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8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 12/4/08 - CREWs Renewed Motion for Leave to Conduct Discovery
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1 CREW is the acronym for plaintiff Citizens for Responsibility and Ethics in
Washington.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, ))
Plaintiff, )
)
v. ) Civil No. 07-01707 (HHK/JMF)
)
EXECUTIVE OFFICE OF THE )
PRESIDENT, et al., )
)
Defendants. )
____________________________________)
NATIONAL SECURITY ARCHIVE, ))
Plaintiff, )
)
v. ) Civil No. 07-01577 (HHK/JMF)
)
EXECUTIVE OFFICE OF THE )
PRESIDENT, et al., )
)
Defendants. )
____________________________________)
PLAINTIFF CREWS RENEWED MOTION FOR LEAVE TO CONDUCT
EXPEDITED DISCOVERY AND SUPPORTING MEMORANDUM
STATEMENT
Over one year ago CREW1 filed this lawsuit to compel the White House defendants and
the Archivist to comply with their mandatory record-keeping obligations under the Federal
Records Act (FRA). Facing the disappearance of many millions of missing email and the
White Houses refusal to implement an appropriate electronic records management system,
plaintiff and the nation risk losing a critical piece of our history, memorialized in the records of
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2
the Bush presidency.
Today, as this administration draws to a close and we face an upcoming transition to a
new administration, the proper preservation of those records remains in grave doubt. A recently
disclosed contingency plan prepared by the National Archives and Records Administration
(NARA) reveals how ill-prepared NARA is to receive the electronic records of the Bush
administration and how little it knows about those records, despite the fact that the transition is
less than two months away. And the White House defendants, rather than directing their efforts
to complying with their legal obligations, have sought to erect every conceivable procedural
roadblock in this lawsuit from standing to a lack of judicial review and have fought every effort
to impose even minimal preservation obligations.
Accordingly, with so little time remaining in the Bush presidency and the continued
uncertainty about the status of the administrations electronic records, CREW renews its request
to conduct expedited discovery. Specifically, CREW seeks to depose a few key individuals
before the administration comes to a close and to access key documentary evidence while it is
still in the hands of the White House defendants. Defendants can claim no prejudice; their
motion to dismiss has now been denied on all grounds and merits discovery is plainly the next
appropriate step.
BACKGROUND
On September 25, 2007, CREW filed its eight-claim complaint in this action against the
Executive Office of the President (EOP), the Office of Administration (OA) and its director,
NARA, and the archivist. The complaint challenges as contrary to law the knowing failure of
the defendants to recover, restore and preserve millions of email records created and/or received
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within the White House and the failure of the archivist and head of OA to take enforcement
action to ensure adequate preservation of all federal records. Complaint, 1. Plaintiff also seeks
an order compelling defendants to implement an adequate electronic records management system
in compliance with federal law. Id. at 2. This complaint is nearly identical to a complaint filed
on September 5, 2007, by the National Security Archive (NSA) against the same defendants in
the now-consolidated case, The Natl Sec. Archive v. Executive Office of the President, Civil
No. 07-1577 (HKK) (D.D.C.).
The factual background to the complaint includes OAs discovery in October 2005 that
millions of email records covering a two and one-half year period were missing from White
House servers where they had been dumped for archival storage. Id. at 32-34. After
analyzing the problem and determining the extent of the missing emails, the periods of time
covered by the missing emails, and the EOP components from which the missing emails
originated, OA developed a recovery plan that called for restoring the deleted emails from then-
existing back-up tapes. Id. at 36. The White House, however, never implemented this plan or
any other; to date, the White House has failed to restore any of the deleted emails. Id. at 36,
39. As a result, the back-up copies created by the White House are the only repository for the
deleted emails. Id. at 41. Those tapes contain both presidential and federal records in a
commingled form. Id.
The deleted emails had been stored on White House servers as a substitute for the
previous electronic record-keeping system in place, ARMS (Automated Records Management
System). Complaint, 32. There were and continue to be no controls in place to protect
against anyone with access to the servers altering or destroying the electronic records stored on
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these servers. Id. Despite the expenditure of significant sums of money and the development of
several electronic record-keeping management systems to replace ARMS, the White House has
to date failed to implement an appropriate and effective electronic records management system.
Id. at 36-40.
Contemporaneously with filing this lawsuit CREW sent a letter to OA seeking assurances
that all back-up copies of the deleted records would be preserved pending the resolution of this
litigation. When OAs counsel refused to provide those assurances, CREW sought a temporary
restraining order (TRO) to compel the defendants to preserve all back-up copies. By order
dated November 12, 2007 (Document 18), the Court ordered defendants to preserve all media
created with the intention of preserving data in the event of its inadvertent destruction, and
further ordered defendants to not transfer this media out of their custody or control without leave
of the Court.
Defendants then filed a motion to dismiss (Document 39), arguing that plaintiffs
complaints are precluded by both the Presidential Records Act (PRA) and the FRA; that
CREW and NSA lack standing; that EOP is an improperly named party; and that plaintiffs
cannot maintain their mandamus claims because they are duplicative of plaintiffs claims under
the Administrative Procedure Act (APA). On November 10, 2008, the Court issued a
Memorandum Opinion and Order (Document 90), denying defendants motion in all respects.
ARGUMENT
GOOD CAUSE EXISTS TO GRANT PLAINTIFF EXPEDITEDDISCOVERY.
This Court has broad discretion as to whether and to what extent CREW should be
granted discovery. See, e.g., SafeCard Servs., Inc. v. Securities and Exchange Commn, 926
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2 Some courts apply the same standard as that required to obtain a preliminary injunction,
see, e.g., Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982), while other courts apply a
reasonableness or good cause standard. See Special Situations Cayman Fund v. Dot Com
Entertainment Group, Inc., 2003 U.S. Dist. LEXIS 25083 *5 (W.D.N.Y. 2003). Of note, Notaro
was decided based on a pre-amended version of Rule 26. See Semitool, Inc. v. Tokyo ElectronAmerica, 208 F.R.D. 273, 274 (N.D. Cal. 2002) (explaining why Notaro standard should not
apply).
3 The requested discovery is only expedited to the extent it would occur prior to any
Rule 26(f) conference; the case itself is over a year old and defendants have already presented
multiple threshold legal defenses, all of which the Court rejected.
5
F.2d 1197, 1200 (D.C. Cir. 1991). That discretion includes the ability to expedite discovery,
Ellsworth Associates, Inc. v. U.S., 917 F.Supp. 841, 844 (D.D.C. 1996), and to permit discovery
prior to the parties having conducted a Rule 26(f) conference. Fed. R. Civ. P. 26(d). Moreover,
where, as here, one party has an effective monopoly on the relevant information the need for
discovery is especially acute. Founding Church of Scientology v. Natl Sec. Agency, 610 F.2d
824, 833 (D.C. Cir. 1979).
While courts are split as to the standard that a party seeking expedited discovery must
satisfy,2 the courts in this district generally apply a good cause standard. See, e.g., Ellsworth
Associates, Inc., 917 F.Supp. at 844. Under that standard, a litigant is entitled to expedited
discovery unless the opposing party can show good cause why discovery should be denied. Id.
Moreover, a partys need for timely information constitutes good cause to grant a request for
expedited discovery. Optic-Electronic Corp. v. U.S., 683 F.Supp. 269, 271 (D.D.C. 1987);
Whitkop v. Baldwin, 1 F.R.D. 169 (D. Mass. 1939);.
Here, expedited discovery is warranted3 under either standard based on plaintiffs
compelling and urgent need to gain access to key documents and deponents prior to January 20,
2009, when the Bush administration ends and documents are transferred out of the White House
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4 For example, NARA recently executed a contingency plan for presidential electronic
records (attached as Exhibit 1), that estimates NARA will receive email data consisting of
hundreds of millions of messages.
6
defendants custody and control. Many of the documents plaintiff seeks through discovery are
under the possession and control of defendant OA, an EOP component recently determined to be
a non-agency subject to the PRA. See CREW v. Office of Administration, 565 F.Supp.2d 23
(D.D.C. 2008). For example, CREW will seek the documentation OA prepared when it
discovered the missing emails as well as documents related to at least two electronic records
management systems that were developed but never implemented. This documentation will
confirm the scope of the missing email problem and how it can be redressed. But unless the
district courts determination that OA is not an agency is overturned on appeal, all of OAs
documents will be transferred to NARA at the end of the Bush administration by operation of the
PRA.
Given the enormous volume of records NARA anticipates it will receive and its general
lack of familiarity with those records,4 plaintiffs timely access to responsive documents is far
from assured. Equally in doubt is plaintiffs ability to do any timely follow-up as the records
quite literally will be out of OAs hands. Plaintiff will be similarly hampered with any other
discovery request that seeks documents covered by the PRA as such documents will also be
transferred to NARA and out of the EOPs custody and control at the close of the Bush
administration. Likewise, plaintiffs ability to get full and timely access to deponents will be
restricted once those deponents no longer work at the EOP.
Moreover, there is no assurance that all documents plaintiff seeks through discovery will
be preserved. Here and in other litigation the White House defendants have made clear their
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5 The full hearing transcript is included as Exhibit 2 (Document 57-4) to Plaintiff
CREWs Motion to Show Cause Why Defendants Should Not Be Held In Contempt And For
Sanctions (Document 57).
7
view that they have the complete and unreviewable discretion under the PRA to determine which
documents are to be preserved. Documents have already been destroyed; former OA Chief
Information Officer Theresa Payton confirmed in her testimony before Congress the White
House practice of erasing the hard drives of all departing employees. House of Representatives
Committee on Oversight and Government Reform, Hearing on the Electronic Records
Preservation at the White House, February 26, 2008, Preliminary Transcript at p. 100.5 Still
unknown is the extent to which other documents existing on other media will be cleaned out in
anticipation of a new administration. Comparable concerns led the court in Bush v. Armstrong
to enter a preservation order to prevent the destruction of certain backup tapes as part of the
transition at the end of the Reagan administration as well as at the close of the Bush
administration in 1992. See 807 F.Supp. 816, 820 (D.D.C. 1992) ([I]f records are erased at the
end of the Bush Administration, the publics right to access the subject records will be
irreparably lost and harmed.). See also Express One Intl, Inc. v. U.S. Postal Service, 814
F.Supp. 87, 92 (D.D.C. 1992) (recognizing need for quick discovery in light of upcoming
transition to new contractor).
Expedited discovery is particularly warranted given the nature of this case, which differs
from the typical civil litigation brought against a federal agency official. In such cases, an
administration change results in the automatic substitution of the officials successor and the
case continues. See Fed. R. Civ. P. 25(d). Here, however, plaintiff is challenging policies and
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electronic communications created and/or received within the White House and to establish an
electronic records management system that complies with the FRA. Memorandum Opinion and
Order, November 10, 2008, pp. 1-2 (Mem. Op.). As such, they present the paradigmatic
exception to the general rule disfavoring discovery in APA claims; as a challenge to agency
inaction there is no designated administrative record, no discernable basis on which defendants
could designate an administrative record, and discovery is necessary to shed light on defendants
inaction. Cf. Seattle Audubon Socy v. Norton, 2005 U.S. Dist. LEXIS 42243, *7 (W.D. Wash.
2005) (in cases challenging agency inaction there simply are more holes in the administrative
record for the parties to identify and plug.).
Tellingly, in opposing the previously requested discovery defendants offered only
boilerplate arguments about the general scope of review in an APA action and did not address
what, if any, existing administrative record documents the bases for all of defendants inaction.
Indeed, it is almost inconceivable that defendants would willingly make public the full record of
why they failed to act; their refusal to date to even publicly acknowledge the extent of the
missing email, their last-minute decision to declare OA is no longer an agency subject to the
Freedom of Information Act to prevent having to disclose documents revealing the extent of
their knowledge and failure to act, and their stubborn refusal to provide Congress and the public
with the details of any analysis they conducted most recently all demonstrate an effort to conceal
the full extent of their inaction.
In sum, the current posture of this case presents compelling reasons why expedited
discovery is warranted. Under this administrations watch, millions of emails have gone missing
and the White House has done nothing to reconstruct those historically important federal records
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or prevent further document destruction. The upcoming transition coupled with the risk that
critical evidence will either not be preserved or not be accessible provide ample support for the
expedited discovery plaintiff seeks.
CONCLUSION
For the foregoing reasons, plaintiff respectfully requests its motion for expedited
discovery be granted.
Pursuant to LCvR 7(m) counsel for plaintiff contacted defendants counsel about this
motion on December 4, 2008. Defendants counsel stated that defendants oppose expedited
discovery as well as any discovery.
Respectfully submitted,
____/s/_____________________
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450Washington, D.C. 20530
Phone: (202) 408-5565
Fax: (202) 588-5020
Attorneys for Plaintiff
Dated: December 4, 2008
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EXHIBIT 1
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, ))
Plaintiff, )
)
v. ) Civil No. 1:07cv1707 (HHK) (JMF)
)
EXECUTIVE OFFICE OF THE )
PRESIDENT, et al., )
)
Defendants. )
____________________________________)
[PROPOSED] ORDER
The Court having considered plaintiffs motion for leave to conduct expedited discovery,
defendants response and the entire record herein, it is hereby ORDERED that plaintiffs motion
is GRANTED, and that plaintiff is hereby given leave to conduct expedited discovery.
Dated: _________________ ______________________________
HENRY H. KENNEDY, JR.
United States District Judge
Case 1:07-cv-01707-HHK-JMF Document 93-3 Filed 12/04/2008