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Judicial Watch • JW v State deposition order 01242

JW v State deposition order 01242

JW v State deposition order 01242

Page 1: JW v State deposition order 01242

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Date Created:January 15, 2019

Date Uploaded to the Library:January 15, 2019

Tags:depose, watchs, 01242, testimony, Clintons, deposition, Susan Rice, Sullivan, hillary, order, government, Benghazi, Secretary, Hillary Clinton, clinton, filed, Obama, State Department, document, FBI, department, FOIA, states, office


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Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Case No. 14-1242
MEMORANDUM ORDER
When this case began. Jndicial Watch sought verify the State Depmiments search for
records from former Secretary Hillary Clinton and her aides concerning the talking points fonner
U.N. Ambassador Susm1 Rice used respond the attack the U.S. Embassy Benghazi,
Libya. But the case has since expanded question the motives behind Clintons private email
use while Secretary, and behind the governments conduct this litigation.
Last month, this Court ordered the parties meet and confer plan discovery [55].
Judicial Watch submitted proposed plan [62]; the govennnent responded m1d countered with its
proposal [63]; Judicial Watch replied [64]. This Memorandum Order maps the path forward. Scope Schedule. Discovery shall limited three issues: (I) whether Clinton
intentionally attempted evade FOIA using private email while Secretary State; (2)
whether States efforts settle this case late 2014 m1d early 2015 amounted bad faith; and
(3) whether State adequately searched for records responsive Judicial Watchs FOIA request.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
Either side must obtain pem1ission conduct discovery beyond the depositions, interrogatories,
and document requests described herein.
The Comi recognizes Judicial Watch took related discovery Judicial Watch, Inc.
Department ofState, No. 13-1363 (D.D.C.) (Sullivan, J.). Yet the Comi declines expressly
cmiail discovery this case result, especially since Judicial Watch does not propose
deposing witnesses also deposed that case. Consistent with the paiiies demonstrated respect
for the discovery process there, see Trai1script Motion Hearing Proceedings :3-19,
Judicial Watch, Inc. Dep State, No. 13-1363 (D.D.C. July 18, 2016), ECF No. 159, the
Court hopes the parties avoid unnecessarily duplicative discovery here.
The pa!iies shall complete discovery within 120 days, unless they seek additional time.
The Court will hold post-discovery hearing ascertain the adequacy States searches,
determine Judicial Watch needs depose additional witnesses (including Hillary Clinton
her former Chief Staff Cheryl Mills), ai1d schedule dispositive motions.
II. Procedure. The pa!iies shall conduct discovery pursuai1t the Federal Rules Civil
Procedure a11d Evidence, subject these limitations: Time Respond Interrogatories Document Requests. Absent contrary order, Federal
Rules Civil Procedure 33(b)(2) and 34(b)(2)(A) give parties thirty days respond
interrogatories and document requests. This default limit will apply interrogatories and
document requests propounded private citizens. For interrogatories and document requests
propounded the govermnent, Judicial Watch wants shorten the limits fomieen days; the
government asks for the standai thirty-day periods. Recognizing Judicial Watchs need
obtain preliminary discovery before taking depositions, but mindful overburdening the
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
government, the Court gives the government twenty days respond inte1Togatories and
document requests. Number ofDepositions. The government wants limit Judicial Watch Rule
30(a)(2)(A)(i)s ten-deposition ceiling. But consistent with Rule 26(b)(2)(A), the Court allows
Judicial Watch depose all witnesses enumerated herein. Privilege Claims Objections. Neither side waives any privileges specific objections. the government notes, the parties may agree pursuant Federal Rule Evidence 502(e)
disclose information without waiving attorney-client work-product privileges. But absent
agreement, the government proposes producing its privilege log after discovery ends. That
insufficient. facilitate meaningful document production, the government must produce
rolling privilege log, concmTent with its timely responses document requests. And facilitate
prompt resolution disputes, the Court will require any opposition filed within five business
days motion for judicial intervention, with replies due three business days after the
oppositions filing. Government Review ofDeposition Transcripts Recordings. The government may,
its sole discretion, embargo depositions contents for three business days after production
the transcript recording-provided that does good faith and that declared its intent the record the deposition-to review the transcript recording for classified
infonnation, for information specifically exempted from disclosure statute, for information
concerning pending law enforcement investigation, and seek order precluding the
infonnation public release.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
III. Discovery into Hillary Clintons Private Email Use. Depositions. whether Clintons private email use while Secretary State was
intentional attempt evade FOIA, Judicial Watch may depose: Eric Boswell. the fonner Assistant Secretary for Diplomatic Security. The
government argues Boswell does not have infonnation relevant the purpose
behind Clintons private email use, claiming merely responded her staffs
inquiries regarding Blackbe1ry use her private office suite. But existing
evidence contradicts this claim: Boswells March 2009 memo Mills (available ECF No. 64-1) discusses security risks Clintons Blackberry use posed more
generally. And Boswell personally discussed the memo with Clinton.
plainly has relevant information about that conversation and about his general
knowledge Clintons email use. Judicial Watch may depose Boswell. Justin Cooper. the Clinton Foundation employee who created the
clintonemail.com server. its proposal, Judicial Watch noted Coopers prior
congressional testimony appears contradict portions the testimony provided Huma Abedin the case before Judge Sullivan. Pl. Prop. Disc. Plan ECF
No. 62. The government opposed Judicial Watchs request because Judicial these individuals also appear subsections IV.A V.A this Order, Judicial Watch may only depose each
witness once.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
Watch offer[ed] [further] explanation citation. Def.s Prop. Disc. Plan
Sched. 18-19, ECF No. 63. But Judicial Watch provided one its response:
Cooper repeatedly told Congress that Abedin helped set-up the Clintons private
server, e.g., Examining Preservation State Department Federal Records:
Hearing Before the Comm. Oversight Gov R~form, 14th Cong.
(2016); Abedin testified under oath she did not know about the server until six
years later. See Transcript ofHuma Abedin Deposition 19:16-20:14, Judicial
Watch, Inc. Dep ofState, No. 13-1363 (D.D.C. June 28, 2016), ECF No. 129.
Judicial Watch may depose Cooper. Clarence Finnev. the former deputy director States Executive Secretariat staff.
The govermnent opposes Finneys deposition two grounds. First, the
govermnent argues Finneys testimony would more efficiently covered through
States Rule 30(b)(6) deposition. But this cases questions hinge what specific
State employees knew and when they knew it. the principal advisor and
records management expe1i responsible for controlling Clintons official
con-espondence and records, Finneys knowledge particularly relevant. And
especially given the concerns about government misconduct that prompted this
discovery, Judicial Watchs ability take his direct testimony and ask follow-up
questions critical.
Second, the government opposes Finneys deposition because testified
publicly before Congress similar issues, and because Judicial Watch
unsuccessfully sought his deposition Judicial Watch Department ofState,
No. 13-1363 (D.D.C.). True enough, Judge Sullivan did not allow Finneys
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
deposition, thinking would unnecessarily duplicate States 30(b)(6) deposition that case. See Mem. Op. 21-23, Judicial Watch Dep State, No. 13-1363
(D.D.C. Aug. 19, 2016), ECF No. 124. But here, Judicial Watch seeks
beyond cursory, second-hand testimony and directly ask Finney what knew
about Clintons email use. This includes asking about emails suggesting knew
about her private email use 2014, and emails received concerning
December 2012 FOIA request from Citizens for Responsible Ethics
Washington (CREW) regarding senior officials personal email use-topics
States 30(b)(6) deposition Judge Sullivans case never addressed. Judicial
Watch may depose Finney. Heather Samuelson. the former State Depariment senior advisor who helped
facilitate States receipt Hillary Clintons emails. The government argues
Sarnuelsons testimony would more efficiently covered through States Rule
30(b)(6) deposition. But explained subsection III.A.3, this case turns what
specific goverrnnent employees knew and when they knew it. Judicial Watch
must able take their direct testimony and ask them follow-up questions.
Judicial Watch may depose Samuelson. Jacob Sullivan. Secretarv Clintons former senior advisor and deputy Chief
Staff. The government does not oppose Sullivar1s deposition. Interrogatories. Judicial Watch may discover through interrogatory the identities the
individuals referenced the first full paragraph the fourth page the Federal Bureau
Investigations December 30, 2015 report (available ECF No. 62-1) describing its December
22, 2015 interview Bryan Pagliano. The goverrnnent does not oppose this interrogatory.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
IV. Discovery into the State Departments Settlement Conduct. Depositions. whether States settlement attempts late 2014 and early 2015
amounted bad faith, Judicial Watch may depose: The State Department. Judicial Watch may depose the State Depaiiment under
Rule 30(b)(6) about
this FOIA request;
CREWs December 2012 FOIA request;
its initial discovery of, and reaction to, Hillary Clintons private email use;
its November 12, 2014 letter Judicial Watch regarding this litigation;
the December 31, 2014 Joint Status Report, ECF No. 1O; and
the February 2015 Joint Status Report, ECF No.
The government does not oppose this deposition. Finnev. See supra subsection III.A.3. John Hackett. the fonner deputy director States Office oflnformation
Prograins Services. The government argues Hacketts testimony would more
efficiently elicited through States Rule 30(b)(6) deposition. But explained
subsection III.A.3, this case depends what specific government employees
knew and when they knew it. Judicial Watch must able take their direct
testimony ai1d ask them follow-up questions. Judicial Watch may depose Hackett. these individuals also appear subsections III.A V.A this Order, Judicial Watch may only depose each
witness once.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page Gene Smilanskv. attorney-advisor within States Office the Legal Advisor.
The government opposes Smilanskys deposition, calling extraordinary
request because Smilansky has provided [State with] legal advice regarding
requests for emails from Secretary Clinton, FOIA litigation concerning the
Benghazi attacks and the talking points issue this case, and because virtually
all his knowledge (if any) about the relevant facts would have come him
his role attorney advising client. Def. Prop. Disc. Plan Sched. 20-21. also claims Smilansky unlikely have any relevant, non-privileged
information that unavailable from other sources, including the Depatiments
30(b)(6) deposition the State Department Inspector Generals public report. sure, rare for party depose his opponents attorney. But this rare case. Judicial Watch adequately justifies this exceptional step
establishing Smilanskys involvement processing FOIA requests for Secretary
Clintons email from 2012 2014, including CREWs 2012 request. And this
case about what government officials knew at1d when they knew it, Smilanskys
experience-documented through emails sent and received 2013 at1d 2014,
see ECF No. 50-1-is highly relevant at1d critical Judicial Watchs case.
Moreover, his first-hand knowledge whats critical, not infonnation filtered
through 0(b deposition through the Inspector Generals report. See also
supra subsection III.A.3. Judicial Watch may depose Smilansky. Samuelson. See supra subsection III.A.4. Sheryl Walter. former director States Office oflnformation Pro grains
Services. The govermnent argues Walters testimony would more efficiently
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
covered through States Rule 30(b)(6) deposition. But explained subsection
III.A.3, this case involves what specific government employees knew and when
they knew it. Judicial Watch must able take their direct testimony and ask
them follow-up questions. Judicial Watch may depose Walter. Jonathon Wasser. management analyst for the Executive Secretariat staff. The
government argues that Wassers testimony unnecessarily duplicates States
30(b)(6) deposition Judicial Watch Department State, No. 13-1363
(D.D.C.) (Sullivan, J.), and-in any event-that his testimony would more
efficiently covered through States Rule 30(b)(6) deposition. But both arguments
miss Judicial Watchs need take his direct testimony and ask him follow-up
questions, particularly regarding emails suggesting knew about Clintons
private email use 2014. See also supra subsection III.A.3. Judicial Watch may
depose Wasser. The Office ofinformation Program Services analysts assigned this case. The
government argues these individuals testimony would more efficiently elicited
through States Rule 30(b)(6) deposition. But explained subsection III.A.3,
this case turns what specific government employees knew and when they knew
it. Judicial Watch must able take their direct testimony and ask them followup questions. Judicial Watch may depose these analysts. The unidentified Officer ofinformation Program Services official whose
August 17. 2015 FBI interview memorialized the August 18. 2015 rep01t
available ECF No. 62-2. The government argues this persons testimony would more efficiently covered through States Rule 30(b)(6) deposition. But
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
explained subsection III.A.3, this case concerns what specific government
employees knew and when they knew it. Judicial Watch must able take their
direct testimony and ask them follow-up questions. Judicial Watch may depose
this unidentified official. Interrogatories. Judicial Watch may also obtain via inten-ogatory the identity the
analysts who searched the Office the Secretary records September 23, 2014, and any
people who perfonned the search described paragraph seventeen John Hacketts July
2015 declaration (available ECF No. 19-2), well the dates they searched. The
government does not oppose these inteITogatories. Document Requests. Finally, Judicial Watch may request the following documents: unredacted copy August email exchange between Fi1mey,
Wasser, James Blair, Andrew Keller, and Smilansky redacted copy available ECF No. 50-1, 37); unredacted copy ofa May!, 2013 email exchange between Smilansky, Brett
Gittleson, Walter, and others redacted copy available ECF No. 50-1, pp.
23-29); copy the email exchanges available ECF No. 62-3 with the Exemption
redactions removed; and records concerning the Departments pre-Febrnary 2015 awareness the need continue searching for records responsive this FOIA request, well those
records locations.
The government does not oppose these document requests.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page Discovery into the Adequacy the State Departments Search. Depositions. whether State adequately searched for responsive records, Judicial
Watch may depose: The State Department. Judicial Watch may depose the Department under Rule
30(b)(6) about
this FOIA request;
preparing talking points for former .N. Ambassador Susan Rice
September 16, 2012 media appearances;
the advance dissemination discussion those talking points;
the aftermath Rices appearances; and
the Departments evolving understanding the Benghazi attack.
The government does not oppose deposing the Department the first point. But
the govermnent does oppose deposing the Depaiiment the latter four points,
arguing they ha[ve] nothing with the adequacy States response the
naiTow FOIA request issue this litigation. Def. Prop. Disc. Plai1 Sched.
Yet Rices talking points a11d States understanding the attack play fil1
unavoidably central role this case: infonnation about the points development
and content, well their discussion and dissemination before and after Rices
appearances could reveal exta11t unsearched, relevant records; States role the these individuals also appear subsections III.A IV.A this Order. Judicial Watch may only depose each
witness once.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
points content and development could shed light Clintons motives for
shielding her emails from FOIA requesters States reluctance search her
emails. See also Mem. Op. 7-8, ECF No. (Did State know Clinton deemed the
Benghazi attack terrorism hours after happened, contradicting the Obama
Administrations subsequent claim protest-gone-awry? ... Did the
Department merely fear what might found? was States bungling just the
unfortunate result bureaucratic redtape and failure communicate?). The
government correctly notes Judicial Watch cannot appoint itself freelance
Inspector General into the Obama Administrations response the Benghazi
attack. Def. Prop. Disc. Plan Sched. 11. But thats not what Judicial Watch
does here. Though Judicial Watch caimot helm fishing expedition trawling
anything and everything concerning the Benghazi attack, Judicial Watch may
depose State these topics the extent helpful answer the questions
underlying this discovery. Cooper. Clintons email servers initial creator at1d mat1ager, Cooper may have
relevant insight whether additional emails still exist at1d where they may
located. See also supra subsection III.A.2. Judicial Watch may depose Cooper. Fi1mev. See supra subsection III.A.3. Samuelson. See supra subsection III.A.4. Sullivan. The govermnent does not oppose Sulliva11s deposition. Wasser. See supra subsection IV.A.7. Interrogatories.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page Judicial Watch may serve interrogatories Rice and Benjamin Rhodes, President
Obamas fonner Deputy National Security Advisor who helped develop Rices talking points.
Judicial Watch actually wants depose Rice and Rhodes. But the government opposes the
depositions, casting them attempt get the underlying issues about Benghazi, rather
than issues relating this FOIA case. Def.s Prop. Disc. Plan Sched. 12. course, that not entirely true. Just the State Depmiments testimony the
Benghazi attack m1d Rices talking points may help m1swer the questions underpinning this
discovery, see supra subsection V.A.I, too may Rice and Rhodess testimony. But neither
Rice nor Rhodes worked the Office the Secretm neither has ties Hillary Clintons
private email use the governments conduct this case. And Judicial Watch wm1ts
discover who Rice communicated with the day the attack and the following weeks,
already has all her emails, thanks its identically worded, long-resolved FOIA request the
U.S. Mission the United Nations. See Judicial Watch US. Dep State, No. 13-951
(D.D.C. Sept. 12, 2014) (Sullivan, J.). the extent Judicial Watch will sail unchmiered
waterfront with Rice and Rhodes, has not justified deposing them; inte1Togatories would
seemingly suffice verify States search this case. for now, Judicial Watch may only serve
interrogatories Rice and Rhodes.
ii. Judicial Watch may serve interrogatories E.W. Priestap, the assistant director the
FBIs counterintelligence division who supervised the investigation into Clintons private email
use. Judicial Watchs proposal goes further, seeking depose Priestap the nature [and]
extent the FBIs effo1is, such who the FBI attempted contact, who the FBI actually
talked to, who the FBI requested records from, who actually provided records, and whether the
FBI believes those that they requested records from actually returned all the requested
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
records. Pl. Resp. ECF No. 64. sure, [t]his information could shed additional light the adequacy the State Departments search and other sources from which might yet
obtain records. Id.
But the government notes Priestap has already provided declarations [in another case]
recounting the FBIs extensive efforts locate all potentially work-related emails. See Def.s
Prop. Disc. Plan Sched. 18-19 (quoting Mem. Op. 13, Judicial Watch Tillerson, No. 15785 (D.D.C. Nov. 2017) (Boasberg, J.)). And those declarations rule out further stores
Clintons emails. See Mem. Op. Judicial Watch Tillerson, No. 15-785 (D.D.C. Nov.
2017), ECF No. 58. The FBIs final report echoes this testimony, U.S. Dept Justice, Clinton
E-Mail Investigation, https://vault.fbi.gov/hillary-r.-clinton/Hillary%20R.%20Clinton%20Part%
2001 %20of0/o2028, does the FBI Inspector Generals report. U.S. Dept Justice, Review Various Actions the Federal Bureau oflnvestigation and Depaiiment Justice Advai1ce the 2016 Election (2018), https:/hvww.oversight.gov/sites/default/files/oig-repmis/2016_
election_final_report_ 06-14-18 0.pdf. the extent Judicial Watch will cover unexplored terrain with Priestap, has not
justified saddling this high-rai1king law enforcement official with deposition. The Court does
not see why Judicial Watch cannot adequately discover the infonnation more efficiently through
interrogatories. Judicial Watch may only serve interrogatories Priestap.
iii. Judicial Watch may serve interrogatories Monica Ha11ley, former staff member States Office the Secretary, and Lauren Jiloty, Clintons fonner special assistant. The
government does not oppose these interrogatories.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page
Judicial Watchs proposal goes further, seeking depose Hanley and Jiloty elicit their
recollection Clintons frequent email correspondents. one hand, their testimony matters:
Hanley was key Clinton assistant, and Jiloty maintained Clintons Blackbe1Ty contacts, their
knowledge Clintons email practices will help ensure State turned over every stone search
for Clintons emails. But the Comt does not see why such limited purpose necessitates
expensive and burdensome deposition. Nor does Judicial Watch adequately justify why cannot
discover what needs from Hanley and Jiloty with equal effect and greater economy through
interrogatories. for now, the Court only allows Judicial Watch serve inte1TOgatories
Hanley and Jiloty.
1v. Judicial Watch may also obtain through interrogatory the number emails within
Department records sent from the clintonemail.com domain name-including the carbon
copy and blind carbon copy functions-between September 11, 2012 and February 2013
including Alice Wells, Andrew Shapiro, Anne-Marie Slaughter, Caroline Adler, Mills, Claire
Coleman, Dan Schwerin, Abedin, Sullivan, Joseph MacManus, Judith McHale, Jiloty, Lona
Valmoro, Maria Sand, Melanne Verveer, Hanley, Patrick Kennedy, Philippe Reines, Richard
Verma, Robe1t Russo, Rice, Victoria Nuland, Wendy Sherman, and William Burns. The
govermnent does not oppose this interrogatory.
Judicial Watchs proposal goes further, seeking this infommtion for Clintons entire turn Secretary, starting January 20, 2009. But the Court does not see how information from before
September 11, 2012 helps Judicial Watch verify States search for documents necessarily created after that date. And neither Judicial Watchs proposal nor its response defends the earlier
date. Judicial Watch may only discover this infonnation for emails sent between September
11, 2012 and February 2013.
Case 1:14-cv-01242-RCL Document Filed 01/15/19 Page Document RequeJts. Judicial Watch may request the following documents: all records- including internal communications-concerning this FOIA request; all records relating the Departments practices, policies, and actions accounting
for Office the Secretary records, including the emails Hillary Clinton, Cheryl
Mills, Huma Abedin, Jacob Sullivan, and other staff, during and after their
employment.
The government does not oppose these document requests. ORDERED.
,--
Date: January
2019
Royce Lan1berth
United States District Judge