Skip to content

Get Judicial Watch Updates!

DONATE

Judicial Watch • 15-688 Opposition

15-688 Opposition

15-688 Opposition

Page 1: 15-688 Opposition

Category:Legal Document

Number of Pages:27

Date Created:September 21, 2015

Date Uploaded to the Library:October 02, 2015

Tags:OppositionsList


File Scanned for Malware

Donate now to keep these documents public!


See Generated Text   ∨

Autogenerated text from PDF

Case 1:15-cv-00688-RC 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. 1:15-cv-00688 (RC)
PLAINTIFF OPPOSITION DEFENDANT MOTION STAY
PENDING RESOLUTION MOTION FOR DESIGNATION COORDINATING JUDGE
Plaintiff Judicial Watch, Inc., and through counsel, respectfully submits this
opposition Defendant motion stay. grounds therefor, Plaintiff states follows:
MEMORANDUM LAW
Introduction.
Defendant seeks the extraordinary relief indefinite stay FOIA case which has
already proceeded nearly the summary judgment stage. ECF No. 15. Defendant failed
meet and confer with Plaintiff prior filing its motion. also failed provide any evidence
demonstrating how proceeding this case will affect, adversely otherwise, the other Freedom Information Act FOIA cases which similar records might issue. Further, the relief
Defendant seeks its miscellaneous action for coordinating judge unlikely succeed. result, Defendant motion must denied.
II.
Factual Background.
Plaintiff filed this FOIA lawsuit seeking documents concerning the State Department
review conflicts interest resulting from the former Secretary role involvement with the
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
Clinton Foundation and its various foreign financial contributors. ECF No. The parties filed initial Joint Status Report raising certain issues relating preservation, discovery, and search this FOIA litigation. ECF No. Thereafter, the Court held hearing where the parties and
Court discussed preservation records, production schedules, search for records, and whether
disputed issues should raised the preliminary stage the litigation the summary
judgment stage. ECF No. Transcript Status Conference Before Judge Rudolph Contreras
held July 2015. Since that hearing, the Court has issued one Scheduling Order and three
additional Minute Orders this case taking various actions manage the litigation, including
ordering the parties confer, directing Defendant produce records, ordering Plaintiff and
Defendant arrive search terms for Defendant use search the 55,000 pages records,
and ordering Defendant search the 55,000 records using search terms. See ECF No.
Scheduling Order; July 23, 2015 Minute Order; August 11, 2015 Minute Order; August 21, 2015
Minute Order.
III.
Defendant Failed Meet and Confer.
Local Rule 7(m) requires that [b]efore filing any nondispositive motion civil action,
counsel shall discuss the anticipated motion with opposing counsel good-faith effort
determine whether there any opposition the relief sought and, there is, narrow the
areas disagreement. LCvR 7(m) (emphasis added). Prior filing the motion for stay,
Defendant counsel sent email all Judicial Watch attorneys assigned FOIA cases
between Plaintiff and Defendant. The email stated, pertinent part:
[T]he Department will filing motion each the above-listed cases seeking stay those portions each case addressing the documents provided the
Department former Secretary Clinton and the other former employees until the
coordination motion decided, and, granted, until the coordinating judge
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
issues order determining how proceed the cases listed that motion. The
stay sought would not affect those portions the cases that deal with the search
and production other documents.
See September 2015 Email from Robert Prince, attached Exhibit evident from the entire email chain, attached Exhibit that the parties never met
and conferred the motion stay Defendant filed this particular case how Defendant
coordination motion would affect this particular case, all. Defendant only purported
meet and confer its coordination motion, and even then did not engage any meaningful
discussion with Plaintiff about that motion. response, Plaintiff not only sought understand
Defendant proposed coordination motion, but also offered meet and discuss how
Defendant search and production efforts could prioritized, among other issues. See Exhibit Defendant filed its coordination motion that same day without responding. Id. Defendant
counsel later asserted that they forgot send response and apologized. Id. Defendant
apology regarding the coordination motion notwithstanding, Defendant plainly failed satisfy
Local Rule 7(m) with regard the instant motion stay.
IV.
Defendant Coordination Motion Unlikely Succeed.
The purported basis for the motion stay the coordination motion Defendant filed September 2015. that date, Defendant initiated miscellaneous action, seeking
have the Chief Judge order different district judges transfer more than FOIA
lawsuits, including lawsuits filed Judicial Watch, coordinating judge least for
period time. See United States Department State Motion for Designation Coordinating
Judge and Memorandum Support 15, U.S. Dep State FOIA Litigation Regarding
Emails Certain Former Officials, Case No. 15-mc-01188 (D.D.C.). Regardless how
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
Defendant describes it, this miscellaneous action new lawsuit. suffers from numerous
fatal flaws, not the least which Defendant failure identify any basis for the District
Court subject matter jurisdiction demonstrate why the relief seeks properly the subject miscellaneous action. Defendant also has failed identify any basis for the District Court assert personal jurisdiction over respondents the FOIA requestors who have bought the
lawsuits question. There plainly has been service process, and mere notice action substitute for proper service process. See, e.g., Omni Capital Int Ltd. Rudolf Wolff
Co., 484 U.S. 97, 104 (1987); see also Ibiza Business Ltd. United States, 2010 U.S. Dist.
LEXIS 70903 (D.D.C. July 2010) (RCL) (denying motion for default judgment
miscellaneous action due insufficiency service process). Defendant also failed join
least indispensable parties, namely the district judges against whom they seek relief.
unsurprising that most judges entertaining these Motions Stay filed the past month have
denied them.1 September 17, 2015, the State Department had filed motions stay only lawsuits, not the
identified its consolidation motion. those motions, have already 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 has been held abeyance. See
Minute Order, Judicial Watch, Inc. U.S. Dep Justice, Case No. 15-321 (CKK) (D.D.C.) (Sept. 2015).
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
Most fatal all, however, the complete absence any substantive legal basis for
Defendant claim.2 beyond doubt 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); see also Jones Supreme Court the
United States, 405 Fed. Appx. 508 (D.C. Cir. 2010) (per curium); Prentice United States
District Court, 307 Fed. Appx. 460 (D.C. Cir. 2008) (per curium); Adams United States
District Court, 2014 U.S. Dist. LEXIS 151044 (D.D.C. Oct. 23, 2014); Mason Kahn 2008
U.S. Dist. LEXIS 50258 (D.D.C. June 30, 2008). The Court lacks subject matter
jurisdiction even consider such claim. Klayman, 2013 U.S. App. LEXIS 10148 *2. Klayman, the plaintiff filed action seeking have one district judge issue
injunction against another district judge, among other relief. Then Assistant United States
Attorney Rudolph Contreras now Judge Contreras argued Judge Leon that had
authority issue order Judge Kollar-Kotelly: This Court lacks jurisdiction order
District Judge take judicial action cases pending before that judge. Defendants
Memorandum Support Motion Dismiss Klayman Kollar-Kotelly, al., Case No.
11-1775 (RJL) (D.D.C. Dec. 2011) (ECF No. 11). Judge Leon agreed. Klayman KollarKotelly, 892 Supp.2d 261 (D.D.C. 2012). did the appellate court, which summarily
affirmed. Klayman, 2013 U.S. App. LEXIS 10148 *1. September 2015, Judge Walton also raised concerns about the lack authority anyone, including the
Chief Judge, order another judge consolidate these cases. But least from information heard think
there may some reluctance the part judges along with that because far along the process
and there many different cases different procedural postures that not sure that the judges, because
would have buy in. don know anyone even the chief judge would have the authority order
consolidate the cases, there have buy the part the judges that consolidation would
appropriate. See Transcript Status Conference, Judicial Watch, Inc., U.S. Dep State, Case No. 12-2034
(D.D.C.) (RBW) (Sept. 2015), attached hereto Exhibit 13.
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
Numerous other cases hold likewise. McBryde, 117 F.3d 208 (5th Cir. 1997),
district court judge successfully sought writ mandamus against the chief judge the district
court which sat when the chief judge ordered cases pending before the district judge
reassigned. express implied power granted chief judge affect administratively,
directly indirectly, litigation assigned and pending before another judge the court. Id.
225 (quoting, United States Heath, 103 Supp. (D. Haw. 1952)). Not one case upholds
reassignment pending case chief judge without the consent the presiding judge. Id.
[T]there authority for the undersigned [federal district judge] any other federal district
court judge intervene [the underlying federal district court] action. Cobble Bernanke,
2009 U.S. Dist. LEXIS 33872, (W.D. Ky. April 20, 2009). Applicable law does not grant
either express implied authority chief judge take action litigation which has been
assigned another judge the court. Williams Prison Health Services, 2007 U.S. Dist.
LEXIS 19378, (D. Kan. Mar. 16, 2007). The structure the federal courts does not allow
one judge district court rule directly the legality another district judge acts
deny another district judge his her lawful jurisdiction. Dhalluin McKibbin, 682 Supp.
1096, 1097 (D. Nev. 1988). The undersigned [federal district judge] has authority order
another federal district judge take any action another case. Smith Peterson Paletta,
PLC, 2013 U.S. Dist. LEXIS 83805, (W.D. Mich. June 14, 2013).
The State Department miscellaneous action fails state claim which relief can
granted because the relief the agency seeks that the Chief Judge order another district judge
serve coordinating judge, order many other district judges transfer FOIA
lawsuits the coordinating judge decide common legal, factual, and procedural issues,
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
and then order that the cases transferred back the originally assigned district judges
beyond the power the Court. The Court also does not have the power bind originally
assigned judges the decisions coordinating judge. anything, such process will only
increase the number issues decided, not reduce them, due challenges and disputes over
the lawfulness the process, and create additional delay.
The Guantanamo Bay detainee cases heard this Court following the United States
Supreme Court decision Boumediene Bush, 553 U.S. 723 (2008) are inapposite. The
Court resolved Executive Session designate single judge coordinate and manage some
249 petitions for writs habeas corpus filed Guantanamo Bay detainees. See
Guantanamo Bay Detainee Litig., Misc. No. 08-422 (TFH) (D.D.C. July 2008) (ECF No. 1),
Order 1-2 and Exh. Resolution the Executive Session, U.S. District Court for the District Columbia (July 2008). The Court Executive Session resolution was administrative act,
not judicial act. party lawsuit filed motion invoking the Court judicial power
order relief. district judge was ordered another district judge serve coordinating
judge transfer cases pending before him her, and two district judges even opted out
the coordination process. The fact that two judges could opt out this coordination process
further confirms that the process was consensual, voluntary process, not court-ordered relief.
Local Civil Rules 40.5(c) and 40.6(a) not provide legal basis for the relief the State
Department seeks. Both rules make clear that the assignment and transfer processes they
establish are effectuated only with the consent the judges involved. Neither rule authorizes
one district judge order another district judge transfer case, accept case assignment,
serve coordinating judge. Local Civil Rule 40.7(h) only expresses general terms the
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
administrative authority the chief judge. not grant additional judicial authority the
chief judge, nor does contradict overrule the well-established, constitutionally-based
principle that neither chief judge nor district judge has express implied authority order
action taken litigation assigned another district judge.
Finally, before the State Department initiated this action, Judicial Watch asked
identify the legal basis for the action. could not so. The State Department responded,
There precise rule that provides for what are seeking. Since will filing notice
with the motion attached each case, all (sic) judges and plaintiffs will receive notice,
and the Court will able respond sees fit. See Exhibit continued, will,
course, follow directions from the Court turns out miscellaneous action inappropriate.
Id. short, the State Department knew its miscellaneous action had basis law certainly
none that could identify but proceeded nonetheless. The action will likely dismissed for
failure state claim under Rule 12(b)(6), or, alternatively, the motion will likely denied. Indefinite Stay Inappropriate.
Notwithstanding Defendant failure meet and confer with Plaintiff the fact that its
coordination motion unlikely succeed, indefinite stay still inappropriate. First all,
the only current deadlines this case State Department production responsive records
from its internal components (the non-55,000 pages) which due October 23, 2015, after
which the parties will file Joint Status Report discuss whether briefing necessary
November 2015. appears the defendant not requesting stay the October 23, 2015
production date, although that not entirely clear from State motion. any event, Plaintiff
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
believes any indefinite stay the October 23, 2015 production date which State itself
proposed would unjustified and unsupportable. See ECF No. for the November 2015 Joint Status Report, the purpose this report for the
parties inform the Court whether any issues require summary judgment briefing. the
present case, the Defendant has already informed this Court that questions concerning the search
for any allegedly missing records have already been briefed the summary judgment stage
other FOIA cases:
THE COURT: ...In that [FOIA] case, the government reached out former
employees secure official documents?
MR. RIESS: Yes, believe that right. They filed summary judgment motion
No. 14-1242 July believe. that case was actually more advanced
stage.
THE COURT: the representations about who was former employees that
were reached out was the context declarations for summary judgment?
MR. RIESS: believe that correct, Your Honor.
ECF No. Hearing Tr. 8:4-13. Accordingly, unclear why such questions about the
adequacy search under FOIA would not unique each lawsuit based the type records
sought, why such questions could not resolved this Court (or other courts) summary
judgment. connection with this point, bears consideration that the judges this Court routinely
rule summary judgment motions FOIA cases where the disputed legal issues are similar
other pending cases before other judges. Defendant suggestion for specially-convened
FOIA Court resolve what are fundamentally routine FOIA matters even ones which attract unusual amount media attention could principle apply not only the present State
Department FOIA cases, but many other FOIA disputes well, well any other matters routine and repetitive nature with common questions law federal narcotics prosecutions,
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
taxation litigation, etc. Nevertheless, appears that Defendant believes stay necessary the
ordinary summary judgment FOIA question search sufficiency can now taken away from
this Court and referred another judge. explained above (pp. 1-2, supra), this FOIA case has proceeded quite far since was
filed May 2015. The parties have been regular contact and engaged negotiations over
the issues search and production this lawsuit, and those efforts have resulted six (6) status
reports this case since May, many them joint filings which Plaintiff drafted co-drafted.
Throughout the course this lawsuit, undersigned counsel for Plaintiff has invested many hours
prosecuting and arguing the unique factual and procedural issues this case with opposing
counsel and before this Court. The parties have already appeared before this Court for hearing address early disputes that arose this case, including whether the parties were required
confer about preservation (which they have since done), and the State Department duty
preserve records under FOIA. ECF No. Hearing Tr. And only eleven days ago, September
10, 2015, the parties submitted Joint Filing informing the Court their agreement that the
search least one component (the 55,000 page set) was now complete with respect this
lawsuit. ECF No. 17. Accordingly, Defendant request stay the September 10, 2015 deadline now moot. ECF No. And indefinite stay the remaining deadlines this case unreasonable and inappropriate, would bring halt the progress already made towards final resolution Plaintiff claims.
Defendant provides evidence whatsoever demonstrating that stay necessary
address remaining issues this case. Plaintiff seeks less and more than what FOIA
requires. Defendant agrees that must search recently-returned agency records satisfy its
Case 1:15-cv-00688-RC Document Filed 09/21/15 Page
FOIA obligations this case, Plaintiff amenable discussing reasonable schedule for
completion this task. But Defendant seeks indefinite stay this litigation that
coordinating judge can appointed oversee the completion task Defendant denies has
any obligation undertake, this would suggest that Defendant motion baseless.
VI.
Conclusion.
For the foregoing reasons, Defendant motion for stay should denied.
Dated: September 21, 2015
Respectfully submitted,
JUDICIAL WATCH, INC. Chris Fedeli
Chris Fedeli
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
cfedeli@judicialwatch.org
Attorney for Plaintiff
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
EXHIBIT
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
Chris Fedeli
From:
Sent:
To:
Cc:
Subject:
Prince, Robert (CIV) 
Tuesday, September 01, 2015 9:38
Ramona Cotca; Paul Orfanedes; Michael Bekesha; Jason Aldrich; Lauren Burke; Chris
Fedeli
Elliott, Stephen (CIV); Edney, Marsha (CIV); Wechsler, Peter (CIV); Todd, James (CIV);
Thurston, Robin (CIV); Carmichael, Andrew (CIV); Anderson, Caroline (CIV); Olson,
Lisa (CIV); Riess, Daniel (CIV)
Seeking Judicial Watchs Position Motion Designate Coordinating Judge and
Corresponding Stay Motions cases State Department
Dear counsel,
This email reference the following cases:
Judicial Watch U.S. Dept State, al., Civil No. 893 (JDB)
Judicial Watch U.S. Dept Defense, al, Civil No. 812 (KBJ)
Judicial Watch U.S. Dept State, Civil No. 2034 (RW)
Judicial Watch U.S. Dept State, Civil No. 1363 (EGS)
Judicial Watch U.S. Dept State, Civil No. 772 (CKK)
Judicial Watch U.S. Dept State, Civil No. 1242 (RCL)
Judicial Watch U.S. Dept State, Civil No. 1511 (ABJ)
Judicial Watch U.S. Dept State, Civil No. 1128 (EGS)
Judicial Watch U.S. Dept State, Civil No. 321 (CKK)
Judicial Watch U.S. Dept State, Civil No. 646 (CKK)
Judicial Watch U.S. Dept State, Civil No. 684 (BAH)
Judicial Watch U.S. Dept State, Civil No. 687 (JEB)
Judicial Watch U.S. Dept State, Civil No. 688 (RC)
Judicial Watch U.S. Dept State, Civil No. 689 (RDM)
Judicial Watch U.S. Dept State, Civil No. 691 (APM)
Judicial Watch U.S. Dept State, Civil No. 692 (APM) seek your position two motions. First, the Department State intends file motion with the Chief Judge seeking
designation coordinating judge for resolution and management common issues law, fact, and procedure across
numerous FOIA suits, including these cases, that implicate the search and production documents that were provided the Department former Secretary State Hillary Clinton and, the extent applicable, certain other former
employees (Cheryl Mills, Huma Abedin, Jacob Sullivan, and Phillippe Reines). each case, the transferring judge would
retain the case for all other purposes, including searches for responsive records other than the provided
documents. The motion envisions coordination common issues such the scheduling searches the recently
provided documents, requests for information and discovery about those documents, and requests for orders relating
preservation.
This coordination motion will filed miscellaneous action. Once filed, the Department will file notice each the above listed cases, along with copy the motion itself.
Second, the Department will filing motion each the above listed cases seeking stay those portions each
case addressing the documents provided the Department former Secretary Clinton and the other former
employees until the coordination motion decided, and, granted, until the coordinating judge issues order
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
determining how proceed the cases listed that motion. The stay sought would not affect those portions the
cases that deal with the search and production other documents.
Could you please let know your position with respect each above listed case today?
Best,
Rob
Robert Prince
Trial Attorney
U.S. Department Justice, Civil Division
Federal Programs Branch
(202) 305 3654
The information this transmittal (including attachments, any) intended only for the recipient(s) listed above and contains
information that confidential. Any review, use, disclosure, distribution, copying this transmittal prohibited except
behalf the intended recipient. you have received this transmittal error, please notify immediately and destroy all copies
the transmittal. Your cooperation appreciated.
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
EXHIBIT
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
Paul Orfanedes
From:
Sent:
To:
Subject:
Shapiro, Elizabeth (CIV) Elizabeth.Shapiro@usdoj.gov>
Thursday, September 03, 2015 11:17
Paul Orfanedes; Berman, Marcia (CIV)
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 message had written, Apologies.
From: Paul Orfanedes [mailto:POrfanedes@JUDICIALWATCH.ORG]
Sent: Thursday, September 03, 2015 11:07
To: Shapiro, Elizabeth (CIV); Berman, Marcia (OV)
Subject: FW: Seeking Judicial Watchs Position 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 a.m.
yesterday. sent him this email 1:51 p.m. and second 4:04p.m., which sending you separately. received
response either email.
PJO
From: Paul Orfanedes
Sent: Wednesday, September 02, 2015 1:51
To: Prince, Robert (CIV)
Subject: RE: Seeking Judicial Watchs Position Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
Robert:
Wed also like see these cases move forward more efficiently and expeditiously, but not sure how your proposal
does that. Maybe not understanding your concerns.
Your proposed order would have the coordinating judge resolve and manage allissues law, fact, and procedure
regarding the search and production responsive records within the recently provided documents. your concern
coming with order for completing searches the 55,000 Clinton emails between now and the January 29, 2016
date set Judge Contreras, were happy that for our cases, and would try way that
accommodates the other requestors 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 informed 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 materials such that makes sense include
them all your proposal. sure the judges our various cases also would not object reasonable, agreed,
coordinated production schedules. your concern something broader than completing searches the 55,000 Clinton ails and the Abedin, Mills,
Reines, and Sullivan materials, what would your proposal leave for the originally assigned judges decide? For
example, 14-1242, which before Judge Lamberth, State moved for summary judgment and filed Rule 56(
motion response. Would your proposal take those motions away from Judge Lamberth and put them hold? so,
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
for how long7 What about Judge Sullivans order 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
clear that within outside your proposal even issue all16 our cases, all30 +cases you
seek include your proposal -we 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
disputes- and more delay- about what within outside the scope the referral the coordinating judge, what
stiil within the purview the originally assigned judge, how these disputes will resolved, etc. could end
wasting least diminishing the substantial 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 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 Chief Judge light the Courts rule?
PJO
From: Prince, Robert (CIV) [mallto:RQ.bert.Prince@usdol.gQY]
Sent: Wednesday, September 02, 2015 11:01
To: Paul Orfanedes
Subject: RE: Seeking Judicial Watchs Position Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
Paul,
The plan seek coordinate 30+ cases specific list will included the motion)
What were proposing actually very simple. plan leave the involved questions the coordinating judge, whom
assume would seek input from the parties. Ive attached the proposed order and, you can see, simply asks for the
designation coordinating judge resolve and manage issues law, fact, and procedure arising the
Coordinated Cases from the search and production respons ive 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 information and discovery about those documents, and
requests for orders relating preservation); the motion explains why the Court and the parties would benefit from
coordination these 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 (all but one whom have responded with position statement include the
motion), not feasible engage detailed discussions about how these cases will proceed once coordinated. This
one the reasons that our motion contemplates that the coordinating judge resolve the detailed, involved questions,
with input from all parties. Weve described the relief are seeking; discussing questions not addressed the motion
are not necessary meaningfully confer.
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
Regarding the use miscellaneous action, there precise rule that provides for what are seeking, which not
traditional consolidation. Since will filing notice with the motion attached each case, all17 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.
Rob
Robert Prince
Trial Attorney
U.S. Department Justice, Civil Division
Federal Programs Branch
(202) 305-3654
The information this transmittal (including attachments, any) intended only for the recipient(s) listed above and contains
information that confidential. Any review, use, disclosure, distribution, copying this transmittal prohibited except
behalf the intended recipient. you have received this transmittal error, please notify immediately and destroy all copies
the transmittal. Your cooperation appreciated.
From: Paul Orfanedes [mailto:POrtanedes@JUDlC!ALWATCH.QRGJ
Sent: Tuesday, September 01, 2015 9:26
To: Prince, Robert (OV)
Subject: RE: Seeking Judicial Watchs Position Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
Robert: familiar with miscellaneous actions relating discovery subpoenas, administrative subpoenas, judgment
enforcement, registration foreign judgments, etc. Frankly, Ive never heard party ongoing lawsuit opening
miscellaneous action the same court move for the designation coordinating judge. order better
understand what you propose, can you explain, preliminary matter, how you settled this particular
procedure? What rule statute are you relying on? recall that coordinating judge was designated for the
Guantanamo Bay detainee cases, but was understanding that was done administratively the court think
was resolution the Executive Session- not party motion. Also, which other cases you propose include this miscellaneous action? All so? indicated previously, what you propose involved question and its
going take some time for even understand it. sure well have more question, but dont think can say
weve met and conferred unless understand better.
Elizabeth Shapiro told Judge Contreras July And there are approximately various stages and various
forms. There are difficulties terms how they would consolidated, and since some them are different claims,
there are different parties, there are different stages. the mechanics that have eluded date, but havent
given the idea. asked her after the hearing DOJ wanted try talk about it. There was real response,
and never heard anything further until your email this morning. Not only not understand what you are
proposing, but 1dont understand why there seems sudden rush file something.
PJO
From: Prince, Robert (CIV) llto :Robert. rlnce@ sdoi~Q.QY]
Sent: Tuesday, September 01, 2015 3:44
To: Paul Orfanedes; Ramona Cotca; Michael Bekesha; Jason Aldrich; Lauren Burke; Chris Fedeli
Cc: Elliott, Stephen (CIV); Edney, Marsha (CIV); Wechsler, Peter (CIV); Todd, James (CIV); Thurston, Robin (CIV);
Carmichael, Andrew (CIV); Anderson, Caroline (CIV); Olson, Lisa (CIV); Riess, Daniel (CIV)
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 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 prefer, needs see motion before taking
position)?
F.rorn: Paul Orfanedes [matlto:POrfanedes@JUDlOALWATCH.ORG]
Sent: Tuesday, September 01, 2015 10:43
To: Prince, Robert (CIV); Ramona Cotca; Michael Bekesha; Jason Aldrich; Lauren Burke; Chris Fedeli
cc: Elliott, Stephen (CIV); Edney, Marsha (CIV); Wechsler, Peter (CIV); Todd, James (CIV); Thurston, Robin (CIV);
carmichael, Andrew (CIV); Anderson, caroline (CIV); Olson, Lisa (CIV); Riess, Daniel (CIV)
Subject: RE: Seeking Judicial Watchs Position Motion Designate Coordinating Judge and Corresponding Stay
Motions cases State Department
Robert:
Well give some thought. wont decide your 4:00p.m. deadline. this point, its more involved question
than that.
PJO
From: Prince, Robert (CIV) [Olallto:Robert.Ptihce@us.doj,g_q_y]
Sent: Tuesday, September 01, 2015 9:38
To: Ramona Cotca; Paul Orfanedes; Michael Bekesha; Jason Aldrich; Lauren Burke; Chris Fedeli
Cc: Elliott, Stephen {CIV); Edney, Marsha (OV); Wechsler, Peter (CIV); Todd, James (CIV); Thurston, Robin (CIV);
carmichael, Andrew (CIV); Anderson, Caroline (CIV); Olson, Usa (CIV); Riess, Daniel (CIV)
Subject: Seeking Judicial Watchs Position Motion Designate Coordinating Judge and Corresponding Stay Motions cases State Department
Dear counsel,
This email reference the following cases:
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
Judicial Watch
U.S. Dept State, al., Civil No. 12-893 (JOB)
U.S. Dept Defense, al, Civil No. 14-812 (KBJ)
U.S. Dept State, Civil No. 12-2034 (RW)
U.S. Dept State, Civil No. 13-1363 (EGS)
U.S. Dept State, Civil No. 13-772 (CKK)
U.S. Dept State, Civil No. 14-1242 (RCL)
U.S. Dept State, Civil No. 14-1511 (ABJ)
U.S. Dept State, Civil No. 15-1128 (EGS)
U.S. Dept State, Civil No. 15-321 (CKK)
U.S. Dept State, Civil No. 15-646 (CKK)
U.S. Dept State, Civil No. 15-684 (BAH)
U.S. Dept State, Civil No. 15-687 (JEB)
U.S. Dept State, Civil No. 15-688 (RC)
U.S. Dept State, Civil No. 15-689 (RDM)
U.S. Dept State, Civil No. 15-691 (APM)
U.S. Dept State, Civil No. 15-692 (APM) seek your position two motions. First, the Department State intends file motion with the Chief Judge seeking
designation coordinating judge for resolution and management common issues law, fact, and procedure across
numerous FOIA suits, including these cases, that implicate the search and production documents that were provided
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page the Department former Secretary State Hillary Clinton and, the extent applicable, certain other former
employees (Cheryl Mills, Huma Abedin, Jacob Sullivan, and Phillippe Reines). each case, the transferring judge would
retain the case for ail other purposes, including searches for responsive records other than the provided
documents. The motion envisions coordination common issues such the scheduling searches the recently
provided documents, requests for information and discovery about those documents, and requests for orders relating
preservation.
This coordination motion will filed miscellaneous action. Once filed, the Department will file notice each the above-listed cases, along with copy the motion itself.
Second, the Department will filing motion each the above-listed cases seeking stay ofthose portions each
case addressing the documents provided the Department former Secretary Clinton and the other former
employees until the coordination motion decided, and, granted, until the coordinating judge issues order
determining how proceed the cases listed that motion. The stay sought would not affect those portions the
cases that deal with the search and production other documents.
Could you please let know your position with respect each above-listed case today?
Best,
Rob
Robert Prince
Trial Attorney
U.S. Department Justice, Civil Division
Federal Programs Branch
(202) 305-3654
The information this transmittal (including attachments, any) Intended only for the recipient(s) listed above and contains
Information that confidential. Any review, use, disclosure, distribution, copying this transmittal prohibited except
behalf the intended recipient. you have received this transmittal error, please notify immediately and destroy all copies
the transmittal. Your cooperation appreciated.
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
EXHIBIT
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.
Plaintiff,
vs.
U.S. DEPARTMENT STATE
Defendant.
Docket No. 12-2034
Washington, D.C.
September 2015
9:33 a.m.
TRANSCRIPT STATUS CONFERENCE
BEFORE THE HONORABLE JUDGE REGGIE WALTON
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiff:
Chris Fedeli, Attorney-at-Law
Paul Orfanedes, Attorney-at-Law
Tom Fitton, Attorney-at-Law
JUDICIAL WATCH, INC.
425 third Street, Suite 800
Washington, 20024
For the Defendant:
Elizabeth Shappiro, Attorney-at-Law
Marsha Edney, Attorney-at-Law
U.S. DEPARTMENT JUSTICE
Civil Division
P.O. Box 883
Washington, 20044
Court Reporter:
Cathryn Jones, RPR
Official Court Reporter
Room 6521, U.S. District Court
333 Constitution Avenue, N.W.
Washington, D.C. 20001
Proceedings recorded machine shorthand, transcript
produced computer-aided transcription.
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
THE DEPUTY CLERK:
Civil Action Number 12-2034,
Judicial Watch, Inc. versus U.S. Department State.
Counsel, can you come forward and identify yourselves for
the record.
MR. FEDELI:
Good morning, your Honor.
Chris
Fedeli for the plaintiffs Judicial Watch.
THE COURT:
MS. SHAPPIRO:
Good morning.
Good morning, your Honor.
Elizabeth Shappiro behalf the Department State and
with Marsha Edney.
THE COURT:
Good morning.
How you all propose deal with this case?
out one point, but the parties ask reopened based
upon the revelation that there had been some additional,
actually large number emails that had been identified
that may subject disclosure pursuant this case.
But there are understand, dont how many, but
number other cases also pending this court before
other judges.
those cases least one them, all the documents
being requested this case would encompassed the
production least one the cases. you know, this case was closed
And understand least some wrong that regard?
MR. FEDELI:
Yes. can address that briefly.
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
MS. SHAPPIRO:
speculation.
But what hes suggesting wild
Has basis think they exist elsewhere.
THE COURT:
Well, unfortunately, this private
server had not been used wouldnt this situation.
MS. SHAPPIRO: understand that, your Honor.
are, the government trying cope the best can with
these circumstances.
lengths reopen cases like these ensure that searches
are done pursuant FOIA, and remedy the FOIA situation
And have really gone, taken great
the best that can, which what were here this court
about.
records.
production process putting all them online.
Thats why asked former employees return
Thats why are undergoing this enormous
THE COURT:
Whats your position regarding the
plaintiffs request for some type order from this court
related that 31,000-plus documents which assume are
documents that former secretary Clinton concluded were
private documents and therefore, not subject disclosure?
MS. SHAPPIRO: would oppose because dont
know how could comply with such order, one. think the court should stay its hand entirely because
theres motion pending appoint coordinating judge who
would deal with all these sorts issues across all
the cases.
THE COURT:
And two, dont know how successful youll
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page reference that.
it.
may some reluctance the part judges along
with that because were far along the process and
theres many different cases different procedural
postures that not sure that the judges, because would
have buy in.
judge would have the authority order consolidate
the cases, thered have buy the part the can understand why you would want
But least from information Ive heard think there dont know anybody even the chief
judges that consolidation would appropriate.
least from what Ive heard there may some reluctance that because the cases are different postures and this
request wasnt made earlier.
MS. SHAPPIRO:
Right.
And guess would just say
that least two judges have expressed desire have
some sort coordination.
consolidation because the very reasons you cite.
just coordination these particular search and discovery
issues and courts
THE COURT:
What were asking for not
But mean that may make sense this
case since are early the process.
process had been halted based upon the parties
understanding what the status the matter was late,
back think was May.
What you propose?
Because the mean, obviously the
Case 1:15-cv-00688-RC Document 18-1 Filed 09/21/15 Page
CERTIFICATE Cathryn Jones, Official Court Reporter
for the United States District Court the District
Columbia, hereby certify that reported, machine
shorthand, the proceedings had and testimony adduced the
above case. further certify that the foregoing pages
constitute the official transcript said proceedings
transcribed from machine shorthand notes. witness whereof, have hereto subscribed
name, this the 8th day September, 2015.
/s/_Cathryn Jones
Cathryn Jones, RPR
Official Court Reporter
Case 1:15-cv-00688-RC Document 18-2 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. 1:15-cv-00688 (RC)
[PROPOSED] ORDER
Upon consideration Defendant Motion Stay Pending Resolution Its Motion for
Designation Coordinating Judge, Plaintiff Opposition thereto, any reply, oral argument, and
the record herein, hereby
ORDERED that Defendant Motion Stay Pending Resolution Its Motion for
Designation Coordinating Judge DENIED.
Dated: _____________
Rudolph Contreras
U.S. District Court Judge