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Judicial Watch • JW DNCF v DOJ Comey preservation order 00967

JW DNCF v DOJ Comey preservation order 00967

JW DNCF v DOJ Comey preservation order 00967

Page 1: JW DNCF v DOJ Comey preservation order 00967


Number of Pages:3

Date Created:August 7, 2018

Date Uploaded to the Library:August 07, 2018

Tags:Joe Biden, 00967, ORDERED, Comey, Plaintiffs, president, Hillary Clinton, Obama, FBI, DOJ, FOIA

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Case 1:18-cv-00967-CKK Document Filed 08/06/18 Page
Civil Action No. 18-967 (CKK)
(August 2018)
This Freedom Information Act FOIA action. arises from two FOIA
requests that Plaintiffs have submitted the United States Department Justice for
records related the former FBI Director, James Comey. Specifically, Plaintiff Judicial
Watch Inc. FOIA request seeks memoranda Director Comey, any exist,
summarizing conversations with former President Barack Obama, former Vice President
Joe Biden, former Secretary State Hillary Clinton, Senator Chuck Schumer,
Representative Nancy Pelosi, Senator John McCain, and any handwritten notes used
prepare such memoranda. Plaintiff Daily Caller News Foundation DCNF submitted
request for records that identify and describe any meetings between former Director
Comey and President Obama. Currently pending before the Court the parties [13]
Joint Status Report JSR and Plaintiffs [14] Motion for Preservation Order Pls.
Mot. the parties Joint Status Report, Defendant represents that has completed its
search for responsive records and the process reviewing the records located
determine whether they are fact responsive and, so, whether they are protected from
disclosure under any FOIA exemptions. JSR After initial responsiveness review,
the total number pages remaining reviewed 321. Id. Due increases its
FOIA workload, Defendant does not expect this review completed, and any nonexempt responsive records released, until September 28, 2018. Id. Defendant
requests that the parties ordered file another Joint Status Report two weeks after that
date. Id. Plaintiffs contend that this schedule unreasonable, and request that the Court
order Defendant conclude its review the remaining 321 pages and produce any
responsive, non-exempt records August 28, 2018. Id. Plaintiffs ask the Court
require the parties file another Joint Status Report later than September 11, 2018.
Case 1:18-cv-00967-CKK Document Filed 08/06/18 Page
The Court understands that Defendant busy processing many other FOIA requests,
and that making determinations regarding whether not records are subject FOIA
exemptions can time consuming. Accordingly, the Court will allow Defendant until
September 28, 2018 complete its review and release any responsive, non-exempt
records Plaintiffs. That being said, Defendant also ORDERED make rolling
productions between today and September 28, 2018, reasonable intervals, any
records that are reviewed and found responsive and non-exempt. their Motion for Preservation Order, Plaintiffs request that the Court order
Defendant preserve all records potentially responsive Plaintiffs FOIA requests that
are located former Director Comey personal e-mail account. Pls. Mot.
Plaintiffs requested expedited consideration for their motion because they are concerned
records responsive Plaintiffs FOIA requests will lost destroyed. Id.
support their motion, Plaintiffs recount that recently-released report, the Office
the Inspector General OIG the Department Justice identified numerous
instances which Comey used personal email account Gmail account) conduct
FBI business and concluded that Comey use personal email account multiple
occasions for unclassified FBI business [is] inconsistent with the DOJ Policy Statement.
Id. light the findings this report, Plaintiffs state that they contacted
Defendant and asked for confirm that the FBI had obtained possession all records
potentially responsive Plaintiffs FOIA requests that are located Comey personal
email account. Id. Plaintiffs represent that they were informed that the FBI allegedly
had sent Comey letter requesting that preserve federal records responsive
Plaintiffs request and that return any agency records his possession not already
returned the FBI. Id. Still, Plaintiffs are concerned that Director Comey
possesses records responsive their requests and that those records are going lost destroyed.
Defendant opposes Plaintiffs motion two grounds. See Def. Opp Pls. Mot.
for Preservation Order, ECF No. 15. First, Defendant argues that Plaintiffs have not
demonstrated that there any reason believe that Director Comey would possess any
responsive records his personal e-mail account that are not already the FBI
possession. Id. Each the instances cited the OIG report Director Comey
using his personal e-mail account involved transmission either from government
account, which means Defendant argues that Defendant would capture those
communications its search government files. Id. 4-5. addition, Defendant
argues that Director Comey Chief Staff has stated that the former Director use
his personal e-mail was rare, and that deleted any work e-mails from his personal
account and cleared the deleted folder. Id. Also, recent communication with the
Defendant, representative former Director Comey has represented that the Director
unaware any responsive records his possession. Id.
Case 1:18-cv-00967-CKK Document Filed 08/06/18 Page
Second, Defendant argues that Plaintiffs cannot demonstrate that the records the
former Director personal e-mail, they existed, would lost without preservation
order because Director Comey has already agreed preserve responsive records
discovers any. Id. 5-6. support this contention, Defendant has submitted the
declaration Michael Seidel, Defendant current Assistant Section Chief the
Record/Information Dissemination Section, Information Management Division. See
Decl. Michael Seidel, ECF No. 15-1. Mr. Seidel states that FBI counsel reminded
Director Comey his legal obligations preserve agency records and formally
requested that take all necessary and reasonable steps ensure preservation agency
records potential agency records within the scope Plaintiff FOIA request his
personal email account, any such records existed. Id. 10. Mr. Seidel attests that
Counsel for former Director Comey acknowledged receipt the correspondence via email and advised that Director Comey will comply with his preservation obligations
but unaware any responsive agency records residing his personal e-mail account.
Id. 11. their reply, Plaintiffs have raised concerns that the measures Defendant have taken ensure that Director Comey will preserve responsive records relate only Plaintiff
Judicial Watch FOIA request, and not Plaintiff DCNF separate request. See Pls.
Reply Support their Mot. for Preservation Order, ECF No. 16. order avoid any possible issues later this litigation, the Court will GRANT
Plaintiffs Motion. Defendant ORDERED take all necessary and reasonable steps ensure that any records that are potentially responsive either the Plaintiffs FOIA
requests located former Director Comey personal e-mail account are preserved.
Although contends that such order unnecessary, Defendant has not explained why
this preservation order would prejudice Defendant cause any undue burden. Indeed,
appears that Defendant taking steps ensure the preservation these records already.
The duration this order limited: lasts only until final determination whether
the former Director fact possesses any responsive records made. This Order should
not interpreted any way indicating that the Court has taken any position
whether the former Director e-mail account will contain any responsive records. also
should not interpreted any way expressing any concern the Court behalf that
Defendant Director Comey would lose purposefully destroy responsive records.
The Court issuing this preservation order simply because does not appear burden
Defendant, and will limit the possibility that the retention these records, should they
exist, might create dispute later stage this case. ORDERED.
United States District Judge