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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Civ. Action 95-133 (RCL)  
UNITED STATES DEPARTMENT COMMERCE,  
Defendant.  

______________________________) 

MEMORANDUM OPINION 

After four years, this case finally offers light the 
end the tunnel. Currently before the Court the apparently 
unprecedented situation which the defendant Department 
Commerce (DOC) has moved for entry judgment against itself; 
the plaintiff, Judicial Watch, has vehemently opposed the motion. 
Unfortunately, this odd posture not atypical the extreme 
positions taken the litigants this case. After much 
deliberation and thorough review the extraordinary record 
this case, the Court will deny the DOCs motion for entry 
judgment, grant partial summary judgment, sua sponte, ordering 
DOCs proposed search, and allow further discovery under the 
rigorous supervision Magistrate Judge explore the issue unlawful destruction and removal documents the DOC. 

I.FACTUAL AND PROCEDURAL HISTORY 

The agency search and subsequent litigation arising 

from plaintiffs several FOIA requests have, over the past four 
years, led allegations misconduct, minor and severe, both counsel for the government and counsel for the plaintiff, 
and numerous motions for sanctions and for the initiation 
contempt proceedings. For the purposes todays decision, the 
Court primarily concerned with the illegal destruction 
documents and the illegal removal documents from DOC custody knowing violation the FOIA and the orders this Court. 
These particular actions, however, have not occurred vacuum. understand how this FOIA litigation could have 
deteriorated drastically has, may helpful 
recognize that underlying plaintiffs FOIA requests 
political crusade uncover what Judicial Watch believes 
campaign finance scandal tenaciously concealed the current 
presidential administration. Judicial Watch revealingly declares its opposition the DOCs motion for entry judgment that 
this case continues not only the primary, cutting-edge 
information source for the American people, also the 
forefront generating needed change our political system. 
P.s Opp. Mot. Enter Judgmt. 56. Thus, least the 
plaintiffs eyes, the political stakes here are high. 
Furthermore, plaintiff counsels fervor the pursuit this 
litigation appears have been more than the governments 
attorneys could handle. The animosity, for lack better 

word, between the attorneys for the DOC and for Judicial Watch 

has simmered throughout this litigation, and the misconduct 
counsel may understood part the boiling over 
personal, well political, battle. 

Even before this litigation was commenced, however, the DOC 
appears have demonstrated disregard for the law that cannot explained even the idiosyncracies Judicial Watchs 
counsel. Either out carelessness deliberate defiance, the 
DOC repeatedly and grossly mishandled materials responsive 
Judicial Watchs FOIA requests. Whether the agency had political 
motivations for its misconduct question largely irrelevant this Courts task today. 

The DOC has moved the Court enter judgment favor 
Judicial Watch, essentially conceding that the search 
performed response the plaintiffs FOIA requests was 
unreasonable and unlawful. Almost ironically, the DOCs motion 
must denied, not because the evidence fails establish that 
the governments conduct was unreasonable, but because the record misconduct this case egregious and extensive that 
merely granting the DOCs motion and ordering new search would 
fail hold the agency fully accountable for the serious 
violations that appears have deliberately committed. 

Although full account the DOCs misconduct this case 
will likely made some point, not necessary todays 
decision. Consequently, the following narrative will limited chronology Judicial Watchs FOIA requests and the 

procedural stages this litigation, well more detailed 
descriptions events specifically relating the mishandling documents. The Court does note that the destruction and 
discarding responsive documents comprises just one aspect 
the unreasonableness the DOCs search; however, for reasons 
explained detail Part II, below, this particular misconduct central proper understanding why merely entering 
judgment and granting novo search, the DOC requests 
its motion, would unjustly prevent the plaintiff from pursuing 
the full extent relief available under the law. Plaintiffs FOIA Requests 

Sometime 1994, Judicial Watch, conservative public 
interest group, began suspect that the Clinton administration 
was engaged illegal campaign fundraising, including the 
exchange seats Department Commerce foreign trade 
missions for political donations the Democratic National 
Committee (DNC). After obtaining DNC brochure that purported offer participation foreign trade missions one 
several benefits available Managing Trustees the DNC, 
membership level requiring annual donations $100,000, Judicial 
Watch filed two initial FOIA requests with the DOC. September 
12, 1994, Judicial Watch requested the release all documents 
relating Commerce Secretary Ron Browns 1994 trade missions 

China and South Africa. The following day, September 13, 1994, 

Judicial Watch filed another request with the DOC, reiterating 
the September request and expanding also include all 
documents relating trade missions the former Soviet Union March and April 1994 and South America June and July 1994. 

One month later the hostilities began earnest. 
October 18, 1994, counsel for Judicial Watch, Larry Klayman, 
received telephone call from Melissa Moss, Director the DOC 
Office Business Liaison. According Klayman, Moss tried 
pressure him into withdrawing substantially narrowing Judicial 
Watchs requests, which refused do. Upon his refusal, 
Klayman alleges, Moss angrily hung him. October 19, 1994, Moss wrote Klayman confirm 
their October conversation. Moss claimed her letter that 
Klayman had reformulated Judicial Watchs request 
somewhat narrower. That same day (the correspondence was 
facsimile) Klayman responded that had agreed such 
reformulation and asked that Moss refrain from any further 
misstatements [Judicial Watchs] position. Moss apparently 
did not respond. 

Also October 19, 1994, Judicial Watch filed its third 
FOIA request with DOC, this one relating trade mission 

India scheduled for late 1994.1 	Plaintiffs FOIA Action and Defendants First Motion 

for Summary Judgment 

Having received response its initial requests from the 

DOC, January 19, 1995, Judicial Watch filed this action 

compel the DOC comply with its FOIA requests. response, 

the DOC claimed that Judicial Watch would have pay some 

$13,000 photocopying and processing costs before DOC would 

release the responsive information. When Judicial Watch 

requested public interest fee waiver, the DOC refused until, 

May 16, 1995, this Court ordered that the costs waived and the 

responsive documents released Judicial Watch. 	Two years later, Judicial Watch would file fourth request June 10, 1996, requesting documents related the 1996 
trade mission Bosnia and Croatia. Later requests 
October and November 1996 would ask for documents 
relating trade missions numerous other countries 
the Far East, the Middle East, Europe, Africa, and Latin 
America. Yet another request June 1997 would seek all 
documents produced DOC the request any 
investigative body from June 1996 June 1997. 

Although these other FOIA requests are not issue 
this action, the related subjects the requests suggests 
that one all-encompassing search might prove more efficient 
than separate searches. Therefore, although the government means required conduct search with all the 
safeguards ordered today every case, the parties are 
encouraged explore among themselves the possibility 
including these various other requests the procedure 
ordered today for the initial three requests and thus 
resolve other pending actions and disputes. The Court will 
schedule status conference the other pending actions conducted promptly after issuance todays decision. 

The next day, May 17, 1995, the DOC released some 28,000 

withheld over one thousand other documents whole part, 
invoking several the statutory exemptions set forth the 
FOIA. Judicial Watch, unsurprisingly, was not satisfied that the 
28,000 pages included all responsive documents. particular, 
plaintiff noted that the released documents contained 
documents from Secretary Brown, nor from the White House the 
DNC. According Judicial Watch, suspiciously little 
correspondence and from trade mission participants was 
included, well. 

Upon the request the parties, this Court received for 
camera inspection all documents withheld pursuant Exemption the FOIA. Before the Court had completed review, however, 
the DOC filed its first Vaughn index and moved for summary 
judgment. February 1996, this Court denied the DOCs 
motion for summary judgment because the Vaughn index was 
insufficient support judgment matter law. The Court 
also ordered discovery the issue the adequacy the 
agencys search for documents, and ordered the DOC submit 
revised Vaughn index. Defendants Second Motion for Summary Judgment April 1996, the DOC submitted revised Vaughn index 
and affidavits support second motion for summary 

judgment. hearing August 1996, the Court denied the 

motion for summary judgment the adequacy the DOCs 
search and ordered further discovery set forth memorandum 
and order dated August 30, 1996. September 1996, the Court issued decision granting part and denying part the remainder the DOCs motion. 
The Court found that 153 the 306 documents withheld under 
Exemption were improperly withheld whole part, and 
ordered their release Judicial Watch. Nevertheless, the Court 
granted summary judgment favor the DOC all other 
withheld documents.2 	Initial Discovery--1996 

Meanwhile, Judicial Watch had begun discovery designed 
explore the adequacy the DOCs documents search. Gradually 
that discovery begin reveal evidence that the DOC had 
illegally destroyed and removed from its custody responsive 
documents, apparently attempt circumvent the disclosure 
requirements the FOIA and the orders this Court. Ron Brown, Secretary Commerce February 27, 1996, Judicial Watch noticed the deposition 	The Court granted Judicial Watchs motion reconsider this 
decision March 31, 1998. After reviewing camera all the withheld materials, the Court will reinstate the 
September order separate order issued this date. Secretary Commerce Brown, held March 28, 1996. 
March 14, 1996, Secretary Brown, sworn declaration, claimed 
not possession any documents responsive 
plaintiffs FOIA requests, and also claimed have played 
role determining the scope the DOCs search, assertions 
which were cast doubt subsequent testimony. The 
Secretarys deposition was stayed temporarily permit discovery 
from other DOC personnel, effort avoid interfering with 
the Secretarys schedule unless other avenues discovery proved 
inadequate. April 1996, Secretary Brown was killed 
plane crash during the trade mission Bosnia and Croatia. Had lived, may have been able respond questions raised 
the subsequent testimony his business partner and confidante 
Nolanda Hill (discussed below). any event, the events that transpired his office after 
the news his untimely death arrived Washington would 
themselves later focus Judicial Watchs discovery 
efforts. Subsequent depositions revealed flurry document 
shredding the Secretarys office, well easy access 
the office the Secretarys family and coworkers, which lend 
plausibility Judicial Watchs claims that documents were 
unlawfully removed and destroyed after the Secretarys death. 

The plausibility Judicial Watchs claim further 
strengthened the deposition testimony several DOC employees 

which confirms that the documents destroyed removed from the 

Secretarys office were never searched response Judicial 
Watchs FOIA request. Anthony Das, who was represented 
responsible for overseeing the document search the Secretariat 
and other offices, testified his March and October depositions 
that fact had only minimal role the DOCs document 
search and that never discussed the search with Secretary 
Brown, nor was aware any search for documents the 
Secretarys office. Brenda Dolan was similarly represented 
have first-hand knowledge the DOCs document search, and yet her deposition she also testified that her involvement the 
search was minimal; she never discussed the search with Secretary 
Brown anyone his office, nor did she personally search for 
documents there, nor did she review documents found others. 
Barbara Schmitz and Melanie Long, both close assistants the 
Secretary, testified that Secretary Browns office was never 
searched and that, after his death, various people were allowed 
access the Secretarys office and documents from the office 
were destroyed without being searched for materials responsive 
plaintiffs FOIA request. The Secretarys Chief Staff, Robert 
Stein, even corroborated the testimony that Secretary Browns 
office was never searched for documents. From this evidence, indisputable that the DOC destroyed and possibly removed 
documents that, best, were not searched response 
Judicial Watchs requests. This alone would likely support 

finding that the agencys document search was unreasonable, but just one piece this unsightly puzzle, and subsequent 
deposition testimony would uncover actions the DOC that 
strongly substantiate the claim that the agency was deliberately 
destroying and jettisoning documents. 	Ira Sockowitz, Special Assistant the DOC General 
Counsel his October 28, 1996 deposition, Ira Sockowitz testified 
that, when left the DOC for job the Small Business 
Administration (SBA), took with him numerous documents, 
including classified materials and documents responsive 
Judicial Watchs FOIA requests. See Sockowitz Video Depo. 
5:01-08. response this and other revelations 
Sockowitzs deposition, the Court ordered the Inspector General the SBA take custody Sockowitzs computer and safe for inventory and search. This process revealed not only 
documents responsive Judicial Watchs FOIA requests, but also 
sensitive classified information concerning national security 
matters, including telecommunications technology information 
several countries which the DOC had sent trade missions. 
According the testimony Sockowitzs supervisor, Ginger Lew, 
these documents were use Sockowitz his duties the 
SBA, see Lew Video Depo. 4:14, 4:53-54, and their removal has 
never been adequately explained. John Huang 

John Huang was Deputy Assistant Secretary for International 
Economic Policy the DOC under Secretary Brown before leaving become Vice Chairman the DNC. October 1996, when the 
Court authorized Judicial Watch take his deposition, Huang 
literally went into hiding avoid service the subpoena. His 
family, his coworkers the DNC, and even his attorney claimed 
not know his whereabouts, although others claimed see him 
regularly. Only when this Court demanded that counsel for the 
DNC produce Huang for service process did finally 
resurface accept the subpoena. his October 29, 1996 deposition, Huang gave what can 
best termed questionable testimony. testified that 
participated neither trade missions nor fundraising while 
the DOC, and claimed have kept few records during his 
tenure there. See Huang Depo. 182-82, 190-92. produced 
records the deposition. Subsequent media accounts, however, 
portray him pack-rat who left the DOC with bulging files. 
James Bennett, For Democrats, All Kinds Answers, N.Y. Times, 
Dec. 30, 1996, A11. Whether these files contained responsive 
documents anyones guess. 

Huang further testified that played insignificant role 
overall DOC, little more than budget clerk. Subsequent 
discovery has also made this portrayal incredible. From his own 
testimony, appears have participated planning trade 

missions, see Huang Depo. 177-78, communicated frequently with 

businesspeople overseas and the United States, and 
participated policymaking meetings, see id., and received 
intelligence briefings nearly forty occasions. Copies some Huangs correspondence, released the DNC, also appears 
support vision Huang something more than merely 
clerk. 

Among other discoveries, Judicial Watch later learned that 
Huang kept detailed desk diary while DOC, tracing his 
activities daily, even hourly, basis. See Stewart Video 
Depo. 10:59-11:00. When faced with Judicial Watchs demands 
that this diary released, the DOC turned over Klayman 
partially illegible copy the manuscript. Despite ongoing 
demands, and without reasonable explanation, legible copy 
the diary still has not been made available Judicial Watch.3 short, John Huang may well have removed responsive 
documents from the DOC when left, just Ira Sockowitz did. 
His testimony suggesting otherwise not credible; fact, 
little his deposition testimony particularly credible, 
light the evidence now available. Plaintiffs are entitled 
explore this issue further, and continued discovery the 
subject will authorized order accompanying this opinion. 

3The Attorney General, who now possession the desk 
diary for purposes investigation, will ordered 
provide Judicial Watch with legible copy another, separate 
decision issued today. Dalia Traynham 

Secretary Browns scheduler, Dalia Traynham, testified 
her November 26, 1996 deposition that she was asked Barbara 
Schmitz and Melanie Long shred documents after Secretary 
Browns death April 1996, although she had never shredded 
documents before DOC. See Traynham Video Depo. 3:01-07. 
Judicial Watch speculates that the assignment was intended 
wash the hands other DOC employees should questions later 
asked. Melinda Yee 

Melinda Yee held various positions the DOC and went 
several trade missions. her deposition December 1996, 
she testified that she took notes during the China trade mission. 
See Yee Depo. 144, 154-55, 160, 208-212. She also testified destroying these notes, see id. 160-61, 168-71, 208-09, 
212, many which were responsive plaintiffs FOIA requests 
and had been specifically ordered produced this Court 
August 30, 1996. adequate explanation has been given 
why these documents were destroyed, and Judicial Watch can hardly blamed for suspecting lack good faith the part DOC, 
particularly given the somewhat amazing fact that this and other 
improper actions have never been investigated the Inspector 
General the DOC. hearing held February 1997, the DOC urged the Court limit Judicial Watchs discovery. The Court denied the 
request groundless. The Court stated its February 13, 1997 
order that plaintiffs discovery process could hardly called 
fishing expedition because many the depositions had led critical discoveries regarding mishandling documents and 
other misconduct the DOC. Seemingly everywhere Judicial Watch 
looked, there lurked some piece DOC dirty laundry. Although 
only later would the Court surmise the probable source 
Judicial Watchs tips, was apparent early 1997 that the 
adequacy the DOCs search had been cast serious doubt and 
that further discovery was warranted explore what degree 
the DOC had failed reasonably search for responsive documents 
and whether its inadequate efforts were the result 
carelessness something worse. Further Discovery Revelations--1997 

Throughout 1997, Judicial Watch continued take 
depositions DOC employees and former employees. With 
virtually every question answered, new questions arose, did 
more information pointing illegal destruction and removal 
responsive documents the DOC. David Rothkopf 
Former DOC Deputy Undersecretary David Rothkopf was deposed April 1997. yet another display the DOCs unique 
approach FOIA, essentially identical the actions 
Sockowitz and Huang, Rothkopf removed substantial number 
documents from the DOC when left the Department return 
the private sector, where the documents presumably would 
beyond the reach Judicial Watch other curious parties. The 
Court ordered the DOC retrieve these materials, and responsive 
documents were fact found and some produced Judicial 

Watch.4 DNC Minority Donor List 

The first smoking gun document revealed Judicial 
Watchs discovery was uncovered May 1997. Although this 
responsive document was eventually disclosed, and there 
compelling evidence that the DOC attempted destroy jettison 
the list, this episode important milestone and 
illustration the DOCs approach its duties under the FOIA. Deposition Graham Whatley 

Graham Whatley, assistant Deputy Assistant Secretary Jude 
Kearney, was deposed May 28, 1997. that deposition, 

4Incidentally, these and many other documents discovered 
since the DOCs initial motion for summary judgment have never 
been the subject motion for summary judgment, and responsive 
documents found but not released have not been accounted for 
supplemental Vaughn indices. This yet another obstacle 
granting the DOCs motion for entry judgment. 

Whatley made the dramatic revelation that list 139 minority 

donors the DNC was kept the files Deputy Assistant 
Secretary Kearney, who was charge selecting participants 
for the trade missions. This statement was direct 
contradiction the deposition testimony Kearney, who had 
testified that was not contact with the DNC and was unaware 
that any trade mission participants had made contributions the 
DNC. Judicial Watch demanded that the obviously responsive donor 
list immediately produced, and within few hours the 
Department Justice sent copy facsimile directly the 
site the deposition. Judicial Watch later learned that 
several the donors the list fact participated trade 
missions. 

Whatley was apparently demoted after his May 1997 
deposition. Although the Court has evidence retaliation 
the government, the implications the timing are hard 
ignore. Deposition John Ost 

Two days after Whatleys testimony revealing the existence the DNC minority donor list Kearneys files, John Ost 
testified that had received facsimile from the Democratic 
National Committee listing companies that the DNC was 
recommending for participation trade missions. See Ost Video 

Depo. 11:08-10. Ost testified that had turned this 

document over his superiors responsive Judicial Watchs 
FOIA request, see id., but the document was never released. Deposition Christine Sopko July 1997, Judicial Watch deposed Christine Sopko, 
secretary Jude Kearney. Sopko testified that she had fact 
turned over copy the DNC minority donor list DOC lawyers 
months before the existence the list was revealed Graham 
Whatleys deposition. Ms. Sopko appeared upset times during 
her deposition; Judicial Watch suggests that she was afraid that 
she would fired Whatley had been after his deposition, 
although she denied much the deposition. DOJs Explanation 

The DOC and the DOJ not claim that the DNC minority donor 
list from Kearneys files not responsive Judicial Watchs 
FOIA request. Moreover, appears that the document was fact 
found and disclosed AUSA Shoaibi and DOC counsel, including 
Judith Means the DOC Office General Counsel, and yet was 
not released Judicial Watch until after its revelation the 
Whatley deposition. Judicial Watch, course, suggests that the 
DOC and its attorneys deliberately withheld the list blatant 
violation the FOIA and the orders this Court. 

The DOC and the United States Attorneys Office (USAO-DC), 

however, offered their own explanation for the nondisclosure 

the minority donor list papers filed May 29, 1997 and July 1997. Initially, the May 29, 1997 notice the court 
stated that the existence the minority donor list was 
surprise the USAO-DC and the agency counsel present the 
[Whatley] deposition. The notice, apparently prepared 
Assistant United States Attorney Bruce Heygi, represented that 
the matter was being referred the Inspector General the DOC 
for investigation and also brought the attention the Public 
Integrity division the DOJ, although the Court has yet 
informed the results any investigation, even notified 
that one has been opened. Counsel for the DOC repeated 
essentially this same position status conference June 27, 
1997. 

However, little more than one month after the first 
notice the court, and just days after the June status 
conference, the deposition testimony Ms. Sopko revealed that 
she had discussed the existence the donor list with DOC 
counsel, including AUSA Shoaibi and Judith Means the DOC 
Office General Counsel, months before the Whatley deposition. the face this revelation, the AUSO-DC changed its tune. its July 1997 supplemental notice the Court, the 
USAO-DC offered different explanation for its failure 
produce the DNC minority donor list. According the USAO-DC, 
its admitted failure disclose the donor list was the result 

oversight and miscommunication, not willful defiance. Due the 

burdensome number depositions scheduled Judicial Watch 
around the time Mr. Whatleys deposition, the USAO-DC assigned 
another AUSA, Alexander Shoaibi, assist AUSA Heygi with this 
litigation. When AUSA Shoaibi met with Christine Sopko April 1997 prepare for her deposition, Sopko revealed him that 
the minority donor list had been found among Kearneys papers. 
AUSA Shoaibi apparently did not consider this revelation 
significant, and allegedly did not communicate AUSA 
Heygi, who was that time bogged down other day-long 
depositions scheduled Judicial Watch. 

The USAO-DC claims that, when Mr. Whatley disclosed the 
existence the donor list his May 28, 1997 deposition, AUSA 
Shoaibi simply did not recall (and AUSA Heygi did not know) that 
Sopko had revealed the existence the list Shoaibi two 
months earlier. Sopkos mention the list did not reoccur 
Shoaibi, according the USAO-DC, until the night before Sopkos 
July deposition, when Shoaibi reviewed his notes from the 
preparation session. This despite the obvious responsiveness 
the document and its clear significance the most incriminating 
document that Judicial Watch had found date this FOIA 
litigation. attempt rectify the situation, the DOC 
waived the attorney-client privilege Sopkos July 1997 
deposition and allowed Judicial Watch question her regarding 
her revelation the donor list the April 1997 preparation 

session. 

Even the behavior the United States Attorneys Office 
could attributed gross carelessness, acceptable 
explanation has been offered for the behavior the DOC Office General Counsel. Testimony shows that Judith Means was 
present when Ms. Sopko revealed the existence the donor list her deposition preparation session, and Ms. Means, who 
apparently has worked this case from its early stages, could 
not possibly have been unaware the importance the list. 
Nevertheless, according the representations AUSA Heygi, Ms. 
Means apparently denied any knowledge the list the Whatley 
deposition and allowed the USAO-DC file notice with this 
Court indicating that the list was surprise both AUSA 
Heygi and herself. Ms. Means failure, and the corresponding 
failure her office, reveal the existence the donor list the months before Graham Whatleys deposition certainly 
among the most egregious abuses that have occurred this 
litigation, and Ms. Means stubborn refusal admit her 
complicity the nondisclosure only aggravates the matter. addition the mishandling the situation DOC 
counsel, which just one the many episodes attorney 
misconduct this case that will likely discussed 
subsequent opinions, the nondisclosure the donor list raises 
troubling inferences regarding the DOCs conduct the search. 

Apparently, DOC employees fact discovered the list and another 

similar document and properly turned the documents over their

supervisors, but the responsive documents were nevertheless

illegally withheld. The implication, strengthened the pattern abuse this case, that those DOC employees responsible 

for supervising and coordinating the document search were 

manipulating the search and withholding potentially damaging 

documents. this stage, still unclear what extent 

such illegality occurred, precisely who was responsible, and 

what extent the DOC used the destruction and removal documents conceal its efforts thwart the FOIA and circumvent this 

Courts orders. The supervised discovery authorized todays 

order will allow Judicial Watch explore this latter issue 

detail. Continuing Discovery and Responses from the DOC 

5It appears that the DNC donor list was not found during the 
DOCs initial document search, but instead was found during 
subsequent search undertaken response congressional 
subpoena. not clear, therefore, which employees and 
officials the DOC were aware the lists discovery and also 
aware that would responsive Judicial Watchs FOIA 
requests and this Courts orders. any event, the donor list 
was found the files Deputy Assistant Secretary Kearney, 
where clearly should have been found and processed during the 
FOIA document search, and the document was fact disclosed 
attorneys for the DOC and USAO-DC months before its discovery 
the deposition Mr. Whatley. Had the questioning counsel 
for Judicial Watch failed identify the list that 
deposition, the Court can only assume that would remain 
unproduced, despite its clear responsiveness Judicial Watchs 
requests. 

Emboldened the discovery the minority donor list, 

Judicial Watch spent the second half 1997 taking further 
depositions explore the extent which the DOC search may 
have been manipulated, and what, any, other documents were 
illegally withheld. Through this discovery, was gradually 
revealed that classified information had been mishandled 
various DOC employees. The DOC, for its part, appeared 
setting new and encouraging course, but awards ceremony 
December demonstrated that its priorities lay elsewhere. Mishandling Classified Information his deposition June 10, 1997, Jeffrey May, who 
replaced Ira Sockowitz Special Assistant the DOC General 
Counsel, testified that had allowed Sockowitz access safe the Special Assistants office after Sockowitz left the DOC. 
See May Video Depo. 11:30-31. This testimony apparently 
corroborated testimony from Sockowitz that had removed 
classified documents, including responsive documents and other 
materials relating satellite technology and national security 
information, from the office after his departure. See Sockowitz 
Video Depo. 5:01-08. 

The deposition testimony Laurie Fitz-Pegado, former DOC 
Director the Foreign Commercial Service, was taken July 18, 
1997 and August 1997. That testimony revealed that Fitz-
Pegado and number other DOC employees with access top 

secret information the DOC left the Department for positions company involved the development global cellular 
telephone satellite network. See 7/18/98 Fitz-Pegado Video Depo. 11:02-08. Judicial Watch points out that the company 
apparently owned part state-owned entities China, 
Russia, and India, the very countries which were the subject 
classified intelligence data taken Ira Sockowitz when left 
the DOC the SBA. Judicial Watch suggests that this 
connection shows additional motive for the illegal removal classified documents from DOC. DOCs Motion for Entry Judgment August 12, 1997, the DOC filed its motion for entry 
judgment. motivation for its unusual motion, the DOC cited 
the considerable expense already undertaken defense this 
action and desire to promote the general public interest 
confidence Government. amended, the DOCs order proposes rigorously supervised new search, well the award 
reasonable attorneys fees and costs Judicial Watch. the 
time, the proposed new search and the reference promoting 
confidence government appeared the Court signal 
renewed good faith the part the DOC, its new Secretary, and 
its new General Counsel. Nevertheless, Judicial Watch fiercely 
opposed the motion, which considered offer sell out. 
The interesting legal questions raised the motion and the 

unusual stances the parties are discussed Part this 

memorandum opinion. Howard Universitys Ron Brown Collection October 16, 1997, the DOC revealed that February 
1997 had allowed the removal from DOC headquarters 
literally thousands photographs and video and audio tapes 
trade missions led Secretary Brown. The DOC claimed that the 
materials were made part Ron Brown, Jr. Collection Howard University. The University never corroborated those 
claims, and Judicial Watch alleges that such collection 
exists. 

The DOC agreed produce these materials Judicial Watch 
and was forced retrieve them from Howard University because 
could not determined how many the documents represented the 
only existing copy. any event, the materials were eventually 
made available Judicial Watch for inspection the DOC. 
Although Judicial Watch initially demanded copies the 
documents, rather than merely access them, the Court will 
decide separate decision issued this date that access the 
materials satisfied the DOCs obligations with regard this 
information. Despite the satisfactory resolution this matter, 
the Court fails understand why the DOC would give away its 
only copies materials subject court order. DOC Awards December 1997, the DOC held awards program for its 
employees. stark contrast the good faith and 
reasonableness shown the agencys motion for entry 
judgment, the DOC handed out medals several the employees 
who were instrumental DOCs document search, which all 
indications was ridden with conduct that was grossly careless 
best and blatant violation the law worst. The Court 
invited explanation from the DOC, but none was offered. The 
Court loss how the DOC could far reward 
employees for conduct that the most forgiving light strongly 
resembles defiance federal statutes and the orders the 
federal courts. Nolanda Hill 
The highest drama this litigation was supplied Nolanda 
Hill, former business partner and confidante Secretary Brown: January 28, 1998, Hill submitted under seal sworn 
declaration detailing her knowledge the Department 
Commerces handling Judicial Watchs FOIA requests, 
information that she allegedly obtained through her relationship 
with Secretary Brown. Stating that she was concerned about 
retaliatory actions the government, Hill requested that the 
Court provide mechanisms for her protection. Pursuant that 
request, the Court ordered that the affidavit initially kept 

under seal and saw that her attorney was made aware the 

situation and was willing represent and protect her interests this matter. evidentiary hearing was then scheduled for 
March 23, 1998. March 14, 1998, Hill was indicted criminal charges. 
Although investigation had been underway before Hill offered testify this case, Judicial Watch claims that the 
government had represented Hill that charges would not 
filed, and that the March 14, 1998 indictment was retaliation 
for her cooperation with Judicial Watch. March 23, 1998, Hill appeared before this Court and gave 
extensive testimony her knowledge, gained from 
communications with Secretary Brown, relating this action.6 
Upon examination Mr. Klayman, Hill testified that the 
Secretary told her that White House officials had actually 
instructed him delay the production documents responsive 
Judicial Watchs requests and come with way avoid 
compliance with this Courts orders. See Transcript March 23, 
1998 Hearing 85. Hill vividly recalled the Secretarys 
comment that Leon Panetta (then White House Chief Staff) had 

6Hills testimony included some information directly 
relating the involvement White House, DNC, and DOC 
officials the alleged sale trade mission seats part 
Democratic fundraising, which course the ultimate target 
Judicial Watch this case. However, these larger issues are 
not before the Court, and therefore this narration Hills 
testimony will focus solely that information relating DOCs 
response plaintiffs FOIA requests. 

urged him slow pedal the document search. See id. 85-86. 

According Hill, this message was conveyed Secretary Brown Panetta and John Podesta (then White House Deputy Chief 
Staff) several occasions. See id. 85-88. her role personal advisor and confidante Secretary 
Brown, Hill allegedly offered review the most sensitive 
documents responsive Judicial Watchs request, for the purpose finding out precisely what was involved and, according 
Hill, encourage the Secretary turn over all responsive 
documents. See id. 88. Hill never did review the material, 
however, and she was unable testify whether such 
collection the most sensitive responsive documents was ever 
assembled. See id. 89-90. 

Ms. Hill did testify seeing several unproduced responsive 
documents the Secretarys possession 1996, shortly before 
the Secretarys death. According Hills testimony, she met 
with Secretary Brown hotel early 1996, and that 
occasion the Secretary showed her one-inch-thick packet 
documents that produced from personal portfolio-type 
carrying case. See id. 38-39. The Secretary told Hill that 
the documents had been retrieved from DOC files during the 
document search for Judicial Watchs FOIA requests. See id. 

39. Hill reviewed the top five six documents, confirming that 
they were copies letters from Melissa Moss trade mission 
participants specifically referencing their donations the DNC, 

clearly responsive Judicial Watchs requests. See id.
41. Needless say, these documents had not been, and have not 
since been, released the plaintiff. Their current location 
unknown, perhaps unknowable, although Judicial Watch argues that 
the evidence supports inference that the documents were either 
destroyed during the flurry document shredding following the 
Secretarys death, removed from his office during that same 
time period. any event, Hills uncontroverted testimony 
strong evidence that the DOC illegally withheld documents from 
Judicial Watch violation the FOIA. also apparent 
that the DOC was aware this Courts orders that all responsive 
documents produced, and willfully defied those orders, 
according Ms. Hills testimony. This conduct alone would seem justify entry judgment against the DOC, and yet 
simultaneously precludes such judgment until the extent the 
DOCs unlawful behavior adequately explored. 

Also relevant this action the testimony Ms. Hill 
that the deposition Melissa Moss contained number 
inaccuracies. See id. 105 seq. addition, revelations 
about Mosss role the orchestration the trade missions 
casts her deposition testimony new light, and also raises 
doubts how the activities which she participated could 
have produced documents responsive Judicial Watchs 
requests. whole, the evidence supports inference that 
Moss played important role resisting Judicial Watchs FOIA 

requests, and the testimony Nolanda Hill points particular Moss directly responsible for knowing violations this 

Courts orders.7 April 29, 1998, superseding indictment was issued 
against Ms. Hill. Judicial Watch claims that was intended further signal keep quiet. Action and Inaction the DOC 

The months since Ms. Hills testimony have produced 
relatively few startling discoveries. More troubling, perhaps, 
than any action taken this time the continued lack 
action the DOC investigate its own conduct this FOIA 
response and litigation. The Governments Failure Investigate the best this Courts knowledge, Nolanda Hill has 
never been questioned anyone from the Department Commerce, 
Department Justice, Federal Bureau Investigation, other 
agency with investigative duties, despite wide publicity her 
testimony before this Court. According Judicial Watch, few 

7Consistent with its earlier indications, the Court will 
entertain motions for orders show cause the various matters 
raised Ms. Hills testimony. Any resulting contempt 
proceedings will distinct from and will not preclude 
subsequent referral disciplinary matters the Merit Systems 
Protection Boards Office Special Counsel pursuant FOIA 
section (a)(4)(F). 

the more than forty officials deposed for this lawsuit 

testified that they had been approached connection with any 
investigation these matters. appears that the DOC Office the Inspector General has undertaken investigation the 
response Judicial Watchs FOIA requests (although light 
the awards given involved officials, this hardly 
surprising). Although there was some speculation the press 
following Nolanda Hills testimony that the Attorney General 
might seek independent counsel inquire into campaign 
finance matters, including the alleged sale trade mission 
seats, such investigation has been conducted. short, 
insofar the Court aware, the government has not pursued any 
remedial disciplinary action. must noted, however, that the USAO-DC has offered 
investigate the matters raised Ms. hills testimony 
referred the Court, and has asked the Court how should 
proceed; Deputy Attorney General Holder filed affidavit with 
the Court this effect. Without discouraging this kind 
communication, the Court notes that, absent specific statutory 
provision such section (a)(4)(F) the FOIA, the courts 
ordinarily not direct the internal disciplinary proceedings 
the agencies, which have independent duty ensure that their 
employees act lawfully and ethically. While the USAO-DCs offer appreciated signal that offices good faith and 
willingness cooperate, does little ameliorate the 

failure the Department Commerce investigate the events this FOIA controversy. Only the agencies can effectively 
defend their own integrity maintaining zero tolerance for this 
kind misconduct. addition, neither the DOC nor the DOJ has reported the 
Court any investigation the failure produce the DNC 
minority donor list, despite the USAO-DCs representations the 
Court May and July 1997 that the matter had been referred the Inspector General the DOC, with notification the 
referral the Public Integrity division the DOJ. The Court 
can only assume that investigative action has been taken. 
Although the DOJs position, any, this matter 
unclear, the stance the DOC can inferred from its decision December 1997 give awards several employees involved this litigation. explained the awards ceremony program, 
filed with the Court March 23, 1998, employees including Mary 
Ann McFate (one the principal contributors affidavits 
supporting the DOCs Vaughn indices), Brenda Dolan (who sworn 
deposition testimony claimed have only minimal role the 
document search), and Peter Han were recognized for their 
contributions the Commerce Departments efforts respond 
appropriately numerous inquiries relating political 
fundraising and its possible relationship the Department. 
They have shown unusual commitment and professional cooperation ensuring accurate, timely results. Department Commerce, 

Forty-Ninth Annual Awards Program, December 1997. Finding 

words adequately express its incredulity, the Court simply 
disagrees. May 20, 1998 Camera Submission May 20, 1998, DOC revealed that parts several 
documents ordered submitted for camera review had been 
destroyed. Apparently, before releasing copies Judicial 
Watch, DOC had redacted the originals; for some documents, the 
only true copy the information was destroyed. This is, 
course, yet another indication the agencys carelessness 
handling its response plaintiffs FOIA requests. However, the 
Court has reviewed the redacted copies camera and satisfied 
that the information apparently deleted (social security numbers 
and financial information, for the most part) was properly 
withheld from Judicial Watch. September 11, 1998 Hearing September 1998, Judicial Watch somewhat dramatically 
requested camera conference regarding newly discovered 
evidence that claimed showed obstruction justice the 
DOC. September 11, 1998, the parties met with the Court 
review the new evidence, which amounted two unreleased and 
allegedly responsive documents which Judicial Watch had 
discovered and which suggested communication between the DOC and 

the DNC with regard trade missions. Based the evidence 

presented Judicial Watch and the argument the parties, 
the Court issued order permitting limited discovery from the 
DNC and ordering the seizure the DOC Inspector General the 
computers and computer equipment Sally Painter, Melissa Moss, 
John Ost, and Gail Dobert, searched for electronic copies responsive information. The Inspector General has yet 
report the Court the progress that search. Current Status this stage the litigation, some limited discovery 
still ongoing, and numerous motions are pending, almost all 
which are plaintiffs motions for sanctions, compulsion 
discovery, requests for approval additional discovery. 
September 30, 1998, Judicial Watch submitted list pending 
motions requiring disposition the Court were deny the DOCs 
motion for entry judgment. These motions will disposed separate order issued this date. addition, consistent 
with its previous indications, the Court will entertain motions 
for orders show cause relating possible criminal contempt 
proceedings arising out the testimony Nolanda Hill. All 
other discovery matters should pursued before the Magistrate 
Judge appointed supervise continued discovery. conclusion, this somewhat tedious narration presents 

numerous instances likely violations the Freedom 

Information Act and this Courts orders. many occasions, the 
DOC appears have engaged the illegal withholding 
responsive documents, the removal such documents from the 
DOC, and the destruction potentially responsive documents the office the late Secretary Brown and elsewhere, well great deal misconduct during the litigation which the 
Court leaves for another days decision. Upon consideration 
this record, and the legal issues discussed Part II, the 
Court finds that new search alone insufficient remedy, 
and thus the DOCs motion will denied, partial summary 
judgment will granted favor Judicial Watch ordering the 
commencement the search proposed the motion, and further 
discovery under the supervision Magistrate Judge will 
ordered. 

II. LEGAL ISSUES contrast the controversial facts this case, the 
legal issues presented the DOCs motion for entry judgment first glance seemed innocuous. Upon further reflection, 
however, the Court has wrestled somewhat with how properly 
dispose the motion given the unusual factual context gross 
violations the FOIA and court orders. motion party for judgment against itself presents 
novel situation, particularly the face opposition the 

nonmoving party. The Federal Rules Civil Procedure are silent the issue, and the Court not familiar with any case, 
reported otherwise, that has dealt with it. Nevertheless, 
necessary, the Court would find that does indeed have the 
power grant the DOCs motion. The particular facts this 
case preclude it, however, least until the plaintiff has had 
fair opportunity locate through discovery the documents 
which entitled under the FOIA. Because the DOCs motion 
fails offer Judicial Watch full relief, the motion must 
denied. place the governments motion, however, the Court will 
grant partial summary judgment against the DOC and order the 
search proposed its motion. The Court will also order 
Magistrate Judge preside over discovery designed explore 
the extent which the DOC has illegally destroyed and discarded 
responsive information, and possible methods for recovering 
whatever responsive information still exists outside the DOCs 
possession. Together, the new search and the supervised 
discovery will effectuate the legitimate purposes the DOCs 
motion without unjustly prejudicing the plaintiffs right 
pursue the fullest relief available it. Todays decision will 
significantly narrow the scope continued proceedings, which 
will focus primarily the issues illegal destruction and 
removal documents. Consequently, will expedite the 
remainder this litigation, consistent with the governments 

aims filing its motion. The close supervision the 

discovery should also ease the DOCs frustration Judicial 
Watchs persistent attempts transform this FOIA litigation 
into larger political inquisition. However, todays decision 
will simultaneously protect the right Judicial Watch pursue 
its statutory entitlement under the FOIA, and will hold the 
DOC accountable for its blatant and egregious violations the 
Act and this Courts orders. Denial the DOCs Motion 

The first issue addressed the disposition the 
DOCs motion for entry judgment against itself. far the 
Court aware, this motion totally without precedent. 
Equally surprising the motion itself, however, 
plaintiffs strident opposition the entry judgment its 
favor. Ultimately, although the Court does have the power 
grant such motion under certain narrow circumstances, not 
warranted this case. general proposition, district court may grant 
moving partys motion for entry judgment against itself, even 
over the opposition the nonmoving party, (1) there 
genuine issue material fact issue, (2) the nonmoving party entitled judgment matter law, and (3) the motion 
offers the nonmoving party the fullest relief available under 

the law. The Court bases this conclusion many considerations, 

including primarily reference the purpose and provisions 
the Federal Rules Civil Procedure. However, unnecessary explain this reasoning detail, because upon examination the 
DOCs motion fails offer Judicial Watch the full extent 
relief available. 

The DOC argues that the full extent relief available 
plaintiff suing under the Freedom Information Act consists judgment ordering the following: (1) that the agency conduct 
new, legally adequate search for documents, (2) that the agency 
release plaintiff, identify legally sufficient Vaughn 
index, all responsive documents, and (3) that the agency pay 
plaintiff reasonable attorneys fees and litigation costs. 
Indeed, the DOCs motion offers all this and more. its 
Amendment Defendants Motion Enter Judgment, filed March 
20, 1998, the DOC (1) details how the new search will 
supervised the DOC Office Inspector General, (2) specifies 
the bureaus the DOC that will searched, (3) outlines 
procedures for contacting former employees effort locate 
responsive documents that may have been removed from the DOCs 
possession, (4) suggests form instructions that will provided all offices searched, and (5) offers submit sworn 
declarations from each office searched, executed individuals 
with actual personal knowledge the matters attested to. This considerably more thorough than the new search that court 

would ordinarily order when granting judgment favor FOIA 

plaintiff. 

However, after much thought the subject, the Court 
the opinion that such search (plus attorneys fees) does not 
represent the full extent relief available Judicial Watch this case. There substantial evidence that the DOC has 
destroyed documents and removed documents from its control 
effort avoid releasing them Judicial Watch. the Court 
were grant the DOCs motion and merely order new search, 
these documents would not found even the most exhaustive 
searches, and the DOC would have succeeded circumventing the 
FOIA. 

The DOC recognizes this situation and proposes its motion plan for retrieving jettisoned information. The DOC offers 
mail letters former employees three offices within the DOC 
and request that the former employees determine whether they may 
have removed documents from the DOC when they left and, so, 
that they search the documents for information responsive 
Judicial Watchs FOIA requests. While this plan step the 
right direction, the remedy for the governments misconduct 
this case must have more teeth than the DOC proposal offers. 
The courts cannot powerless remedy FOIA violations where 
the agency simply discards potentially damaging responsive 
documents. There must some mechanism which the courts can 
keep the agencies from circumventing the FOIA simply removing 

responsive documents from its control. the Courts opinion, the most significant apparent
obstacle holding the DOC accountable for destroying and 
discarding documents the general proposition that final 
judgment may only enforced against parties the action 
before the court. Even were the Court refer disciplinary 
matters the Office Special Counsel pursuant FOIA section

(A)(4)(F), and even were further conduct contempt
proceedings against those agency employees responsible for the 
illegal activities, the agency would still have powerful 
incentive destroy jettison potentially harmful documents 
the agency knew that the documents would then permanently 
outside the reach the FOIA requester and the federal courts. 
The agency would know that, when threatened, could violate the 
law with relative impunity. 

Fortunately, the courts are not such powerless position 
when faced with the destruction and discarding responsive 

8The parties offered virtually legal argument the 
complex issues raised the DOCs motion. this regard, the Court finds merit the view that the 
district courts should more willing refer disciplinary 
matters the Office Special Counsel when agencies act 
arbitrarily and capriciously defiance the FOIA. See 
generally Paul Winters, Note, Revitalizing the Sanctions 
Provision the Freedom Information Act Amendments 1974, Geo. L.J. 617 (1996). However, the statute clearly envisions 
(although perhaps does not require) that such referral come 
the end litigation, when the issues attorneys fees and 
costs are normally addressed; for this reason, the Court declines consider the appropriateness such referral this time. 

documents. certain circumstances, judgment may enforced 

against nonparties. See Charles Alan Wright al., Federal 
Practice and Procedure 3033, 177. For example, stated 
Federal Rule Civil Procedure 65(d), injunction binding 
upon the parties and upon those persons active concert 
participation with them that receive actual notice the order . number cases have affirmed the courts authority 
enforce their orders nonparties, based part upon Federal 
Rule Civil Procedure 71.10 According the Court Appeals 
for the Second Circuit, It seems clear that Rule was intended assure that process made available enforce court orders favor and against persons who are properly affected 
them, even they are not parties the action. Lasky 
Quinlan, 558 F.2d 1133, 1137 (2d Cir. 1977) (citing Moore, 
Federal Practice 71.10 (1975)). This view was adopted the 
Ninth Circuit Westlake North Property Owners Association 
City Thousand Oaks, 915 F.2d 1301, 1304 (9th Cir. 1990), 
which the court stated: Rule was designed memorialize the 
common-sense rule that courts can enforce their orders against 
both parties and non-parties. Id. particular, the courts 
are willing enforce orders against nonparties when their 
nonparty status used shield frustrate the courts 

10Fed. Civ. states relevant part: [W]hen 
obedience order may lawfully enforced against person 
who not party, that person liable the same process for 
enforcing obedience the order party. 

orders. See, e.g., Wilson Motor Co. Dunn, 264 194, 197 

(Olka. 1928) (Such absurd contention could only prevail where 
might was right and where utter contempt was vogue all law, 
courts, and orderly procedure.). 

Tucked away footnote its reply brief, the DOC argues 
that the documents taken from the Department after the search 
(e.g., Ira Sockowitz David Rothkopf) [cannot] 
considered missing documents, because documents not the 
possession the agency, even wrongfully removed are 
not considered improperly withheld the agency. See 
Kissinger Reporters Committee, 445 U.S. 135, 148-52 (1980). 
Def.s Reply The DOCs statement the law incorrect, 
and its reliance Kissinger error. Kissinger, the Supreme Court held with regard the FOIA 
that Congress did not mean that agency improperly withholds 
document which has been removed from the possession the agency 
prior the filing the FOIA request. Kissinger, 445 U.S. 
150 (emphasis added). The Court itself recognized the importance the temporal restriction its ruling the three FOIA 
requests issue that case. The Court found improper 
withholding for two the requests, which the Court noted had 
been filed after Kissingers notes had been deeded the 
Library Congress. Id. 154 (emphasis added). contrast, 
the Court said the third request: At the time when Safire 
submitted his request for certain notes Kissingers telephone 

conversations, all the notes were still located Kissingers 

office the State Department. For this reason, not rest 
our resolution his claim the grounds that there was 
withholding the State Department. Id. 155 (emphasis 
added). The clear implication that the status particular 
document the time the FOIA request submitted determines 
whether the unreasonable failure produce that document 
unlawful withholding. the document removed before filing the request, then failure produce not improper 
withholding. contrast, the document removed after the 
filing the request, failure produce improper 
withholding. 

Two Justices, each concurring part and dissenting 
part, recognized the importance the timing the removal 
documents, particularly done attempt circumvent the 
FOIA. Justice Brennan noted: Even the Courts opinion implies-as think must--that agency would improperly 
withholding documents failed recover papers removed from 
its custody deliberately evade FOIA request. Id. 159 
(Brennan, J., concurring part and dissenting part). 
Justice Stevens worried that the majority decision creates 
incentive for outgoing agency officials remove potentially 
embarrassing documents from their files order frustrate 
future FOIA requests. Id. 161 (Stevens, concurring 
part and dissenting part) (emphasis added). Both Justices 

observations support the plain reading the majoritys holding 

that the time which the FOIA request submitted the time 
when documents must the possession the agency for the 
FOIAs disclosure requirement apply. 

Contrary the DOCs assertion, the Supreme Courts 
decision Kissinger does not permit agencies evade the FOIA removing documents from their control after the filing 
FOIA request; fact, explicitly rejected that contention 
with regard the Safire FOIA request. the opinion this 
Court, contrary ruling would well beyond the concern 
Justice Stevens that outgoing officials would remove documents 
thwart possible, future FOIA requests; would allow the DOC 
any other agency conduct search, sort the responsive 
documents political sensitivity, and then remove the 
potentially damaging documents, secure the knowledge that the 
FOIA requester would never see them (which may well be, part, 
what happened here). Such result would render the FOIA hollow 
and the courts powerless intervene. Fortunately, the law does 
not require such agency misconduct unremedied. 

The import the preceding discussion for this litigation twofold. First, general matter, these cases support the 
courts power remedy illegal actions, such those the 
DOC, issuing orders and judgments that must complied with 
even when nonparties are involved. the context this FOIA 
action, for example, this Courts orders compelling production 

illegally withheld documents may enforced not only against the 

DOC but also against any nonparties which the DOC transferred 
possession responsive documents attempt circumvent 
the FOIA and the orders this Court. Second, the availability this remedy Judicial Watch makes clear that the DOCs 
motion fails offer Judicial Watch the full extent relief 
available under the law, because provides reliable 
mechanism which identify those nonparties who must bound the order and judgment.11 For this reason alone, the Court 
declines grant the DOCs motion. Partial Summary Judgment 

Although the Court must deny the DOCs motion for entry 
judgment, not necessary continue this litigation 
unmodified. The arguments the parties and the record this 
case persuade the Court that the interests justice and 
judicial economy are best served entry partial summary 
judgment resolving the greater part this controversy, which 
apparently largely undisputed. There is, this stage the 
litigation, argument, and certainly reasonable argument, 
that the DOCs document search was reasonable and legally 

11Incidentally, neither does the DOC motion suggest 
referral the Office Special Counsel pursuant section 
(a)(4)(F) the FOIA; however, this statutory mechanism not 
truly relief for the plaintiff, but instead mechanism employed the courts discretion. 

adequate under the FOIA. this issue, Judicial Watch 
entitled judgment matter law. 

Although Judicial Watch has not moved for summary judgment, 
the Court has the authority enter summary judgment even the 
absence motion. See 10A Wright al., supra,  2720, 
347-352; see also Leahy District Columbia, 833 F.2d 1046, 
1047 (D.C. Cir. 1987) (citing 10A Wright al., supra,  2720). 
The Supreme Court recognized the district courts authority 
enter summary judgment sua sponte Celotex Corp. Catrett, 
477 U.S. 317, 326 (1986). According Professors Wright al., 
the court may enter summary judgment its own initiative 
long the parties are given sufficient advance notice and 
adequate opportunity demonstrate that summary judgment 
inappropriate. See 10A Wright al., supra,  2720, 339. 
To conclude otherwise, the professors write, would result 
unnecessary trials and would inconsistent with the objective Rule expediting the disposition cases. See id.  
2720, 345. would also inconsistent with the purposes 
underlying the Rules general, which according Federal Rule Civil Procedure shall construed and administered 
secure the just, speedy, and inexpensive determination every 
action. 

Here, the parties have had ample time and opportunity 
address the appropriateness entering judgment this stage 
the proceedings. The DOCs motion for entry judgment was 

filed August 1997. Since then the DOC has amended it, 

Judicial Watch has vigorously opposed it, and the DOC has filed 
reply brief supporting it. Although the parties have failed 
offer much persuasive legal argument these filings, has not 
been for lack opportunity. The DOC apparently felt that its 
motion would granted outright, and its motion included 
virtually legal argument. The DOC then devoted most its 
reply arguing that Judicial Watchs opposition failed show 
that entry judgment was inappropriate. Judicial Watch, for 
its part, offered some legal arguments, but its opposition 
focused primarily the need for further discovery explore 
the DOCs abuses, discovery that ordered todays decision. 
Both parties had sufficient advance notice and the opportunity 
persuade the Court that judgment the adequacy the search 
was inappropriate, but they failed so. 

Therefore, the Court may enter partial summary judgment the adequacy the DOCs search the Rule standard 
satisfied. Federal Rule Civil Procedure 56(c) provides that 
summary judgment shall rendered forthwith the pleadings, 
depositions, answers interrogatories, and admissions file, 
together with the affidavits, any, show that there 
genuine issue any material fact and that the party 
entitled judgment matter law. The record this 
case establishes beyond any reasonable dispute that the DOCs 
search was inadequate, unreasonable, and unlawful under the FOIA. 

The DOC failed search entire offices that were likely, not 

certain, hold responsive documents. Documents were destroyed, 
discarded, and given away, sometimes without being searched 
determine they were responsive, other times with full 
knowledge that they were responsive. There can genuine 
issue the reasonableness the DOCs document search, 
which the only fact material this entry partial summary 

judgment.12 

For this same reason, Judicial Watch entitled judgment matter law. The FOIA confers upon each requester right reasonable search, and when agency search demonstrated unreasonable, the FOIA plaintiff entitled judgment matter law and new search. See, e.g., Kronberg United 
States Dept Justice, 875 Supp. 861, 871 (D.D.C. 1995). 

Partial summary judgment the adequacy the DOC 
document search appropriate and will entered. The DOC will ordered conduct the search proposed its order, the 
details which are set forth the separate order issued this 
date. The requirements imposed upon the DOC conducting this 

12Todays decision does not deal with the propriety the 
DOCs invocation various FOIA exemptions justify 
withholding particular responsive documents. That issue was 
dealt with initially the Courts decision September 
1997, which will reinstated separate order this date. 
Also, mentioned above, there are number documents which 
were discovered since the DOC filed its most recent Vaughn index. 
The DOC directed compile index and affidavits for those 
documents soon possible that remaining issues this 
regard can speedily resolved. 

search are more restrictive and rigorous than those ordinarily 

ordered relief FOIA case, but the egregious facts this 
case make such requirements entirely necessary ensure agency 
compliance with the law and this Courts orders. Supervised Discovery 

Although the judgment and orders this Court will 
enforceable against nonparties, they will bind only those 
nonparties who can shown have acted concert with the DOC the removal documents currently possession 
the documents.13 Consequently, further discovery required 
identify those nonparties. Some discovery from the DNC has 
already been authorized, and should proceed ordered. 
addition, several pending motions will resolved separate 
orders issued this date. 

The Court the opinion that continued discovery 
proceedings must closely supervised. The main issues 
explored the discovery ordered today are the removal and 
destruction documents, including who was responsible for the 
action, when and where the action occurred, where and whom the 
information was transferred, where the materials are currently 

13Obviously, todays ruling would have little effect the 
Courts orders and judgment were binding only the initial 
recipient documents removed from the agency. the documents 
could shielded simply passing them other persons one 
more step removed from the agency, the FOIA would just 
easily frustrated. 

located, and who custody them. Plaintiff should 

allowed inquire into any discoverable information related 
the destruction removal documents after its first FOIA 
request was filed. This may include, out necessity, some 
inquiry into the creation and handling documents. Therefore, 
the Court declines articulate too narrow restriction 
Judicial Watchs further discovery this point, long reasonably aimed, the judgment the Magistrate Judge, 
identifying instances unlawful destruction and removal 
documents the DOC. Documents still located the DOC should located and processed during the new search ordered this date. 

However, Judicial Watch should not allowed stray from 
inquiries that might reasonably calculated lead evidence unlawful destruction removal documents. Counsel for the 
DOC not entirely unreasonable its frustration with Judicial 
Watchs conduct during depositions. ensure proper conduct and 
compliance with the direction set todays order, all further 
discovery will authorized by, scheduled by, and conducted 
the presence Magistrate Judge John Facciola. Magistrate Judge 
Facciola will also decide all matters arising during the course depositions, including objections, motions compel, motions quash modify subpoenas, and motions for protective 
orders.14 The Court expects that this arrangement will 

14The Court recognizes that, under Federal Rule Civil 
Procedure 45(c)(3)(A)(ii), this arrangement will not apply the 

facilitate the expedient conclusion discovery and encourage 

appropriate professional demeanor among counsel. 

III. CONCLUSION 

Although the Court declines end this long and 
extraordinary litigation today, now appropriate set 
motion the beginning the end. The DOCs unprecedented motion 
for entry judgment against itself will denied, but partial 
summary judgment will entered favor Judicial Watch and 
the DOC will ordered perform rigorously monitored new 
search. addition, further discovery under the close 
supervision Magistrate Judge will authorized. separate order will issue this date. 

Royce Lamberth 

United States District Judge 
DATE: 

depositions nonparties who resides more than one hundred miles 
from the District Columbia. This circumstance may necessitate 
the appointment Magistrate Judge Facciola Special Master, 
which would raise issues the payment expenses the 
government and other logistical considerations. These issues, 
however, will addressed and when they arise. 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Civ. Action 95-133 (RCL)  
UNITED STATES DEPARTMENT COMMERCE,  
Defendant.  

______________________________) 

ORDER 

This case comes before the Court defendants motion for 
entry judgment. Upon consideration the arguments the 
parties and the record this case, and for the reasons set 
forth accompanying memorandum opinion: 

The defendants motion for entry judgment hereby 
DENIED; 

Partial summary judgment hereby ENTERED, sua sponte, 
favor the plaintiff the issue the adequacy the 
defendant agencys search for responsive documents; and 
hereby 

ORDERED that the defendant agency shall conduct new and 
adequate search for agency records responsive plaintiffs 
Freedom Information Act requests made the basis this suit; 
and further 

ORDERED that such new and adequate search supervised and 

monitored the Chief Staff the Secretary Commerce and 

the Office the Inspector General the Department Commerce represented defendants amended motion; and further 

ORDERED that such new and adequate search include all 
bureaus and offices the Department Commerce which 
documents were located during the other searches conducted 
response plaintiffs FOIA requests made the subject this 
action; and further 

ORDERED that all bureaus and offices which document 
was located during the other searches shall either (1) 
searched (2) the subject declaration the head the 
office bureau identifying why documents responsive the FOIA 
requests this case could not reasonably expected 
located the particular bureau office; and further 

ORDERED that detailed search instructions provided 
each bureau and office represented defendants amended 
motion; and further 

ORDERED that each office searched shall submit one more 
declarations, executed individuals having personal knowledge the matters attested to, and (1) describing how the search 
that office was designed and conducted and (2) stating that all 
documents identified potentially responsive the FOIA 
requests this case were forwarded central depository; and further 

ORDERED that the new search completed before date set this Court status conference; and further 

ORDERED that defendant shall produce plaintiff all 

nonexempt responsive agency records located the new search before date set this Court status conference; 
and further 

ORDERED that the defendant shall file and serve new 
Vaughn index all responsive agency records that have been 
withheld the defendant under claim exemption and not yet 
the subject decision this Court, date after 
production nonexempt records the plaintiff, said date 
set this Court status conference; and further 

ORDERED that discovery shall proceed under the supervision and authorized Magistrate Judge Facciola and set 
forth separate order issued this date; and further 

ORDERED that status conference set for 10:00AM 
January 1999. ORDERED. 

Royce Lamberth 
United States District Judge 

DATE: 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Civ. Action 95-133 (RCL)  
UNITED STATES DEPARTMENT COMMERCE,  
Defendant.  

______________________________) 

MEMORANDUM OPINION 

This matter comes before the Court various discovery 
motions filed the plaintiff, Judicial Watch, against the 
defendant Department Commerce (DOC) and number 
nonparties. The several motions will considered seriatim, 
after brief review the factual background. GENERAL FACTUAL BACKGROUND 

Plaintiff Judicial Watch filed three Freedom Information 
Act (FOIA) requests with the DOC the fall 1994 seeking 
documents regarding the alleged sale seats DOC foreign 
trade missions exchange for large donations the Democratic 

National Committee (DNC). Having received response from the 
DOC, Judicial Watch filed this FOIA action January 19, 1995. May 17, 1995, the DOC released some 28,000 pages documents 
and withheld about one thousand others. February 1996, this Court denied the DOCs first 
motion for summary judgment, finding the agencys Vaughn index insufficient support judgment matter law and also 
authorizing discovery the issue the adequacy the DOCs 
document search. The DOC filed revised Vaughn index April 1996 along with second motion for summary judgment. The 
Court denied the motion the adequacy the search 
August 1996. September 1996, the Court granted part and denied part the remainder the DOCs motion the agencys 
withholding documents pursuant various FOIA exemptions. 
The Court found 153 the 306 documents withheld under Exemption have been unlawfully withheld and ordered their production; 
summary judgment was granted for the DOC all other 
documents accounted for the revised Vaughn index. The Court 
subsequently granted Judicial Watchs motion reconsider, 
reviewed all the withheld documents camera, and will 
reinstate the September 1996 ruling separate order issued 
this date. 

Since Judicial Watch began its discovery the fall 
1996, has consistently and persistently uncovered evidence 

misconduct and unlawful withholding documents the DOC.15 has been demonstrated that the DOC wrongfully withheld 
documents, destroyed documents, and removed allowed the 
removal others, all with the apparent intention thwarting 
the FOIA and the orders this Court. the agencys own 
conduct were not reprehensible enough, its counsel has also 
repeatedly strayed far outside the boundaries professional 
conduct (although not without some provocation counsel for 
Judicial Watch). this context, the DOC filed motion for entry 
judgment against itself August 12, 1997, which Judicial Watch 
vehemently opposed, and which the Court will deny separate 
memorandum opinion issued today. The denial that motion 
requires that the Court deal with various pending discovery 
motions identified the plaintiff still need 
resolution. The various motions will considered the order 
presented Plaintiffs List Outstanding Motions, filed 
September 30, 1998. 

II. MOTIONS Ginger Lew Motion February 1997, Judicial Watch arranged through DOC 

15A review much that discovery included another 
memorandum opinion issued this date concerning the DOCs motion enter judgment against itself. 

counsel take the deposition Ginger Lew, former DOC General 

Counsel, March 1997. March (the parties offer 
different accounts), plaintiff contacted Ms. Lews personal 
attorneys inquire they would accept service subpoena 
duces tecum her behalf. Ms. Lews counsel refused accept 
the subpoena, although they offered that Lew would appear 
voluntarily and also allegedly offered abide Federal Rule Civil Procedure 45, which dictates compliance nonparty 
with subpoena. Judicial Watch, suspecting that Ms. Lew would 
later claim not subject court process for want 
service the subpoena, refused conduct the deposition 
without first serving the subpoena and canceled the deposition. 
Nevertheless, the next day Ms. Lew, her counsel, and DOC counsel 
appeared the offices Judicial Watch. Rather than speak 
his visitors person, Judicial Watchs counsel delivered them 
letter and ordered them vacate the premises removed 
trespassers. Ms. Lew and her counsel then returned the 
attorneys office and communicated Judicial Watch that Ms. Lew 
would available for service the subpoena the office that 
day. Eventually, Judicial Watch did execute service the 
subpoena Ms. Lew her attorneys office, and deposition 
was held March 12, 1997. 

When the deposition finally went forward, counsel apparently 
continued bicker amongst themselves. Judicial Watch alleges 
that DOC counsel and Ms. Lews counsel improperly coached the 

witness through so-called speaking objections and unilaterally 

terminated the deposition. Counsel for Ms. Lew and the DOC deny 
such allegations and claim that they merely temporarily adjourned 
the deposition, which had already lasted until after six oclock the evening (it began ten the morning) and, according 
counsel for Judicial Watch, would require several more hours for 
completion. 

After the deposition, number motions were filed, 
including motion for sanctions Judicial Watch, motion 
terminate the deposition counsel for Ms. Lew, motion for 
sanctions Ms. Lew, and motion Judicial Watch delete 
from the record certain references sanction that its counsel 
had received unrelated case. The Court will decline 
impose sanctions either side, although not because the 
behavior from either was satisfactory the least. 

First, the Court will have tolerance for the kind 
service games played Ms. Lew and her counsel. Judicial Watch 
was not bound accept Ms. Lews voluntary appearance the 
deposition, because, this very litigation, nonparties who were 
not served with subpoenas have refused produce all documents 
requested Judicial Watch. Why high-level government 
employee like Ms. Lew would play these games, usually reserved 
for con artists and hooligans, impossible for the Court 
fathom. Unfortunately, however, Ms. Lews efforts take 
advantage the discovery rules are not atypical the want 

good faith that seems pervade this litigation. nevertheless true, however, that Ms. Lew was entitled object subpoena served only one two days before her 
scheduled deposition. See Fed. Civ. 45(c)(3)(A)(i); cf. 
Local Rule 208 (requiring five days for notice deposition reasonable). the lawyers this case would demonstrate 
the minimal level professional courtesy one another, the 
Court thinks that these types problems could avoided. 
However, under the circumstances, Ms. Lew should have accepted 
the subpoena and filed written objections moved this Court 
quash modify the subpoena allow her reasonable time 
prepare for the deposition, provided for Federal Rule 
Civil Procedure 45. The parties and nonparties involved this 
litigation must begin understand that they are required 
comply with the rules civil procedure unless this Court orders 
otherwise. The frequency with which the litigants this case 
appear believe themselves free comply not comply with 
the discovery rules they see fit exasperating, and 
should cease forthwith. 

The deposition Ms. Lew will permitted continue 
before the Magistrate Judge. Ms. Lews legitimate objections 
Judicial Watchs far-ranging questioning may considered and 
enforced the Magistrate Judge. 

Each the four motions filed regard the deposition Ms. Lew will denied. Melinda Yee Motions 

Plaintiffs Motion for Order Show Cause Why the Testimony Carola McGiffert Concerning Melinda Yee Materially Contradicts 
Defendants Notice Discharge Obligation Pursuant its 
Representation December 1996 Status Conference was filed 
April 1997. nearly identically titled motion regarding the 
testimony Dawn Evans Cromer was filed June 25, 1997. Both 
motions will denied. 

These two motions arose from the representations DOC 
counsel following status conference held December 1996, 
which the Court asked for the names the persons responsible 
for searching the office Melinda Yee for documents responsive Judicial Watchs FOIA requests. December 1996, DOC 
counsel filed notice with the Court naming Dawn Evans Cromer, 
Beth Bergere, and Carola McGiffert having had some direct 
responsibility for searching Ms. Yees office. Subsequent 
depositions Ms. McGiffert and Ms. Cromer, however, revealed 
that the three women had not searched Ms. Yees office and had 
not been alerted the DOC that their names were being given 
the Court, much less asked they had fact searched the 
office. 

Judicial Watchs request that the DOC show cause why the 
testimony witnesses differs from counsels representation 
strange creature. host traditional discovery methods are 
available Judicial Watch wants explore 

inconsistencies testimony representations counsel, 

including written interrogatories, requests for admissions, and rare instances redeposing witnesses. course, this 
instance, plaintiff not unsatisfied with the testimony the 
two witnesses, and therefore has reason basis for 
redeposing Ms. McGiffert Ms. Cromer. Instead, Judicial Watch 
seeks some defense explanation from DOCs counsel. The Court 
feels that order show cause not appropriate here. 
Disciplinary action and sanctions issues regarding the parties 
conduct this point will addressed later stage when 
the Court addresses the issue attorneys fees and litigation 
costs; any future misconduct the discovery context will 
handled the presiding Magistrate Judge. 

Consequently, the plaintiffs motions will denied. William Ginsberg Motion March 21, 1997, Judicial Watch filed Motion for Order Show Cause against Peter Ginsberg, counsel for former 
Assistant Secretary Commerce William Ginsberg. Judicial Watch 
contacted Peter Ginsberg March 1997 and asked him accept 
service subpoena duces tecum behalf his client, 
William Ginsberg. Plaintiffs counsel and Peter Ginsberg then 
had some correspondence (whether fax phone both 
unclear) which Peter Ginsberg explained that would not 
available accept service for the deposition date suggested 

Judicial Watch. Instead, Peter Ginsberg requested copy the 

complaint this action that could evaluate the relevancy the requested documents (which consisted primarily 
voluminous diary kept William Ginsberg while the DOC). affirmation the Court, Peter Ginsberg also suggested that might invoke some unidentified privilege based the personal 
nature some the entries. 

The Court makes two observations. First, not 
appropriate for litigant unilaterally determine what 
documents produce response valid subpoena duces tecum; nonparty objects the subpoena, may file written 
objections, move quash modify the subpoena, move for 
protective order. Second, the Court unaware any privilege 
protecting documents from discovery because their personal 
content. 

That said, Judicial Watchs motion not timely and must 
denied. William Ginsberg has never been served with subpoena, 
and consequently the Court cannot compel him comply with it. 
Nor can the Court compel Peter Ginsberg accept service his 
clients behalf, least not without some showing 
circumstances more grave unusual than any established here. 
Nevertheless, why former high government official and his 
attorney would engage service-of-process games simply 
inexplicable. Presumably, Mr. Ginsberg professional person, 
who now employed responsible position, and yet gives 

the appearance scofflaw, someone who must hunted down 

the middle the night process server marshal. When finally does appear, Mr. Ginsberg simply must recognize that 
any legal arguments that makes will subjected very close 
scrutiny the Court. 

The DOC will ordered provide Judicial Watch with 
William Ginsbergs last known address that Judicial Watch can 
effectuate personal service the subpoena. The DOC will also ordered submit memorandum law stating its position 
the issue whether the diary maintained William Ginsberg agency record personal papers. Cf. Kissinger 
Reporters Committee for Freedom the Press, 445 U.S. 136 
(1980). the DOCs position that these documents are agency 
records, the agency should reacquire them and process them 
according its FOIA procedures, including release indexing all responsive documents. the DOC considers the diary personal papers, William Ginsberg apparently does, then 
Judicial Watch will have serve the subpoena and the Court will 
entertain motion quash for protective order William 
Ginsberg wishes contest the subpoena. DNC Minority Donor List May 29, 1997, counsel for the DOC filed Notice the 
Court stating that, the May 28, 1997 deposition Graham 
Whatley, had been discovered that list minority donors 

the DNC had been found during the DOC document search and 

revealed DOC lawyers, but never disclosed Judicial Watch. 
Counsel for the DOC initially claimed ignorance the documents 
existence, but July 1997 they filed Supplemental Notice the Court attributing their failure produce the clearly 
responsive document combination miscommunication and poor 
memory the part the two Assistant United States Attorneys 

working the case.16 

Judicial Watch refers these notices the Court its 
list pending discovery matters, although motion appears 
have been filed. Because motion pending, the Court will 
not further address the matter here. John Huang Security Briefings Motion May 1997, Judicial Watch filed sealed Motion for 
Order Show Cause relating apparent discrepancies between 
evidence taken this case and press reports about the number 
security briefings that John Huang may have received while the 
DOC. The DOC has adequately explained the situation, and fact discrepancy exists. The other matter raised the motion 
concerned the desk calendar John Huang, which dealt with 
below. Plaintiffs motion will therefore denied. 

16The details this series events are set forth the 
Courts opinion denying the DOCs motion for entry judgment, 
also issued this date. June 1997 Motions June 1997, Judicial Watch moved the Court for status 
conference consider number outstanding discovery issues. 
Although the request for status conference has long since been 
mooted, the other matters raised and renewed plaintiffs 
motion require resolution. Many these same issues were also 
addressed papers filed following the status conference held 
June 27, 1997, and the two sets filings will considered 
together. Computer Files its June 1997 request for status, plaintiff 
requested the production documents recovered the DOC 
Inspector General (IG) pursuant this Courts order December 1996 ordering the seize and search the computers 
identified DOC employees. This request moot following the 
processing the documents the DOC and the release Vaughn 
indexing all responsive documents March and 12, 1997.17 Desk Diary John Huang 
Judicial Watch also requested that the Court order the 

17To the extent that these and other documents are not 
subject any pending motion for summary judgment (because they 
were processed after the filing the DOCs second motion for 
summary judgment), the parties will directed file 
dispositive motions. 

production the DOC its counsel legible copy the 

desk diary maintained John Huang while the DOC. 
partially illegible copy was released Judicial Watch, but its 
requests for legible copy have been repeatedly denied the 
DOJ, which now has custody the diary for the purposes 
criminal investigation. After consideration the DOJs 
opposition plaintiffs subpoena and motion compel, the 
Court the opinion that making the diary available 
Judicial Watch for inspection and copying the Department will 
not unduly impair any investigative law enforcement interests the DOJ, and therefore the Court will order the Attorney 
General either (1) provide Judicial Watch with legible copy the diary (2) allow access the diary for the purposes inspection and copying. Huang Documents Released the DNC 

Judicial Watch further requested production thousands 
removed from Huangs files the DOC. The Court unable 
determine the precise scope this request, and the request will denied without prejudice renewal. Judicial Watch 
chooses pursue this matter, may during the 
redeposition John Huang, may issue and serve new 
subpoena identifying the documents categories documents 
that seeks. Telephone, Facsimile, and Mail Records 

Judicial Watch also renewed its request for production 
all DOC telephone, facsimile, and mail records showing 
communication with the White House, the DNC, and other outside 
entities, and with the home Ron Brown, regarding the issues 
this case. This tremendously overbroad discovery request, 
and plaintiffs inclusion the phrase regarding the issues 
this case does little remedy that overbreadth. The DOCs 
subsequent interpretation the wording, while perhaps cramped, 
cannot surprise given the breadth the request its 
face. Although Judicial Watch will allowed pursue this 
general line inquiry into the creation responsive 
documents, the plaintiff must establish proper foundations for 
its requests and must formulate them reasonable way. While 
the Court certainly disturbed the behavior the agency 
this litigation, the Court similarly has limited patience for 
Judicial Watchs persistent attempts stretch its discovery 
beyond the proper bounds the FOIA. The close supervision 
the Magistrate Judge should alleviate these problems, that 
acceptable level professionalism observed both sides. 	Secretary Browns Briefing Books, Calendars, and Daily 
Schedules 

Plaintiff further requests all the briefing books, 
calendars, and daily schedules the late Secretary Brown. Why 

plaintiff feels entitled all these documents mystery. 

Plaintiff entitled all those documents responsive its 
FOIA requests that are not properly withheld pursuant 
statutory exemption. the briefing books, calendars, and daily 
schedules Secretary Brown contain as-yet-unreleased 
information fitting this description, the agency required 
produce it. Likewise, any this material might lead the 
plaintiff admissible evidence regarding the adequacy the 
DOCs search the possible unlawful destruction removal 
documents, the DOC shall produce upon the service 
legitimate discovery request Judicial Watch. the plaintiff still not satisfied that the DOC has complied with this order, must demonstrate the Court that documents are being 
unlawfully withheld, not merely posit that documents may being 
wrongfully withheld. The agencys history misconduct this 
case does much support plaintiffs various claims 
mishandling documents, but cannot sustain such claims 
its own force alone. 	Documents Removed from Secretary Browns Office After 
His Death 

Plaintiff also requests the production all responsive 
documents taken from Secretary Browns office after his death. 
Certainly, the DOC already under obligation release 
index any such responsive documents its possession (and 

claims have already processed the documents referred 

plaintiffs request). Again, the plaintiff must present some 
indication, beyond mere reference the DOCs blemished record this litigation, upon which the Court could base further 
order compelling production particular document set 
documents. The Court not unwilling issue such order, 
but must have proper basis which act. 

10. David Rothkopf Documents 

Judicial Watch additionally requests that the Court review camera all documents that David Rothkopf removed from the DOC 
when left his employment there and which subsequently 
returned the DOC. The Court has already reviewed camera 
all documents returned Rothkopf and withheld the DOC, and 
the Court satisfied that these documents were properly 
withheld under FOIA Exemption However, the Court understands 
the concerns Judicial Watch least with regard documents 
which have already been established have been wrongfully 
removed from the DOC violation the FOIA. Consequently, the 
Court will order the production all the Rothkopf documents 
for camera review the Magistrate Judge. discovery 
proceeds under the supervision Magistrate Judge Facciola, all 
documents that are discovered have been wrongfully removed 
from the agency shall, addition normal FOIA processing 
the DOC, submitted for camera inspection the Magistrate 

Judge. 

11. 	Documents from Ira Sockowitzs Safe 

Next, Judicial Watch requests the Court inspect camera 
all documents recovered the the Small Business 
Administration (SBA) from the safe Ira Sockowitzs office 
the SBA, because plaintiff not confident that has been 
provided with all relevant, nonprivileged materials. with the 
Rothkopf documents, the wrongful removal the Sockowitz 
documents justifies plaintiffs concerns. The documents have 
been provided the Court; they will reviewed, and separate 
order will issue when the review completed. 

12. 	FOIA Guidelines 

Judicial Watch also requests that the DOC provide plaintiff 
with copy the DOCs procedures and guidelines for responding FOIA requests. This request apparently moot; the DOC 
represents that these materials were produced Judicial Watch 
before the June 27, 1997 status conference. 

10. 	List Persons Responsible for Searching the Office 
Melinda Yee 

Next, Judicial Watch requests complete list the persons 
responsible for searching the office Melinda Yee. The DOC has 
explained that thought Ms. McGiffert, Ms. Cromer, and Ms. 

Bergere have been responsible for searching that office, but 

that fact was never searched. Plaintiff had adequate 
opportunity the depositions Ms. McGiffert and Ms. Cromer 
inquire into why they did not search, who else might have 
searched, who their superiors were, cetera. Judicial Watch 
would like conduct further investigation this matter, 
may move the Court authorize additional depositions serve 
interrogatories requests for admissions the DOC. The 
plaintiff cannot, however, forego the ordinary rules discovery 
and ask this Court to, essence, issue discovery queries its 
behalf. This request will denied. 

11. Draft Declarations 

Next, plaintiff requests production draft versions 
several sworn declarations submitted DOC employees, including 
Anthony Das, Mary Ann McFate, Melissa Moss, Melanie Long, Barbara 
Schmitz, and Secretary Brown, along with the names and addresses those persons responsible for drafting the documents. 
Obviously, this request raises issues the heart the 
attorney-client privilege. These complex issues are not wisely 
decided based more information than allegation the 
plaintiff. Judicial Watch wants pursue these drafts, 
should request them ordinary discovery methods (if has not 
already done so), and DOC declines produce them then 
plaintiff may file motion compel and the issue will 

litigated that context. 

12. Notes Judith Means 

Judicial Watch next requests that the Court review camera 
the notes taken Judith Means, attorney the DOC Office 
General Counsel, regarding Ms. Means participation the DOCs 
document search. Again, this request raises issues attorney-
client and other privileges that should not decided without 
informed deliberation. Plaintiff may pursue those ordinary 
discovery means available it, and, necessary, the Court 
will decide the matter after briefed meaningful 
manner. 

13. Redeposition Jude Kearney and John Huang its June 1997 filing, Judicial Watch also sought 
authorization the Court depose for second time Jude 
Kearney and Joh



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