JW v State Opposition State 01363
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Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 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 REPLY DEFENDANT OPPOSITION 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: Introduction. 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 clintonemail.com 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. II. Argument. 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 evidence. The Court granted Plaintiff request for discovery because 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 Watch FOIA request. Order addition the reasons set forth below, Plaintiff also incorporates and relies the reasons set forth its reply Secretary Clinton opposition. -2- 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 clintonemail.com 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 clintonemail.com 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 clintonemail.com system well Secretary Clinton and Ms. Abedin use the clintonemail.com 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 -3- 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 -4- 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 non-state.gov system the Secretary State Besides using the clintonemail.com 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. -5- 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 clintonemail.com 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 -6- 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 clintonemail.com 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 stop. -7- 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 clintonemail.com deliberately thwart FOIA. Def. Opp. 22. This assertion incorrect. Plaintiff pointed the evidence the May 2016 OIG report, which Defendant, tellingly, fails address. 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 -8- 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 clintonemail.com 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: SSHRC@state.gov. 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 http://askedandanswereddemocrats.benghazi.house.gov/transcripts/2015_06_30_SCB_INTERVIEW_EX_IRM_Director) 35. Similarly, Mr. Bentel testified the Benghazi Select Committee that learned about the clintonemail.com server through media reports 2015. Id. 37. Yet, appears that Mr. Bentel The Benghazi Select Committee interviewed Mr. Bentel June 30, 2015. -9- Case 1:13-cv-01363-EGS Document 107 Filed 07/14/16 Page had been made aware the clintonemail.com 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 http://thehill.com/policy/national-security/287630-state-department-will-release-deleted-clintonemails). 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 clintonemail.com server that can decide, matter law, whether the Government has conducted adequate search response Judicial Watch FOIA request. Order III. Conclusion. 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 JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, 20024 (202) 646-5172 Counsel for Plaintiff Judicial Watch, Inc.