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Judicial Watch • JW v Homeland Security Jan Preservation Order 0967

JW v Homeland Security Jan Preservation Order 0967

JW v Homeland Security Jan Preservation Order 0967

Page 1: JW v Homeland Security Jan Preservation Order 0967


Number of Pages:4

Date Created:January 18, 2017

Date Uploaded to the Library:January 18, 2017

Tags:0967, Notices, Enterprise, preservation, Jan, ORDERED, individuals, Homeland, Institute, order, email, Emails, security, responsive, government, Secretary, filed, document, department, FOIA, Judge

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Case 1:16-cv-00967-RDM Document Filed 01/18/17 Page
Civil Action No. 16-967 (RDM)
Plaintiff Judicial Watch, Inc. Judicial Watch brings this case against the Department Homeland Security under the Freedom Information Act FOIA U.S.C. 552. Judicial
Watch alleges that four current former Department officials used private email accounts
conduct official agency business. Dkt. (Compl. 6). seeks compel the
production [a]ny and all emails regarding, concerning, relating official United States
Government business sent from [each the four individuals] from December 23, 2013
through [December 29, 2015] which [the individuals] used non- .gov email addresses. Id.
Before the Court Judicial Watch Motion for Preservation Order. Dkt. 18.
Concerned about the upcoming change administration, Judicial Watch seeks [a]n order
requiring [the Department] take steps preserve the agency records issue. Id. The
Department responds that such order necessary because the Department has issued written
Preservation Notices each the four individuals question. Dkt. support
The four individuals are Secretary Jeh Johnson, Deputy Secretary Alejandro Mayorkas, former
Chief Staff Christian Marrone, and former General Counsel Stevan Bunnell. Id.
Case 1:16-cv-00967-RDM Document Filed 01/18/17 Page
that contention, the Department has provided the Court with copies those Preservation Notices
for camera review, and has represented the record that the individuals have confirmed writing their intent abide the Preservation Notice that they received. Dkt. 21. Judicial
Watch responds requesting that the Court (1) publish the Preservation Notices the docket
the extent they are not covered attorney-client privileged, (2) order the Department produce
the written confirmations, and (3) take notice Judge Kessler preservation order
Competitive Enterprise Institute Office Science Technology Policy, No. 14-cv-765-GK
(D.D.C. Dec. 12, 2016), ECF. No. 31. See Dkt. 22.
Upon review the Preservation Notices that the Department sent each the
individuals, the Court concludes that the Department has taken appropriate steps preserve the
emails issue. And, given the Department representation, the Court has reason doubt
that the four individuals have agreed comply fully with their obligations preserve any
potentially responsive emails and that they have every intention doing so.
Nonetheless, out the abundance caution, the Court will order additional
preservation step minimize the risk any inadvertent loss potentially responsive emails.
Specifically, the Court will order the individuals copy any emails from the relevant time
period any private email accounts that might contain responsive materials onto portable thumb
drives, kept the individuals personal possessions. This the solution that the
Government proposed and that Judge Kessler adopted Competitive Enterprise Institute. The
Court persuaded that copying the emails physical drive will minimize the risk that any
responsive email might inadvertently deleted. And the Court likewise persuaded that this
solution poses risk the individuals privacy. Competitive Enterprise Institute, the
emails will remain [each individual possession and will not searched [without consent]
Case 1:16-cv-00967-RDM Document Filed 01/18/17 Page
until the Court makes determination the merits Judicial Watch FOIA claim. Id.
Although the risk inadvertent loss any potentially responsive emails low, the burden
copying all emails sent received during the designated time period thumb drives equally
Finally, with respect Judicial Watch additional requests, Dkt. 22, the Court declines order the Department produce the individuals written confirmations their intent
preserve the emails. least some those communications are likely privileged, and both
Judicial Watch and the Court can rely the Department representation that the written
confirmations exist. The Court has taken under advisement Judicial Watch request that the
Court publish the Preservation Notices the docket, and defers ruling that request for the
present time.
Accordingly, hereby
ORDERED that Secretary Johnson preserve all emails sent received between
December 23, 2013, and December 29, 2015, that are stored any his private email accounts
that may contain responsive records, including any emails archived deleted folders,
portable thumb drive hard drive kept his possession until this Court determines that
the emails must provided the Department for processing that they may deleted;
FURTHER ORDERED that Deputy Secretary Mayorkas, former Chief Staff
Marrone, and former General Counsel Bunnell the same with respect their own private
email accounts that may contain responsive records;
FURTHER ORDERED that the Government not conduct any searches the email
accounts issue this time without the consent the account user; and
Case 1:16-cv-00967-RDM Document Filed 01/18/17 Page
FURTHER ORDERED that Judicial Watch request that the Court order the
Department produce each individual written confirmation his intent preserve records
/s/ Randolph Moss
United States District Judge
Date: January 18, 2017