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Judicial Watch • JW v. State Discovery approved 01363

JW v. State Discovery approved 01363

JW v. State Discovery approved 01363

Page 1: JW v. State Discovery approved 01363

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Number of Pages:16

Date Created:May 4, 2016

Date Uploaded to the Library:May 04, 2016

Tags:approved, watchs, Docket, clintonemail, Discovery, Clintons, 01363, Plaintiffs, Abedin, Bill Clinton, Secretary, clinton, filed, State Department, plaintiff, FBI, request, document, FOIA, department, EPA


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U.S. District Court
District Columbia
Notice Electronic Filing
The following transaction was entered 2016 and filed 5/4/2016
Case Name:
JUDICIAL WATCH, INC. DEPARTMENT STATE
Case Number: 13-cv-01363-EGS
Filer:
Document Number:
Docket Text:
MEMORANDUM AND ORDER regarding the factual and legal basis for narrowly
tailored discovery agreed the parties. Signed Judge Emmet
Sullivan May 2016. (lcegs4)
Case 1:13-cv-01363-EGS Document
Filed 05/04/16 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH,
Plaintiff,
Civil Action No. 13-1363
U.S. DEPARTMENT STATE
Defendant.
MEMORANDUM AND ORDER
Background
This case presents narrow legal question: did the United
States Department State (State Department), good faith,
conduct search reasonably calculated uncover all relevant
documents response Plaintiff Judicial Watchs
Watch)
Freedom Information Act
(FOIA)
(Judicial
request? the
Court ruled during the February 23, 2016 hearing Judicial
Watchs Motion for Discovery under Rule 56(d), questions
surrounding the creation, purpose and use the
clintonemail.com server must explored through limited
discovery before the Court can decide, matter law,
whether the Government has conducted adequate search
response Judicial Watchs FOIA request.
56(d); Hrg Tr., Docket No. 78:
9-25.
See Fed. Civ.
Case 1:13-cv-01363-EGS Document
Filed 05/04/16 Page The FOIA request issue.
The FOIA request issue focuses employment records Ms.
Huma Abedin, one former Secretary State Hillary Clintons
(~Secretary
Clinton
~Mrs.
Clinton)
closest advisors.
Designated special government employee, Ms. Abedin was
allowed engage private sector work while also working
the State Department.
Pl.s Mot. Discovery, Docket No. 15.
Specifically, Ms. Abedin served consultant Teneo
Holdings and the Clinton Foundation.
Id. Teneo led long-
time advisor former President Bill Clinton.
Id. November 10, 2013, Judicial Watch filed this lawsuit
seeking the production the following documents:
Any and all SF-50 (notification personnel action)
for Ms. Huma Abedin;
forms
Any and all contracts (including, but not limited to,
personal service contracts) between the Department State
and Ms. Huma Abedin; and
Any and all records regarding, concerning related the
authorization for Ms. Huma Abedin represent individual
clients and/or otherwise engage outside employment while
employed and/or engaged contractual relationship
with State.
Compl., Docket No. Judicial Watchs request covered the time
period January 2010 May 21, 2013.
Id. Procedural history.
The State Department acknowledged receipt Judicial Watchs
FOIA request letter June 2013, but did not
Case 1:13-cv-01363-EGS Document
Filed 05/04/16 Page
substantively respond until after this lawsuit was filed.
Compl.
6-8. response this lawsuit, the State Department
searched the records the Bureau Human Resources, the
Office the Executive Secretariat, the Office the Legal
Advisor and the Central Foreign Policy Records. Def.s Mot.
Summ. J., Docket 3-4. The State Department produced eight
non-exempt records Judicial Watch.
Id. The parties stipulated dismissal this case March 14, 2014. Docket No. 12. June 2015,
following the revelation the New York Times the clintonemail.com server, the parties agreed that the case
should re-opened.
See Pl.s Mot.
Discovery, Docket No.
see also June 19, 2015 Minute Order.
Pursuant Court
order, the State Department collected and searched federal
records that were voluntarily produced Mrs. Clinton, Ms.
Abedin and Ms. Cheryl Mills. Def.s Mot. Summ. J., Docket
10. The State Department also searched the four offices listed
above for second time.
Id.
For the first time, however, the
Office the Under Secretary for Management was also searched.
Id. Search terms agreed upon the parties were used
complete these searches, which resulted rolling production pages September 18, 2015; pages October 13, 2015;
re-release three documents November 12, 2015; and rerelease two documents full and re-release part one
document previously withheld November 13, 2015.
Id. and
Case 1:13-cv-01363-EGS Document
Filed 05/04/16 Page
13. The State Department withheld two Office Government
Ethics Form 540s under FOIA exemption
Id. November 13, 2015, the State Department filed Motion for
Summary Judgment.
See Docket No.
47. Judicial Watch responded
with Motion for Discovery under Rule 56(d), arguing that
limited discovery necessary before can respond the
State Departments claim that conducted adequate search.
Pl.s Mot. Discovery, Docket No.
48. The parties briefing
Judicial Watchs Motion for Discovery was finalized the end January 2016, and February 23, 2016, the Court heard oral
argument the motion.
See Hrg Tr.,
Docket No. 59. The Court
granted Plaintiffs Motion for Discovery open court and
directed the parties submit narrowly tailored discovery
proposals for the Courts consideration.
Id. March 16, 2016,
the State Departments Motion for Summary Judgment was denied
without prejudice light the Courts consideration the
parties discovery proposals.
See March 16, 2016 Minute Order.
Although the State Department has not waived its objection
discovery, the parties were able reach agreement the
relevant scope discovery.
See Docket No.
65. The Court
applauds the parties cooperative efforts and approves their
joint proposal for limited discovery. The purpose this
Memorandum and Order explain more detail the basis for
Case 1:13-cv-01363-EGS Document
Filed 05/04/16 Page
the Courts February 28, 2016 decision grant Judicial Watchs
request for discovery. Key facts related the clintonemail.com server.
Critical facts related the clintonemail.com server
preclude legal analysis, this time, whether the State
Department conducted adequate search under FOIA.
First, the
clintonemail.com server was established eight days prior Mrs.
Clinton being sworn Secretary State. Hrg Tr. 23:20 24:1. Mrs. Clinton used clintonemail.com email for personal and
professional purposes throughout her tenure Secretary
State.
See Clinton Deel.,
Docket No. 22. state.gov email
electronic device was ever issued Mrs. Clinton from the State
Department.
Pl.s Mot. Discovery, Docket No. 12.
Ms. Abedin was assigned email account the
clintonemail.com server well one state.gov.
Id. 11. unknown whether any other State Department staff had
email account the clintonemail.com server. Hrg Tr. 22: 1-13.
However, email communications from January 2009, just several
weeks after Mrs. Clinton was sworn in, confirm that senior State
Department staff had knowledge the clintonemail.com server.
See Docket No. 2-4;
see also Hrg Tr.
49: 12-16 (Mr.
Myers, counsel for the State Department: think its
undisputed that former Secretary Clinton was using the e-mail
account correspond with some people who were senior
Case 1:13-cv-01363-EGS Document
Filed 05/04/16 Page
positions the State Department, and that they were
necessarily aware the address from which she was sending emails.). Notably, the process which the State Department
took possession Mrs. Clinton and Ms. Abedins federal records
from the clintonemail.com server was through self-selection
Mrs. Clinton, Ms. Abedin, Ms. Mills and their private counsel.
Clinton Deel.;
see also Docket No.
(letters between State
Department and private counsel for Mrs. Clinton, Ms. Abedin and
Ms. Mills). late January 2009, there was communication among several
State Department staff about setting computer off network that then Secretary Clinton could check her email the
State Department.
See January 24,
2009 email chain, Docket No.
52. August 2011 communication difficulties experienced
Secretary Clinton prompted discussion among State Department
staff about whether issuing State Department blackberry might
solve the problem.
Pl.s Reply, Docket No. 51, Exhibit
Stephen Mull, Executive Secretary the State Department the
time, noted that Secretary Clinton used State issued
blackberry, her identity would secret but that the
state.gov email account would subject FOIA requests. Id.
Ms. Abedin responded lets discuss the state blackberry,
doesnt make whole lot sense. Id.
Case 1:13-cv-01363-EGS Document
Filed 05/04/16 Page
Finally, and critically, the January 2016 Office
Inspector General report, Evaluation the Department
States FOIA Process for Requests Involving the Office the
Secretary (OIG Report)
notes that although dozens State
Department staff communicated with Mrs. Clinton through the
clintonemail.com server, there evidence that personnel
involved responding FOIA requests were aware Mrs.
Clintons clintonemail.com email address. OIG Report 14-15,
available https://oig.state.gov/system/files/esp-16-01.pdf.
The OIG Report also notes that least one State Department
lawyer reported his her belief that the State Department was
not responding FOIA requests adequately because Mrs.
Clintons emails were excluded from FOIA searches.
Id. 15,
64.
II.
Discussion The purpose FOIA.
FOIA was designed Congress pierce the veil
administrative secrecy and open agency action the light
public scrutiny. Morley C.I.A.,
Cir. 2007)
508 F.3d 1108, 1114
(internal citations omitted).
(D.C.
FOIA requires federal
agencies disclose all requested agency records, unless one
nine statutory exemptions applies. U.S.C.
552(a) and (b).
Because disclosure rather than secrecy the dominate
objective the Act, the statutory exemptions are narrowly
Case 1:13-cv-01363-EGS Document
Filed 05/04/16 Page
construed. See McKneely United States Dept. Justice, 5675515
(D.D.C. 2015)
2015
(internal citations omitted). Standard for adequate search under FOIA. recurring question FOIA cases whether the agency
conducted search reasonably calculated uncover all relevant
documents. Asarco Inc.
2009 1138830 U.S. Environmental Protection Agency,
(D.D.C. 2009). The defending agency must
show beyond material doubt that conducted reasonable
search. Weisberg U.S. Dept Justice,
705 F.2d 1344, 1351
(D.C. Cir. 1983). The adequacy agencys search for
responsive records measured the reasonableness the
effort light the specific request. McKinley FCIC, Supp. (D.D.C. 2001)
807
(quoting Larson Dept
State, 565 F.3d. 857, 869 (D.C. Cir. 2009). agency not
required search every record system.
790 F.2d 942,
952-53
(D.C. Cir. 1986)
See Meeropol Messe,
(noting search not
presumed unreasonable simply because fails produce all
relevant material);
(D.C. Cir. 1982)
see also Perry Block,
684 F.2d 121, 128
(holding agency need not demonstrate that
all responsive documents were found and that other relevant
documents could possibly exist). Standard for discovery FOIA case.
Discovery rare FOIA cases.
Supp. 114, 115 (D.D.C. 2008)
Thomas FDA, 587
(Huvelle, J.) (noting that
Case 1:13-cv-01363-EGS Document
~discovery
Filed 05/04/16 Page extraordinary procedure FOIA action).
Discovery should permitted, however, when plaintiff raises sufficient question the agencys good faith
processing documents response FOIA request.
See, e.g.
Citizens for Responsibility Ethics Washington Dept
Justice,
05-cv-2078, 2006 1518964
(Sullivan, J.)
(D.D.C. June 2006)
(permitting discovery FOIA action where the
government engaged extreme delay);
Foundation E.P.A.,
see also Landmark Legal
959 Supp. 175 (2013)
(ordering
discovery FOIA action the question whether senior
administrators used personal emails for official business and
whether the EPA excluded key officials from their initial
search); Landmark Legal Foundation E.P.A.,
211, 220
(D.D.C. 2015) Supp.
(noting that the behavior the EPA
following Landmarks August 2012 FOIA request raised
reasonable suspicion wrongdoing, entitling Landmark
discovery the possibility that EPA may have purposefully
attempted skirt disclosure under
FOIA.). Judicial Watch has raised sufficient questions
whether the State Department processed its November 2013
FOIA request good faith.
Relying the facts discussed above,
Judicial Watch raises
significant questions its Motion for Discovery about whether
the State Department processed documents good faith
Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page
response Judicial Watchs FOIA request.
Judicial Watch
therefore entitled limited discovery.
The State Department made two primary arguments
opposition Plaintiffs Motion for Discovery.
First, the State
Department argued that did not have possession and control
the clintonemail.com server, and therefore could not found
have improperly withheld any documents.
Discovery, Docket No.
Def.s Opp.
Pl.s Mot.
(citing Reporters Committee for
Freedom the Press Kissinger,
445 U.S. 136, 139 (1980)
(even document requested under FOIA wrongfully the
possession party not agency, the agency which received
the document does not improperly withhold those materials
its refusal institute retrieval action.). Because the
State Department did not possess control Mrs. Clintons
server the time Judicial Watchs FOIA request was received,
the State Department argued did not withhold any relevant
documents.
Def.s Opp.
Pl.s Mot.
(Plaintiffs concession
that the State Department did not possess former Secretary
Clintons emails the time Plaintiff submitted its FOIA
request, more than three months after she left the State
Department, should dispositive.).
The Court unpersuaded the State Departments reliance Kissinger. The Kissinger Court explicitly did not address
whether the withholding standard must measured from the
Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page
time request received under circumstances where
shown that agency purposefully routed document out
agency possession order circumvent FOIA request. Id.
167, Here, Judicial Watch alleges that the State
Department and Mrs. Clinton sought deliberately thwart FOIA
through the creation and use clintonemail.com.
Discovery, Docket No.
Pl.s Mot. This allegation goes directly
the type circumstance Kissinger did not address.
Second, the State Department argued that has done all obligated under FOIA searching the documents
returned Mrs. Clinton, Ms. Abedin and Ms. Mills. Hrg Tr.
61-
62. support this argument, the State Department relied
Judicial Watch John Kerry, Federal Records Act
(FRA)
case where the Court found Judicial Watchs claims moot light the efforts the State Department had taken recover federal
See
records from Mrs. Clinton and other government officials.
Civil Action No. 15-785 (JEB), Docket No.
21. However, the
relevant standards under the FRA and FOIA are different. Under
the FRA, plaintiffs right compel referral the Attorney
General limited situations where agency has taken
either minimal action remedy the removal destruction federal records.
F.2d 282, 296
Id. (citing Armstrong Bush,
924
(D.C. Cir. 1991). Although the State Department
has taken some action recover federal records related this
Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page
case, those efforts not resolve the question whether the
agencys search response Judicial Watchs FOIA request was
reasonable. Judge Lamberth recently observed [t]he State
Departments willingness now search documents voluntarily
turned over the Department Secretary Clinton and other
officials hardly transforms such search into adequate
reasonable one. See Civil Action No. 14-1242
(RCL), Docket
No. 39. sum, the circumstances surrounding approval Mrs.
Clintons use clintonemail.com for official government
business, well the manner which was operated, are
issues that need explored discovery enable the Court resolve, matter law, the adequacy the State
Departments search relevant records response Judicial
Watchs FOIA request.
III.
Conclusion
Having considered Plaintiffs proposed plan, States
response,
Plaintiffs reply, and the parties jointly proposed
order, and recognizing that Defendant has not waived its
objection discovery, hereby ORDERED that:
The scope permissible discovery shall follows:
the creation and operation clintonemail.com for State
Department business, well the State Departments
approach and practice for processing FOIA requests that
potentially
implicated former Secretary Clintons and
Ms. Abedins emails and States processing the FOIA
request that the subject this action. Plaintiff
Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page
not entitled discovery matters unrelated
whether State conducted adequate search response
Plaintiffs
FOIA
request,
including
without
limitation:
the
substantive
information
sought
Plaintiff its FOIA request this case, which
involves the employment status single employee; the
storage, handling, transmission, protection
classified information, including cybersecurity issues;
and any pending FBI law enforcement investigations.
Plaintiff intends take depositions the following
individuals and designees: Stephen Mull
(Executive Secretary the State
Department from June 2009 October 2012 and suggested
that Mrs. Clinton issued State
Department BlackBerry, which would protect her identity
and would also subject FOIA requests); Lewis Lukens (Exe Director the Executive
Secretariat from 2008 2011 and emailed with Patrick
Kennedy and Cheryl Mills about setting computer for
Mrs.
Clinton
check
her
clintonemail.com email
account Patrick Kennedy (Under Secretary for Management since
2007 and the Secretary States principal advisor
management issues, including technology and information
services); 30(b) (6)
deposition(s)
Defendant
regarding
the
processing FOIA requests, including Plaintiffs FOIA
request, for emails Mrs. Clinton and Ms. Abedin both
during Mrs. Clintons tenure Secretary State and
after; Cheryl
Mills
(Mrs.
Clintons
Chief
Staff
throughout her four years Secretary State); Huma Abedin (Mrs. Clintons Deputy Chief Staff and
senior advisor Mrs. Clinton throughout her four years Secretary State and also had email account
clintonemail.com); Bryan Pagliano (State Department Schedule employee who
has been reported have serviced and maintained the
Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page
server that hosted the clintonemail.com system during
Mrs. Clintons tenure Secretary State); Plaintiff reserves
the
right
seek the Courts
permission take the deposition Donald Reid later time, and State reserves the right object.
(Reid
Senior
Coordinator
for
Security
infrastructure, Bureau Diplomatic Security since 2003
and was involved early discussions about Mrs. Clinton
using her BlackBerry and other devices conduct
official State Department business);and Based information learned during discovery,
the
deposition Mrs.
Clinton may necessary.
Plaintiff
believes
Mrs.
Clintons
testimony
required, will request permission from the Court
the appropriate time. the conclusion deposition State may elect
good faith the record have period three
business days following the time that deposition
transcript audiovisual recording made available
the parties within which review those portions the
transcript audiovisual recording that may contain
classified
information,
information
specifically
exempted from disclosure statute, information
about any pending FBI law enforcement investigations,
and, necessary, seek order precluding public
release, quotation paraphrase any inadvertently
disclosed
classified
information,
information
specifically exempted from disclosure statute,
information about any pending FBI law enforcement
investigations.
The
decision
elect
the
threebusiness-day period States sole discretion and
may not challenged.
Discovery shall conducted pursuant the Federal
Rules Civil Procedure, subject the scope and
limitations herein.
Defendant shall serve its answers and any objections
the four interrogatories set forth Plaintiffs
proposed discovery plan, ECF No. 58-1 (Mar. 15, 2016),
within days the Courts order. Those
interrogatories include:
Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page Who was responsible for processing and/or responding
record requests, including FOIA requests, concerning
emails Mrs. Clinton and other employees the Office the Secretary; Who was responsible for the inventorying other
accounting Mrs. Clintons and Ms. Abedin emails,
records, and information; Who was responsible for responding Plaintiffs FOIA
request from the date submission the present; and Which State Department officials and employees had
and/or used account the clintonemail.com system
conduct official government business.
Discovery shall completed within eight weeks the
Courts order. Plaintiff reserves the right seek
additional time necessary, and Defendant reserves the
right object. Plaintiff must seek the Courts
permission conduct discovery beyond the depositions
and the interrogatories identified above, and Defendant
reserves the right object. ORDERED.
Emmet Sullivan
United States District Court
May 2016.