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Judicial Watch • JW v State Plf’s Reply Re Motion to Compel HRC 01363

JW v State Plf’s Reply Re Motion to Compel HRC 01363

JW v State Plf’s Reply Re Motion to Compel HRC 01363

Page 1: JW v State Plf’s Reply Re Motion to Compel HRC 01363

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Case 1:13-cv-01363-EGS Document 152 Filed 12/01/16 Page THE UNITED STATES DISTRICT COURT
Civil Action No. 13-cv-1363 (EGS)
Plaintiff Judicial Watch, Inc., counsel, respectfully submits this reply former
Secretary State Hillary Rodham Clinton and Defendant U.S. Department State
Oppositions Plaintiff motion compel Secretary Clinton answer the three interrogatories
she refuses answer. grounds therefor, Plaintiff states follows:
Interrogatory asks Secretary Clinton describe the creation the
system, not the Secretary email account that system. The creation the Secretary email
account the subject Interrogatory Interrogatory and Interrogatory intentionally
differentiate between the system and the various accounts that system.1 not sufficient for Secretary Clinton refer Plaintiff her answer Interrogatory addition, evidence the record demonstrates that the domain
name was registered shortly before Secretary Clinton took office January 21, 2009. Secretary the Court aware, Huma Abedin also had account the
Case 1:13-cv-01363-EGS Document 152 Filed 12/01/16 Page
Clinton has never disputed this fact. According FBI summary, President Clinton already
had place least two preexisting email systems for his staff. See Summary Excerpt, attached Exhibit These preexisting systems used the domain names
and Id. Secretary Clinton new system apparently shared
the same server with President Clinton email systems.2 Id. Whether Secretary Clinton new system shared equipment with the preexisting email systems used President
Clinton staff immaterial understanding the basic facts surrounding the creation the system.
What material who decided create the system, when was
decided create the system, why the system was created, who set up, and when became
operational. addition, someone had decide where the domain name would reside (i.e.,
Google, Daddy, private server system). Someone also had decide how the domain
name would used (i.e., host website, email accounts, both). Once these decisions were
made, someone had implement them. anything, the creation new,
system for Secretary Clinton use the eve her taking office makes answering Interrogatory all the more pertinent. Secretary Clinton and Defendant objection that the interrogatory
outside the scope discovery not well founded.
Finally, noteworthy that Defendant did not object Interrogatory when served
its objections earlier this year. Def Objections (ECF No. 138-1) only objects now, after
former Secretary Clinton objected. Not only does Defendant earlier failure assert scope
Secretary Clinton asserts her opposition that, approximately January 2009, she
decided move onto the system maintained her husband staff. Clinton Opp. (ECF No.
149) The Secretary does not even make this assertion directly. She only refers FBI
summary that makes this finding. The claim also conflates the shared server with the different
email systems the server.
Case 1:13-cv-01363-EGS Document 152 Filed 12/01/16 Page
objection further confirm that Interrogatory well within the scope authorized discovery,
but Defendant earlier failure object waived any such objection. Byrd Reno, 1998 U.S.
Dist. LEXIS 11855, (D.D.C. Feb. 12, 1998) failure file timely objection
interrogatories constitutes waiver any objection unless good cause shown.
Interrogatory 14:
Interrogatory seeks uncover why Secretary Clinton continued using personal
BlackBerry conduct State Department business after being advised the risks doing so.
Instead answering this question, Secretary Clinton cites FBI summary, which states that
Secretary Clinton kept her BlackBerry outside the State Department SCIF. Clinton Opp.
(ECF No. 149) Plaintiff does not ask Secretary Clinton about her use BlackBerry
inside outside SCIF. Plaintiff asks, [W]hy did you continue using unclassified
BlackBerry access your email account conduct official State Department
Secretary Clinton personal BlackBerry was integral part the operation the system, subject squarely within the scope discovery. was how she
accessed her email. Without her personal BlackBerry, there likely would have been system because the Secretary did not use desktop laptop and State
Department BlackBerry would have linked official email account. The fact that
Secretary Clinton continued use personal BlackBerry conduct State Department business
after being advised the risks doing raises the obvious question Why? This the
question posed Interrogatory 14. seeks information about the Secretary motivation and
intent, not information about cybersecurity the Secretary and Defendant maintain. this
regard, very similar Interrogatories 17, 18, and the relevance which Secretary
Case 1:13-cv-01363-EGS Document 152 Filed 12/01/16 Page
Clinton acknowledges but much earlier time because the memorandum question, dated
March 2009, from the very start Secretary Clinton tenure. Because the memorandum
issue Interrogatory from the beginning Secretary Clinton tenure, particularly
significant the Secretary thought process deciding use (or continue use) the system conduct State Department business. Secretary Clinton and
Defendant scope and relevance objections are not meritorious.
Interrogatory 24:
Plaintiff does not ask Secretary Clinton about any communications she may have had
with her attorneys. Plaintiff asks Secretary Clinton provide the basis for her assertion that percent her emails were the State Department system. The Secretary invocation
the attorney-client privilege fails differentiate between facts, which generally are not
privileged, and the communication facts, which may may not privileged depending
the circumstances. the extent Secretary Clinton possesses facts supporting her assertion, she
should required provide these facts Plaintiff. irrelevant whether the Secretary may
have conveyed these same facts her attorneys, confidence, for purposes seeking legal
advice because only communications facts, not facts themselves, are potentially subject the
privilege. Similarly, the Secretary attorneys analyzed the emails she returned the State
Department and calculated that percent them were sent from email
addresses, she should required say so. Any such undertaking Secretary Clinton
attorneys not fact communicated the Secretary confidence for purposes seeking legal
advice. Nor legal advice that would reveal facts communicated confidence the
Secretary her attorneys for purposes seeking that legal advice. factual research done
third parties who happen attorneys. not legal advice.
Case 1:13-cv-01363-EGS Document 152 Filed 12/01/16 Page
Secretary Clinton citation her opposition November 13, 2015 letter from one
her attorneys Benghazi Select Committee Chairman Trey Gowdy not answer
Plaintiff question. The Secretary does not cite produce the letter her interrogatory answer.
See, e.g., Fed. Civ. 33(d). She references the letter for the first time her opposition.
addition, the letter does nothing more than set forth various numbers emails, then asserts that
the percent [c]onsistent with this information. does not say how this figure was
calculated, who calculated it, that the calculation was the basis for the Secretary assertion.
also does not say that the emails returned Secretary Clinton constitute the entire universe
the Secretary work-related emails only subpart those emails such that the
percent figure has any meaning validity. Again, the basis for Secretary Clinton assertion
was that third party, whether was her attorneys someone else, analyzed the emails she
returned the State Department and made simple calculation based the number returned
emails sent from email address, she should required say so. Secretary
Clinton had some other factual basis for her assertion, she should required provide that
basis. She has not demonstrated that the attorney-client privilege allows her keep these
undisputedly relevant facts secret.
For the reasons set forth Plaintiff initial memorandum and the additional reasons
stated above, Plaintiff respectfully requests the Court compel Secretary Clinton answer
Interrogatories 14, and 24.
Case 1:13-cv-01363-EGS Document 152 Filed 12/01/16 Page
Dated: December 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.
Case 1:13-cv-01363-EGS Document 152-1 Filed 12/01/16 Page
Case 1:13-cv-01363-EGS Document 152-1 Filed 12/01/16 Page
U.S. Department Justice
Federal Bureau oflnvestigation
July, 2016
Washington, D.C.
This report recounts the information collected this investigation. not intended address potential inconsistencies in, the
validity of, the information related herein.
(U/tFOUO) July 10, 2015, the Federal Bureau oflnvestigation (FBI) initiated full
investigation based upon referral received from the Intelligence Community Inspector
General (ICIG), submitted accordance with Section 811 (c) the Intelligence Authorization
Act 1995 and dated July 2015, regarding the potential unauthorized transmission and
storage classified information the personal e-mail server former Secretary State
Hillary Clinton (Clinton). The FBI investigation focused determining whether classified
information was transmitted stored unclassified systems violation federal criminal (U//FOU~)
For complete listing the interviews conducted, electronic media collected, legal process issued, and classified emails identified during this investigation, please refer Appendices A-D. background, Clinton was Secretary State from
January 21, 2009 through February 2013.
Case 1:13-cv-01363-EGS Document 152-1 Filed 12/01/16 Page
statutes and whether classified information was compromised unauthorized individuals,
include foreign governments intelligence services, via cyber intrusion other means.
(U//fOUQ) furtherance its investigation, the FBI acquired computer equipment and mobile
devices, include equipment associated with two separate e-mail server systems used
Clinton, and forensically reviewed the items recover relevant evidence. response FBI
requests for classification determinations support this investigation, Intelligence
Community (USIC) agencies determined that e-mail chains, b,c which FBI investigation
determined were transmitted and stored Clintons UNCLASSIFIED personal server systems,
contained classified information ranging from the CONFIDENTIAL TOP SECRET/SPECIAL
ACCESS PROGRAM levels the time they were sent between 2009-2013. USIC agencies
determined that these e-mail chains remain classified. addition, the classification
determination process administered the Department State (State) connection with
Freedom oflnformation Act (FOIA) litigation identified approximately 2,000 additional e-mails
currently classified CONFIDENTIAL and e-mail currently classified SECRET, which FBI
investigation determined were transmitted and stored least two Clinton personal server
(U/tFOUO) The FBI investigation and forensic analysis did not find evidence confirming that
Clinton e-mail accounts mobile devices were compromised cyber means. However,
investigative limitations, including the FBI inability obtain all mobile devices and various
computer components associated with Clintons personal e-mail systems, prevented the FBI from
conclusively determining whether the classified information transmitted and stored Clintons
personal server systems was compromised via cyber intrusion other means. The FBI did find
that hostile foreign actors successfully gained access the personal e-mail accounts
individuals with whom Clinton was regular contact and, doing so, obtained e-mails sent received Clinton her personal account. (UhFOUO) Clintons Personal E-Mail Server Systems
(Ul/FOUO) Initial E-mail Server: June 2008 March 2009
(U/fFOU8) around 2007, Justin Cooper, the time aide former President William
Jefferson Clinton (President Clinton), purchased Apple server (Apple Server) for the
sole purpose hosting e-mail services for President Clinton staff Due concern over
ensuring e-mail reliability and desire segregate e-mail for President Clintons various postpresidency endeavors, President Clintons aides decided maintain physical control the
Apple Server the Clinton residence Chappaqua, New York (Chappaqua residence).
According Cooper, around June 2008, representative from Apple installed the Apple (U/~ The number classified e-mail chains identified may change classification determination responses continue returned the FBI. (U/~) For the purposes the FBI investigation, e-mail chain defined set e-mail responses having the
same initial e-mail. The subject line may edited these chains reflect the purpose the forward reply. (U/lfEffiE)) State did not provide determination with respect the classification these e-mails the time they were sent.
According State Under Secretary Management, Patrick Kennedy, unclassified information provided State confidence
can later considered classified when further assessed the disclosure such information might damage national security diplomatic relationships. Such information referred up-class up-classified.
Case 1:13-cv-01363-EGS Document 152-1 Filed 12/01/16 Page
Servere the basement the Chappaqua residence. The FBI was unable obtain records
from Cooper Apple verify the installation. the time, Cooper was the only individual with
administrative access the Apple Server; however, the Clinton family and their Chappaqua
residence staff had physical access the Apple Server. The Apple Server initially hosted the
domains and, which were used President Clintons
(U/fliOUO) Prior January 21, 2009, when she was sworn the Secretary State,
Clinton used personally-acquired BlackBerry device with service initially from Cingular
Wireless and later ATT Wireless, access her e-mail accounts. Clinton initially used the
e-mail addresses and then changed According Cooper, January 2009, Clinton decided stop
using her e-mail address and instead began using new private domain,, host e-mail service the Apple Server. Clinton stated the FBI that she
directed aides, around January 2009, create the account, and
matter convenience her account was moved e-mail system maintained President Clintons aides. While Cooper could not specifically recall registering the domain,
Cooper was listed the point contact for when the domain was registered
with domain registration services company, Network Solutions, January 13, 2009.
Clinton used her e-mail account her primary e-mail address until
approximately mid-to-late January 2009 when she transitioned her newly created account. The FBI did not recover any information indicating that
Clinton sent e-mail from her e-mail after March 18, 2009.
(UhFOUO) According Cooper, around January 2009 the decision was made move
another server because the Apple Server was antiquated and users were experiencing problems
with e-mail delivery their BlackBerry devices. the recommendation Huma Abedin,
Clinton long-time aide and later Deputy Chief Staff State, around fall 2008, Cooper
contacted Bryan Pagliano, who worked Clinton 2008 presidential campaign
information technology specialist, build the new server system and assist Cooper with the
admm1strat10n new server system. 242s2627p ag1.iano was mth process of1 1qm atmg
computer equipment from Clintons presidential campaign when Cooper contacted Pagliano
about using some the campaigns computer equipment replace the existing Apple Server
Clinton Chappaqua residence. Pagliano was unaware the server would used Clinton the time was building the server system; rather, believed the server would used
President Clintons staff Clinton told the FBI that some point she became aware there was
server the basement her Chappaqua residence. However, she was unaware the
transition from the Apple Server managed Cooper another server built Pagliano and
therefore, was not involved the transition decision. (U/~) The Apple Server consisted Apple Power Macintosh tower and printer. (U/~) Investigation determined
President Clinton did not maintain e-mail account the Apple Server. The e-mail
domain was primarily legacy domain that contained mostly forwarded e-mail.