JW v State Surreply State 01363
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This automatic e-mail message generated the CM/ECF system. Please NOT RESPOND this e-mail because the mail box unattended. ***NOTE PUBLIC ACCESS USERS*** Judicial Conference the United States policy permits attorneys record and parties case (including pro litigants) receive one free electronic copy all documents filed electronically, receipt required law directed the filer. PACER access fees apply all other users. avoid later charges, download copy each document during this first viewing. However, the referenced document transcript, the free copy and page limit not apply. 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 JUDICIAL WATCH, INC. DEPARTMENT STATE Case Name: 1:13-cv-01363-EGS Case Number: U.S. DEPARTMENT STATE Filer: Document Number: 110 Docket Text: SURREPLY  MOTION for Order Depose Hillary Clinton, Clarence Finney, and John Bentel filed U.S. DEPARTMENT STATE. (Wolverton, Caroline) Case 1:13-cv-01363-EGS Document 110 Filed 07/15/16 Page UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA ____________________________________ JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 13-CV-1363 (EGS) UNITED STATES DEPARTMENT STATE, Defendant. ____________________________________) DEFENDANT SURREPLY OPPOSITION PLAINTIFF MOTION FOR PERMISSION DEPOSE HILLARY CLINTON, CLARENCE FINNEY, AND JOHN BENTEL INTRODUCTION 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 clintonemail.com 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 clintonemail.com 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 discovery. ARGUMENT 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 clintonemail.com 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 clintonemail.com 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 clintonemal.com 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 https://www.gpo.gov/fdsys/pkg/CHRG-114hhrg98884/pdf/CHRG-114hhrg98884.pdf [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 irrelevant. 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 clintonemail.com 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 clintonemail.com 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 clintonemail.com system. See May 2016 Mem. and Order 12-13 The scope permissible discovery shall follows: the creation and operation clintonemail.com 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 action 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. II. 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 clintonemail.com 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 clintonemail.com 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 clintonemail.com 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 clintonemail.com 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, https://www.fbi.gov/news/pressrel/pressreleases/statement-by-fbi-director-james-b.-comey-on-the-investigation-of-secretaryhillary-clintons-use-of-a-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 clintonemail.com 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 CONCLUSION 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, BENJAMIN MIZER Principal Deputy Assistant Attorney General MARCIA BERMAN Assistant Director /s/ Caroline Lewis Wolverton CAROLINE LEWIS WOLVERTON (DC 496433) Senior Trial Counsel STEVEN MYERS (NY 4823043) 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 Email: email@example.com 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.