JW v State Clinton surreply 01363
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This automatic e-mail message generated the CM/ECF system. Please NOT RESPOND this e-mail because the mail box unattended. ***NOTE PUBLIC ACCESS USERS*** Judicial Conference the United States policy permits attorneys record and parties case (including pro litigants) receive one free electronic copy all documents filed electronically, receipt required law directed the filer. PACER access fees apply all other users. avoid later charges, download copy each document during this first viewing. However, the referenced document transcript, the free copy and page limit not apply. 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