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Judicial Watch • Judicial Watch v. US Department of State 0688 Status Conference

Judicial Watch v. US Department of State 0688 Status Conference

Judicial Watch v. US Department of State 0688 Status Conference

Page 1: Judicial Watch v. US Department of State 0688 Status Conference

Category:Legal Document

Number of Pages:18

Date Created:July 9, 2015

Date Uploaded to the Library:July 13, 2015

Tags:RIESS, Leopold, honor, Fedeli, shapiro, 2015, documents, Hillary Clinton, Benghazi, clinton, State Department, FOIA, department, Washington, district, court


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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC., Civil Action No. 15-688 (RC)
Plaintiff, STATUS CONFERENCE
vs. Washington,
U.S. DEPARTMENT STATE, Date: July 2015 Time: 10:01 a.m.
Defendant.
___________________________________________________________
TRANSCRIPT STATUS CONFERENCE
HELD BEFORE
THE HONORABLE JUDGE RUDOLPH CONTRERAS
UNITED STATES DISTRICT JUDGE
____________________________________________________________
For the Plaintiff:
Chris Fedeli, Esq.
Judicial Watch
425 Third Street, SW, Suite 800
Washington, 20024
202-646-5172
For the Defendant:
Daniel Riess, Esq.
Elizabeth Shapiro, Esq. Department Justice
Civil Division Massachusetts Avenue,
Washington, 20530
202-353-3098
Also Present:
Tom Fitton, Judicial Watch
Paul Orfanedes
Proceedings reported machine shorthand, transcript
produced computer-aided transcription.
____________________________________________________________
Court Reporter:
Annette Montalvo, CSR, RDR, CRR
Official Court Reporter
United States Courthouse, Room 6722
333 Constitution Avenue,
Washington, 20001
202-354-3111
(WHEREUPON, commencing 10:01 a.m., the
following proceedings were had open court, wit:)
THE COURTROOM DEPUTY:
Judicial Watch Inc. Department State.
Counsel, please step forward the podium and
state your appearance for the record.
Civil Action 15-688.
MR. FEDELI:
Good morning, Your Honor.
Chris
Fedeli for plaintiff Judicial Watch.
THE COURT:
Good morning.
MR. RIESS:
Good morning, Your Honor.
Daniel
Riess for the defendant.
THE COURT:
Good morning.
All right. got status report which the
parties took very differing positions, lets talk about
the various issues.
Who wants first?
You want first since your FOIA
request?
MR. FEDELI:
Yes, Your Honor. what would like talk about three the
four questions posed defense counsel were about
preservation records, the fourth being about search
terms.
Now, ordinarily, FOIA case, never ask
opposing counsel they are preserving records, but there
are very unusual facts underlying this FOIA case.
The request was attempt narrow the issues
and get assurances didnt have come the Court
about preservation issues. provide those assurances wanted make the Court
aware that have concerns about preservations.
they are reasonable concerns, given whats gone and
whats been reported about how documents were managed the
State Department.
very likely include high-level discussions about
Opposing counsel was unwilling think
And feel that the records seek are
conflicts between the Secretary and the Clinton Foundation.
They may the records which have been reported have
been kept off-site and managed unusual ways. reasonable ask for those assurances and get
assurances the records are being preserved. think
And the preservation requirements here believe
are also little bit unusual.
you send out memo saying, Please, nobody delete
anything. required for defendant make assurances that all
records are being preserved.
outlined the questions posed.
Ordinarily, preservation this case, think active steps are going
THE COURT:
Okay.
And those active steps Ive
Now, with respect whatever
areas, any, the parties may agreement on, there
anything about the governments proposal that you think you
can live with?
MR. FEDELI: thought the proposal regarding the
timing the, you know, the initial search and the 250
pages reasonable, assuming, course, obviously, want
that search broad possible and its going
include documents that dont yet know are, you know,
secured and being preserved and have been obtained the
State Department.
filing another case involving the State Department and
Judicial Watch, another FOIA case, that defendant has taken understand two days ago
the steps contacting former officials, three former
officials
THE COURT:
MR. FEDELI:
Which case was that? have right here.
before Judge Lamberth. was case
would like grab that.
THE COURT:
MR. FEDELI:
And have the case number, you would.
This Case No. 14-1242.
And
that filing July
THE COURT:
MR. FEDELI:
THE COURT:
MR. FEDELI:
Are you the party that case?
Judicial Watch the party, yes.
Okay.
And that filing, the State
Department attached declaration indicating they have
already sent letters former State Department officials,
Ms. Mills, Mr. Sullivan, and Ms. Abedin, who were reported using non-state.gov e-mails, and that week ago
two the three had turned over documents the State
Department, work related e-mails.
responsive the FOIA request that case.
And one those was apparently defendant agrees with me, least extent, that there are unusual steps necessary here
for preservation.
you would not pick the phone and start calling former
employees and saying Can you please bring back those
Ordinarily, when you get FOIA request,
documents.
include steps such those.
Here, think the duty preservation would
THE COURT:
government.
Okay.
Let hear from the
Thank you.
Before you get started, the beginning the
Leopold case, which well and which you cited the status report, asked the government whether the
government because theres number these cases out
there now, whether the government plans anything
consolidate these because doesnt make lot sense for
six different judges ordering six different things, certain extent.
Has the government given that any thought?
MR. RIESS: knowledge, Your Honor, there
hasnt been any talk consolidation the cases.
THE COURT:
Okay.
Well, you know, these are
very unusual circumstances, and would not take wild
imagination think that there will some discovery
these FOIA cases, and six different judges start ordering
six different forms discovery, thats going
impossible manage for everybody.
thought. give that some
MR. RIESS: understand, Your Honor. will.
THE COURT:
All right.
MR. RIESS:
Just briefly, with respect the
questions, there are number questions Your Honor
mentioned, there are about, believe, cases last
count, mostly against the State Department, that are seeking
records related the former Secretary Clintons e-mails. least them are brought Judicial Watch
plaintiff.
are propounding questions.
And each one those, least 10, they
And the position have that dont want set precedent.
responsive records and provide them the requester, not beyond that and respond what is, effect,
interrogatories.
THE COURT:
The purpose FOIA search for
Questions about preservation are not
interrogatories, are they?
Isnt that the normal meet and
confer requirement that every party takes the beginning case?
MR. RIESS: civil litigation, believe,
mean, there are litigation holds, but, knowledge,
FOIA cases, have not seen, lets see, request that there preservation records.
proceed that the requester asks for records, conduct the
search and process the documents and provide them.
THE COURT: have seen typically
All right. agency receives
request for documents, and subsequent that point the
documents are destroyed, isnt that violation FOIA?
MR. RIESS:
that, yes, Your Honor. think that could construed
THE COURT: theres some duty preserve, you
have concede that, dont you?
MR. RIESS:
Yes. think, though, this
instance, since are talking about least this case
relatively quick turn over, and the Leopold case are
talking about production rolling basis until January
29, dont think theres realistic expectation that
people are going out and destroy records between now
and then.
Clinton e-mails, weve client has said they can
perform the search mid August.
just they dont know the number the volume responsive
documents, and they have asked for little bit leeway,
depending how many documents turns out not related
And the extent this thats not seeking
And the only question
the e-mails that are responsive.
THE COURT:
Okay.
Counsel for Judicial Watch
mentioned this case front Judge Lamberth, which
unfamiliar with. former employees secure official documents? that case, the government reached out
MR. RIESS:
Yes, believe thats right.
They
filed summary judgment motion No. 14-1242 July
believe.
stage. that case was actually more advanced
THE COURT: the representations about who
was former employees that were reached out was the
context declarations for summary judgment?
MR. RIESS: believe thats correct, Your Honor.
THE COURT:
All right.
Have any efforts this
case been made reach out former employees?
MR. RIESS:
No.
Not this case, Your Honor.
THE COURT:
Okay.
With respect the 55,000 Clinton e-mails, gather from Leopold, those
documents were digitized and searchable?
correct?
MR. RIESS:
Your Honor. recollection honest, dont know, can find out.
THE COURT:
Okay.
MR. RIESS: would assume that since its rolling
production and with that larger volume
THE COURT:
MS. SHAPIRO:
Hold on.
Sorry. sorry jump in,
Your Honor.
THE COURT:
Not all.
Thats why wish there
would more coordination.
convenient refer other cases, done, but when not, not done.
answers.
MS. SHAPIRO: seems like when
So, you know, would like get
Right.
And jumped because
think can give you little more birds-eye view.
THE COURT:
Are you supervising all the Clinton
e-mails cases?
MS. SHAPIRO:
Not all them, but one two,
that would and think have birds-eye view
all them.
stages and various forms, and have carefully thought
about consolidating.
they would consolidated, and since some them are
different claims, there are different parties, there are
different stages. date, but havent given the idea.
And there are approximately various
There are difficulties terms how the mechanics that have eluded
With respect the reaching out the third
parties, think, here, didnt view Judicial Watchs
questions about preservation.
the third parties was not done any specific case. think the reaching out was
done matter choice that the State Department decided
that should and did, irrespective any litigation,
reach out these people.
They are differently situated than the Hillary
Clinton situation because they all maintain state.gov
e-mails and used those e-mail accounts.
the nature ordinary government employees that have
government e-mail accounts that are searched.
However, because they are more
THE COURT: your knowledge, did any those
individuals use Clinton e-mail servers?
MS. SHAPIRO:
THE COURT:
Yes.
And because that not saying not sending things that server, but used their platform for sending
their own e-mails?
MS. SHAPIRO:
Separate and apart from
communicating with
THE COURT:
Correct.
MS. SHAPIRO: not positive the answer
that.
Hillary Clinton e-mails and using that server the State
Department reached out them and have received documents
back from two them.
But because know that they appear the
And those are now the State Departments
possession, and will searched like the Hillary Clinton
e-mails are being searched.
all the cases, not any particular case, where
documents would reasonable think that documents
would found among that collection.
THE COURT:
MS. SHAPIRO:
But that will done across
Uh-huh.
Okay.
And with respect the summary
judgment motion that was filed, that case related one
the Benghazi related requests, and all the searches have
been done for all the e-mails that are the possession the State Department now, including the ones that were
recently received from the two additional employees.
THE COURT:
Okay.
With respect the 55,000 Hillary Clinton e-mails that she provided from her
server, recollection correct that those were digitized
and are searchable?
MS. SHAPIRO:
Yes, they were digitized
approximately mid June, and they are searchable, and are
being searched and reviewed response your order the
other case that
THE COURT:
Leopold.
MS. SHAPIRO:
THE COURT: right, that captures all 55,000. given that these are separate cases
and they are not being consolidated, and given that
this case, this case here today, relatively narrow
case, why the State Department reluctant make search
for the Foundation conflict documents, which sounds like
relatively straightforward process?
MS. SHAPIRO:
One, not clear that
relatively straightforward process about how construct
search that would likely capture those records and
then deal with whatever comes back, both terms
responsive records and nonresponsive records that are just
caught the search.
process. that time-consuming
And the resources the State Department right
now are taxed that any sort side search for sort of,
you know, even discrete, would take resources away from what extremely burdensome but also very taxing process
right now the department.
persons time two peoples time order process
another request, disrupts the entire chain the way
these e-mails are being moved from station station
response Your Honors other order. Mr. Riess mentioned, with the number cases both being
brought Judicial Watch and others where the argument
this discrete search, you then have 10, discrete
searches, and take each one those and say that they
are discrete isolation, becomes longer discrete and
would completely derail, think, the process that where
thats really very little room for disruption order the extent that even one
And just add that,
THE COURT: order Leopold was based
numbers and percentages.
that universe are produced this case, they qualify for
the numbers Leopold, dont they?
mutually exclusive from resource standpoint, are they?
MS. SHAPIRO: the extent that documents from that theyre not
No, thats right. just that
the documents the entire 55,000 collection are being done
systematically and not necessarily with respect
specific topic. here you would doing search for
specific subject, gathering those and then taking the time process those sort separately and deal with the
responsiveness issue, whereas continued process
order, Judicial Watch will have all the records, and, you
know, not just the ones that may responsive these, but
also the other requests that they have
litigation right now.
THE COURT:
Okay.
Are there any other points that
you want cover?
MR. RIESS:
No, Your Honor.
THE COURT:
Okay.
MS. SHAPIRO:
THE COURT:
Thank you.
All right.
With respect the
governments proposal about Section focus the
August date, sounds like the parties are more less agreement that, will with that.
With respect the 55,000 Clinton e-mails from
her server, want the parties meet and confer within the
next two weeks and try agree search terms, and then
file, the extent you are agreement the extent
you are not agreement, file joint status report that
point with the court, and then will decide that point
what with that, but will say inclination
have search done the Clinton e-mail database thats
digitized and searchable for this relatively narrow,
view, relatively narrow request. there any universe thats not covered yet that
you want the questions answered?
MR. FEDELI:
Well, may, Your Honor,
think
THE COURT:
MR. FEDELI:
July two weeks. far the preservation issues, think those are important.
Counsel suggested that the
Court cant really anything about that without motion. would happy file one.
THE COURT:
But everyone files motions, August will here and that just adds more paper it.
think August close enough that theres point
lot motions work.
MR. FEDELI:
Your Honor. you agree with that?
Certainly understand that,
The concerns that have about preservation
remain outstanding for us.
THE COURT: sorry?
MR. FEDELI:
The concerns have about
preservation, having not been really fully addressed yet,
remain outstanding for us.
THE COURT: understand that, and concerned
about that well. documents are destroyed between now
and August 17, the government will have answer for that,
and, you know, they dont want anything out the
ordinary preserve between now and then, they can make
that choice.
they will answer for it, something happens. will allow them make that choice, but
MR. FEDELI:
Thank you, Your Honor.
THE COURT:
They are prudent people.
MS. SHAPIRO:
Sorry, just one note the
preservation point.
THE COURT:
Sure.
MS. SHAPIRO:
Again, dont think construed
the questions that were asked preservation related
questions.
preserve every record its possession that relates this
and all the other requests
Theres question that the government will
THE COURT:
Now possession probably term
art this context.
possession, and does also include custody control?
What does the government consider its
MS. SHAPIRO:
again, theyre legal terms.
THE COURT:
MS. SHAPIRO:
Well, custody and control are
Sure.
The State Department will not
destroying anything that relates any these cases.
With respect individuals over which the State
Department has control, because they are former
government employees
THE COURT:
But the extent that they have
official government records, what you believe the
State Departments duty?
MS. SHAPIRO:
The State Department has asked for
the return those records.
THE COURT:
Okay.
MS. SHAPIRO:
And those individuals have that
correspondence, and anything that comes back the
government, course, will preserved and maintained.
And, you know, can put that assurance e-mail the
plaintiffs, that makes them more comfortable.
there should question that the government
preserving records and satisfying its litigation obligation.
THE COURT: think
You know, understand everyones
position, and state the obvious that this not
ordinary case, and everyone should working make sure
that whatever documents exist today remain existence.
understand the governments position that discovery
extraordinary FOIA cases.
mystified that the government not more forthcoming
just answering questions that will help this case proceed systematic basis, and basis that will allow everyone get the answers that will eventually help resolve these
cases, all them.
MS. SHAPIRO:
But little bit
They are doing the best they can
under trying circumstances, Your Honor.
THE COURT:
Okay. there anything else need cover today?
MR. FEDELI:
MR. RIESS:
No, Your Honor.
THE COURT:
Okay.
(WHEREUPON, 10:24 a.m. the proceedings were
concluded.)
No, Your Honor.
Thank you.
UNITED STATES DISTRICT COURT
DISTRICT COLUMBIA
ss.
REPORTERS CERTIFICATE ANNETTE MONTALVO, hereby certify that the
above and foregoing, consisting the preceding pages,
constitutes true and accurate transcript
stenographic notes and full, true and complete
transcript the proceedings the best ability.
Dated this 9th day July, 2015.
/s/Annette Montalvo________
Annette Montalvo, CSR, RDR, CRR
Official Court Reporter
United States Courthouse
333 Constitution Avenue,
Room 6722
Washington, 20001
202-354-3111