JW v DOJ January Opposition 00029
Number of Pages:4
Date Created:January 17, 2017
Date Uploaded to the Library:January 18, 2017
Autogenerated text from PDF
Case 1:17-cv-00029-EGS Document Filed 01/17/17 Page UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA __________________________________________ JUDICIAL WATCH, INC., Plaintiff, Case No. 17-cv-00029 (EGS) UNITED STATES DEPARTMENT JUSTICE, Defendant. __________________________________________) OPPOSITION PLAINTIFF MOTION FOR PRESERVATION ORDER Defendant United States Department Justice DOJ respectfully submits this opposition Plaintiff Judicial Watch Motion for Preservation Order and Request for Expedited Consideration. discussed below, Plaintiff motion should denied because unnecessary light the preservation steps DOJ has already taken. BACKGROUND Judicial Watch filed its complaint this matter January 2017. Compl., Docket Entry The complaint relates two separate FOIA requests that Judicial Watch alleges that submitted DOJ November 2016. See id. 11. Both requests sought documents from both the personal and official email accounts Peter Kadzik, DOJ current Assistant Attorney General for Legislative Affairs. Id. According the complaint, the first request sought the following documents: All email correspondence between Peter Kadzik either his official Justice Department email account email@example.com and any non-government employee Service process Plaintiff complaint has not yet been completed, and DOJ reserves its right object unperfected service. Mr. Kadzik will leaving federal employment January 19, 2017. Case 1:17-cv-00029-EGS Document Filed 01/17/17 Page concerning, regarding, relating former Secretary State Hillary Clinton use non-state.gov email conduct official government business; All email correspondence between Peter Kadzik either his official Justice Department email account firstname.lastname@example.org and John Podesta; and All email correspondence between Peter Kadzik either his official Justice Department email account email@example.com and any official, officer, employee Hillary Rodham Clinton presidential campaign. The timeframe for this request December 2014 November 2016. Id. The second request sought the following documents: All emails sent received Peter Kadzik using the email address firstname.lastname@example.org which conducted official government business. All emails copied and/or forwarded required U.S.C. 2911 Peter Kadzik Justice Department email account from email@example.com. The timeframe for this request January 2016 the present. Id. 11. The day after filing the complaint, January 2017, Judicial Watch filed motion for preservation order and request for expedited consideration. See Pl. Mot. for Preservation Order, Docket Entry Judicial Watch motion seeks order requiring DOJ take all necessary and reasonable steps preserve all agency records the gmail email account Assistant Attorney General for Legislative Affairs Peter Kadzik. Pl. Proposed Preservation Order, Docket Entry 3-1. Judicial Watch proposed order further requires DOJ advise the Court the steps has taken preserve such records. Id. The motion indicated that the time filing, DOJ had not yet been able take any position the motion. Pl. Mot. Case 1:17-cv-00029-EGS Document Filed 01/17/17 Page ARGUMENT Since receiving Plaintiff FOIA requests, Defendant, including its Office Information Policy and Office Legislative Affairs, along with Mr. Kadzik himself, has endeavored identify any potentially responsive materials. the government understanding that Mr. Kadzik has located agency records potential agency records his Gmail account and that, therefore, there are such documents preserve. Nevertheless, out abundance caution and consistent with the preservation order that Judicial Watch seeks, the government has instructed Mr. Kadzik preserve any potential agency records his Gmail account, should any exist, and Mr. Kadzik has agreed so. Because the government has already taken the action that Judicial Watch motion requests, and has informed the Court that action, Judicial Watch motion moot and should denied. the extent Judicial Watch seeks some sort additional judicial review whether DOJ has taken all necessary and reasonable steps preserve all agency records, Pl. Proposed Preservation Order, has provided legal support justification for such review. See, e.g., John Goetz, 531 F.3d 448 (6th Cir. 2008) (granting mandamus relief and reversing district court order preserve hard drives forensic imaging abuse discretion the grounds that, among other reasons, nothing the record indicates that defendants are unwilling, will refuse, preserve and produce all relevant ESI the future, and after acknowledging that the media issue will almost certainly contain confidential state private personal information that wholly unrelated the litigation Case 1:17-cv-00029-EGS Document Filed 01/17/17 Page CONCLUSION Judicial Watch motion for preservation order should denied. DATE: January 17, 2017 Respectfully submitted, BENJAMIN MIZER Principal Deputy Assistant Attorney General MARCIA BERMAN Assistant Branch Director Federal Programs Branch /s/ Stephen Pezzi STEPHEN PEZZI (D.C. Bar 995500) Trial Attorney United States Department Justice Civil Division, Federal Programs Branch Massachusetts Avenue Washington, 20530 Phone (202) 305-8576; Fax (202) 616-8470 Email: firstname.lastname@example.org Counsel for Defendant Undersigned counsel respectfully advises the Court that has pre-existing international travel plans from late afternoon Wednesday, January 18, 2017 through noon Monday, January 23, 2017. Undersigned counsel respectfully requests that the Court take counsel travel schedule into consideration the event the Court inclined grant Judicial Watch request for hearing this motion.