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U.S. District Court
District Columbia
Notice Electronic Filing
The following transaction was entered Wolverton, Caroline 7/15/2016 11:59 and
filed 7/15/2016
JUDICIAL WATCH, INC. DEPARTMENT STATE
Case Name:
1:13-cv-01363-EGS
Case Number:
U.S. DEPARTMENT STATE
Filer:
Document Number: 110
Docket Text:
SURREPLY [97] MOTION for Order Depose Hillary Clinton, Clarence
Finney, and John Bentel filed U.S. DEPARTMENT STATE. (Wolverton,
Caroline)
Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
No. 1:13-cv-01363-EGS
U.S. DEPARTMENT STATE,
Defendant.
NON-PARTY HILLARY RODHAM CLINTON SURREPLY FURTHER OPPOSITION PLAINTIFF MOTION DEPOSE
HILLARY RODHAM CLINTON, CLARENCE FINNEY, AND JOHN BENTEL
David Kendall (D.C. Bar No. 252890)
Katherine Turner (D.C. Bar No. 495528)
Amy Mason Saharia (D.C. Bar No. 981644)
WILLIAMS CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
Counsel for Non-Party Hillary Rodham
Clinton
Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page
INTRODUCTION this Court has recognized, discovery FOIA action the exception, not the rule.
Feb. 23, 2016 Tr. 8:20 21. And, Judicial Watch concedes, deposition former
Cabinet Secretary even rarer, requiring showing extraordinary circumstances. Dkt. 106 13. Judicial Watch has not made that showing. Judicial Watch reply confirms that there nothing more than speculation behind its allegation that the State Department and Secretary
Clinton deliberately thwarted FOIA. Feb. 23, 2016 Tr. 10:3 any event, the requested discovery now moot. Judicial Watch has argued that the Department search was inadequate because did not acquire and search certain sources Secretary Clinton e-mail. The
FBI will provide the Department e-mail has retrieved from those sources, and the Department
intends search for records responsive Judicial Watch request. See Dkt. 103 24; Dkt.
105-1. Judicial Watch thus will obtaining its requested relief. this circumstance, there
need for discovery, and permitting Judicial Watch depose former Cabinet Secretary would
futile and inappropriate.
ARGUMENT
THE FBI JULY 12, 2016 LETTER THE STATE DEPARTMENT DEMONSTRATES THAT THE REQUESTED DISCOVERY MOOT.
Judicial Watch has repeatedly stated that the relief seeks have Secretary Clinton
e-mail turned over the Department for searching. See, e.g., Feb. 23, 2016 Tr. 10:23
11:10, 15:18 16:1, 18:8 24, 27:1 15, 45:6 22. now evident that Judicial Watch will obtaining that very relief. July 12, 2016, the FBI informed the Department that will provide
the Department with materials obtained during its investigation that may contain agency records.
Dkt. 105-1. This includes materials retrieved from any server equipment and related devices
obtained from Secretary Clinton. See Leopold Dep Justice, No. 15-cv-2117, Dkt. (D.D.C.
Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page
July 13, 2016). the extent the FBI retrieved additional work-related e-mails Secretary Clinton, the Department will have them and has pledged produce any responsive records. (Contrary Judicial Watch assertion, Secretary Clinton recognizes that the Department has right federal record e-mails within her clintonemail.com account. See Dkt. 106 9.)
The FBI forthcoming provision Secretary Clinton e-mails the Department moots
any need for additional discovery. [A] discussion about remedies not premature, Judicial
Watch claims. Dkt. 106 14. The ultimate issue fact this case whether the Department
has conducted adequate search, Dkt. 106 (quotation marks omitted) inherently intertwined with the remedy Judicial Watch seeks: have Secretary Clinton e-mails provided the
Department for searching. the FBI will provide those materials the Department, there
need engage additional discovery determine whether FOIA requires the Department
acquire Secretary Clinton e-mail account intent thwart FOIA theory.
Faced with the fact that will obtaining its requested relief, Judicial Watch does
about-face suggesting, implausibly, that might want different relief. See Dkt. 106 14.
first argues that this Court could order the Department search e-mail accounts employees who
might have communicated with Secretary Clinton about the subject matter the FOIA request
issue. The Department, however, has already done that, see Dkt. 47-2, which undoubtedly why Judicial Watch has not made that argument before.
Judicial Watch next argues that the Court could order the Department issue subpoenas other government agencies other pertinent entities. Dkt. 106 14. The agency possession Secretary Clinton clintonemail.com e-mails, however, the FBI, which has already
stated that will provide materials obtained during its investigation that may contain agency records the Department. Neither Secretary Clinton nor her counsel are aware any other entity
Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page
possessing her clintonemail.com e-mails; part its investigation, the FBI endeavored collect
all available sources Secretary Clinton clintonemail.com e-mails. would inappropriate
for this Court permit Judicial Watch depose former Cabinet Secretary for the purpose
determining whether this Court should order relief that now moot.
II.
JUDICIAL WATCH ALLEGATION THAT THE DEPARTMENT SOUGHT
THWART FOIA SPECULATIVE.
Even the requested discovery were not moot, Judicial Watch not entitled probe
discovery the circumstances surrounding the creation, use and purpose the clintonemail.com
system merely satisfy its curiosity about that subject. Dkt. 107 This Court granted limited discovery determine whether there evidence substantiating Judicial Watch allegation
that the State Department and Mrs. Clinton sought deliberately thwart FOIA through the creation and use clintonemail.com. Dkt. (quotation marks omitted). evidence has
emerged from discovery the multiple public inquiries that substantiates that allegation, and Judicial Watch simply ignores the ample evidence the contrary that now the record. Accordingly, there basis for further discovery, let alone discovery for which extraordinary circumstances must demonstrated.
Judicial Watch principal argument that needs depose Secretary Clinton because
her prior statements about why she used private e-mail account are unsworn. See Dkt. 106 Judicial Watch concedes, Secretary Clinton has publicly stated that she used private email account for the sake convenience. Director Comey has testified that she said the same
thing the FBI. See Dkt. 102-3 74. Judicial Watch identifies evidence suggesting that,
deposed, Secretary Clinton would identify improper purpose, contrary her many statements.
Because has actual evidence intent thwart FOIA, Judicial Watch flatly misrepresents the record and manufactures inconsistencies where none exist. For example:
Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page
Judicial Watch claims that striking that Clarence Finney did not know Secretary Clinton private e-mail address because, Ms. Mills testified, Secretary Clinton
was contact with Mr. Finney every day. Dkt. 106 Ms. Mills said such
thing her deposition. Judicial Watch provides reason believe that Secretary
Clinton e-mail account was concealed from Mr. Finney. That assertion implausible
given that she openly e-mailed with more senior officials responsible for records management.
Judicial Watch inaccurately represents the substance Director Comey testimony.
When asked, [W]as the reason she set her own private server your judgment
because she wanted shield communications from Congress and the public?, did
not simply state that the FBI was unable determine the answer that question. See
Dkt. 106 Instead, responded, can say that. Our best information that
she set matter convenience. Dkt. 102-3 20.
There discrepancy between the FBI findings and the evidence this case.
Dkt. 106 Director Comey explained that Secretary Clinton decided have
domain i.e., clintonemail.com added former President Clinton server. That completely consistent with the testimony Ms. Mills.
Judicial Watch also ignores the fundamental issue before this Court insisting that
needs Secretary Clinton testimony about arcane details her e-mail system for example, what
precise services Bryan Pagliano performed why e-mail was not archived. But, again, offers reason suspect that Secretary Clinton answers those questions (which would undoubtedly don know would support its allegation that the Department intended thwart FOIA.
Judicial Watch requested and obtained discovery the premise that there was reasonable suspicion that the Department and Secretary Clinton intended thwart FOIA. Dkt. The
record now disproves that suspicion. Judicial Watch speculation insufficient reason permit
the extraordinary measure deposing former Cabinet Secretary, especially when further discovery could not, any event, yield any additional relief.
CONCLUSION
Counsel Secretary Clinton respectfully request that this Court deny Judicial Watch
motion for permission depose Secretary Clinton.
Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page
Respectfully submitted,
/s/ David Kendall
David Kendall (D.C. Bar No. 252890)
Katherine Turner (D.C. Bar No. 495528)
Amy Mason Saharia (D.C. Bar No. 981644)
WILLIAMS CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
dkendall@wc.com
kturner@wc.com
asaharia@wc.com
Counsel for Non-Party Hillary Rodham
Clinton
July 15, 2016
Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page
CERTIFICATE SERVICE David Kendall, counsel for Non-Party Hillary Rodham Clinton, certify that, July
15, 2016, copy this Surreply Further Opposition Plaintiff Motion Depose Hillary
Rodham Clinton, Clarence Finney, and John Bentel was filed via the Court electronic filing system, and served via that system upon all parties required served.
/s/ David Kendall
David Kendall