locations include, but are not limited to: All electronic devices and equipment used data custodians such computers workstations, laptops, cell phones (BlackBerrys, iPhones, etc.), iPads, USB storage devices, CD/DVD media; Servers such email servers, file servers, email archive servers, application servers, document management systems, backup servers; Externally cloud hosted systems and accounts; Social media accounts; All backup media for any the above sources; Paper documents/archives/journals; hoc backup storage devices. These are locations where users may store business information without the knowledge assistance the department. Numerous filings related cases have demonstrated that the key individuals this matter likely used such hoc locations they acknowledge still having Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page possession federal records despite longer being employed the Department State. 15. The recommendation search each these possible locations made based the following: The relative ease searching the location; The probability finding responsive infonnation the location; The ability perform the equivalent searches using easier methods other locations. While Director Hacketts FOIA search methodology that led him only search the fonnal records systems and state.gov email accounts for three individuals may have been adequate other FOIA requests, this matter, since the Departments email server was apparently bypassed, alternative search methodologies and locations must considered for the search reasonable and adequate. 16. Starting with the fundamental records custodian list, based the limited information available, the opinion that Director Hacketts list was incomplete. addition omitting any administrative assistants for the key individuals, the account Philippe Reines (Deputy Assistant Secretary State for Strategic Communications and Senior Communications Advisor Secretary Clinton) was also omitted. Mr. Reines was included among the recipients withheld document C05831334 indicating that may have encountered responsive records part his job responsibilities and duties. important note that Mr. Reines also used external email account for business Judicial Watch U.S. Department State, Case Number 13-CV-1363-EGS, Defendants Status Report filed August 2015, Exhibit and Exhibit Defendants Motion for Summary Judgement filed July 2015, Declaration John Hackett, paragraph 30. Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page communications. knowledge, Mr. Reines has not been directed confirm that has produced any responsive documents his possession. This omission further reduces the probability that Director Hacketts search covered the complete universe documents. Beyond the external email accounts used key individuals, the Defendant can access numerous locations which can conduct the document search. Searching the computers, cell phones, and USB storage devices used any the records custodians fairly straightforward. Searching departmental file servers, archive servers and backup media for emails moved off the email server common practice) also routine process. Lastly, most modem email systems have the ability conduct enterprisewide keyword search inboxes within the email server(s), thereby eliminating the need search each user account individually. While enterprise-wide search all inboxes the email server(s) may seem daunting first, numerous advances email server management have made this fairly expedient and common practice. For example, Microsoft Exchange, very common enterprise email system used numerous government agencies, supports numerous tools designed perform enterprise-wide search. Some these tools cost low $300, depending the number mailboxes search and can installed the email server(s) conduct centralized searches. Other email systems, such IBM (formerly Lotus) Notes/Domino, also have tools available which support enterprise-wide keyword searching from the email server. Example tools for enterprise-wide keyword searching include Discovery Attender Sherpa Software, PowerControls Kroll Ontrack, and MAPILab Search for Exchange MAPILab. Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21115 Page 19. Microsoft included the enterprise-wide keyword search functionality since the 2010 version the Microsoft Exchange email system allowing for its prevalent use. The free multi-mailbox search function allows for searching 2,500 mailboxes single search. Searches involving more than 2,500 mailboxes can done performing the searches batches accounts. Attached Exhibit screen capture from typical Exchange email system. demonstrates the ability easily perform enterprise-wide keyword search email messages from any user account the server that contain specified keyword(s). 20. this matter, believe that enterprise-wide keyword search all user accounts the email server effective and logical next step. The process would allow the reconstruction each data custodians email account the extent possible identifying any available emails that were sent from the account interest. Information provided related matter one Secretary Clintons aides has also suggested that, since Secretary Clinton had practice sending emails other officials government email accounts, copies her messages can found within the governments email system presumably the accounts those recipients. 21. addition enterprise-wide keyword search the email server, other searches are likely provide effective and efficient way centrally find relevant emails. For example, departmental file servers are often good location find older emails because they allow employees store files single location. Since email servers not have 8https://technet.microsoft.com/en-us/library/Dd335072%28v=EXCH 141 %29 .aspx Judicial Watch U.S. Department State, Case Number 13-CV-1363-EGS, Joint Status Report filed June 19, 2015, Exhibit Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page infinite space, mailbox quotas are typically implemented which require users periodically remove emails from the server. Users often not want simply delete older messages common for them create alternative storage location archive these emails. Very often, this alternative location the departmental file server allows the data backed and secured. 22. Though undetermined ifthe Defendant utilizes email archive server, many enterprises that frequently encounter litigation FOIA requests use such servers. email archive server essentially archives every email to/from the enterprise and stores large centralized database. This allows all emails readily searched and produced based attributes such Sender, Recipient, Sent Date, Subject, and keywords the messages. the Defendant has such system, the level effort conduct not only enterprise-wide keyword search emails currently the system but all historical emails would minimal. 23. Lastly, another centralized location where emails can searched the backup system. Historically, searching backup media can time consuming task. However, focusing the search for email server data can reduce the time necessary. Depending the technology used, tools may available that allow searching and extracting emails responsive keywords without the need fully restore the entire system. Such tools would make searching through backups easier process. Conclusions 24. Based the unusual practice where key individuals bypassed their Department State email accounts and used external email accounts conduct business, the Defendants ht1p://www. krollontrack.com/information-managemenl/email-management-for-exchange/archive-restoration/ Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page email server cannot adequately serve singular definitive location search for responsive email documents. Because these circumstances are not typical, the typical search process used the Defendant not adequate ensuring reasonable search has been conducted. 25. experience and practice, when custodians email unavailable inadequately complete for review, have found that there are numerous alternative locations which can facilitate the location emails. opinion, the Defendant should implement the following additional searches minimum: enterprise-wide search the email server for all email to/from Department and external accounts for the key individuals; search the computers, cell phones, and USB storage devices used any the data custodians for messages from the key individuals Department and external accounts; search any departmental file servers, archive servers, and backup media for emails to/from the Department external accounts for the key individuals. 26. While knowledge the Defendants system has been limited due the lack information provided the Defendant, expect that, like any other large enterprise, the Defendant can perform the searches described above with relatively inexpensive tools and reasonable amount effort. The cost and effort involved conducting these searches are very likely less than the cost and effort continued litigation. could more precise identifying specific search techniques that would reasonably locate responsive documents ifl had more information such as: comprehensive data custodian list; Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page list all electronic devices used key individuals, either issued the Defendant otherwise known have accessed Department State records; description the email system used and how emails are managed the Defendant; description the file servers used and how files are managed the Defendant; the Defendant used email archive server; description the Defendant implemented system backups; copy the Defendants document retention policy along with description whether any information automatically archived purged and how backup media handled; and/or any the data custodians used USB devices made ad-hoc backups data. 27. reserve the right supplement amend these opinions and analysis based additional information that obtained. Executed this 21st day August 2015 Case 1:14-cv-01242-RCL Document 22-2 Filed 08/21/15 Page Exhibit New Mailbox Search Required fields Keywords Type words search for. Separate words with uppercase AND, OR. NOT. Use double quotation mark5 search for multi-word phrases. For wildcard searches. place asterisk after the word. m,,.. ;,,mm Include items that cant searched Message types search: All message types Selecl message types ... Messages From Specific E-Mail Addresses Data Range Mailboxes Search Select mailboxes search: ~)Search all mailboxes search specific mailboxes the mailboxes members distribution groups: Search Name, Type, and Storage Locntlon The search name applied the folder the destination mailbox where search results are stored. Search name: IJudicialWatchFOIA Results: Estimate the search results ~)Copy the search results the destination mailbox Enable deduplication Enable full logging Select mailbox which store the search results: :Discovery Search Mailbox Browse send e-mail when the search done Save Cancel 114 1003 Case 1:14-cv-01242-RCL Document 22-3 Filed 08/21/15 Page EXHIBIT (LETTERS CHERYL MILLS) Case 1:14-cv-01242-RCL Document 22-3 Filed 08/21115 Page Case 1:13-cv-01363-EGS Document 18-1 Filed 08/06/15 Page UNDERSECRETARY STATE FOR MANAGEMENT WASHINGTON 07111 MAR ?ll15 Last week, the Department State received the attached subpoena from the SeJect Committee Benghazi~ requesting certain documents and commUJ1ications. writing request your assistance, the extent necessary, meeting the requirements this subpoena and properly preserving any potential federal records that may your custody related your work any topic, any time, offiejal the Department State. The Federal Records Act 1950, amended, U.S.C. chapters 29, and 33, seeks ensure the preservation authoritative record ofofficial correspondence, communications, and documentation. Bulletin 2013~03, the National Archives and Records Administration (NARA) clarified records management responsibilities regarding the use personal email accounts for official government business. NARA recommended that agencies refer its guidance when advising incoming and departing agency employees about their records management responsibilities. This buJJetin was followed additional NARA guidance ~anaging email issued September 15, 2014. See attached. recognize that some the NARA guidance may postwdate your service the Department Nevertheless, bring the NARA guidance your attention order ensure that the Department,s records and subpoena cmpliance are complete possible. Accordingly, ask that should you aware become aware the future federal record your possession, such email sent received personal email account while serving your official capacity the Department, that such record made available the Department this rega.f1 0899 lta.;f!.p,~ot.a ~:.