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Judicial Watch • 15-646 Opposition

15-646 Opposition

15-646 Opposition

Page 1: 15-646 Opposition

Category:Legal Document

Number of Pages:19

Date Created:September 22, 2015

Date Uploaded to the Library:October 02, 2015


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Case 1:15-cv-00646-CKK Document Filed 09/22/15 Page THE UNITED STATES DISTRICT COURT
Plaintijj No. 1:15-ev-00646 (CKK)
Plaintiff Judicial Watch, Inc.. and through counsel, respectfully submits this
opposition Defendants Motion Stay Pending Resolution Its Motion for Designation
inating Judge coordination motion). grounds therefor, Plaintiff states follows:
Defendant seeks the ext nary reliefof indefinite stay without any evidence
demonstrating how proceeding this case will affect, adversely otherwise, the other Freedom Information Act FOIA) cases which similar records might issue. The Court
already ordered rolling production documents every sixty days this case. stay would
only halt the progress already being made this lawsuit. Further, the relief Defendant seeks
its miscellaneous action for coordinating judge unlikely succeed. result,
Defend-ant motion should denied.
ll. Factual and procedural background.
Plaintiffsubmitted its FOIA requests Defendant March 10, 2015 for any records eeming requests made. behalf Secretary nton for use iPad and/or iPhone,
and comniunications oncerning the use unauthorized electronic devices for cial
Case 1:15-cv-00646-CKK Document Filed 09/22/15 Page
goveminent business. See Cornpl. The proposed stay Defendan seeks appeai include
any issues regarding the emails Secretary Clinton well ceitain emails and records
least four Secretary Clintons top aides Hum Abedin, Cheryl Mils, Jacob Sulliv and
Philipe Reines.
All records retum Secretary Clinton Defendant December
custody. ossession and control the Defendant the time Plaintiffs FOIA requests and are
potentially responsive Plaintiffs FOIA requests. All Secretary Clinton emails have been
uploaded and are searchable keyword tenns. See Joint Status Report, July 2015 Joint Status Rpt.) (ECF No. 8). Emails from Secretary Clinton recent osted
Defendant its FOIA website reveal coininunications with Secretary Clintons senior aides,
Huina Abedin and Philippe Reines. regarding Secretai linton use iPad. See Joint
Status Report. Sep. 2015 Second Joint Status Rpt.) (ECF No. 9). Ms. Abedin
and Mr. Reines are therefore also former officials whose records are potentially responsive
Plaintiff OIA requests. Plaintiff not aware and Defendant has not revealed Cheryl
Mills Sullivan are also former officials whose records are potentially responsive
Plaintiffs FOIA requests.
Pursuant the Court minute order July 2015, Defendant initiated its search
potentially responsive records the Office the Executive Secretariat (S/ and the Bureau
Diplomatic Security (DS) and although the Court ordered that Defendant first production
shall made later than August 20, Defendant produced two records with redactions August 27, 2015, and withheld one responsive record full exempt. 592 Second
Status Rpt. (ECF No. 9). Although the Court did not set final production deadline
Case 1:15-cv 0O646-CKK Document Filed 09/22/15 Page
order leave open the possibility that the production documents can completed more
expeditiously than the January 2016 deadline proposed the Defendant, the Court ordered
Defendant, tl1e interim, produce records every six weeks after the initial August 20, 2015.
production. See July 2015 Minute Order.
Ill. inde nite stay inappropriate.
Notwithstanding Defendant failure meet and confer with Plaintiff the fact that its
coordination motion unlikely succeed. inde nite stay inappropriate. The Court has
already ered production schedule every sixty days this case, with the possibility that the
final production can completed sooner than the January 2016 deadline. Now, Defendant
seeks completely halt the progrc hat has already been made this case for coordinating dgeto111le issues related records Defendant has not yet identified relevant this
lawsuit. date, Defendant has refused specify whether records from Ms. Mills, Ms. Abedin,
Mr. Sullivan and Mr. Reines are potentially responsive records Defendant deems obligated search under FOIA this case. Neither coo dinating judge nor stay pending the
designation one necessary disclose this information and resolve nal production
schedule. ecially when Defendant yet identify the rds obligated search.
Con ent with the Courts order July 2015, Plaintifftried confer with Dcfendant
about Secreta linton emails and other sources potentially responsive Plaintiffs
FOIA request. See Second Joint Status Rpt. pp. 1-4 (ECF No. 9); First Status Rpt. pp. 2-4
(ECF No. 8). date, Defendant has refused identify (1) the universe ofpotentially
Case 1:15-cv-006 6-CKK Document Filed 09/22/15 Page
responsive eco (2) the search terms Defendant using conduct its search and (3) the
sources Defendant searching for potentially responsive records This information
necessary determine whether sixty day production schedule through the end January 2016 reasonable. Defendant does not provide any evidence how providing the requested
information will adversely affect any the other FOIA cases which similar records might issue. Indeed, Defendant would forthcoming and would confer cooperatively with
Plaintiff about these issues, there would likely fewer disputed issues these FOIA cases. and
less undue delays.
Based information Plaintiff has been able piece together from Defendant
snbm sions different cases about the records former officials, Plaintti earned that the
records Defendant received on1 Huma Abedin have already been uploaded and are searchablc.
Defendant processing records received from Cheryl Mills and they will completely
uploaded and searchable Friday, September 2015. See Minute Order Sep. 22. 2015,
Cm:en.y United Dap Stare, Case No. 15-374 (D.D.C._) (EGS) order set reasonable.
non-arbitrary schedule for production documents relevant this case, the Goveminent
hereby ordered complete the relevant searches Ms. Abedin and Ms. Mills documents later than Friday. October 2015 .[and] shall submit status report later than 12:00
pm. Monda October 2015. detailing the number documents iden and estimate
Plainul corner with Defendant about the keyword search tcrms used Defendant because
records already produced Defendant its FOIA website 68i that Secretary Clinton and some her senior
aides refer Secretary C1inton and hPad. light ofthe use nfthe term hPad records relevant Secretary otan iPad, Plaintiffsubxnits that and l1Plione are tern that hould also included
the keyword ezt iic. conducted [)efcndant. ,ecund Joint Status Rpti pp. let No. 9;. light nfthe cnted rcated Clintons exclusive use ofa email server solid (iflicral State Depamncnt ess. host ofqucstions remain whether
Defendant FOIA obligatiuv and, ifnot, how that failure might ncdted. Ms. Abcdin also used clintonenail.cmn account conduct otlictal, State Department busin
Case 1:15-cv~OO646-CKK Document Filed 09/22/15 Page how long will take reviev those documents prior production). Plaintiff does not have
similar information about the records received from Jacob Sullivan Philippe Reines. Rather
than seeking indefinite stay and further delay its obligations under FOIA, Defendant should
provide basi relevant information the Court and Plaintiff detennine reasonable nal
production deadline, vas ordered t1:en.v Unziteu Dep State Judge
Sullivan. Plaintiffreinains willing and available iter with Defendant these issues.
IV. Deiendant Coordination Motion unlikely succeed.
The purported basis for the motion stay the coordination motion Defendant led September 2015. Although the State Department downpla its motion, the agency
not only seeks order designating coordinating judge, but also order transferring FOIA cases pending before distric judges whomever designated the
coordinating judge. This coordinating judge will then decide con legal. factual. and
procedural issues. The law could not any clearer that one district judge cannot order another
tr1 Judge take case pending before that judge. See. 2.2., Klzzyrmzn KoIIar-
Kolelly, 2013 US. App. LEXIS 10148 (D.C. Cir. May 20. 2013); (lg, 117 F.3d 208
(5th Cir. 1997). makes difference ifthe district judge issuing the order the chiefjudge
the order order ofreassignrncnt. M1-B 117 F.3d 225 [N]ot one case upholds
rea gninent pending case judge without the consent the presiding judge). result, highly unlikely that Defendant will prevail its coordination ransfer motion. think there may some reluctance the pa1t ulges along with that heczu were that not sure that the
Case 1:15-cv-00646-CKK ocument Filed 09/22/15 Page ere reason stay this action pen ruling the State Depa ment meritless ellaneous ction. See also Respondent Jud ial Watch. lnc.s Motion Dismiss, or, the
Alternative. Opposition Designation/T1z1nsfer Motion, Dep ofsrare 01.4
Litigatiun Regarding Emails ofCcrImr1 Forlner Off Case No. 15-ms-1188 (Unassigned)
(D.D.C.) (ECF No. 24) (Sept. 14. Conclusion. the foregoing reasons, Defendan motion foi stay should denied.
Dated: September 22, 201 Respectfully submitted.
Ramona DC.
Bar No. 501159
425 Third Street SVV, Suite 800 hmgton. 20024 (202; 646 (202) 646 199
Email: rcotei
A4[l{))1(1 Sf(]P[ mff appropriate
.not the 321:
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Minute Order, Bauer
(Sept. 10,201 cund _unted pannnd den
47/ Sm: No. IABJ) D.C) Z015]. third being held abe,
Jmlicml U7:/C/1. Inc Dgp No. l5-321 (CKK) (l).l).C.) (Sept. 2015).
Case 1:15-cv-00646-CKK Document 13-1 Filed 09/22/15 Page
Case 1:15-cv 0O646-CKK Document 13-1 Filed 09/22/15 Page
Paul Orfanedes
From: Shapiro, Elizabeth (CIV) 
Sent: Thursday, September 03, 2015
To: Paul Orianedes; Berma Marcia (CIV)
Subject: RE: Seeking Judicial Watchs Position Motion Designate Coordinating Judge and
Corresponding Stay Motions cases State Department
Paul, asked Rob, and simply forgot send the follow iessage had written. Apologies.
From Paul Orfanedes [mailto:POrfanedes@JUDICIALWATCHDRG]
Sent: Thursday, September 03, 2015 11:07
To: Shapiro, Elizabeth (CIV Barman, Marcia (CW)
Subject: FW: Seeking Judicial Watcl1 Posidon Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
Eliza beth/Marcia:
Further our conversation this morning, the last communication received from Robert Prince was 11:01
yesterday, sent him this email 1:51 p.m. and second 4:04 p.m., which sending you separately. received
response either email.
From: Paul Orfanedes
Sent: Wednesday, September 02, 2015 1:51
To: Prince, Robert (CIV)
Subject: Seeking Judicial Watch5 Position Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
Robert: also like see these cases move forward more efficiently and expeditiously, but not sure how your proposal
does that, Maybe not understanding your concerns.
(our proposed order would have the coordlnatlngjudge resolve and manage all issues law, fact, and procedure
regarding the search and production responsive records within the recently provided documents, ifyour concern
coming with order for completing searches the 55,000 Clinton emails between now and the lanuary 19, 2016
date set Judge Contreras, were happy that for our cases, and would try way that
accommodates the other retiuestors well, The same would true for the Abedin, Mills, Reines, and Sullivan
materials. this point however, not sure have enough information about these latter sets materials have lnlnrrrled discussion, but sure could work something out. off the top head, not even sure which [or
how many) our cases you listed might implicate these latter sets fmaterlals such that makes sense intlude
them all your proposal. sure the judges our various cases also would not object reasonable, agreed,
coordinated production schedules. your concern )rn :=thlng broader than completing searches the 55,000 Clinton EilI:.IllS aiidl
Reines, and Sui rnateria ,what would your proposal leave forthe originally assigned judge tlecid For
e-Lainple, iii H-1? ,wlii:h before ludge Lamhenli, State mi: for surriinaryiudgnient and liied Rule eldi
motion ponsn. Would your proposal talre those motion. away iroin Judge lurnbrzrth and put them hold? so.
Case 1:15-cv OO646-CKK Document Filed 09/22/15 Page
for how long? What about Judge Sullivans orderlin 13-1363 requiring State ask the FBI for information about what
the FBI recovers from the server? that within outside your proposal? You say its not feasible have detailed
discussion about how each case might proceed under your proposal, but sure you can imagine, that very
important issue, least for us. some our cases, weve been trying obtain records for more than four years. your concern about requests for information discovery about the Clinton server and related issues its not
ciearto that within outside your proposal even issue al16 our cases, all cases you
seek include your proposal might able work something out there well, the State Department would
work with enable get answers some our basic questions one case, that same information could
used other cases well. wouldnt need make requests for information discovery multiple lawsuits.
not aware any non-Judicial Watch cases which have these issues have been raised. not asserting that hasnt; just not aware any. How many others are there? the end, and without more time for discuss logistics and think about these question, could see fair amount
dispute and more delay about what within outside the scope the referral the coordinating judge, what
still within the purview the originally asslgnediudge, how these disputes will resolved, etc. could and
wasting least diminishing the substa ntial progress made date and the substantial efforts expended the
courts, youd like sit down and discuss your concerns, how might try accommodate them, and the status
our various cases, offered lvls, Shapiro early July, wed happy so.
Finally, one more concern about your proposed procedure, under LCVR 40,3, miscellaneous cases are assigned
random basis, How you propose getting your motion front the Chlefludge light the Court rule?
Sen Wednesday, September 02, 2015
To: Paul Orfanedes
Subject: RE: Seeking Judicial Watchs Position Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
The plan seek coordinate 30+ cases specific list will included the motionli
What were proposing actually very simple. plan leave the involved questions the coordinatingjudge, whom
assume would seek input from the parties. Ive attached the proposed order and, you can see, simply asks for the
designation oia coordinatlngjudge resolve and manage issues law, fact, and procedure arising the
Coordinated Cases from the search and production ofresponsive records within the recently provided documents recently provided documents defined the order). That the relief were requesting. the email sent yesterday morning, gave some specific examples what those issues would include (scheduling
searches the recently provided documents, requests for iriforrnation and discovery about those documents, and
requests for orders reia preservationl; the motion explains why the Court and the parties would benefit from
coordination ofthese issues that have arisen multiple cases the district. But are not specifically asking the Court manage those issues particular way. the motion were addressing here does not seem particularly involved.
Given that there are other plaintiffs lall but one whom have responded with position statement include the
motion), not feasible engage detailed discussions about how these cases will proceed once coordinated. Thl.
one the reasons that our motion contemplates that the Coordlnatirigjurlge the detailed, involved questions,
with input from all parties. crit-ed the relief are seeking: discussing qua. ans not addressed the motion
are not nECE:SJFV nieuriirigftilly confer.
Case 1:15-cv-00646-CKK Document Filed 09/22/15 Page
Regarding the use miscellaneous action, there precise rule that provides for what are seeking, which not
traditional consolidation. Since will iilinga notice with the motion attached each case, all judges and
plaintiffs will receive notice, and the Court will able respond sees fit. will, course, follow direction from
the Court turns out miscellaneous action inappropriate.
Robert Prince
US. Department ofiustice, Civil Division
Federal Programs Branch
(202) 305-3654
The In/orrnotion this rnznsniitml (including attachments, any) intended only for the recipientisl listed above and contain:
information that con//denrial. Any review, use, disclosure, distribution, copying this transmittal prohibited except
behalf the Intended recipient, ifyau have received this transmittal error, please notify lmnrediareiyond deslmyall copies
the transmittal. Vour cooperation appreciated.
From}: Paul Orfonedes .,q
Sent: Tuesday, Septeinber D1. 2015
To: Prince, Robert (cw)
Subject: RE: Seeking Judicial Watch Position Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
Robert: familiar with miscellaneous actions relating discovery subpoenas, administrative subpoenas, judgrm-nt
enforcement, registration foreign judgments, etc. Frankly, Ive never heard party ongoing lawsuit opening
miscellaneous action the same court move for the designation ofa coor:lnatingludge. order better
understrind what you propose, can you explain, preliminary matter, how you settled this particular
procedure? What rule statute are you relying on? recall that coordlnatlngludge was designated for the
Guantanamo nay detainee cases, but was understanding that was done administratively the court think
was resolution the Executive Session not party orimotlnn. Also, which other cases you propose include this miscellaneous tion? All so? indicated previously, what you propose involved question amrl
golng take some time for even understand it. sure have more question, but dont think can say
weve met and conferred unless understand better,
Elizabeth Shapiro told Judge Contreras July And there are approximatelyis various stages and various
iorms, There are difficulties terms how they would consolidated, and since some them are orent TS,
there ar, different parties, there are different stages. the mechanics ofthal have eluded date, but haven
given the idea laxkud her after the hearing DOJ wanted try talk about it. There was real ponse,
and never heard anything further until your email this morning. Not only not understand what you are
proposing, but dont understand why there seems sudden rush ill: something,
Prince, Robert (CIV) [inillroiltritaurtyiiiml;]
Sen Tuesday, September 01, 2015 3:44
To: Paul Onanedes; Ramona Cotca; Mirhael Bekesha; Jason Aldrich; Lauren Burke; Chris Fedeli
Cc: Elllolx, Stephen (CIV); Edney, Marsha (CIV); Wechsler, Peter (CIV); Todd, James (CIV); Thurston, Robin (clvji;
Carmichael, Andrew (CIV); Anderson, Caroline (CIV); Olson, Lisa (CIV); Riess, Daniel (CIV)
Case 1:15-cv-00646-CKK Document 13-1 Filed 09/22/15 Page
Subject: RE: Seeking Judicial Watchs Position Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
Paul, can put your position down has not yet taken position (or, you preler, needs see motion before taking
From: Paul Orfanedes
sent: Tuesday, September 01, 2015 10:43
To: Prince, Robert (CIV); Ramona Eotca; Michael Bekesha; Jason Aidridi; Lauren Burke; Chris Fedeii
Cc: Elliott, Stephen (CW): Eciney, Marsha (CIV); We