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Judicial Watch • JW v DOS Joint Status Report 01511 December 7, 2015

JW v DOS Joint Status Report 01511 December 7, 2015

JW v DOS Joint Status Report 01511 December 7, 2015

Page 1: 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

Tags:Briefing, DOS, 01511, Judgment, Joint, summary, 2015, motion, September, Benghazi, Secretary, Hillary Clinton, defendant, clinton, filed, plaintiff, State Department, request, document, records, FOIA, office

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Case 1:14-cv-01511-ABJ Document Filed 12/07/15 Page THE UNITED STATES DISTRICT COURT
Civil Action No. 14-cv-1511 (ABJ)
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.
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:
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
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.
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.
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.
Case 1:14-cv-01511-ABJ Document Filed 12/07/15 Page
Dated: December 2015
Respectfully submitted,
/s/ Paul Orfanedes
D.C. Bar No. 429716
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Counsel for Plaintiff
Principal Deputy Assistant Attorney General
Deputy Branch Director
/s/ Robert Prince
D.C. Bar No. 975545
Civil Division, Federal Programs Branch Massachusetts Avenue
Washington, 20530
Tel: (202) 305-3654
Counsel for Defendant
Case 1:14-cv-01511-ABJ Document 23-1 Filed 12/07/15 Page
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