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Judicial Watch • JW v State Surreply State 01363

JW v State Surreply State 01363

JW v State Surreply State 01363

Page 1: JW v State Surreply State 01363


Number of Pages:12

Date Created:July 15, 2016

Date Uploaded to the Library:July 15, 2016

Tags:surreply, Finney, Reply, cooper, deputy, deposition, 01363, Abedin, Mills, email, Benghazi, Secretary, Hillary Clinton, defendant, clinton, filed, plaintiff, State Department, document, FBI, department, FOIA

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U.S. District Court
District Columbia
Notice Electronic Filing
The following transaction was entered Wolverton, Caroline 7/15/2016 11:59 and
filed 7/15/2016
Case Name:
Case Number:
Document Number: 110
Docket Text:
SURREPLY [97] MOTION for Order Depose Hillary Clinton, Clarence
Finney, and John Bentel filed U.S. DEPARTMENT STATE. (Wolverton,
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
Civil Action No. 13-CV-1363 (EGS)
Plaintiff Reply Defendant Opposition, ECF No. 107 (July 14, 2016) Pl.
Reply confirms that Plaintiff seeks extend the limited discovery authorized the
Court for reasons unrelated the relief seeks this case and more than bare
hope developing evidence intent avoid FOIA. Despite the Court having taken
the unusual step ordering discovery FOIA action, and despite the completion
the discovery that the Court ordered, well three independent investigations other
entities, Plaintiff has failed uncover any evidence that former Secretary Clinton sought deliberately thwart FOIA using the system conduct official
government business. Accordingly, the Court should deny Plaintiff request for leave
take three additional depositions. the alternative, the Court should defer ruling
Plaintiff request because now quite possible that the FBI recovery work-related
emails result its investigation into the server could moot
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
Plaintiff claims regarding the adequacy the search and the professed need for
Plaintiff Identifies Need For Former Secretary Clinton Deposition.
Plaintiff Reply asserts four arguments for why former Secretary Clinton
deposition necessary. None has merit.
Plaintiff Reply first asserts that former Secretary Clinton deposition
necessary regarding the purpose for creating the system and the
Secretary use it. Pl. Reply However, former Secretary Clinton chief staff
and counselor during her tenure, Cheryl Mills, well former Secretary Clinton during
her congressional testimony, explained that former Secretary Clinton
account was added existing system that her husband office used. Mills Resp.
Interrog. No. (she recall[ed] that Justin Cooper advised [her] that President Clinton
office originally hosted its office staff email Apple server, and that 2009, their
email was migrated newer server that was acquired from excess equipment available
from Secretary Clinton 2008 presidential campaign and she recall[ed] [Mr. Cooper]
advised [her] that Secretary Clinton account was later added this
existing server when she transitioned from the email address she had used while she was the Senate. );1 Hearing Before the Select Committee the Events Surrounding the
2012 Terrorist Attacks Benghazi 403 (Oct. 22, 2015), available [T]here was server [t]hat was already being used husband team,
Defendant understands that Plaintiff provided copies the interrogatory responses
the Court.
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
existing system our home that used. And then, later, again, husband office
decided that they wanted change their arrangements, and that when they contracted
with the company Colorado. The FBI findings are consistent with that explanation.
ECF No. 102-3 (FBI Director Comey testimony before the House Committee
Oversight and Government Reform: Our best information that she set matter convenience. was already existing system that her husband had and she decided have domain that system. (July 2016).2
That Ms. Mills, well former Secretary Clinton deputy chief staff during
her tenure, Huma Abedin, did not speak with former Secretary Clinton about the purpose the email system basis believe that deposition former Secretary Clinton
would provide any more information about the issue, nor their statements suggest
intent thwart FOIA. Ms. Mills and Ms. Abedin explanation that Secretary Clinton
simply continued her practice communicating for personal and work purposes through single email account when she transitioned from the Senate the State Department
consistent with the Secretary public statements the matter. See, e.g., ECF No. 102-4 Why did Clinton use her own email account? When Clinton got the [State]
Department, she opted use her personal email account matter convenience.
enabled her reach people quickly and keep regular touch with her family and friends
more easily given her travel schedule. Plaintiff identifies evidence obtained
through discovery otherwise suggesting that deposition Secretary Clinton would
Plaintiff assertion its Reply Non-Party Hillary Rodham Clinton Opposition that
Ms. Mills testimony may conflict with the FBI findings baseless. ECF No. 106 noted above, both Director Comey and Ms. Mills testified that the email system was
that President Clinton office and that Secretary Clinton account was added it.
That the email system was migrated new equipment the form new server
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
provide any more different information why she used email account
existing system used her husband office.
Plaintiff next assertion, that there evidence whatsoever about the
creation the system, Pl. Reply simply untrue. described above, the
evidence shows that former Secretary Clinton did not create server email system but
instead simply received account the existing system her husband office. The
details and circumstances his office creation the server and email system are
irrelevant whether former Secretary Clinton the State Department intended
deliberately thwart FOIA. Plaintiff speculation that former Secretary Clinton may have
instructed Justin Cooper create the system pure speculation, built the mere fact
that [t]here evidence showing that Secretary Clinton did not instruct Mr. Cooper
create the system. Id.3 That not reason depose former Secretary Clinton. Nor
there any evidence support Plaintiff speculation that former Secretary Clinton
instructed Mr. Cooper provide Ms. Abedin with email account. Ms. Abedin
testified that Mr. Cooper provided her with account she always
had email account associated with the Clinton family deal with their deal with
their personal matters. Abedin Dep. Tr. 21:4-10.
Plaintiff assertion factual dispute regarding whether the State
Department approved Secretary Clinton use personal email for official government
business also baseless. Pl. Reply There conflict between the lack any
evidence that State approved the use and the deposition testimony Ms. Mills and Ms.
Plaintiff mischaracterizes Defendant Opposition asserting that Justin Cooper was
responsible for creating the email system. Pl. Reply Defendant merely quoted
Ms. Abedin testimony that Mr. Cooper provided her with email
address. ECF No. 103 n.3.
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
Abedin and former Secretary Clinton congressional testimony that they believed that
was allowed. Secretary Clinton public statements indicate that the understanding that
the use was allowed was based laws, regulations, and State Department policy,
not any specific State Department approval it. ECF No. 102-4 Plaintiff again
offers nothing but speculation that deposition Secretary Clinton would provide any
additional information the matter.4
Plaintiff fourth argument, that Secretary Clinton testimony
necessary uncover admissible evidence about what records she returned the State
Department, Pl. Reply can dismissed outside the scope discovery that the
Court authorized has nothing with the creation, purpose and use the system. See May 2016 Mem. and Order 12-13 The scope
permissible discovery shall follows: the creation and operation
for State Department business, well the State Department approach and practice
for processing FOIA requests that potentially implicated former Secretary Clinton and
Plaintiff incorrectly suggests its Reply Non-Party Hillary Rodham Clinton
Opposition that there evidence that senior State Department officials responsible for
records management had reason follow raise concerns with Secretary
Clinton her staff about FOIA obligations connection with the Secretary email.
ECF No. 106 State Inspector General reported that senior Department officials
stated that they were unaware the scope extent Secretary Clinton use
personal email account, though many them sent emails the Secretary this
account. May 2016 OIG report 37. And the Department officials with day-to-day
responsibility for records searches response FOIA requests were unaware the
Secretary email use. 30(b)(6) Dep. 53:13-18, 67:4-21, 165:19-166:1. Plaintiff
assertion its Reply Non-Party Hillary Rodham Clinton Opposition that Ms. Mills
testified that Secretary Clinton was contact with Mr. Finney every day, ECF No. 106 incorrect. The testimony cited Plaintiff, Mills Deposition 262:7-263:1,
shows that Ms. Mills testified that Secretary Clinton engaged daily with her special
assistants and the Executive Secretary, who sat outside her office, not Mr. Finney.
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
Ms. Abedin emails and State processing the FOIA request that the subject this
Lastly, Plaintiff confuses the limited, narrowly-tailored discovery agreed the
parties and authorized the Court with the broader discovery more typically permitted other types civil litigation. Pl. Reply see also May 2016 Mem. and Order 8-9 Discovery rare FOIA cases. Suffice say the Court did not order the
latter, and should not now.
The Court Should Deny Leave Depose Clarence Finney And John Bentel.
Plaintiff claims that should permitted leave take Clarence Finney
deposition because Plaintiff did not know about him when submitted its discovery plan March, and that necessary take his deposition discover what knew and did
not know about former Secretary Clinton email use. Plaintiff wrong both counts.
The January 2016 report released State Office Inspector General, the
subject the Department State FOIA Processes for Requests Involving the Office the Secretary, refers Mr. Finney multiple times title. The report explains that
S/ES employs one FOIA analyst, who reports the GS-14 Deputy Director
Correspondence, Records, Staffing (Deputy Director). The Deputy Director serves
the S/ES FOIA coordinator. Jan. 2016 OIG Report addition, entire paragraph the report discusses the Deputy Director explanation S/ES current practices with
respect conducting searches email for FOIA requests directed the Secretary
office. Id. And states that [t]he Deputy Director, who has handled FOIA
responsibilities for S/ES since 2006, could not recall any instances emails from
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
personal accounts being provided him response search tasked S/ES
component. Id. 10. the time the January 2016 report, Mr. Finney was, and still is, the Deputy
Director Correspondence, Records, Staffing. 30(b)(6) Dep. Tr. 14:16-20.5 Thus, document that was widely publicized (including Judicial Watch) put Judicial Watch notice Mr. Finney existence and role long before compiled its list proposed
deponents March 2016. Plaintiff was not limited knowledge Mr. Finney title
but not his name: the Rules expressly permit noticing deposition referring title
(Rule the Federal Rules Civil Procedure allows that party wants depose
person but does not know his her name, the party may notice the deposition
providing general description sufficient identify the person the particular class
group which the person belongs.
And, course, Judicial Watch always could
have asked the State Department for Mr. Finney name.6 Plaintiff did none these
things and chose take 30(b)(6) deposition rather than depose the individual who
handled FOIA responsibilities for S/ES. Jan. 2016 OIG Report 10.
Moreover, not necessary take Mr. Finney deposition now because
Plaintiff asked the 30(b)(6) witness number questions about what Mr. Finney knew
and did not know about Secretary Clinton use email, and got answers those
questions. See Def. Opp. 20-21. State interpreted questions about Mr. Finney noted State opposition brief n.1, prior January 21, 2013, Mr. Finney
title was Director the Office Correspondence and Records within S/ES. changed Deputy Director that time, due merger, without change duties. 30(b)(6)
Dep. Tr. 14:10-15:1.
For example, Plaintiff could have asked State for the name the Deputy Director
Correspondence, Records, Staffing the context the parties negotiations over their
joint proposal for limited discovery. See May 2016 Mem. and Order
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
awareness Secretary Clinton email usage and being within the
scope the 30(b)(6) deposition topic the processing FOIA requests, including
Plaintiff FOIA request, for emails Mrs. Clinton and Ms. Abedin both during Mrs.
Clinton tenure Secretary State and after demonstrated its permitting the
30(b)(6) witness answer Plaintiff questions these topics and the fact that the
witness was prepared to, and did, answer them.
Tellingly, Plaintiff did not complain that the 30(b)(6) witness was unprepared
answer questions about Mr. Finney knowledge lack knowledge, because she
obviously was prepared. The witness spoke Mr. Finney for hours preparation for
her deposition, and she answered the questions she was asked about him, including many the questions Plaintiff now wants pose Mr. Finney directly. For example, the fact
that Mr. Finney was unaware Secretary Clinton use personal email account for
official government business, the 30(b)(6) witness testified to, see Def. Opp. 2021, necessarily means that was not told about it. See Pl. Reply 7-8.7 Deposing
Mr. Finney would fact cumulative the 30(b)(6) deposition. See Pl. Reply 7.8
While true that, Plaintiff notes, Rule 30(b)(6) itself does not preclude
Plaintiff also facially inconsistent about whether has evidence that Mr. Finney
lacked knowledge. its Reply the State Department, Plaintiff states that needs
depose Mr. Finney ask him whether knew about the system,
Pl. Reply while its Reply Secretary Clinton asserts with finality that
Secretary Clinton must deposed based the striking evidence that Clarence Finney had knowledge about her use the system. ECF No. 106
Plaintiff cannot have both ways.
Sahu Union Carbide Corp., 528 Fed. Appx. 96, 104 (2d Cir. 2013), cited Plaintiff, inapposite. See Pl. Reply That case involved district court denial
request take certain 30(b)(6) depositions. Here, State agreed 30(b)(6) deposition, the topic proposed Plaintiff, and went great lengths prepare its 30(b)(6)
witness. And the questions Plaintiff now seeks ask Mr. Finney were encompassed
within the 30(b)(6) topic noticed for deposition.
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
deposition any other procedure allowed these rules, Plaintiff request depose
Mr. Finney must considered the context the limited, atypical discovery occurring this FOIA case. The Court should deny that request.
Nor the deposition John Bentel necessary. Pl. Reply Plaintiff faults
State for not addressing the evidence regarding Mr. Bentel the May 2016 OIG report.
Id. But that evidence does not suggest that Mr. Bentel would know whether not
Secretary Clinton the State Department used deliberately thwart
FOIA. See Def. Opp. 22. Moreover, Plaintiff omits that the OIG specifically
investigated whether the Secretary had requested obtained guidance approval
conduct official business via personal email account her private server, May 2016
OIG report 37, and found evidence that staff the Office the Legal Adviser
reviewed approved the system. Id. 40.
III. The Alternative, The Court Should Defer Ruling Plaintiff Motion.
The requested depositions are also not needed appropriate this time because
State has agreed search the several thousand work-related emails recovered the
FBI during its investigation into Secretary Clinton email server, for records responsive Plaintiff FOIA request. See Def. Opp. 24; Federal Bureau Investigation,
Statement FBI Director James Comey the Investigation Secretary Hillary
Clinton Use Personal Email System,
This was the ultimate relief Plaintiff sought when moved for discovery point
Judicial Watch does not deny. See, e.g., Feb. 23, 2016 Hearing Transcript 10-11
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page asking that [the system records] turned over the State
Department that the State Department can conduct the search should have conducted
originally. id. [I]f this Court determines [as result discovery] that
adequate search was not conducted, believe that the extent the system exists,
copies the system archive the system exists, should turned over the
State Department conduct the searches. id. motion for discovery was
granted, conducted discovery, the evidence believe there the next step would
then issue order requiring the return [of] all those records that
adequate search could conducted. Plaintiff statement now that [w]hether the FBI some time the future will provide the State Department with additional records
irrelevant, Pl. Reply 10, cannot reconciled with these previous statements, and
strongly suggests that Plaintiff seeking discovery for discovery sake.
Plaintiff argument that the Court needs determine whether State search was
adequate before any discussion remedies, id. 10, overlooks the fact that the Court
would not ordering search newly produced records remedy; State
voluntarily agreeing the search, just has consistently done this case when
potentially responsive records were provided it. Nor would State necessarily need
process all the recovered records and make them available the public before could
search them for records responsive Plaintiff FOIA request, contrary Plaintiff
suggestion. See Pl. Reply n.6. State did not that with respect the 55,000
pages emails Secretary Clinton provided it, which State searched for this case after
Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page
they were searchable electronic format. See Def. Status Report (ECF No. 17)
(July 30, 2015).9
For all the foregoing reasons, well the reasons set forth Defendant
Opposition Plaintiff Motion for Permission Depose Hillary Clinton, Clarence
Finney, and John Bentel, the Court should deny Plaintiff motion, the alternative,
defer ruling it.
Dated: July 15, 2016
Respectfully submitted,
Principal Deputy Assistant Attorney General
Assistant Director
/s/ Caroline Lewis Wolverton
Senior Trial Counsel
Trial Attorney
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel.: (202) 514-0265
Fax: (202) 616-8460
Attorneys for Defendant unclear what Plaintiff contention that [t]hese records are just another subset
larger set records, Pl. Reply 10, means based on, how Plaintiff would
know this. Plaintiff provides citation any source information for this statement.