JW v State Motion for Discovery 01363
Number of Pages:31
Date Created:December 11, 2015
Date Uploaded to the Library:January 19, 2016
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Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC., Plaintiff, U.S. DEPARTMENT STATE, Defendant. Civil Action No. 13-cv-1363 (EGS) PLAINTIFF MOTION FOR DISCOVERY PURSUANT RULE 56(d) THE FEDERAL RULES CIVIL PROCEDURE Plaintiff Judicial Watch, Inc., counsel, respectfully moves pursuant Rule 56(d) the Federal Rules Civil Procedure for time take discovery. grounds therefor, Plaintiff states follows: STATEMENT POINTS AND AUTHORITIES Introduction. For six years, Defendant U.S. Department State State Department Department and its former secretary, Hillary Rodham Clinton Mrs. Clinton), kept the public the dark about the creation off-grid record system, which was used Mrs. Clinton and least one her closest advisors, Huma Abedin, conduct official government business and communicate with fellow State Department employees and other federal government employees, including those the White House, well foreign leaders and other interested individuals. The public lack awareness continued even though the State Department received and responded dozens not hundreds Freedom Information Act FOIA requests for Plaintiff files this motion pursuant the Court October 23, 2015 Minute Order. Oral argument has been scheduled for February 23, 2016. See October 2015 Minute Order. Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page records Mrs. Clinton. The State Department and Mrs. Clinton only acknowledged the system when compelled New York Times report March 2015. Had the New York Times not run the story, the public may never have known about the off-grid system. Although the public now knows about the off-grid system, does not definitively know how and why the State Department and Mrs. Clinton, even despite receiving numerous FOIA requests, kept the record system secret during Mrs. Clinton entire four years secretary and for the two years subsequent. Based limited, admissible evidence and other reliable information, there least reasonable suspicion that the State Department and its former secretary deliberately thwarted FOIA creating, using, and concealing the off-grid system. Because the system was off-grid, was not searched response Plaintiff FOIA request and other FOIA requests received during Mrs. Clinton tenure secretary the two years that followed. addition, the State Department appears have allowed Mrs. Clinton leave the agency without providing inventory the records the system ensuring access all federal records the system. While Mrs. Clinton ultimately returned approximately 55,000 pages federal records from this off-grid system the State Department, the process for identifying the federal records the system was undertaken Mrs. Clinton private attorneys, individuals only accountable the former secretary, not employees accountable the Department. addition, there evidence that the process complied with appropriate federal records laws, rules, and regulations. The net result that the integrity the State Department FOIA process has been completely and thoroughly undermined the substantial detriment FOIA requesters like Plaintiff who submitted requests the Department implicating Mrs. Clinton official email. -2- Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page addition ensuring that the State Department has satisfied its FOIA obligations with respect the request issue this case, compelling need exists restore the integrity the FOIA process the State Department and ensure accountability for the FOIA violations that occurred. Before this can accomplished, however, Plaintiff requires discovery uncover and present admissible evidence the Court about whether the State Department and Mrs. Clinton deliberately thwarted FOIA. Plaintiff also requires discovery the system itself determine possible methods for recovering whatever responsive records may still exist. The Court therefore should grant Plaintiff time conduct discovery and obtain admissible evidence. II. The State Department Motion for Summary Judgment. The FOIA request issue this case and the lawsuit itself has long, complicated history. However, there are three indisputable facts. First, Plaintiff sent FOIA request the State Department seeking records that would likely include emails Mrs. Clinton and Ms. Abedin. Defendant Statement Material Facts Def Stmt. 7). Second, Mrs. Clinton had left the State Department before Plaintiff submitted its FOIA request. Id. Third, the State Department has only searched self-selected portion the clintonemail.com record system for records responsive Plaintiff FOIA request. Id. Taking these facts into consideration, the State Department moved for summary judgment. [An] agency cannot limit its search only one record system there are others that are likely turn the information requested. Oglesby Department the Army, 920 F.2d 57, (D.C. Cir. 1990). moving for summary Judgment, the State Department asks the Court determine whether has searched all systems that are likely contain records responsive agreed upon the parties and adopted the Court, Defendant motion stayed until the Court rules Plaintiff Motion for Discovery. See October 23, 2015 Minute Order. -3- Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page Plaintiff FOIA request. Because has not searched the off-grid system, the State Department, however, has failed search all relevant record systems and, doing so, has also failed conduct search reasonably calculated uncover all relevant documents. Nation Magazine U.S. Customs Service, F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt U.S. Department State, 897 F.2d 540, 542 (D.C. Cir. 1990)) (emphasis added). The clintonemail.com system relevant record system. See Chambers U.S. Department the Interior, 568 F.3d 998, 1005-1006 (D.C. Cir. 2009) (The D.C. Circuit concluded that agency search would not adequate records were deliberately destroyed order avoid producing them.). Such search would not reasonably calculated uncover all relevant [records] but instead would designed keep concealed the particular document that most relevant. Id.; see also Landmark Legal Foundation Environmental Protection Agency, 959 Supp. 175, 182 (D.D.C. 2013) (determining that any search that did not include the personal email accounts senior officials would not reasonably calculated uncover all relevant records). addition, Kissinger Reporters Committee for Freedom the Press, 445 U.S. 136 (1980), does not address what required agency when off-grid record system created and used the agency head and the record system ultimately removed from the agency without inventory all federal records that system ensuring that those records are readily available the agency. the D.C. Circuit has explained, The Supreme Court, Kissinger, raised but did not decide whether the possession control requirement might displaced the event that was shown that agency official purposefully routed document out agency possession order circumvent FOIA request. National Security Archive Archivist United States, 909 F.2d 541, 546 (D.C. Cir. 1990) (quoting Kissinger, 445 U.S. -4- Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page 155). Although case entirely point, the Court ruling Landmark Legal Foundation more instructive than the Supreme Court opinion Kissinger. III. The Critical Issue the Motivation behind the Creation and Use Off-grid Record System the State Department and Mrs. Clinton. Before the Court can determine whether the State Department belated search only self-selected portion the records from Mrs. Clinton off-grid system satisfied FOIA, first must decide whether Mrs. Clinton and the State Department deliberately thwarted FOIA creating, using, and concealing the system. Landmark Legal Foundation, the FOIA requester sought records senior officials the Environmental Protection Agency. 959 Supp. 177. Prior summary judgment, the FOIA requester learned that some those officials may have used personal email accounts for official business. Id. 180. Because these accounts were not searched for records responsive the FOIA request issue, the Court denied the motion for summary judgment. Id. 182. The Court found that there was outstanding issue material fact precluding summary judgment the adequacy the agency search, [b]ecause any search response [the FOIA request] that left out these possibly key sources would not reasonably calculated uncover all relevant documents. Id. The Court continued: The possibility that unsearched personal email accounts may have been used for official business raises the possibility that leaders the [agency] may have purposefully attempted skirt disclosure under the FOIA. Id. 184. Not only are the facts this case far more egregious than those Landmark Legal Foundation, but the conclusion reached the Court Landmark Legal Foundation well3 The motivation Mrs. Clinton relevant because, head the agency, her actions and decisions related the management the State Department records obviously are imputed the agency. -5- Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page supported case law. the case agency obligation search for responsive records allegedly outside its possession control, the critical issue the agency motivation for disposing [of] transferring records. DiBacco U.S. Army, 795 F.3d 179, 192 (2015); see also Kissinger, 445 U.S. 155 There question that withholding must here gauged the time which the request made since there FOIA obligation retain records prior that request. need not decide whether this standard might displaced the event that was shown that agency official purposefully routed document out agency possession order circumvent FOIA request. agency tries thwart FOIA, FOIA compels that agency take further action. See id.; see also Chambers, 568 F.3d 1004-1006; SafeCard Services, Inc. Securities and Exchange Commission, 926 F.2d 1197, 1201 (D.C. Cir. 1991); Judicial Watch, Inc. U.S. Department Commerce, Supp. 28, (D.D.C. 1998). court may compel production illegally withheld records from agency well from nonparties which the agency transferred the records attempt circumvent FOIA. Judicial Watch, Inc., Supp. 44. The critical issue this case, therefore, whether Mrs. Clinton and the State Department creation and use the off-grid record system and their concealment the system for six years, deliberately thwarted FOIA. Because the asymmetrical distribution knowledge between Plaintiff and the State Department (Judicial Watch, Inc. Food and Drug Administration, 449 F.3d 141, 145 (D.C. Cir. 2006)), Plaintiff requires discovery obtain facts essential for the Court make this determination. -6- Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page IV. Discovery Warranted Because There Reasonable Suspicion that the State Department and Mrs. Clinton Deliberately Thwarted FOIA. After denying the agency summary judgment motion, the Court Landmark Legal Foundation specifically found discovery was warranted because there was reasonable suspicion that the agency deliberately thwarted FOIA. Landmark Legal Foundation Environmental Protection Agency, Supp. 211, 220 (D.D.C. 2015). Other courts have found the same. See Judicial Watch, Inc. Export-Import Bank, 108 Supp. 19, (D.D.C. 2000) (In FOIA cases, discovery warranted when plaintiff raises sufficient question the agencys good faith processing its search. see also Judicial Watch, Inc. U.S. Department Commerce, Supp. 28, (D.D.C. 1998) (Discovery warranted when necessary explore the extent which [the agency] illegally destroyed and discarded responsive information well uncover the possible methods for recovering whatever responsive information still exists outside the [agency possession. Although Plaintiff has not yet conducted discovery, least some the relevant facts cannot reasonably disputed have already been established through admissible evidence. Those facts show that there least reasonable suspicion that the State Department and Mrs. Clinton deliberatively thwarted FOIA creating, using, and concealing the clintonemail.com record system. The State Department general processes for responding FOIA requests. John Hackett has worked for the federal government since least 2004. According his LinkedIn profile, Mr. Hackett was the Director the Information Management Office for the National Counterterrorism Center from December 2004 April 2006 and subsequently was linkedin.com/in/john-hackett-06833537. -7- Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page the Director the Information Management Office for the Office the Director National Intelligence until April 2013. April 2013, Mr. Hackett became the Deputy Director the Office Information Programs and Services IPS for the State Department. Third Declaration John Hackett (Nov. 13, 2015) (ECF No. 47-2) Third Decl. Mr. Hackett then became Acting Director IPS March 2014 and became the permanent director June 2015. Id. short, Mr. Hackett has been senior official IPS since April 2013. director IPS, Mr. Hackett has been singularly responsible for providing declarations and testimony the numerous lawsuits filed Plaintiff and other FOIA requesters concerning Mrs. Clinton emails and the State Department responses their FOIA requests. According Mr. Hackett, when the State Department receives FOIA request, IPS evaluates the request determine which offices, overseas posts, other record systems within the Department may reasonably expected contain the records requested. Id. 14. IPS then tasks individual offices with searching for responsive records. See Transcript July 29, 2015 Status Hearing, Associated Press U.S. Department State, Case No. 15-cv-345-RJL Hackett Testimony pp. 22-23; see also Third Decl. When conducting search response FOIA request, the Department relies the knowledge and expertise the relevance this case, the core responsibilities IPS include responding FOIA requests and records management. Third Decl. Plaintiff will reference declarations and testimony Mr. Hackett from the numerous cases currently pending the U.S. District Court for the District Columbia. Plaintiff will identify each declaration testimony transcript with the corresponding case number and attaching each exhibit this motion. case number referenced, the declaration was submitted this matter. The entire Hackett Testimony attached Exhibit -8- Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page employees each bureau/office/post determine the files and locations reasonably likely house responsive records. Mr. Hackett further describes the process follows: [W]hen IPS receives FOIA request, assigns the request IPS Case Analyst, who may handle 500 1,000 non-litigation FOIA requests any given time. The Case Analyst reviews the request discern the subject matter and date range the request. The Case Analyst then relies her his knowledge the Department determine which offices Bureaus are reasonably likely have responsive documents, and the Case Analyst may also consult with her his colleagues IPS including Reviewers, who are the Department subject matter experts for their opinions well. The Case Analyst then identifies the points contact POCs each those offices Bureaus posts and sends those POCs copy the FOIA request and search tasker, which form that instructs the POCs conduct search and requires them provide certain information (known search details concerning what steps that POC took conduct the search and the number potentially responsive documents materials located. Second Supplemental Declaration John Hackett, Associated Press U.S. Department State, Case No. 15-cv-345-RJL (Aug. 2015) (ECF No. 16-1), attached Exhibit Although the points contact the individual offices take the lead conducting the searches for responsive records, IPS may, and often does, have active role the process: The IPS Case Analyst role this process not limited sending receiving search taskers. Often, POC her his designee will have questions concerning the scope date range the request, the steps necessary conduct adequate search, the available exemptions under FOIA, the Department obligations under the FOIA statute. Case Analysts may answer these questions the first instance may facilitate resolution the POC questions identifying another person the Department, for instance supervisor attorney, who may more qualified address the particular issue raised the POC. other instances, POCs their designees may conduct searches, provide material, and return their search tasker forms without asking questions the Case Analyst. When the Case Analysts receive those completed search tasker forms, they may have additional questions for the POCs request additional searching the POC. Finally, POC the Case Analyst may recommend that searches other locations throughout the Department conducted, which may require the Case Analyst send additional search taskers. -9- Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page Id. The points contact vary based the individual offices. Mr. Hackett describes them either person, email box, the front office bureau. Hackett Testimony pp. 22-23. could the executive director. could staff assistant. variety people within that organization, and they further task within their bureau. Id. With respect the Office the Secretary, the point contact historically has been the chief staff special assistant assigned the Secretary. Declaration John Hackett, Canning U.S. Department State, Case No. 13-cv-831-RDM (Aug. 28, 2014) (ECF No. 192), attached Exhibit 20. After being tasked IPS, the point contact would specifically search the email files the Secretary. Id. The search conducted this way because IPS does not have big central archive emails that would allow search across everybody email account. Hackett Testimony 55. other words, conduct search for records responsive FOIA request, each point contact would have search specific email accounts which that person believes records would exist. Id. The creation the off-grid record system. Very few facts are known about the creation the clintonemail.com system. Even less are admissible. However, according the New York Times: Just before Hillary Rodham Clinton was sworn secretary state January 2009, she and her closest aides decided that she should have her own private Cheryl Mills was Mrs. Clinton Chief Staff throughout her four years Secretary State. Ms. Mills, Stanford University law graduate and former Hogan and Hartson attorney who served Associate White House Counsel under President Bill Clinton for nearly his entire presidency, seasoned veteran multiple congressional and independent counsel investigations and lawsuits and well versed federal laws and regulations governing the retention and production federal and other types records. See, e.g., Alexander Federal Bureau Investigation, 541 Supp. 274 (D.D.C. 2008) (describing Ms. Mills substantial role the White House failure properly records-manage email accounts and the effect that failure the White House response records requests). Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page email address Mrs. Clinton moved away from the Blackberry address that she had used during her 2008 presidential campaign. Private email would allow Mrs. Clinton communicate with people and out government, separate from the system maintained the State Department. aide who had been with the Clintons since the 1990s, Justin Cooper, registered the domain name, clintonemail.com, which had server linked the Clintons home address Chappaqua, N.Y. Amy Chozick and Steve Eder, Membership Clinton Email Domain Remembered Mark Status, New York Times (Mar. 2015, available nyti.ms/1zZn9lE). Specifically, irrefutable evidence shows that the clintonemail.com domain name was registered January 13, 2009, the same day that the U.S. Senate Committee Foreign Relations began hearings confirm Mrs. Clinton Secretary State. Mrs. Clinton was sworn January 21, 2009. The use the off-grid record system. During her four years Secretary State, Mrs. Clinton never used email address the state.gov system conduct official government business. Declaration Joseph Macmanus (Aug. 19, 2015) (ECF No. 29-1) Mcmanus Decl. Former Secretary State Hillary Clinton did not use state.gov account. Instead, Mrs. Clinton exclusively used email address the clintonemail.com system during the time period relevant this case. Updated: The Facts About Hillary Clinton Emails, available hillaryclinton.com/p/briefing/ factsheets/2015/07/13email-facts/. addition, least one other State Department official, Ms. Abedin, used email address the clintonemail.com system conduct official government who.is/whois/clintonemail.com. www.gpo.gov/fdsys/pkg/CHRG-111shrg54615/pdf/CHRG-111shrg54615.pdf. Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page business. Declaration Hillary Rodham Clinton (Aug. 10, 2015) (ECF No. 22-1) Clinton Decl. Mrs. Clinton also never used government-issued equipment send receive her official email. The State Department never issued Mrs. Clinton any type personal computing device. Macmanus Decl. (The Office Information Resource Management within the Office the Executive Secretariat does not believe that any personal computing device was issued the Department former Secretary State Hillary Clinton. Although the State Department has never said expressly, this would appear mean that the head the agency had State Department-issued personal computer, laptop computer, smart phone Blackberry, tablet iPad. short, Mrs. Clinton and, times, Ms. Abedin conducted official government business system that was separate and distinct from official State Department systems. Mrs. Clinton nonetheless sent and received least 30,490 official, State Department emails, totaling approximately 55,000 pages federal records. Third Decl. Updated: The Facts About Hillary Clinton Emails, available www.hillaryclinton.com/p/briefing/ factsheets/2015/07/13/email-facts. Many these emails were sent and received numerous high level State Department officials, including Ms. Mills, Ms. Abedin, Deputy Chief Staff and Director Policy and Planning Jacob Sullivan, Under Secretary State for Management Patrick Kennedy, Under Secretary State for Political Affairs William Burns (until July 2011), Under Secretary State for Political Affairs Wendy Sherman (after September 2011), and various Assistant Secretaries. See Emails sent received Ms. Mills and Mr. Kennedy from Mrs. Clinton clintonemail.com email account, which are attached Exhibit see also Interview Cheryl Mills (Sept. 2015), Select Committee Benghazi, U.S. House Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page Representatives Mills Interview attached Exhibit pp. 232-234 and Updated: The Facts About Hillary Clinton Emails, available www.hillaryclinton.com/p/briefing/factsheets /2015/07/13/email-facts/ (Mrs. Clinton readily acknowledged that her use non- state.gov email address was widely known over 100 Department and U.S. Government colleagues she emailed. addition, other State Department officials assisted Mrs. Clinton creating and using the clintonemail.com system. See Emails between Mrs. Clinton and her staff, which are attached Exhibit Members her immediate staff helped her when she experienced technical difficulties. Id. The State Department also hired Bryan Pagliano, the Director Secretary Clinton 2008 presidential campaign, serve State Department Specialist. Mills Interview pp. 240-243. Mr. Pagliano was hired Schedule employee, which typically reserved for political hires hiring that requires close, confidential working relationship with agency head other key agency official. Id. addition, has been reported that Mr. Pagliano serviced and maintained the server that hosted the clintonemail.com system during Mrs. Clinton four years secretary. Carol Leoning, Rosalind Helderman, and Tom Hamburger, FBI Looking into the security Clinton private e-mail setup, The Washington Post (Aug. 2015, available wpo.st/Alav0); Carol Leoning and Tom Hamburger, Staffer who worked Clinton private e-mail server faces subpoena, The Washington Post (Sept. 2015, available wpo.st/mlav0). Mr. Pagliano reportedly was paid Mrs. Clinton for his services. Rosaline Helderman and Carol Leoning, Clintons personally paid State Department staffer maintain server, The Washington Post (Sept. 2015, available wpo.st/vhav0). The State Department has disclaimed, however, that Mr. Pagliano reported any Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page outside income the Department. Id. Mr. Pagliano left the State Department February 2013, when Secretary Clinton left the Department. Id. While Mrs. Clinton and Ms. Abedin were using this off-grid system, departmental policies discouraged use non-official email accounts conduct official business. See FAM 544.3 the Department general policy that normal day-to-day operations conducted authorized [Automated Information System], which has the proper level security control provide nonrepudiation, authentication and encryption, ensure confidentiality, integrity, and availability the resident information. see also U.S. Department State and the Broadcasting Board Governors Office Inspector General, Office Inspections, Report No. ISP-I-12-38A The Ambassador requirements for use commercial email the office and his flouting direct instructions adhere Department policy have placed the information management staff conundrum: balancing the desire responsive their mission leader and the need adhere Department regulations and government information security standards. Moreover, June 2011, Mrs. Clinton sent memorandum all State Department employees advising them [a]void conducting State Department business from [their] personal e-mail accounts. Memorandum State 65111 from Secretary State Clinton All Diplomatic and Consular Posts (June 28, 2011). Background and processing Plaintiff FOIA request. Ms. Abedin has been long-time aide Mrs. Clinton, dating back her tenure First Lady. student George Washington University, Ms. Abedin interned for the then-First Lady 1996. Ms. Abedin subsequently served Mrs. Clinton personal aide for several years and was personal advisor during Mrs. Clinton successful 2000 U.S. Senate campaign New Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page York. Ms. Abedin later worked chief staff and personal aide the then-Senator during her unsuccessful campaign for the 2008 Democratic presidential nomination. When Senator Clinton became Secretary State January 22, 2009, Ms. Abedin became Deputy Chief Staff for Operations the Immediate Office the Secretary. She remained that position until June 2012. June 2012, Ms. Abedin became senior advisor the same office. Ms. Abedin held this position until February 15, 2013, when thenSenator John Kerry became Secretary State. senior advisor, Ms. Abedin was classified special government employee, authorized represent individual clients and engage outside employment. While also working for the State Department, Ms. Abedin worked for Teneo Holdings, international consulting firm run Douglas Band, longtime aide former President Bill Clinton. Raymond Hernandez, Weiner Wife Didn Disclose Consulting Work She Did While Serving State Dept., The New York Times (May 16, 2013, available nyti.ms/105AQxU). addition, Ms. Abedin also served paid consultant the Clinton Foundation. Id. May 21, 2013, Plaintiff submitted the FOIA request issue this case the State Department seeking records about Ms. Abedin classification special government employee. Specifically, Plaintiff sought the following records, among others: 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 arrangement with the Department State. Third Decl. The time frame for the request was January 2010 present. Id. When the State Department failed provide final determination within the statutory timeframe, Plaintiff sued. See Joint Statement Regarding Briefing Schedule (Dec. 27, 2013) Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page (ECF No. 11) The State Department answered, and, December 27, 2013, the parties filed joint meet and confer statement. Id. the joint statement, the State Department represented that was processing Plaintiff FOIA request and that would complete its processing the request February 14, 2014. Id. letter dated February 12, 2014, the State Department represented Plaintiff that had completed processing its FOIA request. Third Decl. Specifically, the State Department represented that had completed searches the Office the Executive Secretariat, among other offices. Id. addition searching its own record systems, the Office the Executive Secretariat responsible for coordinating searches the Office the Secretary, which comprised the Secretary Chief Staff, the Counselor the Department, Deputy Chief Staff, the Secretary secretary, the Executive Assistant, special assistants, the Secretary scheduler, staff assistants, and personal assistants. Declaration John Hackett, Judicial Watch, Inc. U.S. Department State, Case No. 14-1242-RCL (July 2015) (ECF No. 19-2), attached Exhibit 8-9. that time, Defendant did not identify the systems searched within the Office the Secretariat. However, later Mr. Hackett testified that searched, among other locations, the state.gov email accounts Ms. Abedin; Ms. Mills; Cynthia Motley, former Administrative Officer for the Office the Secretary; and Heather Samuelson, former Senior Advisor the Office the White House Liaison. See Declaration John Hackett (Aug. 14, 2015) (ECF No. 26-1) and Third Decl. 20. Although the State Department represented its February 12, 2014 letter that had completed searches the Office the Executive Secretariat, among other offices, did not inform Plaintiff that had not searched any email system used Mrs. Clinton. fact, was Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page not until the case was reopened that the State Department determined that Mrs. Clinton email was reasonably likely contain responsive records. Declaration John Hackett (Aug. 14, 2015) (ECF No. 26-1) 12. The State Department also did not inform Plaintiff February 2014 that had not conducted search Mrs. Clinton and Ms. Abedin emails located the clintonemail.com system. about December 2014, the State Department received approximately 55,000 pages hard copy emails from Mrs. Clinton, purportedly response November 2014 letter several former secretaries state seeking assistance identifying and making available the State Department any federal records, such email sent received personal email account while serving Secretary State. Third Decl. 42. Months later and response letter requesting that she provide any federal records her possession concerning official government business sent received personal email account while serving her official capacity with the Department, Ms. Abedin also returned records the State Department. Id. total, Ms. Abedin returned approximately 29,000 pages federal records, which include least 6,714 official government emails. Id. some point between June 19, 2015 and October 13, 2015, the State Department conducted supplemental searches the Office the Executive Secretariat. this time, management analyst with knowledge the electronic record system the Office the Executive Secretariat coordinated search the state.gov emails Ms. Mills, Ms. Abedin, Ms. Motley, and Ms. Samuelson. Id. 20. addition, either the same different June 19, 2015, the Court reopened this case pursuant Rule the Federal Rules Civil Procedure. Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page management analyst conducted search the emails returned Mrs. Clinton. Id. 43. Moreover, IPS analyst conducted search the emails returned Ms. Abedin. Id. The State Department did not search the clintonemail.com system. Nor did provide guidance how the clintonemail.com system should have been searched. With respect Mrs. Clinton emails, Mrs. Clinton personal attorneys, not State Department U.S. Government officials employees, reviewed her emails determine whether they were federal records. Cheryl Mills letter Patrick Kennedy (Dec. 2014) (ECF No. 18-1) The Secretary electronic mail has been reviewed. Please find enclosed those electronic mails believe respond your request. Clinton Decl. (Aug. 2015) (ECF No. 22-1) have directed that all emails clintonemail.com custody that were potentially were federal records provided the Department State, and information and belief, this has been done. Mrs. Clinton personal attorneys, not State Department U.S. Government officials employees, established the review process. Interview Cheryl Mills 252. There evidence whatsoever that the State Department consulted with advised Mrs. Clinton personal attorneys about the review process the parameters for the review process either before after occurred. There also evidence that the State Department authorized approved the review process. The State Department only appears know that self-selected portion Mrs. Clinton emails from her tenure the Department have been made available. See Cheryl Mills letter Patrick Kennedy (Dec. 2014) (ECF No. 18-1); see also Third Decl. 42. The same true for Ms. Abedin. Third Decl. 42. Simply put, the State Department has never reviewed the records the clintonemail.com system determine whether they are federal records and whether they are potentially responsive Judicial Watch Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page FOIA request. Third Decl. 43. Nor has reviewed the PST files Mrs. Clinton and Ms. Abedin make these determinations. The State Department cannot say whether has all federal records from the clintonemail.com system. Hackett Testimony 38. The clintonemail.com system after Mrs. Clinton left the State Department. When Mrs. Clinton left the State Department, neither she nor the State Department appear have prepared inventory the records the clintonemail.com system made arrangements ensure that the State Department would have ready access federal records the system. This was directly contrary the Foreign Affairs Handbook, which states, part: The departing official staff member must prepare inventory personal papers and nonrecord materials proposed for removal. When the inventory completed, the departing official must request review the materials proposed for removal. the Department, the records officer cooperation with the S/ES appropriate administrative office will conduct the review for Presidential appointees confirmed the Senate. FAH-4; H-217.2(b)(1) and (2). effect, Mrs. Clinton took the clintonemail.com system with her when she left the State Department. late May 2013, less than three months after she left the State Department, Mrs. Clinton hired Platte River Networks maintain the emails located the clintonemail.com system. Mills Interview 237; Greg Gordon and Anita Kumar, Unbeknownst Clinton, firm had emails stored cloud; now FBI hands, McClatchy (Oct. 2015, available www.mcclatchydc.com/news/nation-world/national/article37968711.html). Platte River Networks subsequently transferred emails located server Mrs. Clinton Chappaqua, New York home Platte River Networks server New Jersey. Id. addition, Platte River Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page Networks retained Datto, Inc. set cloud-based backup server that could provide immediate recovery the primary server failed. Id. February 2014, Mrs. Clinton appears have asked Platte River Networks transfer her archived email into [a] separate archive email box. Letter from U.S. Senator Ron Johnson Under Secretary Kennedy (Sept. 22, 2015) Johnson Letter attached Exhibit Later that same month, Platte River Networks transferred the archived emails onto new email server, according invoices obtained from Platte River Networks the U.S. House Representatives Select Committee Benghazi Select Committee Id. the summer 2014, the State Department contacted Ms. Mills and advised her, apparently her capacity Mrs. Clinton counsel, that the State Department would releasing emails the Select Committee and that these emails would disclose the existence the clintonemail.com system. Mills Interview pp. 244-48. The State Department also advised Ms. Mills that expected receive media inquiries about the account and sought information and understanding the clintonemail.com system that could appropriately respond media inquiries. Id. addition, records produced Platte River Networks the Select Committee show that, July 2014, Mrs. Clinton asked Platte River Networks copy Mrs. Clinton emails located the clintonemail.com system onto DVD. Johnson Letter. Platte River Networks complied and sent the DVD Ms. Mills via overnight mail. Id. Ms. Mills told the Special Committee that she learned the late summer September time, October time period that the State Department was going needing augment their records and would making request that. Mills Interview pp. 250-51. Ms. Mills also told the Special Committee that, after she received November 12, 2014 letter from the Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page State Department asking Mrs. Clinton return copies any federal records, including email, which she was aware, Mrs. Clinton asked Ms. Mills and David Kendall oversee process for identifying her potentially work-related emails. See Defendant Notice Filing (Aug. 2015) (ECF No. 18-1); see also Mills Interview 252 and Clinton Decl. have directed that all emails clintonemail.com custody that were potentially were federal records provided the Department State, and information and belief, this has been done. According Ms. Mills, one her associates attorney believed another former State Department employee, Ms. Samuelson undertook the review Mrs. Clinton emails. See Mills Interview 253; see also Rachel Bade, Meet the Clinton insider who screened Hillary emails, Politico (Sept. 2015, available politico.com/story/2015/09/hillary-clintoninsider-emails-heather-samuelson-screened-2016-213350). Ms. Mills also told the Special Committee that, using PST file provided Platte River Networks not yet known whether this PST file the same archived data Platte River Networks sent Ms. Mills July 2014 Ms. Samuelson reviewed all Mrs. Clinton emails from her tenure the State Department. Mills Interview 252. According Ms. Mills, the DVD was returned Platte River Networks, and the original server that formerly was kept the basement Mrs. Clinton Chappaqua, New York home now the possession the U.S. Department Justice. Mills Interview pp. 237, 253-254. Mr. Kendall, Williams and Connolly, LLP, longstanding counsel President and Mrs. Clinton and represents Mrs. Clinton with respect the Select Committee investigation. Letter from David Kendall Rep. Trey Gowdy (March 27, 2015), attached Exhibit Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page The status and location the Platte River Networks server(s) and data unknown, the status and location the Datto, Inc. back up. Additional, Admissible Facts Are Necessary for Plaintiff Oppose the State Department Motion for Summary Judgment. Despite not having the benefit discovery, Plaintiff has been able develop substantial factual record, based upon unsworn interviews, public statements, correspondence, and media reports, among other sources, about Mrs. Clinton and the State Department creation, use, and concealment this extraordinary and unprecedented, off-grid record system. Plaintiff also has been able develop substantial set facts about Mrs. Clinton and Ms. Abedin review federal records their possession. These facts show there least reasonable suspicion that the State Department and Mrs. Clinton deliberately thwarted FOIA. Like the FOIA requester Landmark Legal Foundation, however, Plaintiff requires discovery obtain evidence that would admissible trial establish these facts well determine possible methods for recovering responsive records. Pursuant Rule 56(d) the Federal Rules Civil Procedure, formerly Rule 56(f), nonmovant shows affidavit declaration that, for specified reasons, cannot present facts essential justify its opposition, the court may allow time obtain affidavits declarations take discovery. Fed. Civ. 56(d)(2). obtain relief, the affidavit declaration must: Outline the particular facts that the movant intends discover and describe why those facts are necessary the litigation; Explain why the movant could not produce the facts opposition the motion for summary judgment; and Show that the facts sought are discoverable. Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page Convertino U.S. Department State, 684 F.3d 93, 99-100. The attached Declaration Michael Bekesha describes the particular facts that Plaintiff seeks, why these facts are necessary this litigation, and why they are not already available. The Declaration also shows that the facts Plaintiff seeks are discoverable. The facts relate four specific subject areas: The creation the off-grid system. Based media reports, know that the clintonemail.com domain name was registered the same day Mrs. Clinton confirmation hearings started and only eight days before she became Secretary State. However, not know why and under what circumstances the domain name was registered, why and under what circumstances email addresses were created the system, and what, any input concern, career State Department employees had the creation the system. also not know how Mrs. Clinton kept the creation the system secret from the public for six years. For the Court determine whether the State Department and Mrs. Clinton deliberately thwarted FOIA, essential discover the following facts about how and why the clintonemail.com system was created: Who, besides Mrs. Clinton, was involved the decision create the clintonemail.com system; Under what circumstances and for what reasons was the clintonemail.com system created; Who created the clintonemail.com system; How was the clintonemail.com system created; Who besides Mrs. Clinton and Ms. Abedin had email accounts created the clintonemail.com system; Were any State Department monies, resources, personnel used create the clintonemail.com system; Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page How and when did Mrs. Clinton inform career State Department employees that she created the clintonemail.com system conduct official government business; When Mrs. Clinton informed career State Department employees that she created the clintonemail.com system conduct official government business, did anyone advise her against and, so, who and why; Did Mrs. Clinton specifically instruct State Department employees not inform the public the National Archives and Records Administration about the creation the clintonemail.com system. The use the off-grid system. Although generally know the extent which Mrs. Clinton used the off-grid system throughout her four years Secretary State, not know why both Mrs. Clinton and least one other State Department employee, Ms. Abedin, used the system conduct official government business. also not know how and why Mrs. Clinton and other State Department employees kept the use the system secret from the public for six years. Plaintiff submits that discovery the following facts about the use the clintonemail.com system are necessary for the Court determine whether the State Department and Mrs. Clinton deliberately thwarted FOIA: Who the State Department besides Mrs. Clinton and Ms. Abedin used email address the clintonemail.com system conduct official government business; Who the State Department knew that Mrs. Clinton and Ms. Abedin were using clintonemail.com email addresses conduct official government business; Were any State Department monies, resources, personnel used create the clintonemail.com system; Was Mrs. Clinton assigned state.gov email address and, not, why was she not assigned one; Why did the State Department not provide Mrs. Clinton with any personal computing devices conduct official government business; Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page Was Mrs. Clinton advised any point use state.gov email address conduct official government business instead clintonemail.com email address; Was Ms. Abedin advised use her state.gov email address exclusively conduct official government business; Under what circumstances did Ms. Abedin use the clintonemail.com system conduct official government business; From January 21, 2009 the day that the New York Times reported that Mrs. Clinton used the off-grid system, how did the State Department handle FOIA and other legal requests that implicated Mrs. Clinton email; From January 21, 2009 the day that the New York Times reported that Mrs. Clinton used the off-grid system, did anyone the State Department consider publicly disclosing the use the clintonemail.com system conduct official government business; Who the State Department assisted Mrs. Clinton and Ms. Abedin using the clintonemail.com system enabled them use conduct official government business; Did the State Department deliberately conceal the existence the clintonemail.com system from the public, and, so, who the State Department assisted with ensuring that the public would not find out about the use the system conduct official government business; Were State Department employees instructed not inform the public the National Archives and Records Administration about the use the clintonemail.com system; and any time between January 21, 2009 and the day that the New York Times reported that Mrs. Clinton used the off-grid system was any State Department employee disciplined reprimanded for questioning the use the clintonemail.com system conduct official government business. Mrs. Clinton left office without providing inventory and access the off-grid system. know Mrs. Clinton left with the clintonemail.com system and all records located the end her tenure. also know that the public continued remain the dark about the existence the system for more than two years after Mrs. Clinton left office. However, Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page not know why Mrs. Clinton was allowed leave with the system. Nor know why the State Department waited until October 2014 formally request that Mrs. Clinton return all federal records from the clintonemail.com system. Therefore, for the Court determine whether the State Department and Mrs. Clinton deliberately thwarted FOIA, essential discover the following facts about Mrs. Clinton departure from the State Department with the system, Mrs. Clinton management and preservation the system after she left the State Department, and the State Department request for the return records from the system: Did the State Department request that Mrs. Clinton and Ms. Abedin provide inventory other accounting records the clintonemail.com system before they left and, not, why not; Did Mrs. Clinton and Ms. Abedin create inventory records that they intended remove and, not, why not; any time did the State Department attempt preserve ensure access the federal records located the clintonemail.com system; Prior October 2014, did the State Department request that Mrs. Clinton and Ms. Abedin return all federal records located the clintonemail.com system; When and under what circumstances did the State Department realize did not have all federal records from the clintonemail.com system; Once the State Department realized did not have all federal records from the clintonemail.com system, what steps did take gain possession them; Once the State Department realized did not have all federal records from the clintonemail.com system, why did not disclose this fact the public; After the State Department requested that Mrs. Clinton and Ms. Abedin return all federal records their possession, did the State Department provide them with any guidance how complete the task; How did Mrs. Clinton and Ms. Abedin decide which records from the clintonemail.com system they were going return the State Department; the emails not returned the State Department, what emails, any, were deleted Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page from the clintonemail.com system, who decided delete them, and when was the decision delete them made; Under what circumstances was any decision made delete emails from the clintonemail.com system that were not returned the State Department; Did Mrs. Clinton and Ms. Abedin comply with all appropriate federal records laws, rules, and regulations when they decided which emails from the clintonemail.com system return the State Department; Does Mrs. Clinton any her representatives, including Mr. Kendall, Ms. Mills, and Ms. Samuelson, have archived copy (i.e., PST file) the clintonemail.com system that contains all emails sent received during Mrs. Clinton tenure Secretary State; Does Platte River Services have archived copy (i.e., PST file) the clintonemail.com system that contains all emails sent received during Mrs. Clinton tenure Secretary State; Does Datto, Inc. have archived copy (i.e., PST file) the clintonemail.com system that contains all emails sent received during Mrs. Clinton tenure Secretary State; archived copy the clintonemail.com system containing all emails sent received during Mrs. Clinton tenure Secretary State does not exist, does any other type archived copy exist the system; and archived copy the clintonemail.com system containing all emails sent received during Mrs. Clinton tenure Secretary State does not exist, who made the decision not retain such copy and why and when was that decision made. The State Department response Plaintiff FOIA request. When the State Department first searched for records responsive Plaintiff FOIA request, did not search Mrs. Clinton email records system, notwithstanding the basic fact that her email would likely contain responsive records. not know, however, why her email records system was not searched. Therefore, for the Court determine whether the State Department and Mrs. Clinton deliberately thwarted Plaintiff FOIA, essential discover whether Mrs. Clinton email records system was not searched because the State Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page Department did not have the ability search them because the State Department determined that her email records system would not likely contain responsive records. VI. Plaintiff General Litigation Plan. requested, Plaintiff willing provide detailed discovery plan within two weeks after its motion granted. Nonetheless, Plaintiff generally intends take the following discovery: establish admissible evidence about the creation and set the clintonemail.com system and the State Department knowledge, awareness, authorization, acquiescence its use Mrs. Clinton, Ms. Abedin, and any other State Department personnel who may have used the system, Plaintiff will need depose State Department officials employees who had oversight and management responsibilities relating information systems the department, well officials employee who were involved planning and assisting with Mrs. Clinton transition and arrival the State Department. These may include Under Secretary for Management Patrick Kennedy, Director IPS John Hackett, and Executive Secretary Joseph Macmanus. the extent relevant personnel have left the State Department employment, Plaintiff may have serve third party deposition and/or document subpoenas such persons after they have been identified. also may include third party depositions and/or document requests private persons entities who may have advised assisted Mrs. Clinton the establishment the system, including persons registered the domain name and obtained, set up, and coordinated the equipment, software, data files, etc. Plaintiff reserves the right conduct additional discovery necessary based new facts gathered during discovery. Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page needed for the system. may also include the submission interrogatories and document requests the State Department. establish admissible evidence about use the clintonemail.com system Mrs. Clinton, Ms. Abedin, and possibly others the State Department, Plaintiff will require the depositions State Department officials who had oversight and management responsibilities relating email, record and information management, and FOIA. Such officials may include Under Secretary for Management Patrick Kennedy, Director IPS John Hackett, and Executive Secretary Joseph Macmanus. Plaintiff will also require depositions State Department officials employees who assisted Mrs. Clinton with the use, maintenance, and service the clintonemail.com system. Plaintiff also will require depositions officials and employees responsible for responding record requests concerning Mrs. Clinton emails, and who were responsible for ensuring that Mrs. Clinton was able communicate and conduct official government business. Such officials and employees include Ms. Abedin, Ms. Mills, and Mr. Pagliano and others within the Department, the Executive Secretariat, the Office the Secretary. Given Mr. Pagliano crucial role servicing and maintaining the server, Plaintiff also intends seek discovery into the facts and circumstances Mr. Pagliano hiring and, the extent Mr. Pagliano unwilling testify, Plaintiff may seek substitute discovery from other witnesses. has been reported that Mr. Pagliano invoked his Fifth Amendment right against selfincrimination when subpoenaed testify before the Select Committee. Byron Tau and Emma Court, Hillary Clinton Aide Bryan Pagliano Invokes Fifth Amendment Email Probe, The Wall Street Journal (Sept. 10, 2015, available on.wsj.com/1i1A97P). Therefore, Plaintiff does not know whether Mr. Pagliano will provide with the facts necessary demonstrate that the State Department deliberately thwarted FOIA. Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page Again, relevant personnel may have left the State Department employment, Plaintiff may have serve third party deposition and/or document subpoenas such persons after they have been identified. Plaintiff anticipate discovery regarding the use the clintonemail.com system also likely include interrogatories and document requests the State Department. establish admissible evidence about the circumstances under which Mrs. Clinton and Ms. Abedin were able leave the State Department without preparing inventory records they sought remove otherwise ensure that access federal records the clintonemail.com system were readily available, Plaintiff will require the deposition State Department officials and employees who oversaw, managed, were involved Mrs. Clinton and Ms. Abedin departure from the department. Again, relevant officials and employees may have left the department, Plaintiff may have serve third party deposition and/or document subpoenas after they have been identified. determine whether additional, responsive emails exist and identify where they may located, Plaintiff will require third party document and deposition subpoenas persons and/or entities involved the maintenance the clintonemail.com system since Mrs. Clinton left the State Department February 2013. These persons and entities are likely include Platte River Networks and Datto, Inc. and may require subpoenaing archived copies (i.e. PST files) Mrs. Clinton and Ms. Abedin emails. They also may include Mr. Pagliano, Ms. Mills, Ms. Samuelson, and Mr. Kendall, and the Clinton Executive Services Corporation, which, Plaintiff understands, retained Platte River Networks and Datto, Inc. provide internet server and backup services. Case 1:13-cv-01363-EGS Document Filed 12/11/15 Page VII. Conclusion. For all the reasons stated above, Plaintiff motion for discovery should granted. Dated: December 11, 2015 Respectfully submitted, /s/ Michael Bekesha Michael Bekesha D.C. Bar No. 995749 JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, 20024 (202) 646-5172 Counsel for Plaintiff Judicial Watch, Inc.