JW v DOS Joint Status Report 01511 December 7, 2015
Number of Pages:9
Date Created:December 7, 2015
Date Uploaded to the Library:April 14, 2016
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Case 1:14-cv-01511-ABJ Document Filed 12/07/15 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) THIRD JOINT STATUS REPORT Plaintiff Judicial Watch, Inc. and Defendant U.S. Department State State counsel and pursuant the Court October 2015 minute order, respectfully submit this Third Joint Status Report: State has completed its review and production emails from former Secretary State Hillary Clinton, including emails from former Secretary Clinton recently provided Huma Abedin, Cheryl Mills, and Jacob Sullivan, that are responsive the FOIA request. the twenty-three (23) emails identified responsive State October 22, 2015 status report, seven (7) were produced full part November 2015, fifteen (15) were produced full part November 30, 2015, and one (1) was determined nonresponsive upon further review. None required referral other agencies. addition, State has completed its review and production non-email records from former Secretary Clinton recently provided Ms. Abedin, Ms. Mills, and Mr. Sullivan. Twelve (12) responsive records were identified, and all twelve (12) were produced November 12, 2015, with redactions. referrals any responsive records remain outstanding. -1- Case 1:14-cv-01511-ABJ Document Filed 12/07/15 Page State intends file motion for summary judgment. Plaintiff intends either oppose the motion and file cross-motion, file Rule 56(d) motion. The parties propose the following briefing schedule: Defendant motion for summary judgment: January 15, 2016 Plaintiff opposition/cross-motion Rule 56(d) motion: February 2016 Defendant reply/opposition: March 2016 Plaintiff reply: March 18, 2016 One issue remains outstanding related two documents, copies which are attached collectively Exhibit The parties state their respective position regarding these two documents below: PLAINTIFF STATEMENT During the course former Secretary Clinton October 22, 2015 testimony before the U.S. House Representatives Special Committee Benghazi (the Special Committee Plaintiff became aware two (2) records produced the State Department the Special Committee that appear notes telephone conversations between former Secretary Clinton and the President the Libyan General National Congress and the Prime Minister Egypt September 11, 2012 and September 12, 2012, respectively. Both are emails directed S_CallNotes, which would appear either group recipients some type repository for notes the Secretary telephone calls. The individual who took the notes not identified, but Plaintiff believes reasonable that notes the Secretary calls would taken someone the Secretary office and/or maintained either the Office the Secretary the Office the Executive Secretariat, which maintains records for the Office the Secretary. Plaintiff asserts that any such records regarding the September 11, 2012 Benghazi -2- Case 1:14-cv-01511-ABJ Document Filed 12/07/15 Page attack are responsive the request1 and that the issue their responsiveness should resolved now, before summary judgment briefing, order avoid unnecessary delay and second round summary judgment briefings. Plaintiff raised the issue the call notes with State email exchanges between counsel October 29, 2015, October 30, 2015, November 2015, and November 2015. The parties were unable resolve the matter. DEFENDANT STATEMENT Plaintiff provides basis for its assertion that the notes question were taken someone the Secretary office and/or maintained either the Office the Secretary the Executive Secretariat. State should given the chance address this speculative assertion the normal course briefing, which will include the preparation declaration related the adequacy search. that declaration, State can provide the factual basis for its preliminary assessment that the records question were not maintained the Office the Secretary (to which the FOIA request was directed), and thus could not discovered reasonable search and are not responsive the FOIA request.2 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 issues before the government has first had chance provide the court with the information necessary make decision Nor would Plaintiff prejudiced should the Court choose follow the normal procedure and allow Plaintiff request, which was directed State Office the Secretary, seeks the following: 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 timeframe for this request September 11-15, 2012. Compl. para. State neither confirms nor denies this time that the documents question are true copies records that State maintains its possession and provided Congress; should given time properly investigate this issue and present its position the course briefing. -3- Case 1:14-cv-01511-ABJ Document Filed 12/07/15 Page these issues addressed during briefing summary judgment: Plaintiff has copy the documents issue its possession. Summary judgment briefing the most efficient way resolve the issues related the two records identified Plaintiff. Attempts litigate these issues piecemeal fashion would only serve delay final resolution this case. This Court has already rejected Plaintiff similar requests resolve contested issues related the adequacy the search before summary judgment briefing. See Joint Status Report, June 19, 2015 (ECF No. 13) (Plaintiff requesting that the Court order State conduct discovery and perform further searches before summary judgment briefing); Minute Order, June 22, 2015 (setting briefing schedule response June Joint Status Report because [i]t defendant position that the search for documents responsive plaintiff FOIA request complete and was adequate Without stating explicitly, Plaintiff appears seek order requiring State turn over the two documents question. Such request for relief inappropriate without written motion that states with particularity the grounds for seeking the order, see Fed. Civ. 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 State file written opposition, id. 7(b). Plaintiff should not seek, nor granted, relief without filing proper motion. minimum, Plaintiff should required submit proper motion for relief, and State should allowed enough time file appropriate response. But addressing this issue separate round briefs not necessary for efficient resolution this case. This issue can and should addressed due course during summary judgment briefing. -4- Case 1:14-cv-01511-ABJ Document Filed 12/07/15 Page Dated: December 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 -5- Case 1:14-cv-01511-ABJ Document 23-1 Filed 12/07/15 Page EXHIBIT Third Joint Status Report Judicial Watch, Inc. U.S. Dep State, Case 14-1511 (ABJ) Case 1:14-cv-01511-ABJ Document 23-1 Filed 12/07/15 Page Case 1:14-cv-01511-ABJ Document 23-1 Filed 12/07/15 Page Case 1:14-cv-01511-ABJ Document 23-1 Filed 12/07/15 Page