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Date Created:October 1, 2015
Date Uploaded to the Library:October 02, 2015
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Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC., Plaintiff, U.S. DEPARTMENT STATE, Defendant. ____________________________________) Civil Action No. 13-00772 (CKK) PLAINTIFF OPPOSITION DEFENDANT MOTION STAY Plaintiff Judicial Watch, Inc. Judicial Watch counsel, respectfully submits this opposition Defendant Motion Stay Pending Resolution Its Motion for Designation Coordinating Judge. grounds therefor, Judicial Watch states follows: STATEMENT POINTS AND AUTHORITIES Defendant U.S. Department State State Department agency seeks stay and further delay least portion its response the nearly year old Freedom Information Act FOIA request issue this litigation.1 The proposed stay would appear encompass any issues regarding the emails former Secretary State Hillary Clinton and certain emails and records least four Secretary Clinton top aides, Huma Abedin, Cheryl Mills, Philippe Reines, and Jacob Sullivan. would not appear encompass the State Department review and production responsive records located result further search the Office the Executive Secretariat, referenced the State Department letter dated July 27, 2015. The State Department previously asserted that its initial search the Executive Secretariat yielded responsive records, but further search apparently located unknown The request issue was served the State Department May 2011. Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page quantity responsive potentially responsive records. The State Department refuses identify (1) where specifically these records were located; (2) when they were located; (3) why they were not located previously; (4) the volume the records issue; and (5) when their review and production will completed. The State Department has committed continued, rolling productions undisclosed quantities these records for unspecified period time. Accordingly, the stay would not apply whatever the State Department doing with respect this unknown tranche unidentified records that have yet produced nearly years after Judicial Watch requested them. Judicial Watch raised several issues about Secretary Clinton emails the parties most recent Supplemental Status Report. See Supplemental Joint Status Report, Sep. 2015 (ECF No. 28) Supp. Status Rpt. 5-18. Judicial Watch possesses even less information about the emails and records Ms. Abedin, Ms. Mills, Mr. Reines, and Mr. Sullivan than possesses about Secretary Clinton emails because the State Department has been even less forthcoming about these other officials records. Judicial Watch has been able piece together the following information from different State Department filings different cases: July 2015, the State Department received 338 electronic and hard copy records from Ms. Abedin. See Defendant Motion for Enlargement Time File its Motion for Summary Judgment, Citizens United U.S. Dep State, 15-cv-374 (EGS) (D.D.C.) (Sept. 16, 2015) (ECF No. 13) August 2015, the State Department received one pdf file containing 2,185 pages records from Ms. Abedin. Id. -2- Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page September 2015, the State Department received 348 pages records and 6,714 emails from Ms. Abedin electronic format. Id. June 25, 2015, the State Department received pages hard copy records from Ms. Mills. Id. August 10, 2015, the State Department received 666 emails records and 106 attachments from Ms. Mills electronic format. Id. August 12, 2015, the State Department received 100 megabytes electronic files and hard copy documents, consisting one cubic foot paper records, from Ms. Mills. Id. July 28, 2015, the State Department received approximately 70,000 pages hard copy records from Mr. Reines, large portion which are press clippings assembled the State Department daily basis and forwarded Mr. Reines personal email account. Approximately 16,000 pages these records are not press clippings, but the State Department has not identified them any greater detail. See Defendant Status Report, Leopold U.S. Dep State, Case No. 15-123 (RC) (D.D.C.) (Sept. 18, 2015) para. 5.2 June 26, 2015, the State Department received unknown quantity records from Mr. Sullivan. See Declaration John Hackett Regarding Exemptions Taken Responsive Documents, Judicial Watch, Inc. U.S. Dep State, Case No. 14-1242 (RCL) (D.D.C.) (July 2015) (ECF No. 19-2) 18-20. This same status report, the most recent submission the State Department, also includes descriptions the volume and types records provided Ms. Abedin and Ms. Mills, but uses different metrics. Id. paras. and Based this status report, the State Department now estimates that Ms. Abedin returned approximately 23,000 pages records the agency and Ms. Mills returned estimated 11,870 pages records. Id. All 23,000 pages records from Ms. Abedin, approximately 2,045 documents (not pages) from Ms. Mills, and the 16,000 pages non-press clipping materials from Mr. Reines have been loaded onto State Department network and are now electronically searchable. Id. paras. 4-6. -3- Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page the parties most recent supplemental status report, Judicial Watch asked that provided, allowed obtain, certain information about Secretary Clinton emails and the emails and other records these top advisors. Supp. Status Rpt. 14-16. Judicial Watch believes this information essential determining whether the State Department has satisfied its FOIA obligations under the extraordinary, unprecedented circumstances created Secretary Clinton exclusive use clintonemail.com email server conduct official State Department business, and, not, how that failure might remedied.3 Instead providing the requested information, which necessary resolve the host legal questions raised the State Department failure records manage Secretary Clinton emails properly, the State Department filed its motion stay. The motion guarantees that resolution these issues will delayed further. The parties recently agreed search terms for the approximately 30,490 federal records returned the State Department Mrs. Clinton. The only issue that remains with respect these federal records when the search will conducted. Judicial Watch has asked that conducted expeditiously given that the State Department has acknowledged that the records are now readily searchable and have been searched response other FOIA requests, which was not the case when the parties filed their June 22, 2015 joint status report. See Supp. Status Rpt. 13; see also id. 17-18. The State Department prefers wait until January 2016 commence the search. Id. Judicial Watch offered meet with the State Department try reach agreement schedule for completing searches Secretary Clinton emails that would take into account other FOIA cases and other FOIA requestors, but the State Department did not Ms. Abedin also used clintonemail.com email account conduct official, State Department business. The State Department has not disclosed whether other agency officials did well. -4- Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page respond.4 See Exhibit Regardless, neither coordinating judge nor stay pending the designation coordinating judge necessary resolve this relatively simple scheduling dispute. The State Department has asserted other litigation that has obligation search records returned Secretary Clinton top aides. See Joint Status Report, Judicial Watch, Inc. U.S. Dep State, Case No. 15-692 (APM) (D.D.C.) (July 29, 2015) (ECF No. 11) n.3. Defendant maintains that reasonable search only requires search the Clinton emails. While true that Defendant has agreed additional discrete search specifically, search any emails that has received from Ms. Mills, Mr. Sullivan, and Ms. Abedin did not because believes the FOIA requires such search. Defendant Opposition Plaintiff Motion Allow Time for Limited Discovery Pursuant Rule 56(d), Judicial Watch, Inc. U.S. Dep State, Case No. 14-1242 (RCL) (D.D.C.) (Sept. 18, 2015) (ECF No. 27) Despite the fact that had obligation under FOIA so, State was willing stay summary judgment briefing and ask the Court set schedule allow search those documents for records responsive the FOIA request, notwithstanding that those records were not State possession and control the time the FOIA search was conducted. see also Defendant Motion Stay Pending Resolution Its Motion for Designation Coordinating Judge, Judicial Watch, Inc. U.S. Dep State, Case No. 14-1511(ABJ) (D.D.C.) (ECF No. 17) State willing search [these records] Plaintiff wishes, notwithstanding that those records were not State possession and control the time the FOIA search was conducted. Judicial Watch seeks less and more than what FOIA requires. the State Department position that must search these materials satisfy its FOIA obligations, The lack response the State Department constitutes failure meet and confer. LCvR 7(m). -5- Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page the agency should say so. Judicial Watch would then amenable discussing reasonable schedule for completion this task. the State Department disputes that has obligation search these materials, should say well. Staying this action indefinitely that coordinating judge can appointed oversee the completion task the agency disputes has any obligation undertake puts the cart before the horse.5 also demonstrates that the motion stay unfounded. September 17, 2015, the State Department had filed motions stay only lawsuits, not the identified its consolidation motion. those motions, have been denied. See Minute Order, Judicial Watch, Inc. U.S. Dep State, Case No. 13-1363 (EGS) (D.D.C.) (Sept. 11, 2015); Minute Order, Bauer Central Intelligence Agency, Case No. 14-963 (APM) (D.D.C.) (Sept. 16, 2015); Minute Order, Joseph U.S. Dep State, Case No. 14-1896 (RJL) (D.D.C.) (Sept. 10, 2015); Minute Order, Citizens United U.S. Dep State, Case No. 15-374 (EGS) (D.D.C.) (Sept. 11, 2015); Minute Order, Judicial Watch, Inc. U.S. Dep State, 15-692 (APM) (D.D.C.) (Sept. 16, 2015); Minute Order, Citizens United U.S. Dep State, Case No. 15-1031 (EGS) (D.D.C.) (Sept. 11, 2015). Only one motion has been granted, and that ruling was issued before the requestor even filed response. See Minute Order, Judicial Watch, Inc. U.S. Dep State, Case No. 14-1511 (ABJ) (D.D.C.) (Sept. 10, 2015). second was granted part and denied part. See Minute Order, Citizens United U.S. Dep State, Case No. 15-518 (ABJ) (D.D.C.) (Sept. 18, 2015). third being held abeyance. See Minute Order, Judicial Watch, Inc. U.S. Dep Justice, Case No. 15-321 (CKK) (D.D.C.) (Sept. 2015). the State Department disputes that has obligation search these materials, but asserts that will voluntarily, has provided assurances this effect. voluntary search also would raise substantial questions about this Court jurisdiction adjudicate issues about the scope the agency search and any claims exemption. -6- Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page Although the State Department downplays its motion, the agency not only seeks order designating coordinating judge, but also order transferring ongoing FOIA cases pending before district judges whomever designated the coordinating judge. This coordinating judge will then decide common legal, factual, and procedural issues. The law could not any clearer that one district judge cannot order another district judge take action case pending before that judge. See, e.g., Klayman Kollar-Kotelly, 2013 U.S. App. LEXIS 10148 (D.C. Cir. May 20, 2013); McBryde, 117 F.3d 208 (5th Cir. 1997). makes difference the district judge issuing the order the chief judge the order order reassignment. McBryde, 117 F.3d 225 [N]ot one case upholds reassignment pending case chief judge without the consent the presiding judge. result, highly unlikely that the State Department will prevail its coordination/transfer motion. There reason stay this action pending ruling the State Department meritless miscellaneous action. See also Respondent Judicial Watch, Inc. Motion Dismiss, or, the Alternative, Opposition Designation/Transfer Motion, U.S. Dep State FOIA Litigation Regarding Emails Certain Former Officials, Case No. 15-ms-1188 (Unassigned) (D.D.C.) (ECF No. 24) (Sept. 14. 2015). WHEREFORE, Judicial Watch respectfully requests that the motion stay denied. -7- Case 1:13-cv-00772-CKK Document Filed 09/21/15 Page Dated: September 21, 2015 Respectfully submitted, JUDICIAL WATCH, INC. /s/ Paul Orfanedes PAUL ORFANEDES D.C. Bar No. 429716 /s/ Jason Aldrich JASON ALDRICH D.C. Bar No. 495488 425 Third Street SW, Suite 800 Washington, 20024 (202) 646-5172 email@example.com firstname.lastname@example.org Attorneys for Plaintiff -8- Case 1:13-cv-00772-CKK Document 31-1 Filed 09/21/15 Page Case 1:13-cv-00772-CKK Document 31-1 Filed 09/21/15 Page Case 1:13-cv-00772-CKK Document 31-1 Filed 09/21/15 Page Case 1:13-cv-00772-CKK Document 31-1 Filed 09/21/15 Page Case 1:13-cv-00772-CKK Document 31-1 Filed 09/21/15 Page Case 1:13-cv-00772-CKK Document 31-1 Filed 09/21/15 Page Case 1:13-cv-00772-CKK Document 31-2 Filed 09/21/15 Page UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC., Plaintiff, No. 1:13-cv-772 -CKK U.S. DEPARTMENT STATE, Defendant. PROPOSED ORDER Upon consideration Plaintiff Opposition Defendant Motion Stay Pending Resolution Its Motion for Designation Coordinating Judge, and the entire record herein, HEREBY ORDERED that: Defendant Motion DENIED. _________________________________ Hon. Colleen Kollar-Kotelly, U.S.D.J.