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Judicial Watch • Pakistan Ad Motion for Discovery 02034

Pakistan Ad Motion for Discovery 02034

Pakistan Ad Motion for Discovery 02034

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Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 12-cv-2034-RBW
PLAINTIFF MOTION FOR DISCOVERY PURSUANT
RULE 56(d) THE FEDERAL RULES CIVIL PROCEDURE
Chris Fedeli Bar 472919
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
(202) 646-5172
Dated: May 27, 2016
Counsel for Plaintiff
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
TABLE CONTENTS
INTRODUCTION ...............................................................................................................1
II.
STATEMENT RELEVANT FACTS ............................................................................2
III.
ARGUMENT .......................................................................................................................3
Discovery Needed Regarding Record Preservation and
Possible Misstatements ................................................................................7
IV.
Discovery Needed Before Summary Judgment Can Considered ...................3
Plaintiff Discovery Plan for this Particular Lawsuit ...........................................10
CONCLUSION ..................................................................................................................13
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
TABLE AUTHORITIES
Cases
Chen District Columbia, 839 Supp. (D.D.C. 2011) ....................................................7
Convertino U.S. Dep Justice, 684 F.3d (DC Cir. 2015) ................................................10
Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141 (D.C. Cir. 2006) ..........................11
Judicial Watch, Inc. U.S. Dept. State, 2016 U.S. Dist. Lexis 41183, Case 14-1242
(D.D.C. March 29, 2016) ................................................................................................1,
Judicial Watch, Inc. U.S. Dept. State, 2016 U.S. Dist. Lexis 62283, Case 13-1363
(D.D.C. May 2016) ...........................................................................................1,
Kissinger Reporters Committee for Freedom the Press, 445 U.S. 136 (1980) ...................6,
Landmark Legal Found. Envtl. Prot. Agency, Supp.3d 211 (D.D.C. 2015) ......................7
United States Speqtrum, Inc., 113 Supp. 238 (D.D.C. 2015) ............................................7
Texas United States, Case No. B-14-254 (S.D. Tex. May 19, 2016) ..........................................7
Rules and Statutes
Fed. Civ. 11(b) .......................................................................................................................7
Fed. Civ. 56(d) .............................................................................................................1,
Miscellaneous Message From the President the United States Barack Obama and Secretary State Hillary Clinton, Sept. 20, 2012, available https://www.youtube.
com/watch?v=6akGlF6g-Zw ..............................................................................................2
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
Plaintiff Judicial Watch, Inc. Judicial Watch Plaintiff counsel and pursuant Rule 56(d) the Federal Rules Civil Procedure, respectfully submits this motion for
discovery response Defendant motion for summary judgment. grounds therefor,
Plaintiff states follows:
MEMORANDUM POINTS AND AUTHORITIES
INTRODUCTION.
What differentiates this lawsuit from the two other lawsuits which discovery has been
authorized that this lawsuit was filed six weeks before Secretary Clinton departure from the
agency.1 When Secretary Clinton left office February 2013, the State Department search
for records responsive Plaintiff Freedom Information Act FOIA request was
underway, yet the Secretary took with her all the emails she sent received during her 4-year
tenure the agency over 60,000 unique records before those records could searched. The
State Department motion for summary judgment silent about this most basic failure the
agency preserve potentially relevant records, well the facts and circumstances
surrounding the Secretary email practices.
The Court cannot determine whether summary judgment appropriate this bare
record. Discovery necessary determine whether, among other issues, the State Department
violated its record preservation obligations and made false misleading representations
Plaintiff and the Court about its initial search efforts. Discovery into Secretary Clinton email
practices and those some her key aides also necessary determine whether any the
agency searches were reasonable under the circumstances. Some that discovery underway
See Judicial Watch, Inc. U.S. Dept. State, 2016 U.S. Dist. Lexis 41183, Case 14-1242, Memorandum and
Order (D.D.C. March 29, 2016) (Lamberth, J.); Judicial Watch, Inc. U.S. Dept. State, 2016 U.S. Dist. Lexis
62283, Case 13-1363, Memorandum and Order (D.D.C. May 2016) (Sullivan, J.).
-1-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page Judicial Watch, Inc. U.S. Dep State, Case No. 13-1363 (EGS). Other discovery under
consideration Judicial Watch, Inc. U.S. Dep State, Case No. 14-1242 (RCL). Plaintiff
does not wish duplicate that effort. Instead, Plaintiff proposing narrowly-tailored
discovery plan directed the record preservation and the search for records responsive this
particular FOIA request. See Exhibit (Declaration Counsel Support Plaintiff
Motion for Discovery Pursuant Rule 56(d) the Federal Rules Civil Procedure) and
Exhibit (Plaintiff Proposed Discovery Plan). Plaintiff proposed discovery amply justified
under Rule 56, and Plaintiff motion for discovery should, respectfully, granted. Fed. Civ. 56(d)(2).
II.
STATEMENT RELEVANT FACTS. July 2012, video purporting trailer for movie called The Innocence
Muslims was uploaded youtube.com. September 2012, public protests over the video
occurred dozens countries around the world. September 16, 2012, State Department
spokesperson inaccurately blamed the video for separate, pre-planned terrorist attack
September 11, 2012 Benghazi, Libya which U.S. Ambassador Christopher Stevens and
three other Americans were killed. about September 20, 2012, the Obama administration
began airing television advertisement Pakistan entitled Message From the President
the United States Barack Obama and Secretary State Hillary Clinton explaining that the
youtube video was not produced authorized the United States government.2 September 24, 2012, Judicial Watch served its FOIA request for all documents related the production the advertisement. Dkt. Entry No. Judicial Watch filed suit
December 19, 2012, after receiving response the request. The complaint was served the
The advertisement available at: https://www.youtube.com/watch?v=6akGlF6g-Zw.
-2-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
State Department December 27, 2012. Dkt. Entry No. its Answer, filed January 28,
2013, the State Department aver[ed] that currently conducting search for records sought plaintiff. Dkt. Entry No.
Secretary State Hillary Clinton left office February 2013. Later would
revealed that, throughout her entire tenure the State Department, Secretary Clinton exclusively
used non- state.gov email account conduct official government business. There
genuine dispute about this material fact. There also genuine dispute that, during her tenure the State Department, Secretary Clinton used her clintonemail.com account send and
receive tens thousands emails and from persons both inside and outside the agency,
including other high level agency officials. The State Department top legal advisor, Harold
Koh, used Secretary Clinton clintonemail.com account communicate with the Secretary
about pending litigation against the agency, among other official government business. See
Exhibit Exhibit (Collected examples email between Secretary Clinton and Legal
Advisor Koh). Plaintiff has identified many email communications between Secretary
Clinton and Mr. Koh either from the Secretary clintomemail.com email account. See
Exhibit Only six days before Secretary Clinton left office, Under Secretary State for
Management Patrick Kennedy, who oversees records management and information technology
for the entire agency, emailed the Secretary her clintonemail.com account regarding official
government business. See Exhibit Exhibit (January 25, 2013 Email from Patrick
Kennedy Secretary Clinton). There also genuine dispute that, when she left office,
Secretary Clinton took all her emails with her. Among the facts that are not known, however, whether and what extent other State Department officials condoned Secretary Clinton
actions.
-3-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page Joint Scheduling Statement filed March 14, 2013, the State Department
represented Plaintiff and the Court that was the process searching for records
responsive the FOIA request that the subject this action. Dkt. Entry No. The
State Department neither disclosed that Secretary Clinton exclusively used clintonemail.com
account conduct official government business nor that she took potentially relevant emails
with her when she left the department the previous month. Id. Supplemental Joint
Scheduling Statement filed May 15, 2013, the State Department represented Plaintiff and
the Court that the agency had completed its searches the Office the Secretary, the Executive
Secretariat, and several other components. Dkt. Entry No. 1-2. Again, the agency failed
disclose anything about the Secretary email practices that she took potentially relevant
emails with her when she left the department. Id. Joint Status Report filed July 2013,
the State Department represented Plaintiff and the Court that had completed all its
searches. Dkt. Entry No. 1-2. Again, the agency made mention the Secretary
emails. Id. November 2013, the agency had produced over 700 pages records Plaintiff
concerning the Pakistan advertisement, including emails from the Secretary chief staff and
counsel, Cheryl Mills, and the Secretary deputy chief staff, Jacob Sullivan, and represented Plaintiff and the Court that its production was complete. Dkt. Entry No. point
during this time period did the State Department ever disclose anything Plaintiff and the Court
about the Secretary email practices that she took potentially relevant records with her when
she left the department after Plaintiff had filed suit and after the State Department had appeared this action and began defending itself.
Crediting Defendant representations that had completed reasonable searches and
produced all non-exempt, responsive records, Plaintiff agreed voluntary dismissal this
-4-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
lawsuit November 2014. Dkt. Entry No. 19. November 2014, the Court entered
minute order dismissing Plaintiff lawsuit with prejudice. March 2015, the New York Times and other media outlets publicly disclosed for the
first time that Secretary Clinton exclusively used clintonemail.com account conduct
official government business during her entire tenure the State Department. The parties jointly
moved reopen this lawsuit May 2015. Dkt. Entry No. 21. The Court granted the parties
motion order entered May 2015. After conducting several additional searches, the
State Department has moved for summary judgment and again representing Plaintiff and the
Court that has satisfied its FOIA obligations.
III.
ARGUMENT.
Discovery Needed Before Summary Judgment Can Considered.
Two courts have already found that discovery necessary before they can consider
summary judgment FOIA cases implicating Secretary Clinton email practices. Judicial
Watch, Inc. U.S. Dep State, Case No. 13-1363, Judge Sullivan found: sum, the circumstances surrounding approval Mrs. Clinton use
clintonemail.com for official government business, well the manner
which was operated, are issues that need explored discovery enable
the Court resolve, matter law, the adequacy the State Department
search for relevant records response Judicial Watch FOIA request.
U.S. Dist. Lexis 62283 *13, Memorandum and Order (D.D.C. May 2016). Judicial
Watch, Inc. U.S. Dep State, Case No. 14-1242, Judge Lamberth found: understanding the facts and circumstances surrounding Secretary Clinton
extraordinary and exclusive use her clintonemail.com account conduct
official government business, well other officials use this account and
their own personal e-mail accounts conduct official government business
required before the Court can determine whether the search conducted here
reasonably produced all responsive documents.
-5-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
2016 U.S. Dist. Lexis 41183 *2, Memorandum and Order (D.D.C. March 29, 2016).
Plaintiff respectfully submits that discovery needed this FOIA lawsuit for the same reasons
Judge Sullivan and Judge Lamberth found discovery needed Case Nos. 13-1363 and 141241, respectively. minimum, summary judgment here should held abeyance pending
the outcome discovery these two other cases.
However, the case bar unique because presents factual circumstance not present either those cases. Both the above cases involved FOIA requests and lawsuits initiated
after Secretary Clinton left office, taking with her the clintonemail.com email system and the
tens thousands federal records contains, whereas the present case concerns FOIA
request and lawsuit initiated before the Secretary departure. The distinction legally
significant. See Kissinger Reporters Committee for Freedom the Press, 445 U.S. 136, 155, (1980). Kissinger, the Supreme Court determined federal agency did not have search
certain notes telephone calls response FOIA request where the notes had been removed
before suit was filed, the departing official had obtained legal opinion from the agency
concluding that the notes were personal and not agency records, and the agency had made some
efforts retrieve the notes. Kissinger, 445 U.S. 136, 140-141, 144. The Supreme Court
noted that its decision was limited, however, and that would not apply cases where different
facts were present, identifying two such examples: need not decide whether this standard might displaced the event that
was shown that agency official purposefully routed document out agency
possession order circumvent FOIA request. such issue presented
here. also express opinion whether agency withholds documents
which have been wrongfully removed individual after request filed.
-6-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
Kissinger, 445 U.S. 155, The first those two exceptions requires purposeful evasion
and would apply regardless whether the removal occurred before after FOIA request
filed. The second exception requires only wrongful removal, but limited removal after
FOIA request filed. Unlike Case Nos. 13-1363 and 14-1241, which the first exception
plainly applies, both Kissinger exceptions apply here.3 Accordingly, discovery needed into the
facts and circumstances surrounding the State Department processing this particular request
and Secretary Clinton departure from the agency with her clintonemail.com email system
before the Court can consider summary judgment whether the State Department satisfied its
FOIA obligations.
Discovery Needed Regarding Record Preservation and Possible
Misstatements. addition having FOIA obligations, the State Department had undeniable
obligation preserve all records potentially relevant lawsuit. Landmark Legal Found.
Envtl. Prot. Agency, Supp.3d 211, 219 (D.D.C. 2015). party has duty preserve
potentially relevant evidence once that party anticipates litigation. Chen District
Columbia, 839 Supp. (D.D.C. 2011) (internal citations and punctuation omitted). The
obligation ensure evidence preserved runs both counsel and the managers
organizational defendant who are responsible for conveying their employees the
requirements for preserving evidence. Id. The fact Secretary Clinton left the State Department
with her clintonemail.com email system containing tens thousands federal records
records that obviously were potentially relevant this litigation and potentially responsive
Judge Sullivan found that Secretary Clinton emails fall squarely within the Kissinger exception. Judicial Watch,
Inc. U.S. Dep State, U.S. Dist. Lexis 62283 *11-12, Case No. 13-1363, Memorandum and Order
(D.D.C. May 2016).
-7-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
Plaintiff request raises substantial questions about whether the State Department its
attorneys (or both) violated their preservation obligations. FOIA lawsuit filed only two months before this lawsuit, Landmark Legal Found.
Envtl. Prot. Agency, Case No. 12-1726 (RCL) (D. District Columbia), the Environmental
Protection Agency EPA sent formal, detailed litigation hold agency employees
directing them preserve all potentially relevant information materials, including potentially
responsive information stored personal devices personal email accounts. See Exhibit 10; Exhibit (Litigation Hold Landmark Legal Found. Envtl. Prot. Agency, Case No.
12-1726 (RCL) (D. District Columbia)). The hold included acknowledgment and request
that employees identify any potential custodians which they were aware. Id. The EPA
appears have even tracked employees acknowledgments. Id. evidence has been
provided about any litigation hold similar preservation notice being issued this case. cannot disputed, however, that the State Department top legal advisor, Harold
Koh, regularly used Secretary Clinton clintonemail.com email account communicate with
the Secretary least times and that the agency top records management and information
technology official, Under Secretary State for Management Patrick Kennedy, used the account email Secretary Clinton only days before she left office. See Exhibit 8-9; Exhibits
and Plainly, knowledge the Secretary email practices was widespread throughout the
State Department, including the Office the Legal Advisor, and knowledge the Secretary
departure from the agency cannot reasonably denied. Nor can reasonably denied that the
Secretary email records were not considered potentially relevant this lawsuit potentially
responsive Plaintiff request that time because the State Department searched for and
produced responsive records from the email her chief staff Cheryl Mills, and deputy chief
-8-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page staff Jake Sullivan. Under the circumstances, before the Court can consider summary
judgment, discovery necessary determine whether the State Department satisfied its record
preservation obligations.
Discovery also necessary into the State Department handling this particular
request. addition potential violations the duty preserve evidence, the candor
Defendant representations Plaintiff and the Court are question. See United States
Speqtrum, Inc., 113 Supp. 238, 244 (D.D.C. 2015) (parties owe basic duty candor
the court); see also Texas United States, Case No. B-14-254, Memorandum Opinion and
Order, 12, (S.D. Tex. May 19, 2016) (finding attorneys had misrepresented facts
violation Fed. Civ. 11(b)).4 the Answer filed January 28, 2013, three days before
Secretary Clinton left office, the State Department represented Plaintiff and the Court that
was the process searching for responsive documents. Dkt. Entry No. Joint
Scheduling Statement filed March 14, 2013, the State Department again represented
Plaintiff and the Court that the agency the process searching for records responsive the
FOIA request that the subject this action. Dkt. Entry No.
Perhaps most crucially, the State Department represented Plaintiff and the Court that, some point prior May 15, 2013, determined that the Office the Secretary likely
possessed responsive records. Dkt. Entry No. (identifying components searched
searched for responsive records, including the Office the Secretary and the Executive
Secretariat, Office Correspondence and Records July 2013, the State Department
represented that the agency had completed its searches for potentially responsive documents
all components reasonably expected have responsive records except for [the Bureau Public
Opinion available http://www.scotusblog.com/wp-content/uploads/2016/05/Judge-Hanen-ethics-ruling-5-1916.pdf.
-9-
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
Affairs and the Office the Counselor]. Dkt. Entry No. 1-2 (italics added). Over the
ensuing months, the State Department repeatedly represented that its searches were complete.
Dkt. Entry No. (filed Nov. 15, 2013) the time the parties July Report, the State
Department had completed its searches for potentially responsive documents all components
reasonably expected have responsive records Dkt. Entry No. No. (filed March 14, 2014) July 2013, the State Department completed its searches for potentially responsive
documents all components reasonably expected have responsive records Dkt. Entry No. (filed Sept. 2014) The State Department searched for potentially responsive documents
all components reasonably expected have responsive records point did the State Department inform Plaintiff the Court that Secretary Clinton
exclusively used her clintonemail.com email account conduct official business that she
took the account with her when she left the department February 2013. The failure
was material omission, and discovery necessary determine whether the omission was
intentionally misleading.
Plaintiff Discovery Plan For This Particular Lawsuit.
Pursuant Rule 56(d) the Federal Rules Civil Procedure, nonmovant shows affidavit declaration that, for specified reasons, cannot present facts essential justify its
opposition, the court may allow time obtain affidavits declarations take discovery.
Fed. Civ. 56(d)(2). The affidavit declaration must: (1) outline the particular facts that
the movant intends discover and describe why those facts are necessary the litigation; (2)
explain why the movant could not produce the facts opposition the motion for summary
judgment; and (3) show that the facts sought are discoverable. Convertino U.S. Dep
Justice, 684 F.3d 93, 99-100 (DC Cir. 2015).
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
Courts have long recognized that, FOIA litigation, agency holds all the cards.
Because its unique evidentiary configuration, the typical FOIA case distorts the traditional
adversary nature our legal system form dispute resolution. Judicial Watch, Inc. Food
and Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006) (internal quotations and citations omitted).
When party submits FOIA request, faces asymmetrical distribution knowledge
where the agency alone possesses, reviews, discloses, and withholds the subject matter the
request. Id. The agency would therefore have nearly impregnable defensive position save
for the fact that the statute places the burden the agency sustain its action. Id.
The State Department fails provide any information the critical factual issues raised
herein. The agency submissions contain little more than the following, single sentence about
the events that transpired before the case was reopened: The Department searched twelve
components for potentially responsive records and subsequently produced non-exempt and
redacted records, well two draft document indexes Plaintiff. See Dkt Entry No. 35-2,
Declaration Eric Stein Because this FOIA case and the State Department alone
possesses the relevant facts, Plaintiff unable obtain affidavits declarations about the
agency record preservation efforts, the sufficiency its searches, and the facts behind its
searches represented Plaintiff and the Court. Likewise, Plaintiff has had opportunity
conduct discovery into these areas because, Plaintiff readily acknowledges, discovery not
usually allowed FOIA cases absent sufficient question the agency good faith
processing documents response FOIA request. Judicial Watch U.S. Dep State,
Plaintiff disputes Defendant assertion that Plaintiff cannot now challenge issues related adequacy the
initial search since this case was previously dismissed with prejudice. Def Mot. n.3. reopening this case May 2015, the Court granted Plaintiff relief from the November 2014 order dismissal, which was the
point the parties Rule 60(b)(2) motion. Defendant assertion also inconsistent with that motion, which
Plaintiff represented only that would not seek amend the complaint nor will challenge the redactions
previously released documents. Dkt. Entry No.
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
Case 13-1363, U.S. Dist. Lexis 62283 *10, Memorandum and Order (D.D.C. May
2016) (Sullivan, J.).
The required showing plainly exists here. Two courts have found. Accordingly,
discovery appropriate, and the declaration attached Exhibit describes the particular facts
that Plaintiff seek discover and why they are necessary this litigation. The declaration also
describes why Plaintiff has not yet been able discover these facts and why they are
discoverable. Specifically, Plaintiff seeks discovery the following:
What was the State Department policy practice for issuing litigation
holds other notices efforts preserve records for pending
reasonably foreseeable litigation?
Was internal State Department hold other preservation notice issued
for records potentially relevant this FOIA litigation? so, when was
issued, who was issued to, and who acknowledged it? not, why not?
Which records systems within the Office the Secretary and Executive
Secretariat were searched for records responsive this particular request,
who searched them, and when did the searches take place?
Did the State Department, which searched and produced responsive emails
from Secretary Clinton chief staff, Cheryl Mills, and deputy chief
staff, Jake Sullivan, deliberately exclude the Secretary emails from its
search?
Why did the State Department repeatedly represent Plaintiff and the
Court that the agency had completed its searches the Office the
Secretary and the Executive Secretariat when never searched the
Secretary email?
What actions, any, did the State Department take secure, inventory,
and/or account for Secretary Clinton email prior her leaving office
February 2013 and why was she allowed leave without providing
accounting and access her email?
Also attached Exhibit detailed plan the particular discovery Plaintiff seeks.
Again, Plaintiff does not seek duplicate discovery authorized requested other lawsuits,
Case 1:12-cv-02034-RBW Document Filed 05/27/16 Page
but instead seeks discovery focus the fullest extent possible the particular issues raised this FOIA request.
IV.
CONCLUSION.
The State Department could have responded appropriately Plaintiff FOIA request
years ago. could have insisted that Secretary Clinton official email communications
maintained properly and searched those emails before the Secretary left office. also could
have issued litigation hold ensure that potentially relevant records were preserved and
readily available for use this lawsuit. Having failed satisfy these most basic legal
obligations, could have told the truth about what transpired. Instead, kept Plaintiff and the
Court the dark, and massive cache public records were hidden from FOIA and the public
for years. Before summary judgment can considered, discovery necessary determine
how and why this happened, not only ensure that Plaintiff has received all records which entitled under FOIA, but also determine what accountability required. The motion should granted.
Dated: May 27, 2016
Respectfully submitted, Chris Fedeli
Chris Fedeli Bar 472919
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
(202) 646-5172
Counsel for Plaintiff
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
Civil Action No. 12-cv-2034-RBW
INDEX EXHIBITS
Exhibit Declaration Chris Fedeli
Exhibit Plaintiff Proposed Discovery Plan
Exhibit Selected Emails Between Legal Advisor Harold Koh and Secretary Clinton
Exhibit Jan. 25, 2013 Email from Undersecretary Patrick Kennedy Secretary Clinton
Exhibit EPA Litigation Hold Landmark Legal EPA, Case No. 12-1726 (D.D.C.)
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
Exh.
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 12-cv-2034-RBW
DECLARATION COUNSEL SUPPORT
PLAINTIFF MOTION FOR DISCOVERY PURSUANT
RULE 56(d) THE FEDERAL RULES CIVIL PROCEDURE Chris Fedeli, declare follows: attorney for Plaintiff Judicial Watch, Inc., and represent Plaintiff this submit this Declaration support Plaintiff Motion for Discovery Pursuant
case. Rule 56(d) the Federal Rules Civil Procedure. required Rule 56(d), this Declaration describes the particular facts that
Plaintiff seeks; why these facts are necessary this litigation; and why they have not been
available Plaintiff. Convertino U.S. Dep State, 684 F.3d 93, 99-100 (D.C. Cir. 2012).
also shows that the facts are discoverable.
Plaintiff filed this action December 19, 2012 compel Defendant comply
with the Freedom Information Act FOIA after Defendant failed respond FOIA
request Plaintiff had served Defendant September 24, 2012. Defendant filed answer
Plaintiff complaint January 28, 2013. U.S. Secretary State Hillary Rodham Clinton left
office February 2013 and, over the course the next twenty-two months, Defendant made
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
repeated representations Plaintiff and the Court, numerous court filings, about its searches
for records responsive Plaintiff FOIA request and the results those searches. reliance Defendant representations about its search efforts, Plaintiff stipulated the dismissal this
action November 2014. That same day, the Court entered minute order dismissing this
case with prejudice. When the New York Times and other media outlets publicly disclosed for
the first time March 2015 that Secretary Clinton exclusively used clintonemail.com email
account conduct official government business during her tenure the State Department,
Plaintiff and Defendant jointly moved, pursuant Rule 60(b)(2), for order granting relief
from the November 2014 order dismissal. The Court granted that motion May 2015.
Defendant now moves for summary judgment.
Plaintiff seeks discovery the following issues that remain decided this
case: (1) whether Defendant satisfied its FOIA obligations conducting search reasonably
calculated uncover all records responsive Plaintiff request; (2) whether Defendant its
counsel satisfied its record preservation obligations this litigation; and (3) whether Defendant its counsel made intentional, material misrepresentations Plaintiff and the Court about
Defendant search for responsive records.
Admissible evidence concerning these issues not already available because
Defendant has failed provide any information these critical issues, and Plaintiff has not yet
had the opportunity conduct discovery this case. obtain this evidence, which essential Plaintiff opposition Defendant
Motion for Summary Judgment, Plaintiff proposes serving total five interrogatories, five
document requests, and taking least one deposition. The particular discovery Plaintiff
-2-
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
proposes set forth detail Plaintiff Proposed Discovery Plan, filed herewith Exhibit
These discovery requests would served upon Defendant and, the extent Defendant
identifies former employees officials possessing the requested information, upon those
former employees officials. All the information Plaintiff discoverable from Defendant
and/or from former employees officials Defendant relevant, reasonably described,
not unduly burdensome, and not reasonably subject any claim privilege protection from
disclosure.
Filed herewith Exhibit are examples email communications between the
State Department top legal advisor, Harold Koh, and Secretary Clinton about pending litigation
against the agency, among other official government business. During the course this
litigation, office examined the now publicly-available email exchanges between Secretary
Clinton and Mr. Koh and identified many such exchanges. These emails are available the State Department website, https://foia.state.gov/Search/Results.aspx?collection
=Clinton_Email, and Wikileaks.org, https://wikileaks.org/clinton-emails/.
Filed herewith Exhibit January 25, 2013 email that Under Secretary
State for Management Kennedy sent Secretary Clinton regarding official government
business. This particular email also available the State Department website and
Wikileaks.org.
10.
Filed herewith Exhibit litigation hold and acknowledgment issued the
Environmental Protection Agency regarding lawsuit filed against the agency Landmark
Legal Foundation October 2012, Landmark Legal Found. Environ. Prot. Agency, Case No.
-3-
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
12-1726 (RCL) (D. District Columbia). The litigation hold was exhibit motion filed
the case, Docket Entry No. 46-3, filed July 24, 2015, and publicly available through Pacer. declare under penalty perjury that the foregoing true and correct. Executed
Washington, this 271h day ofMay, 2016.
-4-
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
Exh.
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 12-cv-2034-RBW
PLAINTIFF PROPOSED DISCOVERY PLAN
Plaintiff Judicial Watch, Inc., counsel, respectfully submits the following Proposed
Discovery Plan:
Definitions:
Initial shall mean the processing and search efforts undertaken the State
Department before May 15, 2013, the date the State Department represented Plaintiff
and the Court the parties Supplemental Joint Scheduling Statement, ECF No. 12, filed May
15, 2013 that searches the Office the Secretary and Executive Secretariat had been
completed.
Plaintiff FOIA request shall mean the Freedom Information Act request
served Plaintiff the State Department September 24, 2012 and assigned Case Control
Number F-2012-37335.
II.
Document Requests:
The State Department shall produce the following documents within days:
All records concerning relating the initial processing and search for
records responsive Plaintiff FOIA request, including but not limited all Forms DS-1748
and any search slips, search taskers, search details, other records for tasking and
tracking the agency search efforts and reporting the results those search efforts.
All communications concerning relating the initial processing and search for
records responsive Plaintiff FOIA request, including any and all directions guidance about
when, where, and how searches should conducted the Office the Secretary and the
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
Executive Secretariat, whether and how search Secretary Clinton email, and any issues,
problems, questions concerning the searches and/or search results.
All records concerning any litigation hold other notice effort preserve
records potentially relevant this litigation, including but not limited any actual litigation
hold preservation notice, any acknowledgment receipt any hold preservation notice,
and communications about any hold preservation notice (this request does not include any
notices issued response the Court preservation order dated October 2015).
All records concerning any State Department policy, practice, procedure
regarding the issuance litigation holds other preservation notices efforts preserve
records relevant pending reasonably foreseeable litigation.
All records concerning relating the State Department policies, practices,
procedures and/or actions efforts (or lack thereof) secure, inventory, and/or account for
Secretary Clinton email prior her leaving office February 2013.
III.
Interrogatories:
The State Department shall answer the following interrogatories, under oath, within
days:
The identity and contact information (or last known address) the Case
Analyst and any other personnel within the Office Information Programs and Services who
were responsible for, assisted with, involved the initial processing Plaintiff FOIA
request search(es) for records responsive Plaintiff FOIA request.
The identity and contact information (or last known address) the Point
Contact and any other personnel within the Office the Secretary who were responsible for
assisted with were involved the initial processing search for records responsive
Plaintiff FOIA request.
The identity and contact information (or last known address) the Point
Contact and any other personnel within the Executive Secretariat who were responsible for
assisted with were involved the initial processing search for records responsive
Plaintiff FOIA request.
The identity and contact information (or last known address) the person
persons who were responsible for, assisted with, were involved the issuance, monitoring,
and enforcement litigation holds other notices efforts preserve records relevant any
pending reasonably foreseeable litigation, including but not limited this lawsuit. The time
frame for this request September 2012 through February 2013.
The identity and contact information last known address) any person
persons who were responsible for, assisted with, were involved any actions efforts (or
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
lack thereof) secure, inventory, and/or account for Secretary Clinton email prior her
leaving office February 2013.
IV.
Depositions:
One more 30(b)(6) witness(es) testify about:
the initial processing and search for records responsive Plaintiff
FOIA request the Office the Secretary and the Executive Secretariat;
litigation holds other notices efforts used the State Department
between September 2012 and February 2013 preserve records relevant pending reasonably foreseeable litigation, including this lawsuit; and
the policies, practices, procedures and/or actions efforts referenced
Document Request No. above.
Plaintiff may also wish depose the person(s) identified response
Interrogatory Nos. 1-4, the extent such persons are not produced 30(b)(6) witnesses.
Dated: May 27, 2016
Respectfully submitted, Chris Fedeli
Chris Fedeli Bar 472919
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
(202) 646-5172
Counsel for Plaintiff
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
Exh.
UNCLASSIFIED U.S. Department State Case No. F-2014-20439 Doc No. C05792383 Date: 10/30/2015
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
RELEASE PART
From:
Sent:
To:
Subject:
Koh, Harold Hongju 
Thursday, May 10, 2012 9:44
RE: wanted make sure you saw this always, honor and joy for
From: [mailto:HDR22@clintonemail.com]
Sent: Wednesday, May 09, 2012 9:20
To: Koh, Harold Hongju
Subject: Re: wanted make sure you saw this
Thx for this and for everything else.
From: Koh, Harold Hongju [mailto:KohHH@state.gov]
Sent: Sunday, May 06, 2012 04:05
To:
Subject: wanted make sure you saw this
UNCLASSIFIED U.S. Department State Case No. F-2014-20439 Doc No. C05792383 Date: 10/30/2015
UNCLASSIFIED U.S. Department State Case No. F-2014-20439 Doc No. C05791643 Date: 12/31/2015
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
RELEASE PART
B5,B6
From:
Sent:
To:
Subject:
Koh, Harold Hongju 
Saturday, July 28, 2012 8:31
Fw: ATT disapppointed
Thanks for the call and all you do. are all proud serve under you
Below forwarding emails attHope you saw opening olympic ceremonies-they were great.
Harold
From: Susan Waltz [mailto:
Sent: Friday, July 27, 2012 10:00
To: Koh, Harold Hongju
Subject: ATT disapppointed hope someone the Administration can say something make feel better about todays outcome the
ATT negotiations. 2008 walked and down the streets rural, mostly Republican community mid-Michigan, trying
persuade neighbors vote for Barack Obama. That wont happening this year. Though cant imagine
voting for Romney, upset over the ATT outcome that may just sit out this election. Unlike Guantanamo
and the wars, this one was easy. And they still managed not get right.
Somehow hope the outcome looks better from where you sit.
Susan Waltz
Susan Waltz
Professor
Gerald Ford School Public Policy
University Michigan
UNCLASSIFIED U.S. Department State Case No. F-2014-20439 Doc No. C05791643 Date: 12/31/2015
UNCLASSIFIED U.S. Department State Case No. F-2014-20439 Doc No. C05782849 Date: 12/31/2015
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
RELEASE PART
From:
Sent:
To:
Subject:
Attachments:
Koh, Harold Hongju 
Tuesday, October 11, 2011 1:40
What discussed today
2011 koh Jonathan soros Ietter.doc close the loop our conversation today the elevator:
Thanks always for taking the time hear personal news the middle the millons momentous things
your schedule. You are really extraordinary friend, boss, and client.
Warmly,
Harold
UNCLASSIFIED U.S. Department State Case No. F-2014-20439 Doc No. C05782849 Date: 12/31/2015
UNCLASSIFIED U.S. Department State Case No. F-2014-20439 Doc No. C05772991 Date: 08/31/2015
Case 1:12-cv-02034-RBW Document 37-1 Filed 05/27/16 Page
RELEASE PART
From:
Sent:
To:
Subject: