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Judicial Watch • Joint Status Report – June 19 2015 1511

Joint Status Report – June 19 2015 1511

Joint Status Report – June 19 2015 1511

Page 1: Joint Status Report – June 19 2015 1511

Category:Legal Document

Number of Pages:10

Date Created:June 19, 2015

Date Uploaded to the Library:June 30, 2015

Tags:1511, Judgment, Joint, Sullivan, summary, 2015, search, email, service, justice, September, Hillary Clinton, Benghazi, Secretary, defendant, clinton, filed, Obama, State Department, plaintiff, document, records, FOIA, department, office, court, report, CIA


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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
____________________________________)
Civil Action No. 14-cv-1511 (ABJ)
JOINT STATUS REPORT
Plaintiff Judicial Watch, Inc. and Defendant U.S. Department State, counsel and
pursuant the Court June 2015 minute order requiring the parties jointly propose
schedule for further proceedings, any, June 19, 2015, respectfully submit this Joint Status
Report: June 13, 2014, Plaintiff submitted Freedom Information Act FOIA
request Defendant requesting that the Office the Secretary produce the following records:
Any and all records concerning, regarding, related notes,
updates, reports created response the September 11, 2012
attack the U.S. Consulate Benghazi, Libya. This request
includes, but not limited to, notes taken then Secretary
State Hillary Rodham Clinton employees the Office the
Secretary State during the attack and its immediate aftermath.
The time frame the request was identified September 11-15, 2012.
Plaintiff initiated the above-captioned lawsuit September 2014, and
Defendant answered October 10, 2014.
Defendant subsequently conducted search the Office the Secretary and
identified 403 records responsive the request. these 403 responsive records, 320 were
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
produced without redactions, were produced with redactions, and were withheld full.
Defendant cited FOIA Exemptions and redacting withholding responsive records.
Defendant released those records not withheld full Plaintiff series four rolling
productions. addition, Defendant searched the collection approximately 30,000 emails,
comprising approximately 55,000 pages, provided Defendant former Secretary State
Hillary Rodham Clinton. Defendant released responsive records from this collection and
provided Plaintiff with link Defendant FOIA website where the records can accessed.
Portions these records have been withheld under FOIA Exemptions and Defendant has
not stated whether identified any responsive records from this collection that are being
withheld under claim exemption.
Plaintiff recommends that the Court order Defendant conduct additional
searches and provide Plaintiff with certain information; Defendant recommends that the Court
adopt briefing schedule. The parties also submit the following further statements support
their respective positions:
Plaintiff Further Statement
Plaintiff objects Defendant assertion that has completed its search for
records responsive the request. light the extraordinary and unprecedented revelations
March 2015 that Mrs. Clinton exclusively used one more non- state-gov email addresses
conduct official business during her tenure secretary state and least four Mrs.
Clinton closest advisors, Cheryl Mills, Philippe Reins, Jacob Sullivan, and Huma Abedin,
reportedly used non- state.gov email addresses conduct least some official business,1
Michael Schmidt, Clinton Emails Benghazi, Rare Glimpse Her Concerns,
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
FOIA obligates Defendant more than simply search the Office the Secretary and review
the 55,000 pages emails subsequently made available Mrs. Clinton. Not only does the
request directly concern Mrs. Clinton email communications, but records already produced
Defendant demonstrate that Ms. Mills, Mr. Reins, and Mr. Sullivan communicated email
about the subject matter the request Defendant response the September 11, 2012
terrorist attack the U.S. Consulate Benghazi, Libya. Under the circumstances, limiting the
search the Office the Secretary and the 55,000 pages produced Mrs. Clinton was not
reasonably calculated uncover all relevant documents.2
Specifically, Defendant should ordered the following, minimum,
fulfill its FOIA obligations:
Identify Plaintiff and the Court all State Department officials who used
clintonemail.com email addresses conduct official business and the addresses used each
official;
Identify Plaintiff and the Court all devices (desktop computers, laptop
computers, tablets, iPads, Blackberries, smart phones, etc.) used the officials identified
response paragraph and any disk image, clone, duplication backups such devices;
Search all devices and any disk image, clone, duplication backups
any devices identified response paragraph
New York Times, (March 23, 2015). agency fulfills its obligations under FOIA can demonstrate beyond material
doubt that its search was reasonably calculated uncover all relevant documents. ValenciaLucena Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt Dep State, 897
F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg Dep Justice, F.3d 548, 551 (D.C.
Cir. 1994). The adequacy agency search for documents under FOIA judged
standard reasonableness and depends, not surprisingly, upon the facts each case. Weisberg Dep Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
Search all State Department email accounts for emails sent received
from clintonemail.com email addresses;
Search all paper and electronic records Ms. Mills, Ms. Reins, Ms.
Sullivan, Ms. Abedin, and any other State Department officials who used clintonemail.com
email addresses conduct official business;
Search all paper and electronic records the Executive Secretariat; and
Search the server that hosted the clintonemail.com email addresses used Mrs. Clinton, Ms. Mills, Mr. Reins, Mr. Sullivan, and Ms. Abedin, any disk image, clone,
duplication the server hard drive, and any backup tapes.3
Plaintiff submits that there reason delay initiation these additional,
remedial search efforts, much less wait until summary judgments motions are fully briefed and
adjudicated which, under Defendant proposed briefing schedule would not likely until
spring 2016 the earliest. Defendant does not deny that Mrs. Clinton set and used her own
email server for her official communications and for the official communications some her
top advisors. Defendant also readily admits that limited its search records the Office
the Secretary and the collection emails produced Mrs. Clinton. Mrs. Clinton was
Defendant head the time she set and used her own email server for her official
communications and those her top advisors, her actions must attributed Defendant.
was Defendant that created this extraordinary and unprecedented situation directly affecting
While Mrs. Clinton counsel, David Kendall Williams Connolly LLP, has asserted
that there are hdr22@clintonemail.com emails from Secretary Clinton tenure secretary state the server for any review, Mrs. Clinton reportedly used least two clintonemail.
com addresses (hrd22@clintonemail.com and hrod17@clintonemail.com), and her counsel
comments did not address the emails the other State Department officials any disk images,
clones, duplication the server hard drive any backup tapes. See Michael Schmidt, Copies Clinton Emails Sever, Lawyer Says, New York Times (March 27, 2015).
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
Defendant response Plaintiff FOIA request, and Defendant must required remedy
forthwith, not year the future.4 Nor are costly and time consuming summary
judgment motions the only mechanism available the Court provide relief. The Court has
ample inherent power act.
Plaintiff also objects the lack information provided Defendant about the
use non- state.gov email addresses Mrs. Clinton and several her closest advisors
conduct official business and the obvious impact that use Defendant response the
request. Mrs. Clinton readily acknowledges that her use non- state.gov email address was
widely known the over 100 Department and U.S. Government colleagues she emailed. Even
President Obama exchanged email with Mrs. Clinton using her clintonemail.com email
address.6 Yet point did Defendant apprise Plaintiff the Court about Mrs. Clinton use non- state.gov email address how that use undoubtedly affected Defendant search efforts.
After the March 2015 revelation, Plaintiff made three requests Defendant March
2015, April 10, 2015, and again May 27, 2015 for information about the use. The only
response Plaintiff received was boilerplate assertion that Defendant was conducting searches
and performing reviews reasonably calculated uncover all documents its possession and
control and that may have significant additional information share before its final
FOIA creates statutory duty search for and produce responsive documents timely
manner. U.S.C. 552(a)(6)(A).
Hillary Clinton, Statement from the Office Former Secretary Clinton (March 10,
2015), available http://insider.foxnews.com/2015/03/10/read-hillary-clintons-office-releasesqa-email-controversy.
Devin Dwyer, President Obama Knew Hillary Clinton Private Email Address, But Not
Details Server, ABC News (March 2015).
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
production. such information was ever provided.7 Defendant failure provide basic
information Plaintiff has caused needless delay and hindered the ultimate resolution this
lawsuit, which Defendant own proposed briefing schedule bears out. Had Defendant provided
Plaintiff with timely, meaningful information about the email server, least some the present
dispute over remedial search efforts could have been avoided resolved more timely
manner. Going forward, Defendant should required provide regular, substantive updates
Plaintiff and the Court about its efforts satisfy its FOIA obligations. See, e.g., Order, Judicial
Watch, Inc. Internal Revenue Service, Case No. 13-1559 (D.D.C. July 10, 2014) (requiring
agency submit declarations about its effort recover allegedly lost email responsive
FOIA request); Order, Judicial Watch, Inc. Internal Revenue Service, Case No. 13-1559
(D.D.C. Aug. 14, 2014) (requiring agency submit further declarations about its effort
recover allegedly lost email responsive FOIA request).
10.
Plaintiff also objects Defendant proposed briefing schedule. While Plaintiff
submits that summary judgment should held abeyance until adequate, remedial search
efforts have been completed, only records have been withheld full part. Creating
Vaughn Index for this relative handful records should not require such lengthy briefing
schedule. Plaintiff also willing accept draft Vaughn Index order try narrow
disputes over claims exemption.
Plaintiff does not understand Defendant references discovery. Plaintiff requests for
information about Defendant search efforts following the March 2015 revelations about Mrs.
Clinton email practices and the practices her top advisors was not fact discovery under Rule
26. Nor Plaintiff request kept apprised additional, remedial search efforts. They
were (and are) reasonable efforts Plaintiff try advance this litigation efficient and
expeditious manner.
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
Defendant Further Statement
11.
Defendant believes has conducted search[es] reasonably calculated uncover
all relevant documents its custody and control. Weisberg Department Justice, 705 F.2d
1344, 1350-51 (D.C. Cir. 1983). Plaintiff disagrees. The appropriate way proceed for the
parties file motions for summary judgment and follow-up briefs present the Court,
fully fleshed out and researched manner, the factual and legal arguments support each
party positions. Defendant therefore respectfully proposes the following briefing schedule:
(a)
Defendant summary judgment motion due October 2015;8
(b)
Plaintiff opposition motion for summary judgment, and any cross-motion for
summary judgment, due November 13, 2015;
(c)
Defendant combined reply and opposition any cross-motion for summary
judgment due December 11, 2015;
(d)
Plaintiff reply support any cross-motion for summary judgment due
January 2015. support its recommendation, Defendant states the following:
12.
Rather than propose schedule for further proceedings, Plaintiff has instead
sought extraordinary relief from the Court. First, has asked the Court order Defendant
produce discovery. See 7.A-B, supra. Second, has asked the Court order Defendant
conduct additional searches. See 7.C-G. Such requests for relief are inappropriate without
written motion that states with particularity the grounds for seeking the order, see Fed. Civ.
Because the number documents from which information has been withheld pursuant the FOIA, and because the complex issues Plaintiff raises regarding the adequacy the
search, Defendants estimate that will take until September 2015 for the Department State produce search declaration and Vaughn index explaining the basis for withholdings from
responsive documents.
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
7(b), and, under this Court local rules, without proposed order, Local Civil Rules 7(c),
statement specific points law and authority included with the motion, id. 7(a), and time for
Defendant file written opposition, id. 7(b). Plaintiff should not seek, nor granted, relief
without filing proper motion. Moreover, Plaintiff requests for discovery and additional
searches via status report, rather than via written motion, are particularly inappropriate
FOIA case before summary judgment briefing.
13.
Discovery granted only rarely FOIA cases, and only after Defendant has
submitted declarations and Plaintiff has made some showing that those declarations are
inadequate submitted bad faith.9 Schrecker U.S. Dep Justice, 217 Supp. 29,
(D.D.C. 2002) aff 349 F.3d 657 (D.C. Cir. 2003). Plaintiff has not indeed, could not
possibly have, given that seeks deny Defendant the opportunity submit its declarations
before discovery ordered made showing sufficient impugn [defendant affidavits
declarations, provide[ed] some tangible evidence that exemption claimed [defendant]
should not apply summary judgment otherwise inappropriate. Carney United States
Dep Justice, F.3d 807, 812 (2d Cir.1994) (citing Goland CIA, 607 F.2d 339, 355
(D.C.Cir.1978)). Rather than seeking discovery via status report, Plaintiff should present any
objections may have concerning the search declarations when opposes Defendant motion
for summary judgment and, that time, cross-move for discovery. See Miscavige I.R.S.,
F.3d 366, 369 (11th Cir. 1993) (finding that [g]enerally, FOIA cases should handled
motions for summary judgment rejecting plaintiff early attempt litigate discovery
Plaintiff expresses confusion over the characterization its request for information
discovery. Plaintiff seeks information support its argument that additional searches should
conducted; that is, information relevant [its] claim. See Fed. Civ. 26(b)(1) (defining
the scope discovery).
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
before the government has first had chance provide the court with the information
necessary make decision
14.
Plaintiff attempt short-circuit the summary judgment briefing process even
more improper with respect the searches requests. The relief Plaintiff seeks goes central
issue any FOIA case, the adequacy the search for responsive records, issue that
typically resolved summary judgment. summary judgment, [a]n agency fulfills its
obligations under FOIA can demonstrate beyond material doubt that its search was
reasonably calculated uncover all relevant documents. Valencia Lucena Coast Guard,
180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt Dep State, 897 F.2d 540, 542
(D.C.Cir.1990)). Absent contrary evidence, agency declarations that explain the scope and
method its search reasonable detail are sufficient show that agency complied with
FOIA. Perry Block, 684 F.2d 121, 127 (D.C.Cir.1982). And yet Plaintiff seeks extraordinary
relief including order that Defendant seize and search the property private citizen who not party these proceedings, 7.G, supra, and that Defendant search the email accounts many 24,000 employees,10 7.D, supra (demanding Defendant search all State
Department email accounts without any briefing opportunity for Defendant submit
affidavit.
15.
Even the Court believes that the issues Plaintiff raises should addressed
before summary judgment proceedings begin, there should still detailed briefing.
minimum, Plaintiff should required submit proper motion for relief, and Defendant
should allowed enough time file appropriate response.
According the Defendant web site, there are some 13,000 employees the Foreign
Service and more than 11,000 the Civil Service the Department State.
http://careers.state.gov/learn/what-we-do/mission.
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Case 1:14-cv-01511-ABJ Document Filed 06/19/15 Page
16.
For these reasons, Defendant respectfully requests that the Court enter
Defendant proposed briefing schedule allow orderly and comprehensive airing the
issues dispute.
ated: June 19, 2015
Respectfully submitted,
/s/ Paul Orfanedes
PAUL ORFANEDES
D.C. Bar No. 429716
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
porfanedes@judicialwatch.org
Counsel for Plaintiff
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
ELIZABETH SHAPIRO
Deputy Branch Director
/s/ Robert Prince
ROBERT PRINCE
D.C. Bar No. 975545
U.S. DEPARTMENT JUSTICE
Civil Division, Federal Programs Branch Massachusetts Avenue
Washington, 20530
Tel: (202) 305-3654
robert.prince@usdoj.gov
Counsel for Defendant