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Judicial Watch • JW v State Opposition State 01363

JW v State Opposition State 01363

JW v State Opposition State 01363

Page 1: JW v State Opposition State 01363


Number of Pages:11

Date Created:July 14, 2016

Date Uploaded to the Library:July 14, 2016

Tags:Bentel, Finney, evidence, Opposition, deposition, 01363, Abedin, Mills, Benghazi, Secretary, Hillary Clinton, defendant, clinton, filed, White House, plaintiff, State Department, document, FBI, department, FOIA

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Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page THE UNITED STATES DISTRICT COURT
Civil Action No. 13-cv-1363 (EGS)
Plaintiff Judicial Watch, Inc., counsel, respectfully submits this reply Defendant
Opposition Plaintiff Motion for Permission Depose Rodham Clinton, Clarence Finney,
and John Bentel.1 grounds therefor, Plaintiff states follows:
Currently before the Court whether Plaintiff has had the opportunity develop full
and complete factual record enable the Court determine whether the Government has
conducted adequate search response Judicial Watch FOIA request. Order its
motion, Plaintiff plainly demonstrated that Secretary Clinton, Mr. Finney, and Mr. Bentel are all
likely provide necessary, additional information about the circumstances surrounding the
creation, use and purpose the system, well why the emails contained the system were not records managed and retained required law. Instead refuting
Due the lengthy oppositions submitted Secretary Clinton and the State Department,
Plaintiff submitting separate responses even though some the issues overlap. the extent
the Court may have questions regarding the factual record, Plaintiff will address them the
upcoming oral argument otherwise requests the opportunity for supplemental briefing, the
Court believes necessary.
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
that unanswered questions remain, Defendant argues that Plaintiff, this time, has not
uncovered sufficient evidence demonstrate that the State Department and its former secretary
deliberately thwarted FOIA otherwise prevented the State Department from complying with
its FOIA and federal recordkeeping obligations. Defendant argument incorrect.
The Court should also not accept the State Department suggestion delay ruling
this motion and effectively stay the case for indefinite period time. The Court has not yet
ruled whether the State Department has conducted adequate search response Judicial
Watch FOIA request. Until then, any discussion about remedies premature.
The deposition Hillary Clinton necessary.2 its motion, Plaintiff clearly demonstrated why Secretary Clinton deposition
necessary. Instead trying refute the existence unanswered questions the fact that
Secretary Clinton undoubtedly has relevant information, Defendant appears renew its motion
for summary judgment arguing that Plaintiff has developed evidence intent thwart
FOIA. Def. Opp. Not only Defendant argument premature, mischaracterizes the
The Court granted Plaintiff request for discovery because questions surrounding the
creation, purpose and use the server must explored through limited
discovery before the Court can decide, matter law, whether the Government has
conducted adequate search response Judicial Watch FOIA request. Order addition the reasons set forth below, Plaintiff also incorporates and relies the
reasons set forth its reply Secretary Clinton opposition.
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
Plaintiff has collected substantial information, but additional sources relevant evidence
obviously remain. addition, since Secretary Clinton the former head the agency, would
have been premature for Plaintiff seek her deposition from the outset. proper now,
Plaintiff has exhausted other avenues, for Secretary Clinton sit for deposition for the
following reasons.
First, neither Ms. Mills nor Ms. Abedin spoke with Secretary Clinton about the purpose
for creating the system. See Mills Deposition 45:7 45:20 and Abedin
Deposition 71:16 73:2. fact, Defendant highlights, Ms. Abedin testified, just saw continu[ing] what she was doing before she arrived the State Department. Def. Opp.
(quoting Abedin Deposition 38:19 39:8). although Defendant asserts that the evidence
shows that Secretary Clinton created the system continue established practice, the evidence
actually just shows that few individuals believe that the case based what they assumed have heard. one testified that they actually know why Secretary Clinton created and used
the system.
Second, there evidence whatsoever about the creation the system. witness
was able provide meaningful testimony about when the system was created, who created it,
and whose direction was created. Without any evidentiary support, Defendant asserts that
Justin Cooper was ultimately responsible for the creation the system well Secretary Clinton and Ms. Abedin use the system conduct official
government business. Def. Opp. n.3. There evidence showing that Secretary Clinton
did not instruct Mr. Cooper create the system. Nor there any evidence show that
Secretary Clinton did not instruct Mr. Cooper provide Ms. Abedin email account the
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
system. Common sense suggests that personal employee Secretary Clinton would not
creating systems for official State Department communications without any guidance
instruction. Secretary Clinton testimony necessary uncover evidence about the
circumstances surrounding the creation the system Mr. Cooper and/or Mr. Pagliano (NonParty Cheryl Mills Responses Plaintiff Interrogatories 4-5) and what, any discussions,
she had with Mr. Cooper Mr. Pagliano about the creation the system, including who else
would have email accounts it.
Third, Defendant also ignores the obvious factual dispute between the State Department
and its former agency head. Whereas Secretary Clinton continues maintain that the system
was allowed, the State Department asserts that [d]iscovery has produced evidence that
Secretary Clinton use personal email account was approved State. Def. Opp. 17.
Whether the system was formally authorized even informally allowed fundamental the
Court resolution this case. Secretary Clinton testimony therefore necessary determine
whether she received formal authorization even informal approval, from whom she received
it, and, she did not receive formal authorization even informal approval, why does she
continue maintain that the system was allowed. Clearly, only Secretary Clinton can answer
these questions.
Fourth, Secretary Clinton testimony necessary uncover admissible evidence about
what records she returned the State Department relates the State Department
processing the FOIA request issue this case. evidence currently exists about what
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
specific steps Secretary Clinton took return the approximately 55,000 pages emails.3 When
asked, Ms. Mills asserted the attorney-client privilege and refused answer the question. Mills
Deposition 238:3 239:8. Ms. Lang, when asked the State Department knows Secretary
Clinton turned over all records potentially responsive the FOIA request issue this case,
testified, No. The department relying the representations Secretary Clinton. Lang
Deposition 203:17 203:22. This even more significance now that Secretary Clinton
apparently believes that she possessed privately, under claim right, the approximately 30,000
emails that she returned the State Department well the thousands other emails
identified the FBI that she did not return the State Department. Clinton Opp. 11.
Defendant also expends substantial time arguing that discovery has refuted the basis for
Plaintiff theory intent thwart FOIA. Def. Opp. 13-19. Again, Defendant argument
misses the point. course, discovery has provided context and substance records Plaintiff
obtained before discovery began. Some the evidence uncovered shows that Plaintiff
interpretations the records are accurate. Other evidence seems suggest that the records
actually had different meaning. That discovery. not reason end discovery before
complete record exists. anything, the fact that Plaintiff successfully uncovering additional,
relevant evidence confirms that additional discovery necessary.
Finally, this the extraordinary case which former agency head testimony
necessary. issue the unprecedented use system the Secretary State
Besides using the email account, Secretary Clinton used, albeit for
short period time the beginning her tenure, second email account conduct official
government business. Secretary Clinton states, [S]he was unable retrieve produce
emails from this other email account. Clinton Opp. 13. Thus far, there evidence about
what efforts Secretary Clinton took recover and produce these emails the State Department.
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
and her deputy chief staff 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. Although the
system was used exclusively Secretary Clinton for four years, the public did not know about
until the State Department and Secretary Clinton acknowledged the system only when compelled New York Times report March 2015, two years after she had left office. this
Court has stated previously, This very troubling case. Transcript pp. 63-64. addition,
Judge Lamberth has characterized Secretary Clinton use the system
extraordinary. Judicial Watch, Inc. U.S. Department State, No. 124-cv-1242, 2016 U.S.
Dist. LEXIS 41183 (D.D.C. Mar. 29, 2016). there was ever appropriate time for the
deposition former agency head, this it. Defendant provides sufficient argument
why this not the case.
The deposition Clarence Finney necessary.
Defendant entire argument why Mr. Finney should not deposed boils down
nothing more than Plaintiff should have sought depose Mr. Finney the outset. Def. Opp.
19-22. However, March, Plaintiff did not know Mr. Finney significance this case. Only
when Plaintiff received Defendant responses Plaintiff interrogatories did Plaintiff learn
that Mr. Finney had the day-to-day responsibility for records management and research,
including conducting and coordinating searches response FOIA requests. Exhibit Plf.
Mot. 1-2. Ms. Mills then testified that Secretary Clinton was daily contact with Mr. Finney
and his staff. Mills Deposition 262:7 263:1. Former Executive Secretary Mull also testified
that Mr. Finney understood his responsibilities concerning Secretary Clinton records. Mull
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
Deposition 39:7 39:15. addition, Ms. Abedin testified that Mr. Finney was responsible for
ensuring that all Secretary Clinton records were properly inventoried and that federal
records left the State Department. Abedin Declaration 135:18 141:22. Had Plaintiff known
all this information March, would have listed Mr. Finney its initial, proposed
discovery plan. anything, the omission Mr. Finney was the result the failure
Defendant identify him key witness.4
Moreover, the fact that Plaintiff learned during the 30(b)(6) deposition some what Mr.
Finney knows irrelevant. The taking 30(b)(6) deposition does not preclude party from
taking additional depositions. Rule 30(b)(6) the Federal Rules Civil Procedure plainly
states, This paragraph (6) does not preclude deposition any other procedure allowed
these rules. Defendant argument therefore contrary the plain language the rule.
addition, least one federal circuit court has concluded that additional depositions are not
improper the proposed depositions would not cumulative, the need for additional
depositions not purely speculative[,] and the party seeking the depositions was not
afforded reasonable opportunity elicit information already. Sahu Union Carbide Corp,
528 Fed. Appx. 96, 104 (2d Cir. 2013). this instance, Plaintiff seeks ask questions Mr. Finney concerning the following
issues, among others: whether knew about the system; what efforts made find out what systems Secretary Clinton was using for her official emails; what was told the Court well aware, Defendant has been less than forthright about providing
Plaintiff with pertinent information. Transcript 38-39 And what else remains? mean, this constant drip, declaration drip. Thats what were having here, you know and needs
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
about the use the unofficial system Secretary Clinton and Ms. Abedin conduct official
government business; and, perhaps most significantly, what was not told about the system.
First, other witness has been nor could have been asked about these issues. Only Ms. Lang
discussed her testimony with Mr. Finney, and Ms. Lang deposition was limited the
processing FOIA requests, including Plaintiff FOIA request, for emails Mrs. Clinton and
Ms. Abedin both during Mrs. Clinton tenure Secretary State and after. Order 13.
Second, Plaintiff not speculating about this issue. Plf. Mot. 13-15. The evidence collected date demonstrates that Mr. Finney can provide direct testimony these issues. Id. Third,
pursuant the agreed upon terms discovery, Plaintiff could not have previously sought Mr.
Finney testimony without the Court permission. Mr. Finney testimony not only
necessary but also entirely appropriate.
The deposition John Bentel necessary.
Defendant asserts that Plaintiff has not pointed any evidence suggesting that Mr.
Bentel would know whether not Secretary Clinton the State Department used deliberately thwart FOIA. Def. Opp. 22. This assertion incorrect.
Plaintiff pointed the evidence the May 2016 OIG report, which Defendant, tellingly, fails
According the State Department Inspector General, employee who reported Mr.
Bentel raised concerns that information sent and received Secretary Clinton account could
contain Federal records that needed preserved order satisfy Federal recordkeeping
requirements. OIG Report 40. response, Mr. Bentel stated that the Secretary personal
system had been reviewed and approved Department legal staff and that the matter was not
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page discussed any further. Id. Similarly, the May 2016 OIG Report states that another one
Mr. Bentel employees raised concerns about the server and that Mr. Bentel, response,
stated that the mission S/ES-IRM support the Secretary and instructed the staff never
speak the Secretary personal email system again. Id. This evidence suggests that the State
Department, through Mr. Bentel, may have attempted conceal the existence the system from officials responsible for managing the secretary records
systems. Plaintiff, minimum, should allowed question Mr. Bentel about these
assertions. addition, Mr. Bentel testimony the Benghazi Select Committee irrelevant.
appears that the committee, the time interviewed Mr. Bentel, did not possess the information
Plaintiff identified its motion other evidence Plaintiff uncovered during discovery.5 For
example, email Monica Hanley, aide Secretary Clinton, Mr. Bentel identifies
State Department email account for Secretary Clinton. Exhibit document Plf. Mot.
actually have account previously set up: There are some old emails but
none since Jan. 11. Yet, Mr. Bentel testified the Benghazi Select Committee that was
[n]ot aware official email account for Secretary Clinton. Select Committee
Benghazi, U.S. House Representatives, Interview Executive Secretariat Director
Information Resources Management (June 30, 2015, available 35. Similarly, Mr. Bentel testified the Benghazi Select Committee that learned about the server through media reports 2015. Id. 37. Yet, appears that Mr. Bentel
The Benghazi Select Committee interviewed Mr. Bentel June 30, 2015.
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
had been made aware the server early March 2009, when review
communications systems Secretary Clinton residence was undertaken and the server was
identified Unclassified Partner System. Exhibit document Plf. Mot. With this
additional information, Plaintiff expects Mr. Bentel can provide more complete answers its
questions. Mr. Bentel testimony necessary.
The Court should rule Plaintiff pending motion. this Court previously stated:
Although the State Department has taken some action recover federal records
related this case, those efforts not resolve the question whether the
agency search response Judicial Watch FOIA request was reasonable. Judge Lamberth recently observed [t]he State Department 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.
Order 11-12. Whether the FBI some time the future will provide the State Department
with additional records irrelevant.6 These records are just another subset larger set
records. Until the Court resolves whether Defendant search response Judicial Watch
FOIA request was reasonable, any discussion remedies premature. The Court should rule
upon the motion currently before the Court. Doing will move this case closer towards final
resolution. Delaying adjudication will only prejudice Plaintiff. has now been more than three
years since Plaintiff submitted its FOIA request. Plaintiff still has right sufficient search, addition, according the State Department spokesman, Defendant does not know this point how many emails exist, when they will reviewed, how long the review will
take, and when records will made available the public. See Katie Williams, State
Department will release deleted emails, The Hill (July 13, 2016, available
Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page
and Plaintiff cannot and will not receive one until the Court receives answers questions
surrounding the creation, purpose and use the server that can decide, matter law, whether the Government has conducted adequate search response
Judicial Watch FOIA request. Order
For the reasons set forth Plaintiff initial brief and the additional reasons stated above,
Plaintiff respectfully requests that the Court authorize Plaintiff take the depositions Hillary
Clinton, Clarence Finney, and John Bentel within four weeks.
Dated: July 14, 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.