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Judicial Watch • JW v State Oct 29 Joint Status 00692

JW v State Oct 29 Joint Status 00692

JW v State Oct 29 Joint Status 00692

Page 1: JW v State Oct 29 Joint Status 00692


Number of Pages:9

Date Created:October 29, 2015

Date Uploaded to the Library:November 10, 2015

Tags:Leopold, 00692, Joint, Oct, Emails, responsive, Benghazi, Secretary, defendant, clinton, filed, plaintiff, request, document, records, FOIA, court, report

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Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
Civil Action No. 15-cv-692 (APM)
Plaintiff Judicial Watch, Inc. and Defendant United States Department State State
submit this status report, pursuant the Court minute order October 2015, which adopted
the parties proposed schedule and ordered the parties file status report (i) propose the
court production schedule for the non-exempt portions emails provided State former
Secretary Clinton that are responsive FOIA Request 1,[1] and, the parties remain unable
reach agreement the production schedule, each shall provide their own proposed
schedule; and (ii) provide further update the court their efforts resolve Judicial Watchs
concerns regarding the scope States search and efforts preserve responsive federal records connection with FOIA Request October 22, 2015, State reported that had found 242
potentially responsive emails from former Secretary Clinton. Def. Status Report (ECF
No. 19). The parties have conferred regarding production schedule for these documents and
have not reached agreement. The parties therefore each present their respective positions below.
FOIA Request seeks [a]ny and all emails former Secretary State Hillary Rodham Clinton concerning,
regarding, relating the September 11, 2012 attack the U.S. Consulate Benghazi, Libya. The time frame FOIA Request September 11, 2012 January 31, 2013.
Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
Subject Defendant Status Report filed October 22, 2015, 155 emails
from Secretary Clinton dated before December 31, 2012 remain searched response Plaintiff FOIA Request Plaintiff objects Defendant proposal further delay search
and review these records response Plaintiff FOIA Request
Defendant represented its Status Report filed July 15, 2015 that had
searched and produced Plaintiff all responsive emails from Secretary Clinton through
December 31, 2012 via the URL provided the agency FOIA website June 29, 2015. See
Def. Status Rpt., 7/15/2015, (ECF No. 10). turns out, Defendant was wrong and that
had not reviewed 155 emails from Secretary Clinton through December 31, 2012 that are
potentially responsive Plaintiff FOIA Request See Def. Status Rpt., 10/22/2015,
(ECF No. 19). For example, some the emails from before December 31, 2012 discussed
during the hearing held the Congressional Benghazi Select Committee with Secretary Clinton October 22, 2015 are responsive Plaintiff FOIA Request that have not yet been
produced. They include 11:12 p.m. email from Secretary Clinton her daughter
September 11, 2012 about the Benghazi attacks. See
/2015/10/23/hillary-clinton-emails-chelsea-during-benghazi-attack-blames-al-qaeda. All
potentially responsive records from the 155 set Clinton emails before December 31,
2012 have already been produced Congress and should have already been produced
Plaintiff June 29, 2015, the extent they are responsive FOIA Request and consistent
with Defendant representation its July 15, 2015 Status Report. Plaintiff requests that
Defendant search the 155 emails without further delay and produce all responsive records from
Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
this set emails with its next document production already ordered this case for November
12, 2015. See Minute Order, 10/9/2015.
Also pursuant Defendant Status Report filed October 22, 2015, emails from Secretary Clinton between January 2013 and January 31, 2013 are potentially
responsive Plaintiff FOIA Request Plaintiff objects Defendant proposal search
these records pursuant production schedule set unrelated FOIA lawsuit, captioned
Leopold U.S. Dep State, that concerns much broader FOIA request than the one Plaintiff
seeks this case. Plaintiff requests that Defendant search the emails and produce all
responsive records from this set records Defendant second production deadline already
set for December 23, 2015. Id.
Plaintiff also does not understand Defendant proposal for searching records
received from Huma Abedin, Cheryl Mills, and Jacob Sullivan. Defendant appears deny any
obligation search these records response Plaintiff FOIA although has agreed
search them. See Joint Status Rpt., July 29, 2015, The fact that the parties proposed
that Defendant submit the volume records potentially responsive from these individuals does
not any way clarify Defendant position whether believes obligated search and
review these records under FOIA. Defendant has obligation, then Defendant fails
describe the basis for the Court authority order schedules for voluntary searching and
production these records, much less the basis for the Court authority adjudicate about
voluntary searches and the withholding any records identified result. Defendant
believes obligated search these records remedy its deficient and unlawful records
management Secretary Clinton emails, should say so. Plaintiff seeks less and more
than what FOIA requires. See Minute Order, 10/22/2015 Judicial Watch, Inc. U.S. Dep
Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
State, Case No. 14-1511 (ABJ) (the Court reading Defendant submission that willing
search the records has received from Huma Abedin, Cheryl Mills and Jacob Sullivan,
waiving any objection being ordered search those records, and further ordered Defendant
process those materials part this action since the records are now Defendant possession,
Defendant admission that they may contain records responsive Plaintiff FOIA request and
given the purposes underlying the broad disclosure requirements contained the Freedom
Information Act which may not favor the conduct government business through private
email accounts Voluntary searches should not delay adjudication the lawfulness
Defendant response Plaintiff request. Defendant believes has obligation search
these records, should clearly state so.
Plaintiff respectfully requests status conference that the parties and the Court
can address this matter more thoroughly.
The records sought here Judicial Watch emails former Secretary Clinton
about the Benghazi attacks are subset records responsive requests issue other FOIA
cases, including least one case involving Judicial Watch. See Complaint Judicial Watch
U.S. Dep State, No. 15-cv-687 (ECF No. (D.D.C. May 2015) (FOIA request seeking
[a]ny and all emails sent received former Secretary State Hillary Rodham Clinton
her official capacity Secretary State during her tenure Secretary State State
proposes use the ongoing effort produce those records allow respond many FOIA
requests, including FOIA Request with little duplication effort possible. December
2014, former Secretary State Hillary Rodham Clinton provided the Department paper
copies approximately 30,000 e-mails, comprising approximately 55,000 pages (the Clinton
Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
emails The Department currently working produce, consistent with the FOIA, the
complete collection Clinton emails and make the non-exempt portions those documents
available the public posting them Department website, pursuant Judge Contreras
order Leopold State. See Civ. No. 15-123-RC (ECF No. 13) (Contreras, J.). The scheduling
order Leopold calls for monthly productions the Clinton emails, with productions remaining October 30, 2015; November 30, 2015; December 31, 2015; and January 29, 2016. Order,
Leopold (ECF No. 17).
State proposes that, November 2015, release the non-exempt portions
seven emails for which the review nearly complete, including the 11:12 p.m. email from
Secretary Clinton September 11, 2012 mentioned Judicial Watch above. State further
proposes that, within two weeks after each production Clinton emails Leopold, provide
Judicial Watch list documents posted that production that are responsive FOIA
Request Thus, under the schedule set forth the Leopold scheduling order, the final
production would occur February 12, 2015.
Under this schedule, State will working steadily fulfill the two FOIA
requests issue here. Under the parties agreed-to schedule for production records
responsive FOIA Request State will review 890 1,000 documents potentially responsive FOIA Request and make productions November 12, 2015; December 23, 2015; and
February 2015. Concurrently with that effort, State will completing its review the entire
Clinton email collection and providing timely notification Judicial Watch when records
responsive FOIA Request are posted. Moreover, the completion the productions for both
FOIA requests within days each other will allow subsequent proceedings, such summary
Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
judgment briefing necessary, proceed coordinated fashion without undue delay after the
completion production records responsive either FOIA request.
This steady effort fair balance between the interests Judicial Watch and
State tremendous workload FOIA cases and associated court-imposed deadlines. During the
last Fiscal Year, which ended September 30, 2015, State received approximately 18,476 new
requests and currently engaged FOIA litigation cases, many which involve courtordered document production schedules. Because this heavy workload, State should
permitted take advantage the ongoing production effort Leopold producing records
responsive FOIA Request that can allocate its FOIA-processing resources across the
various proceedings allow meet its obligations the Court and other FOIA plaintiffs.
Given State workload numerous cases, the schedule proposed which involves State
continuing effort produce records responsive both FOIA requests issue here well
numerous others Judicial Watch FOIA requests currently litigation equitable.
Nor does the fact that State discovered that needed supplement its original
search for responsive Clinton emails justify shortened schedule that would not allow for
adequate review sensitive documents. its Status Report July 15, 2015, State informed
the Court that had performed search reasonably calculated uncover documents responsive FOIA Request that were created before December 31, 2012. Def. Status Report
(ECF No. 10). State searched set 296 the Clinton Emails which State had previously
provided February 2015 the House Select Committee Benghazi. September 25,
2015, State supplemented its production the Committee. light that supplement, State
decided that additional search the Clinton emails was necessary determine there are
additional responsive documents. State completed that search October 22, 2015, agreed
Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
the parties. The need supplement search while production still underway, more than three
months before the parties agreed-to final production date for the other FOIA request issue
this case, does not justify the schedule Judicial Watch seeks.
Further, likely that many the records responsive FOIA Request have
already entered the review pipeline the Leopold production process; some may have already
been referred other agencies for consultation. will more efficient let that process
continue than either interrupt bump records responsive FOIA Request the
queue, which could disrupt the carefully planned sequence for processing the Clinton emails, duplicate the review process for the 242 documents responsive FOIA Request wasting
State scarce FOIA-processing resources.
Judicial Watch objection State proposal for searching records received
from Huma Abedin, Cheryl Mills, and Jacob Sullivan curious, say the least, because was
originally Judicial Watch proposal. While conferring per this Court order, after the Answer
was filed, counsel for Judicial Watch asked counsel for State State would willing search
documents had recently received from several former officials for documents responsive
FOIA Request State agreed conduct such searches the interest limiting the issues that
must litigated. See Joint Status Report July 29, 2015 (ECF No. 11) (Plaintiff noting
its statement that The parties agree that Defendant will search the remaining emails from the
records received the Defendant from Cheryl Mills, Jacob Sullivan and Huma Abedin.
The parties later jointly informed the Court that State has, order possibly reduce the issues
that must litigated, offered conduct search the records received State from Cheryl
Mills, Jacob Sullivan, and Huma Abedin through September 2015 for documents responsive FOIA Request Joint Status Report Oct. 2015 (ECF No. 18). The parties then
Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
jointly proposed that State would, November 13, 2015, inform Judicial Watch the number such documents potentially responsive FOIA Request which point the parties would
meet and confer about production schedule. Id. The Court adopted the parties proposal its
Minute Order October 2015. Now Judicial Watch appears want not only agreement
search those records, but admission from State that legally obligated so. State
makes such admission, and Judicial Watch does not wish State conduct these searches
absent such admission, State readily agrees not conduct the searches. If, the other hand,
Judicial Watch does wish State conduct such searches, State will so, according the
schedule already agreed Judicial Watch and endorsed this Court. neither event
status conference required.2
Judicial Watch cites recent minute order issued Judge Amy Berman Jackson this Court. That minute order
was issued response the same argument Judicial Watch raises here. That order implicitly rejected Judicial
Watch request for status conference and adopted State proposed schedule with respect documents recently
provided Ms. Abedin, Ms. Mills, and Mr. Sullivan.
Case 1:15-cv-00692-APM Document Filed 10/29/15 Page
Date: October 29, 2015
Respectfully submitted,
/s/ Ramona Cotca
RAMONA COTCA (D.C. Bar No. 501159)
425 Third Street
Suite 800
Washington, 20024
(202) 646-5172
Principal Deputy Assistant Attorney General
Counsel for Plaintiff
Deputy Branch Director
/s/ Robert Prince
ROBERT PRINCE (D.C. Bar No. 975545)
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave., N.W.
Washington, 20530
Tel: (202) 305-3654
Counsel for Defendant