Sherrod v Breitbart - Sherrod Motion to Adopt Modified Discover Plan Re USDA 3-3-2014

8/20/2019 Sherrod v Breitbart - Sherrod Motion to Adopt Modified Discover Plan Re USDA 3-3-2014

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SHIRLEY SHERROD,

Plaintiff,

v.

ANDREW BREITBART, et al.,

Defendants.

))

)))))))))

CIV. A. NO. 11-00477 (RJL)

ORAL ARGUMENT REQUESTED

PLAINTIFF SHIRLEY SHERROD’S MOTION TO ADOPT

MODIFIED USDA DISCOVERY PLAN

Thomas D. Yannucci, P.C. (D.C. Bar #358989)Michael D. Jones (D.C. Bar #417681)Thomas A. Clare, P.C. (D.C. Bar #461964)Beth A. Williams (D.C. Bar #502522)Peter A. Farrell (D.C. Bar #975579)KIRKLAND & ELLIS LLP655 Fifteenth Street, N.W.Washington, DC 20005Tel: (202) 879-5000Fax: (202) 879-5200

Attorneys for Plaintiff

Dated: March 3, 2014

Case 1:11-cv-00477-RJL Document 94 Filed 03/03/14 Page 1 of 16


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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 4

ARGUMENT.................................................................................................................................. 8

I. THE COURT SHOULD ORDER USDA TO ADOPT PLAINTIFF’SJANUARY 27, 2014 DISCOVERY PROPOSAL.............................................................. 8

A. Plaintiff’s January 27, 2014 Proposal Requests Relevant Documents. .................. 8

B. USDA Has Not Established That Plaintiff’s January 27, 2014 ProposalWill Impose An Undue Burden On USDA............................................................. 9

1.

Plaintiff’s January 27, 2014 Proposal Is Not Unduly

Burdensome. ................................................................................. 10

2. The Undue Burdens USDA Has Identified Relate ToMr. O’Connor’s Discovery Proposal, Not Plaintiff’sProposal......................................................................................... 11

3. Plaintiff Remains Willing To Discuss Any LegitimateConcerns USDA Has About Her January 27, 2014Proposal......................................................................................... 13

CONCLUSION............................................................................................................................. 14



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INTRODUCTION

Plaintiff desires to move this case along as expeditiously as possible and avoid any

further delay. For that reason, on January 27, 2014, Plaintiff sent the Department of Justice a

proposed discovery plan that would govern USDA’s response to the subpoena Plaintiff

previously served. Ex. 1 (Jan. 27, 2014 S. Thibault Letter). Plaintiff’s January 27 proposal

substantially narrowed her subpoena requests, and was in fact based on DOJ’s own

December 19, 2013 proposal for responding to Plaintiff’s subpoena and the two subpoenas

Defendant O’Connor served. In particular, Plaintiff’s proposal:

Explains that she is seeking only a handful of hard copy documents, such as her ownUSDA personnel file;

Accepts DOJ’s proposal that email searches cover the period June 1, 2010– October 31, 2010;

Adopts DOJ’s list of forty individuals whose email accounts would be searched; and

Adopts DOJ’s list of search terms that would be used to identify responsive emails.

Plaintiff’s proposal also asks that DOJ add seven additional email custodians whose names

appeared in relevant documents USDA previously produced, and that DOJ add a handful of

additional search terms. For example, Plaintiff asked DOJ to add “biggovernment*” as a search

term given that the Defendants’ blog post was published on Mr. Breitbart’s BigGovernment.com

website.

Since January 27, 2014, DOJ has refused to accept or meaningfully discuss the

particulars of Plaintiff’s proposal. Instead, it has offered two categorical responses, both of

which lack merit. First, DOJ has asserted that each and every one of the documents that would

be produced under Plaintiff’s proposal is irrelevant to Plaintiff’s claims. For example, DOJ

believes that the following email—which was sent hours after the Defendants published their

blog post—has no relevance to the claims alleged in the Complaint:



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Ex. 2 (July 19, 2010 J. Berge Email). Emails of this sort are plainly relevant to Mrs. Sherrod’s

claims, and they are also the sort of emails that would be produced under Plaintiff’s January 27,

2014 discovery proposal.

Second, DOJ has asserted that Plaintiff’s proposal would impose an undue burden on

USDA. That is a puzzling assertion given that the vast majority of the searches in Plaintiff’s

proposal were originally proposed by DOJ itself—and because DOJ apparently has agreed to

conduct most of those searches anyway in response to a third party’s FOIA request. In light of

those facts, Plaintiff repeatedly has asked DOJ to explain why it would be unduly burdensome to

add seven custodians and thirteen search terms to the forty custodians and thirteen search terms

DOJ suggested. DOJ, however, has not responded to the particulars of Plaintiff’s proposal.

Instead, DOJ combined Plaintiff’s proposal with Mr. O’Connor’s much broader—and thus more

burdensome—proposal, and since then has insisted that the combined proposal DOJ created is

unacceptable or that it would take more than eight months to complete.



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Plaintiff agrees that Mr. O’Connor’s proposal is overbroad in several respects. For

example, he asked USDA to search for emails that were sent as early as July 25, 2008—two

years before the Defendants published their July 19, 2010 blog post, and a year before USDA

offered to appoint Mrs. Sherrod Georgia State Director for Rural Development. See Feb. 11,

2011 Compl. [Dkt. 1-2] ¶ 20. Moreover, Mr. O’Connor asked USDA to search the email

accounts of 20 additional custodians, and asked USDA to include dozens of additional search

terms like “Black Panthers” and “Pigford,” which have no obvious relevance to the issues in this

case. Indeed, as Plaintiff pointed out at the February 20, 2014 status conference, the Defendants’

motion to dismiss focused on the purported actions of the Tea Party and the NAACP, not the

Pigford v. Glickman class action that USDA settled several years ago.

But the fact that Mr. O’Connor’s proposal is overbroad does not mean that Plaintiff’s

proposal is overbroad, too. Nor does it provide a legitimate basis for DOJ’s refusal to explain

why it believes Plaintiff’s proposal on its own presents an undue burden. If DOJ has specific

concerns about Plaintiff’s January 27, 2014 plan (even though it was based on DOJ’s own plan),

Plaintiff stands ready to consider those issues. To date, however, neither DOJ nor USDA has

explained any such concerns or why they might be legitimate.

In the meantime, though weeks have passed, USDA apparently has only started the

process of identifying and collecting emails that are responsive to DOJ’s own discovery

proposal. When it sent that proposal last December, DOJ stated that it would “take up to

45 days” to collect responsive emails. Now, however, USDA estimates that it will need several

months just to collect emails from the time period DOJ proposed (and Plaintiff accepted), with

additional time needed after that for word searches, attorney review, and production. Ex. 3



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(Feb. 27, 2014 D. Glass Email). Moreover, USDA estimates that it will need an additional four-

and-a-half months just to collect emails in response to Mr. O’Connor’s broader requests. Id.

Because of DOJ’s and USDA’s positions, Plaintiff was left with little choice but to file

this motion. DOJ has not identified any legitimate reason why it cannot or should not adopt

Plaintiff’s January 27, 2014 proposal. Instead, it has wasted weeks insisting that Mr. O’Connor

must narrow his requests. Ex. 4 (Feb. 10, 2014 S. Thibault Email). If Mr. O’Connor will not

voluntarily focus his proposal on relevant documents, then this Court may have to address that

issue. But in all events, USDA’s response to Plaintiff’s requests should not be delayed simply

because Mr. O’Connor and DOJ cannot resolve their dispute. Accordingly, Plaintiff respectfully

requests that the Court order DOJ and USDA to adopt and comply with Plaintiff’s January 27,

2014 discovery proposal.1

BACKGROUND

This is a defamation case against Defendants Breitbart and O’Connor based on the false

and misleading statements and video clips they included in their July 19, 2010 blog post on

BigGovernment.com. Among other defamatory assertions, the blog post purported to offer

“video proof” that then-USDA official Shirley Sherrod “admits that in her federally appointed

position, overseeing over a billion dollars ... [s]he discriminates against people due to their race.”

Compl. ¶ 4 (ellipsis in original). Like countless others, Mrs. Sherrod’s supervisors at USDA

were misled by Defendants’ blog post and immediately demanded that Mrs. Sherrod resign.

On October 30, 2013, Plaintiff served a Rule 45 subpoena on USDA requesting the

production of documents related to the claims she alleged in the Complaint. For example, the

1 Pursuant to Local Rule 7(m), Plaintiff states that her counsel discussed the issues described in this motion withDOJ counsel and counsel for Defendants Breitbart and O’Connor in a good faith effort to resolve these matters.Plaintiff understands that DOJ, on behalf of USDA, intends to oppose Plaintiff’s motion.



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subpoena requested documents related to Mrs. Sherrod’s March 27, 2010 speech to the Coffee

County NAACP in Douglas, Georgia, see Compl. ¶ 29, and documents related to USDA’s

demand that Mrs. Sherrod resign on July 19, 2010 after the Defendants published their blog post.

After serving the subpoena, Plaintiff’s counsel spoke with DOJ and explained that Plaintiff was

willing to meet and confer regarding any concerns DOJ or USDA had about the subpoena. For

its part, DOJ explained that it was already preparing to produce additional electronic documents

in response to a third party’s FOIA request and asked for more time to respond to Mrs. Sherrod’s

subpoena. Ex. 5 (Nov. 21, 2013 B. Williams Email). On December 5, 2013, DOJ objected to

Mrs. Sherrod’s subpoena on several grounds, including relevance and undue burden. Ex. 6

(Dec. 5, 2013 D. Glass Email).

On December 6, 2013, counsel for the parties met with DOJ to discuss USDA’s response

to Mrs. Sherrod’s subpoena and the government’s response to separate subpoenas Mr. O’Connor

had served on USDA and the Executive Office of the President (EOP). During the December 6

meeting, DOJ stated that it was preparing a proposal for responding to the subpoenas and hoped

to send the proposal the following week. After the meeting, Plaintiff’s counsel spoke to the DOJ

attorney and reiterated Plaintiff’s hope that the parties could reach a mutually acceptable

agreement regarding the production of USDA documents. Plaintiff’s counsel also noted the

discovery deadlines incorporated in the Court’s scheduling order and explained that Plaintiff

hoped USDA would begin producing documents soon.

On December 19, 2013, DOJ sent its proposal for responding to the subpoenas

Mrs. Sherrod and Mr. O’Connor had served, which apparently would also address the

outstanding third-party FOIA responses USDA had agreed to supplement. Ex. 7 (Dec. 19, 2013

D. Glass Email). In general terms, DOJ stated that it would search USDA’s “Rural Development



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agency archive” and “exchange server backups” for emails sent or received by forty custodians

between June 1, 2010 and October 31, 2010 using thirteen search terms, including “Breitbart”

and “Larry O’Connor.” The custodians included Secretary Tom Vilsack and several other

individuals who were involved in USDA’s decision to demand that Plaintiff resign after the

Defendants published their blog post. In its December 19 proposal, DOJ estimated that it would

“take up to 45 days” (not including review time) to collect and identify responsive emails.

After receiving DOJ’s proposal, Plaintiff’s counsel spoke to DOJ several times to clarify

or confirm several aspects of the searches USDA would conduct and documents it would

produce under DOJ’s plan. For example, Plaintiff asked DOJ to explain the difference between

the “Rural Development agency archive” and the “exchange server backups” that were

referenced in DOJ’s December 19 email. Plaintiff also asked DOJ to confirm whether USDA

possessed performance reviews and similar documents regarding Mrs. Sherrod or the Georgia

Rural Development office that might be responsive to Mrs. Sherrod’s subpoena.

Based on DOJ’s responses to Plaintiff’s requests for confirmation and clarification,

Mrs. Sherrod sent her January 27, 2014 proposal. Ex. 1 (Jan. 27, 2014 S. Thibault Letter). With

respect to DOJ’s proposed email searches, Mrs. Sherrod agreed to DOJ’s suggestion that the

searches look for emails sent or received between June 1, 2010 and October 31, 2010.

Mrs. Sherrod also adopted DOJ’s list of custodians and its list of search terms (with some minor

changes, e.g., changing “Coffee County NAACP” to “NAACP”), but asked DOJ to add several

search terms and seven custodians whose names appeared in relevant emails that USDA

previously produced in response to FOIA requests. With respect to other documents, Plaintiff

asked USDA to produce Plaintiff’s official personnel file (OPF) and documents related to the

performance of the Georgia Rural Development office while Mrs. Sherrod was State Director.



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On the same day, Mr. O’Connor sent DOJ his own discovery proposal, Ex. 8 (Jan. 27,

2014 T. Hogan Email), which amended an earlier proposal Mr. O’Connor had sent, Ex. 9

(Jan. 21, 2014 O’Connor Discovery Plan). Among other things, Mr. O’Connor’s January 27,

2014 proposal asked USDA to search for emails that had been sent as early as July 25, 2008—

two years before the Defendants published their July 19, 2010 blog post, and a year before

USDA offered to appoint Mrs. Sherrod Georgia State Director for Rural Development.

Mr. O’Connor also asked USDA to search the email accounts of 20 individuals who were not on

DOJ’s or Plaintiff’s list of custodians—and asked USDA to include dozens of additional search

terms, such as “13 million,” “appropriations,” “Black Panthers,” “Congressional Black Caucus,”

and “Pigford.” Many of the search terms were directed at the Pigford v. Glickman class-action

litigation USDA settled several years ago, not the claims alleged in Plaintiff’s Complaint.

Since January 27, 2014, Plaintiff repeatedly has asked DOJ to confirm that it agrees to

Plaintiff’s proposal or to explain the reasons DOJ will not agree. Indeed, as recently as last

week, Plaintiff’s counsel wrote to DOJ three separate times to ask that DOJ explain its position

regarding Plaintiff’s January 27 proposal. Ex. 10 (Feb. 24, 2014 S. Thibault Email); Ex. 11

(Feb. 25, 2014 S. Thibault Letter); Ex. 12 (Feb. 27, 2014 S. Thibault Email). DOJ has not

responded except to state that (1) all of the documents requested by Plaintiff’s January 27, 2014

proposal are irrelevant, even though DOJ itself proposed most of the searches; and (2) when

combined with Mr. O’Connor’s broader proposal , the requests together would impose an undue

burden on USDA and require months of work to complete. Moreover, DOJ and USDA stated

that it will take substantially longer than the 45 days it initially estimated to conduct the searches

DOJ proposed. Ex. 3 (Feb. 27, 2014 D. Glass Email).



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ARGUMENT

I. THE COURT SHOULD ORDER USDA TO ADOPT PLAINTIFF’S JANUARY 27,

2014 DISCOVERY PROPOSAL.

Under Rules 45 and 26 of the Federal Rules of Civil Procedure, this Court has the power

to compel production of relevant documents from a nonparty served with a subpoena duces

tecum. See, e.g., In re Denture Cream Prods. Liability Litig., 292 F.R.D. 120, 123 (D.D.C.

2013). If the responding party refuses to produce relevant documents, that party bears the

burden of showing that the requested documents are privileged, or that producing the documents

would impose an undue burden because (1) the discovery is available from other sources, (2) the

discovery is “unreasonably cumulative or duplicative,” and (3) the burden on the party resisting

the discovery outweighs any benefit to the party requesting the discovery. See id. at 127.

Here, Plaintiff’s January 27, 2014 proposal requests documents that are relevant to her

claims, but USDA has not established that Plaintiff’s proposal—as opposed to Mr. O’Connor’s

proposal—would impose an undue burden. Accordingly, because USDA’s refusal to produce

documents in response to Plaintiff’s requests lacks merit, the Court should order USDA to

comply with or adopt Plaintiff’s January 27, 2014 discovery proposal.

A. Plaintiff’s January 27, 2014 Proposal Requests Relevant Documents.

Notwithstanding DOJ’s categorical assertion that each and every document requested by

Plaintiff’s proposal is irrelevant to her claims, DOJ has made no showing that any particular

aspect of Plaintiff’s proposal seeks irrelevant information. That is not surprising given that

Plaintiff’s proposal targets information that is directly related to her claims:

Search Period. The Defendants published their blog post and Plaintiff was forced toresign on July 19, 2010. Plaintiff’s proposal asks USDA to search for emails thatwere sent beginning June 1, 2010 (to show that there was no issue with Plaintiff’s job performance leading up to the publication of Defendants’ blog post) and ending—atDOJ’s suggestion—October 31, 2010 (to show USDA’s reaction to the Defendants’ blog post and the circumstances of USDA’s demand that Mrs. Sherrod resign).



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Custodians. Most of the custodians included on Plaintiff’s list were originally proposed by DOJ, presumably because those forty individuals had some involvementin USDA’s response to the Defendant’s blog post. For example, Cheryl Cook is theUSDA employee who contacted Mrs. Sherrod hours after the blog post was publishedand demanded that she resign immediately. The seven additional custodians Plaintiff

proposed also appear to have been involved in USDA’s response to the blog postgiven that their names appear on relevant emails USDA previously produced.

Search Terms. Similarly, most of the search terms included on Plaintiff’s list wereoriginally proposed by DOJ. All of the terms—e.g., “Breitbart,” “biggovernment*,”“NAACP,” “Georgia State Director,” and “administrative leave”—were designed toidentify emails related to the Defendants’ blog post and USDA’s demand thatMrs. Sherrod resign.

Performance and Salary Information. Based on DOJ’s description ofMrs. Sherrod’s official personnel file (OPF), it apparently contains documents thatare relevant to her salary and other information related to the terms of her USDAemployment. Mrs. Sherrod has also asked USDA to produce documents related tothe performance of the Georgia Rural Development office while Mrs. Sherrod wasState Director, which would show that Mrs. Sherrod was performing well in her position before the Defendants published their blog post.

See Ex. 1 (Jan. 27, 2014 S. Thibault Letter). DOJ has not established that any of these requests

seeks irrelevant information. Indeed, the time period and the vast majority of the search terms

and custodians included in Plaintiff’s proposal were originally proposed by DOJ and USDA.

B. USDA Has Not Established That Plaintiff’s January 27, 2014 Proposal Will

Impose An Undue Burden On USDA.

Because Plaintiff’s January 27, 2014 proposal requests relevant documents, USDA must

produce those documents unless it establishes that the documents are privileged or that document

production would be unduly burdensome. See In re Denture Cream Prods. Liability Litig.,

292 F.R.D. at 127. But DOJ and USDA have not asserted that any category of documents

Plaintiff requested is privileged and thus not discoverable. Ex. 6 (Dec. 5, 2013 D. Glass Email).

They also have not shown that producing documents in accordance with Plaintiff’s January 27

proposal would impose an undue burden.



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1. Plaintiff’s January 27, 2014 Proposal Is Not Unduly Burdensome.

First, DOJ and USDA have not shown that the discovery Plaintiff has requested is

available from other sources. This is somewhat obvious: although USDA’s public statements

might be available from other sources, the only source of documents showing USDA’s internal

response to the Defendants’ blog post—including USDA’s demand that Plaintiff resign—is the

USDA itself. If some other source of the same information exists, neither DOJ nor USDA has

identified it.

Second, DOJ and USDA have not shown that Plaintiff’s proposal seeks “unreasonably

cumulative or duplicative” documents. See In re Denture Cream Prods. Liability Litig.,

292 F.R.D. at 127. USDA has not yet produced any emails in response to Plaintiff’s subpoena or

her January 27, 2014 proposal. And although USDA has produced some documents in response

to third-party FOIA requests, see Feb. 20, 2014 DOJ Status Conf. Memo. [Dkt. 89] at 5, DOJ

previously explained to Plaintiff that the searches conducted to identify those documents were ad

hoc and not systematic.2 That is presumably part of the reason USDA has agreed to conduct

electronic searches to supplement its earlier FOIA responses.

Third, DOJ and USDA have not shown that the burden Plaintiff’s proposal would impose

on USDA outweighs the benefit of the discovery to Plaintiff. On the one hand, the discovery

would benefit Plaintiff in several ways: it will show (among other things) that the Defendants’

July 19, 2010 blog post was false and misleading, that the false and misleading assertions in the

blog post received national media attention, and that Plaintiff lost her job because of the blog

post. On the other hand, Plaintiff’s proposal would impose little additional burden on USDA

given that it apparently has already agreed to conduct substantial email searches in response to a

2 Certain USDA employees apparently reviewed their own emails and printed some documents, which USDA produced in response to FOIA requests it received several years ago.



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third party’s FOIA request. Indeed, that was part of the reason Plaintiff based her January 27,

2014 proposal on DOJ’s December 19, 2013 proposal.

2. The Undue Burdens USDA Has Identified Relate To Mr. O’Connor’s

Discovery Proposal, Not Plaintiff’s Proposal.

The similarity between Plaintiff’s proposal and DOJ’s own proposal may also explain

why DOJ did not mention Plaintiff’s January 27, 2014 letter in its February 20, 2014 status

conference memorandum—and why DOJ has insisted upon combining Plaintiff’s proposal with

Mr. O’Connor’s proposal when claiming that the requested discovery is objectionable. For

example, the heading of Section III in DOJ’s February 20 submission asserts that “the third-party

subpoenas of Plaintiff and Defendant O’Connor are objectionable because they seek discovery

from [the Executive Office of the President]” (emphasis added) even though Plaintiff did not

serve a subpoena on EOP. Mr. O’Connor did.

DOJ has taken the same approach in its discussions with Plaintiff. Despite multiple

requests that DOJ explain why it believes Plaintiff’s January 27, 2014 proposal is objectionable,

e.g., Ex. 10 (Feb. 24, 2014 S. Thibault Email); Ex. 11 (Feb. 25, 2014 S. Thibault Letter); Ex. 12

(Feb. 27, 2014 S. Thibault Email), DOJ repeatedly has stated that it will only discuss Plaintiff’s

proposal in combination with Mr. O’Connor’s proposal and that the two proposals together are

unduly burdensome. For example, after Plaintiff and Mr. O’Connor asked DOJ to explain in

writing how long it would take USDA to conduct the searches Plaintiff and Mr. O’Connor each

requested, DOJ sent its February 27, 2014 summary. Ex. 3 (Feb. 27, 2014 D. Glass Email). In

that summary, DOJ estimated that it would take:

More than 133 days to produce emails dating back to July 25, 2008—even thoughPlaintiff’s proposal does not ask USDA to produce emails sent that long ago.Mr. O’Connor’s proposal does. (Plaintiff’s proposal adopted DOJ’s suggestion thatthe search period begin with June 1, 2010.)



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More than 108 additional days to produce emails sent as recently as December 31,2012—even though Plaintiff’s proposal does not ask USDA to produce emails sentyears after USDA demanded her resignation. Mr. O’Connor’s proposal does.(Plaintiff adopted DOJ’s suggestion that the search period end with October 31,2010.)

More than ten days to collect all of the emails in Mrs. Sherrod’s USDA emailaccount—even though Plaintiff’s proposal does not ask USDA to produce all of theemails in her account. Mr. O’Connor’s proposal does.

See id. Thus, although DOJ refuses to confirm the point, it seems clear that Mr. O’Connor’s

proposal—not Plaintiff’s proposal—is the source of the undue-burden objection DOJ continues

to assert.

Mr. O’Connor’s proposed search terms undoubtedly will present a similar issue. Many

of those terms, such as “Black Panthers” and “appropriations,” have no apparent connection to

Mrs. Sherrod’s claims. See Ex. 8 (Jan. 27, 2014 T. Hogan Email). And other of Mr. O’Connor’s

search terms seem not just irrelevant, they likely would also delay USDA’s overall document

production by causing USDA to collect and review a large number of emails with no relation to

this case.

For example, Mr. O’Connor’s January 27 proposal includes multiple search terms

designed to discover emails related to the Pigford v. Glickman class-action litigation that USDA

settled several years ago. Id. Although Mr. O’Connor has suggested through discovery requests

and responses that he believes Plaintiff was fired because of Pigford , Plaintiff has seen no such

evidence—and Mr. O’Connor has identified none. But because USDA or DOJ attorneys would

have to review all of those emails to protect privileges and determine relevance, USDA’s overall

response to Plaintiff’s requests and Mr. O’Connor’s requests would be delayed substantially. It

makes no sense to pursue that course absent a real showing by Mr. O’Connor that his Pigford -

related search terms will identify emails that are relevant to this case.



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The key point here, however, is that the undue-burden objection DOJ has asserted in

opposition to Plaintiff’s January 27, 2014 proposal is, in fact, an objection based on the breadth

and burdens of Mr. O’Connor’s January 27, 2014 proposal. Because Mr. O’Connor has refused

to limit his requests—and because DOJ has refused to address Plaintiff’s proposal on its own—

Mrs. Sherrod was left with little choice but to file this motion.

3. Plaintiff Remains Willing To Discuss Any Legitimate Concerns USDA

Has About Her January 27, 2014 Proposal.

To be clear, if USDA has legitimate concerns about Plaintiff’s January 27, 2014 proposal,

Plaintiff remains willing to discuss those concerns. If, for example, USDA believes that

shortening the June 1, 2010–October 31, 2010 time period DOJ proposed would alleviate an

undue burden, Plaintiff would be happy to consider a shorter period that will not significantly

sacrifice the production of relevant documents. The same goes for custodians and search terms.

To date, however, USDA has not explained why or how Plaintiff’s proposal (as opposed to

Mr. O’Connor’s proposal) presents an undue burden and thus should not be accepted.

Absent that showing, Plaintiff respectfully submits that the best path forward is this: the

Court should order USDA to adopt Plaintiff’s January 27, 2014 proposal and move expeditiously

in its review and production—and further order that USDA not delay its response to Plaintiff’s

requests while it continues to oppose Mr. O’Connor’s plan. Although Plaintiff agrees that much

of Mr. O’Connor’s proposal does not fit the facts of this case, there is no good reason to hold up

USDA’s response to Plaintiff’s proposal simply because Mr. O’Connor and DOJ cannot resolve

their dispute. Alternatively, should the USDA insist on moving forward with only one review,

Plaintiff respectfully submits that Mr. O’Connor’s proposal could be significantly pared down

now (in terms of time period, custodians, and search terms) so that USDA’s review is as

manageable and relevant as possible, and thus completed as quickly as possible.



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CONCLUSION

For the foregoing reasons, Plaintiff’s motion should be granted.

Dated: March 3, 2014

By:

Respectfully submitted,

/s/ Thomas A. Clare, P.C.

Thomas D. Yannucci, P.C. (D.C. Bar #358989)Michael D. Jones (D.C. Bar #417681)Thomas A. Clare, P.C. (D.C. Bar #461964)Beth A. Williams (D.C. Bar #502522)Peter A. Farrell (D.C. Bar #975579)KIRKLAND & ELLIS LLP655 Fifteenth Street, N.W.Washington, DC 20005

Tel: (202) 879-5000Fax: (202) [email protected]@[email protected] [email protected] [email protected]

Attorneys for Plaintiff



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Case 1:11-cv-00477-RJL Document 94-1 Filed 03/03/14 Page 1 of 4


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Exemption b5



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Farrell, Peter A.

From: Glass, David (CIV)

Sent: Thursday, February 27, 2014 1:19 PM

To: Farrell, Peter A.; Thibault, Stephanie S.; Hogan, Thomas E.; Eric Dubelier

([email protected])

Subject: Sherrod: USDA Time Estimates

Attachments: USDA Time Estimates (Feb. 27, 2014).docx

Peter/Stephanie/Tom/Eric –

Please see attached. We will be available to discuss these estimates during our conference call at 6 p.m. this evening. I

am also available before then to respond to any questions any of you may have.

David



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d P l a i n t i f f ’ s

P r e - e C o m p l y * * *

1 0 8 . 9

d a y s * * * *

6 w e e k s

e C o m p l y

N / A

4 w e e k s

( D ’ s V s e a r c h i n g “ S h e r r o d

” w i t h 3 e x c e p t i o n s )

6 / 1 / 1 0 - 1 0 / 3 1 / 1 0

T i m e f r a m e p r o p o s e d b y U S D A a n d a c c e p t e d b

y P l a i n t i f f

1 0 8 . 9

d a y s * * * *

6 w e e k s

* R D = R u r a l D e v e l o p m e n t s e r v i c e d b y t h e O f f i c e o f C h i e f I n f o r m a t i o n O f f i c e r , I n f o r m a t i o n T e c h n o l o g y S

e r v i c e ( I T S )

* * O S E C = O f f i c e o f t h e S e c r e t a r y w h i c h i n c l u d e s n o t o n l y t h e i m m

e d i a t e o f f i c e b u t s t a f f o f f i c e s s u c h a s t h e O f f i c e o f C o m m u n i c a t i o n s s e r v i c e d b y t h e O f f i c e o f

C h i e f I n f o r m a t i o n O f f i c e r , W

a s h i n g t o n C o m m u n i c a t i o n s T e c h n o l o

g y S e r v i c e ( W C T S )

* * * e C o m p l y = I n m i d - 2 0 1 1 , U S D A t r a n s i t i o n e d f r o m m u l t i p l e a g e n c y e m a i l s y s t e m s t o a D e p a r t m e n t w i d e c l o u d - b a s e d s y s t e m . e C o m p l y r e f e r s t o t h e p r o t o c o l

u s e d t o s e a r c h t h a t s y s t e m .

* * * * T h e 1 3 3 a n d e i t h e r o f t h e 1 0 8 . 9

d a y p e r i o d s ( d e p e n d i n g o n w

h i c h i s c h o s e n ) d o n o t r u n c o n c u r r e n t l y .

Case1:11cv00477RJL

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Filed03/0

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Farrell, Peter A.

From: Thibault, Stephanie S.

Sent: Monday, February 10, 2014 11:09 AM

To: Glass, David (CIV)

Cc: Farrell, Peter A.

Subject: RE: Sherrod v. Breitbart et al.

David,

I write regarding our January 30, 2014 telephone conversation. I understood from our January 30 discussion that USDA

has decided not to search for or produce emails and similar documents in response to Mrs. Sherrod’s subpoena until Mr

O’Connor further narrows his requested search protocol and/or the Court provides guidance regarding the scope of Mr.

O’Connor’s requested searches at the status conference scheduled for February 19, 2014. Please let me know if that is

no longer USDA’s position. I also understood from our January 30 conversation that USDA will bear the cost of searching

for and producing the performance and salary information, and the Georgia USDA Rural Development documents,

described in my January 27, 2014 letter. Thank you again for confirming that point.

Best,

Stephanie S. Thibault

Kirkland & Ellis LLP655 Fifteenth St., N.W. Washington, D.C. 20005Tel +1-202- 879-5961 Fax +1-202-879-5200

[email protected]



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Farrell, Peter A.

From: Williams, Beth A.

Sent: Thursday, November 21, 2013 3:33 PM

To: [email protected]

Cc: Farrell, Peter A.

Subject: USDA subpoena re Sherrod v. Breitbart et al.

David:

Thank you for the call yesterday. Two follow-up questions for you – first, you indicated that you would send

the FOIA request materials and related papers from the individual who had appealed the USDA’s previous

production. Would you please send those to us? Second, you mentioned that the USDA was conducting a further

review based on those FOIA requests and was planning to produce many additional documents related to Mrs. Sherrod’s

case. Could you give us a sense of the anticipated release of that production? As we discussed, we’re dealing with

some time pressure under the discovery order in our case.

Finally, with regard to your requested extension for time to respond to our subpoena, we agree to your request

to extend the response time to December 6. We hope that in the interim period we can reach agreement on the USDA’s

response to our subpoena without the need for objections on your part. I have copied my partner, Peter Farrell, on this

email who will be following up with you after the holiday to further discuss the USDA’s response. In the meantime, if

you could send us the documents referenced above, we would appreciate it.

Happy Thanksgiving,

Beth

Beth A. Williams

KIRKLAND & ELLIS LLP



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Farrell, Peter A.


Sent: Thursday, December 05, 2013 4:27 PM

To: Farrell, Peter A.; Mark I. Bailen ([email protected]); Glass, David (CIV)

Subject: Sherrod: Subpoenas: Objections

Peter/Mark –

The U.S. Department of Agriculture (USDA) hereby objects on the following grounds to the requests for productioncontained in plaintiff’s subpoena and Freedom of Information Act/Privacy Act request to USDA dated October 30, 2013:Requests 1, 3, 7, burdensomeness, relevance, availability from other sources; Requests 2, 5-6, 8-10, burdensomeness,relevance; Request 4, relevance. Without prejudice to the foregoing, USDA is prepared to respond to Request 4.

USDA hereby objects on the following grounds to the requests for production contained in the subpoena ofdefendant O’Connor to USDA dated November 19, 2013: Requests 1-2, 4-5, 7, 11, 16-19, 21-26, 29, 31-37, 40, 42-44,burdensomeness, relevance; Requests 3, 6, 8-10, 12-15, 27-28, 30, 41, burdensomeness, relevance, availability fromother sources; Request 20, burdensomeness, relevance, vagueness; Requests 38-39, burdensomeness, availability fromother sources.

The Executive Office of the President (EOP) hereby objects on the following grounds to the requests forproduction contained in the subpoena of defendant O’Connor to EOP dated November 20, 2013: Requests 1-5, 8, 15-16,26, 29, burdensomeness, relevance, availability from other sources; Requests 6-7, 9-14, 17-20, 23-25, 27-28,burdensomeness, relevance; Requests 21-22, burdensomeness, availability from other sources.

USDA and EOP reserve the right at any time to revise, supplement, correct, amend, or clarify any of the aboveobjections. By asserting those objections, USDA and EOP do not waive any claim of privilege they may have with respectto any requested document or any statutory exemption from production that may apply to any such document.

Thanks, David



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Farrell, Peter A.


Sent: Thursday, December 19, 2013 10:45 AM

To: Farrell, Peter A.; Thibault, Stephanie S.; Mark I. Bailen ([email protected]); Hogan,

Thomas E.; Harrison J. Dossick ([email protected]); Glass, David (CIV)

Subject: Sherrod: Proposed Electronic Searches

Peter/Stephanie/Mark/Tom/Harrison:

The U.S. Department of Agriculture (USDA) proposes to conduct the following electronic searches for emailspertaining to Shirley Sherrod in response to the subpoenas issued to it in Sherrod v. Breitbart and all outstanding requestsunder the Freedom of Information and Privacy Acts. Please let me know if you have any questions or comments.

For the period June 1-October 31, 2010:

1. USDA proposes to search the Rural Development agency archive for emails of the following individuals:

Shirley Sherrod

Donnie D. Thomas, Assistant State Director, Georgia State Rural Development OfficeDonna I. Graves, Director, Administrative Programs, Georgia State Rural Development Office

using the following search terms (words in quotes will be searched as a phrase):

“Coffee County NAACP”banquetBreitbartvideoblog“Larry O’Connor”“Freedom Fund”

2. USDA proposes to search exchange server backups for emails of the following individuals:

Tom Vilsack, Secretary of AgricultureKaren Ross, Chief of StaffCarole Jett, Deputy Chief of StaffDavid Lazarus, Senior Advisor to the SecretaryRobert Bonnie, Senior Advisor to the SecretaryMax Holtzman, Senior Advisor to the SecretaryDoug O’Brien, Senior Advisor to the SecretaryJane Hipp, Senior Advisor to the SecretarySarah Bittleman, Senior Advisor to the SecretarySally Cluthe, Director of SchedulingKevin Washo, White House Liaison

Kathleen Merrigan, Deputy SecretarySuzanne Palmieri, Chief of Staff to the Deputy Secretary

Pearlie Reed, Assistant Secretary for Departmental Management Alma Hobbs, Deputy Assistant SecretaryRobin Heard, Deputy Assistant SecretaryBobbi Jeanquart, Chief of StaffW. Russ Ashworth, Director, Management ServicesKaren Messmore, Director, Office of Human Resource Management

Joe Leonard, Assistant Secretary for Civil Rights



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Mary N. McNeil, Deputy Assistant Secretary

Dallas Tonsager, Under Secretary for Rural DevelopmentCheryl Cook, Deputy Under SecretaryVictor Vasquez, Deputy Under SecretaryLisa Zaina, Chief of StaffTimothy McNeilly, Director, Legislative & Public AffairsJudith Canales, Administrator, Rural Business-Cooperative ServiceTammye Trevino, Administrator, Rural Housing ServiceJonathan Adelstein, Administrator, Rural Utilities Service

Chris Mather, Director, Office of CommunicationDavid Sandretti, Deputy DirectorCaleb Weaver, Press SecretaryJustin DeJong, Press Secretary

Steve Silverman, Deputy General Counsel and Acting General Counsel

Krysta Harden, Assistant Secretary for Congressional RelationsJohn Berge, Deputy Assistant SecretaryJennifer Yezak, Director, External and Intergovernmental Affairs


Sherrod“Shirley Sherrod”GA/RD“GA RD”“Georgia RD”GA-RDBreitbart“Larry O’Connor”

3. USDA proposes to search the Office of Executive Correspondence correspondence files for the term “Sherrod”excluding the terms “Sherrod Brown” and “Senator Sherrod” if technically feasible.

The estimated costs of these searches will be approximately $50,000-60,000 and take up to 45 days once thesearches begin. This time and cost is exclusive of review time.

Thanks, David



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Farrell, Peter A.

From: Hogan, Thomas E.

Sent: Monday, January 27, 2014 5:53 PM


Cc: Bailen, Mark; Babinski, Laurie A.; Harrison J. Dossick ([email protected])

([email protected]); Farrell, Peter A.; Thibault, Stephanie S.

Subject: Sherrod v. Breitbart, et al., Case No. 1:11-cv-00477(RJL)Attachments: USDA email search protocol (revised).DOCX

Dear David,

I am writing in follow up on our call this afternoon about a protocol for searching USDA’s email records in response to

our subpoena to the USDA in Sherrod v. Breitbart, et al., Case No. 1:11-cv-00477(RJL). The USDA’s position that

Defendant Larry O’Connor must accept USDA’s proposal for collecting documents responsive to his subpoena even

though we know that it would fail to uncover approximately half of the responsive documents, or else USDA will move

to quash the subpoena, is an unreasonable ultimatum that we are compelled to reject. We also disagree with your

assertions that our proposal is unreasonable because of the number of search terms and the number of persons whose

emails are to be searched. As I explained during our call, we generated our list of search terms based on the language

actually used in the publicly available, but incomplete set of USDA emails; likewise, we identified our list of persons

whose emails files must be searched largely based on those records. Even then, our proposal may still miss some

responsive documents even in the short 16 day time period that is the primary, but not exclusive, focus of our

proposal. Nonetheless, we have revised our proposal in the hope that USDA will withdraw its ultimatum and accept a

reasonable compromise. Please review the attached revised proposal and let us know USDA’s position.

Best regards,

Tom

This email is intended only for the use of the party to which it isaddressed and may contain information that is privileged,confidential, or protected by law. If you are not the intendedrecipient you are hereby notified that any dissemination, copyingor distribution of this email or its contents is strictly prohibited.If you have received this message in error, please notify us immediatelyby replying to the message and deleting it from your computer.

Internet communications are not assured to be secure or clear ofinaccuracies as information could be intercepted, corrupted, lost,destroyed, arrive late or incomplete, or contain viruses. Therefore,we do not accept responsibility for any errors or omissions that are

My Bio | Web site | vCard

T 202.861.1577F 202.861.1783www.bakerlaw.com

Thomas E. Hogan [email protected]

BakerHostetlerWashington Square1050 Connecticut Avenue, N.W., Suite 1100Washington, D.C. 20036-5304



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present in this email, or any attachment, that have arisen as a resultof e-mail transmission.



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January 27, 2014

Proposed protocol for searching the United States Department of Agriculture’s email

records in response to the subpoena served on USDA in Sherrod v. Breitbart, et al., Case No.

1:11-cv-00477(RJL) on behalf of Defendant Larry O’Connor1

I. July 25, 2008 through July 14, 2010

Custodians

All custodians listed in Parts III and IV of this protocol.

Search Terms

Sherrod (excepting references to “Sherrod Brown,” “Sen. Brown,” and “Senator Brown”)

II. July 25, 2009 through July 19, 2010

Custodians

Shirley Sherrod

Scope of the production

Produce all email and attachments.

Note: Ms. Sherrod’s email correspondence (with attachments) is relevant to her contention in thiscase that she does not perceive the world through a “prism of race and class distinctions.”

III. July 15, 2010 through July 30, 2010

Custodians

Karen RossCarole JettKrysta HardenJohn BergeChris Mather Kevin WashoDallas Tonsager Cheryl Cook Yeshimebet AbebePearlie S. ReedSuzanne Palmieri

Scope of the search

1 This proposed protocol is for purposes of discussion only and in full reservation of all rights.



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Search all email and attachments.

Note: The documents produced by the USDA under the Freedom of Information Act suggest thatthese 13 individuals were those most involved in Ms. Sherrod’s resignation and the USDA’s public response. It also appears that the issue of Ms. Sherrod’s resignation occupied most of

their time during this approximately two-week period. In light of the all-consuming nature ofthis matter for these core individuals, reliance on search terms cannot reasonably substitute for areview of their emails over this brief time period to determine which are responsive to thesubpoena.

IV. July 15, 2010 through July 30, 2010

Custodians

SecretaryTom Vilsack

Kathleen MerriganSally ClutheMalcolm EveDoug O’BrienMonica WyantDavid Lazarus

Legislative AffairsErin HanniganLilia McFarland Tina MaySarah MisailidisJulie AllenTodd WilliamsonJanice WilliamsChris Church

Deputy SecretaryChad Maisel

Rural DevelopmentLisa ZainaWayne MaloneyTimothy McNeilly

Georgia Rural DevelopmentDonnie D. ThomasEJ Stapler Deborah CallahanDonna Graves



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Assistant Secretary for AdministrationTerry D’AddioRobin Heard Alma C. Hobbs

Quinton RobinsonCarolyn C. Parker Bobbi Jeanquart

Assistant Secretary for Civil RightsJoe Leonard Mary McNeil

CommunicationsJustin DeJongCaleb Weaver

General CounselSteve SilvermanFrederick PfaeffleJ. Michael KellyArlean Leland Inga Bumbary-Langston

Farm Service AdministrationKaris Gutter

Search Terms

“13 million”appropriationsAx*“Big Government”Bishop blog“Black Panthers”BreitbartBrietbart [for misspellings]CBCChambliss“Charles Sherrod”CherlinCheryl“Chris* Lu”Clyburn“Congressional Black Caucus”



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Cook Dallas“Denise Wilson”discriminat*dismiss*

“Eric Lesser”“Faya Rose Toure”FSCFederationfire*firingFitz*Fox“Freedom Fund”“GA delegation”“GA*RD”

“GA Rural Development”“GA situation”“GA state director”Gavin“George Ko”“Georgia delegation”Georgia and governor “Georgia RD”“Georgia state director”GibbsGreenHillHotair.com“James Cruey”“job plans”“John Lewis”Kingston“Land Assistance Fund”leave“Martha Scott Poindexter”MSP“Meet the Press” NAACP“New Communities”O’ConnorO’ReillyOAOoffer*“Office of Advocacy and Outreach”Paige



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PearliePhyllisPigford PPOPresident*

raceracis*Rahm“RD Director”Reed resign*“reverse discrimination”“Ron* Mitchell”“Rose Sanders”“Rural Development Leadership Network”Saxby

“Schedule C Political Appointees”Sherrod (excepting references to “Sherrod Brown,” “Sen. Brown,” and “Senator Brown” iftechnically feasible)Shirley“Southern Coop*”“Southwest Georgia Project”Spooner*“State Director of Agriculture of GA”“Steve King”Stroman“SW G*”“Tea Party”terminat*“tick tock”TJVTowns“Track B”transcri*vet*video“white farmer*”Yeshi

V. July 31, 2010 through December 31, 2012

Custodians


Search Terms



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January 21, 2014

Proposed protocol for searching the United States Department of Agriculture’s email

records in response to the subpoena served on USDA in Sherrod v. Breitbart, et al., Case No.

1:11-cv-00477(RJL) on behalf of Defendant Larry O’Connor

I. July 25, 2008 through July 14, 2010

Custodians


Search Terms


II. July 25, 2009 through July 19, 2010

Custodians

Shirley Sherrod

Scope of the production

Produce all email and attachments.

Note: Ms. Sherrod’s email correspondence (with attachments) is relevant to her contention in thiscase that she does not perceive the world through a “prism of race and class distinctions.”

III. July 15, 2010 through July 30, 2010

Custodians

Tom Vilsack Karen RossCarole JettKrysta HardenJohn BergeChris Mather Kevin WashoDallas Tonsager Cheryl Cook Yeshimebet AbebePearlie S. ReedKathleen MerriganSuzanne Palmieri

Scope of the search



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Search all email and attachments.

Note: The documents produced by the USDA under the Freedom of Information Act suggest thatthese 13 individuals were those most involved in Ms. Sherrod’s resignation and the USDA’s

public response. It also appears that the issue of Ms. Sherrod’s resignation occupied most oftheir time during this approximately two-week period. In light of the all-consuming nature ofthis matter for these core individuals, reliance on search terms cannot reasonably substitute for areview of their emails over this brief time period to determine which are responsive to thesubpoena.

IV. July 15, 2010 through July 30, 2010

Custodians

Secretary

Sally ClutheMalcolm EveDoug O’BrienMonica WyantDavid LazarusRobert BonnieMax HoltzmanJane HippSarah Bittleman

Legislative AffairsErin HanniganLilia McFarland Tina MaySarah MisailidisJulie AllenJennifer Yezak Todd WilliamsonJanice WilliamsChris Church

Deputy SecretaryChad Maisel

Rural DevelopmentLisa ZainaKatie YocumWayne MaloneyTimothy McNeillyMagdey Abdallah



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Victor VasquezJudith CanalesTammye TrevinoJonathan Adelstein

Georgia Rural DevelopmentDonnie D. ThomasEJ Stapler Deborah CallahanBryan ZulkoDonna Graves

Assistant Secretary for AdministrationTerry D’AddioRobin Heard Alma C. Hobbs

W. Russ AshworthKaren MessmoreQuinton RobinsonCarolyn C. Parker Oscar GonzalesCarmen JonesBobbi JeanquartShirley Hill

Assistant Secretary for Civil RightsJoe Leonard Mary McNeil

CommunicationsDavid SandrettiJustin DeJongCaleb Weaver Stephanie Chan

General CounselSteve SilvermanFrederick PfaeffleJ. Michael KellyArlean Leland Inga Bumbary-Langston

Farm Service AdministrationKaris Gutter Carolyn Cooksie



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Office of Executive SecretariatGreg DiephouseCharles Fromstein

Search Terms

“$13 million”“13 million”“13 point”“acting SD in GA”“admin leave”“admin. leave”“administrative leave”“Albany State”“any news”appropriations”

“are things OK there”“are you alone”“are you guys available now for a call?”ASAPassholesAxAxelrod Bachmann banquet“Barbara Lee”“Big Government”Bishop blog“Black Panthers”BreitbartBrietbart [for misspellings]cage“call me”“call my cell”“call when you can”“called you”“calls with Hill”“can we talk”CBCChambliss“Charles Sherrod”CherlinCheryl“Chris* Lu”“civil right*”



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ClyburnCNN“Coffee County”“confidential for you only”“Congressional Black Caucus”

Cook Dallas“Denise Wilson”discriminat*dismiss*“do not do over email”“Donnie”“employee e-mail”Elder “Eric Lesser”“Faya Rose Toure”

FSCFederationfire*firingFitz*Fox“Freedom Fund”“full copy of the speech”“GA delegation”“GA RD”GA/RDGA-RD“GA Rural Development”“GA situation”“GA state director”Gavin“George Ko”“Georgia delegation”“Georgia governor”“Georgia issue”“Georgia RD”“Georgia state director”GibbsGoodlatte“Governor of Georgia”Green“Hot Air”Hotair.comhttp*IMP



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“in briefing”“in my office”“James Cruey”“Jesse Jackson”“job plans”

“John Lewis”“just called you back”“just tried you”Kingston“Land Assistance Fund”leave“Martha Scott Poindexter”MSP“Meet the Press”“monitoring general mailbox” NAACP

“need to talk”“New Communities”“not for email”O’ConnorO’ReillyOAOoffer*“Office of Advocacy and Outreach”“our friend from Georgia*”PaigePearliePhyllisPigford “please call asap”POTUSPPOPresident*“Presidential Personnel” pressraceracis*Rahm“RD Director”Reed reporter resign*“reverse discrimination”“Ron* Mitchell”“Rose Sanders”“Rural Development Leadership Network”



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Saxby“Schedule C Political Appointees”shamingSharpton“she is on”

Sherrod (excepting references to “Sherrod Brown,” “Sen. Brown,” and “Senator Brown” iftechnically feasible)Shirley“Southern Cooperatives”“Southwest Georgia Project”Spooner*“Starry Krueger”“State Director of Agriculture of GA”statement“Steve King”“still on a call”

Stroman“Super Urgent”“SW Ga Project”“SW Georgia”“Tea Party”terminat*“The S”“tick tock”TJV“today’s issue”Towns“Track B”transcript*transcrib*TVurgent“Valerie Green”vet*video“we need to talk”“we should huddle”“what* your direct line”“where r u”“white farmer*”“White House”“will call asap”“with S”“worst day of his life”www*Yeshi



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“you alone”“you around”“you OK”

Note: Here is the same list as above in “block” form:

“$13 million” or “13 million” or “13 point” or “acting SD in GA” or “admin leave” or “admin.leave” or “administrative leave” or “Albany State” or “any news” or appropriations or “arethings OK there” or “are you alone” or “are you guys available now for a call?” or ASAP orassholes or Ax or Axelrod or Bachmann or banquet or “Barbara Lee” or “Big Government” orBishop or blog or “Black Panthers” or Breitbart or Brietbart or cage or “call me” or “call mycell” or “call when you can” or “called you” or “calls with Hill” or “can we talk” or CBC orChambliss or “Charles Sherrod” or Cherlin or Cheryl or “Chris* Lu” or “civil right*” Clyburn orCNN or “Coffee County” or “confidential for you only” or “Congressional Black Caucus” orCook or Dallas or “Denise Wilson” or discriminat* or dismiss* or “do not do over email” or“Donnie” or “employee e-mail” or Elder or “Eric Lesser” or “Faya Rose Toure” or FSC or

Federation or fire* or firing or Fitz* or Fox or “Freedom Fund” or “full copy of the speech” or“GA delegation” or “GA RD” or GA/RD or GA-RD or “GA Rural Development” or “GAsituation” or “GA state director” or Gavin or “George Ko” or “Georgia delegation” or “Georgiagovernor” or “Georgia issue” or “Georgia RD” or “Georgia state director” or Gibbs or Goodlatteor “Governor of Georgia” or Green or “Hot Air” or Hotair.com or http* or IMP or “in briefing”or “in my office” or “James Cruey” or “Jesse Jackson” or “job plans” or “John Lewis” or “justcalled you back” or “just tried you” or Kingston or “Land Assistance Fund” or leave or “MarthaScott Poindexter” or MSP or “Meet the Press” or “monitoring general mailbox” or NAACP or“need to talk” or “New Communities” or “not for email” or O’Connor or O’Reilly or OAO oroffer* or “Office of Advocacy and Outreach” or “our friend from Georgia*” or Paige or Pearlieor Phyllis or Pigford or “please call asap” or POTUS or PPO or President* or “PresidentialPersonnel” or press or race or racis* or Rahm or “RD Director” or Reed or reporter or resign* or“reverse discrimination” or “Ron* Mitchell” or “Rose Sanders” or “Rural DevelopmentLeadership Network” or Saxby or “Schedule C Political Appointees” or shaming or Sharpton or“she is on” or Sherrod or Shirley or “Southern Cooperatives” or “Southwest Georgia Project” orSpooner* or “Starry Krueger” or “State Director of Agriculture of GA” or statement or “SteveKing” or “still on a call” or Stroman or “Super Urgent” or “SW Ga Project” or “SW Georgia” or“Tea Party” or terminat* or “The S” or “tick tock” or TJV or “today’s issue” or Towns or “TrackB” or transcript* or transcrib* or TV or urgent or “Valerie Green” or vet* or video or “we needto talk” or “we should huddle” or “what* your direct line” or “where r u” or “white farmer*” or“White House” or “will call asap” or “with S” or “worst day of his life” or www* or Yeshi or“you alone” or “you around” or “you OK”

V. July 31, 2010 through December 31, 2012

Custodians


Search Terms



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Farrell, Peter A.

From: Thibault, Stephanie S.

Sent: Monday, February 24, 2014 10:59 AM


Cc: Farrell, Peter A.; 'Bailen, Mark'; Hogan, Thomas E.; 'Dossick, Harrison J.'

Subject: RE: Sherrod v. Breitbart et al.

Attachments: 20140218 Agreement Regarding Document Production and Protocols.pdf; 20140127SThibault Letter to DGlass.pdf; 20140224 Plaintiff Redline Edits re Privacy Act Protective

Order.pdf

David,

We have not yet received a response regarding our electronic search proposal contained in our January 27, 2014 letter

to you or our request for clarification of cost issues per our January 30, 2014 email below. Following-up on the status

conference held on February 20, 2014, Plaintiff is prepared to file a motion for production of USDA documents. That

said, we remain willing to cooperate with USDA regarding our discovery requests without the Court’s intervention and

to alleviate the time and expense of motion practice.

Plaintiff’s January 27, 2014 Electronic Search Proposal: As previously indicated, our January 27, 2014 proposal largely

agrees to your December 19, 2013 proposal subject to minor modifications and additions. I’ve re-attached for your

reference, our January 27, 2014 proposal. Please let us know whether this proposal is acceptable to the USDA. If,

however, USDA will not agree to our January 27, 2014 proposal, please let us know which aspects of our proposal USDA

will not agree to and the reasons for USDA’s position.

Document Production & Protocols: For your reference, I have also attached the Agreement Regarding Document

Production and Protocols. It is a very straightforward, standard protocol. Please let us know if USDA will agree to

produce documents according to this format.

Privacy Act Protective Order: You have indicated USDA’s release of Mrs. Sherrod’s official personnel file (OPF) willrequire the parties agreement to your proposed Privacy Act protective order, which among other things, requires the

parties to file under seal, any record contained in a system of records that is produced by the USDA. We are amenable

to your proposed Privacy Act Protective Order subject to the minor edits indicated in redline in the attached. Please let

us know whether these edits are acceptable to USDA.

Please feel free to give me a call should you have any questions or wish to discuss these matters further.

Thank you,



[email protected]

From: Thibault, Stephanie S.Sent: Thursday, January 30, 2014 9:52 AMTo: 'Glass, David (CIV)'



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Cc: Farrell, Peter A.; Mark I. Bailen ([email protected]); Hogan, Thomas E.; Harrison J. Dossick([email protected])Subject: RE: Sherrod v. Breitbart et al.

David,

I understood from our January 27, 2014 telephone conversation that USDA would bear the costs associated with

identifying and producing documents responsive to the search proposal set forth in your December 19, 2013 email

because, as you state below, the USDA has already agreed to supplement its FOIA production in response to a FOIA

requester with whom it has been dealing for some time. Based on that understanding, we expected that the relatively

minor changes we requested in our January 27, 2014 letter (a handful of additional custodians and search terms) would

not materially increase USDA’s costs given that, under your December 19, 2013 proposal, USDA already would be

incurring the expense of searching email backup tapes, reviewing documents, and other steps as part of its

supplemental FOIA response. Indeed, we prepared our January 27, 2014 proposal with the hope that it would not

impose any significant burden or expense on USDA.

If, however, USDA believes that our January 27, 2014 proposal would cause USDA to incur significant expenses, please

let us know what those significant expenses would be and how they would be attributable to our proposal -- e.g., the

difference in cost associated with the search, review, and production of documents under your December 19, 2013

proposal versus our revised January 27, 2014 proposal. Please also explain the breakdown and basis for each specific

cost, if any, that you believe Mrs. Sherrod and/or Kirkland & Ellis LLP should bear.

We look forward to receiving your response to our letter and clarification of these cost issues. Please do not hesitate to

call me if it would be helpful to discuss these matters by telephone.



[email protected]

From: Glass, David (CIV) [mailto:[email protected]]

Sent: Tuesday, January 28, 2014 11:47 AMTo: Thibault, Stephanie S.

Cc: Farrell, Peter A.; Mark I. Bailen ([email protected]); Hogan, Thomas E.; Harrison J. Dossick([email protected])Subject: RE: Sherrod v. Breitbart et al.

Stephanie –

Thanks. We will consider your letter and Tom Hogan’s revised proposal but you may have misunderstood what I said

about the costs. USDA is prepared to bear search costs only insofar as it is not required to conduct searches beyondwhat it perceives its obligation to be to one of the FOIA requesters with whom it has been dealing for some time.

David

From: Thibault, Stephanie S. [mailto:[email protected]]Sent: Monday, January 27, 2014 7:18 PMTo: Glass, David (CIV)Cc: Farrell, Peter A.; Mark I. Bailen ([email protected]); Hogan, Thomas E.; Harrison J. Dossick



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([email protected])Subject: Sherrod v. Breitbart et al.

David:

Please see the attached correspondence.

Thank you,



[email protected]

From: Glass, David (CIV) [mailto:[email protected]]Sent: Thursday, December 19, 2013 10:45 AMTo: Farrell, Peter A.; Thibault, Stephanie S.; Mark I. Bailen ([email protected]); Hogan, Thomas E.; Harrison J.

Dossick ([email protected]); Glass, David (CIV)Subject: Sherrod: Proposed Electronic Searches

Peter/Stephanie/Mark/Tom/Harrison:

The U.S. Department of Agriculture (USDA) proposes to conduct the following electronic searches for emailspertaining to Shirley Sherrod in response to the subpoenas issued to it in Sherrod v. Breitbart and all outstanding requestsunder the Freedom of Information and Privacy Acts. Please let me know if you have any questions or comments.

For the period June 1-October 31, 2010:

1. USDA proposes to search the Rural Development agency archive for emails of the following individuals:

Shirley SherrodDonnie D. Thomas, Assistant State Director, Georgia State Rural Development OfficeDonna I. Graves, Director, Administrative Programs, Georgia State Rural Development Office


“Coffee County NAACP”banquetBreitbartvideoblog“Larry O’Connor”“Freedom Fund”

2. USDA proposes to search exchange server backups for emails of the following individuals:

Tom Vilsack, Secretary of AgricultureKaren Ross, Chief of StaffCarole Jett, Deputy Chief of StaffDavid Lazarus, Senior Advisor to the SecretaryRobert Bonnie, Senior Advisor to the SecretaryMax Holtzman, Senior Advisor to the SecretaryDoug O’Brien, Senior Advisor to the SecretaryJane Hipp, Senior Advisor to the SecretarySarah Bittleman, Senior Advisor to the Secretary



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Sally Cluthe, Director of SchedulingKevin Washo, White House Liaison

Kathleen Merrigan, Deputy SecretarySuzanne Palmieri, Chief of Staff to the Deputy Secretary

Pearlie Reed, Assistant Secretary for Departmental Management Alma Hobbs, Deputy Assistant SecretaryRobin Heard, Deputy Assistant SecretaryBobbi Jeanquart, Chief of StaffW. Russ Ashworth, Director, Management ServicesKaren Messmore, Director, Office of Human Resource Management

Joe Leonard, Assistant Secretary for Civil RightsMary N. McNeil, Deputy Assistant Secretary

Dallas Tonsager, Under Secretary for Rural DevelopmentCheryl Cook, Deputy Under SecretaryVictor Vasquez, Deputy Under SecretaryLisa Zaina, Chief of StaffTimothy McNeilly, Director, Legislative & Public AffairsJudith Canales, Administrator, Rural Business-Cooperative ServiceTammye Trevino, Administrator, Rural Housing Service

Jonathan Adelstein, Administrator, Rural Utilities Service

Chris Mather, Director, Office of CommunicationDavid Sandretti, Deputy DirectorCaleb Weaver, Press SecretaryJustin DeJong, Press Secretary

Steve Silverman, Deputy General Counsel and Acting General Counsel

Krysta Harden, Assistant Secretary for Congressional RelationsJohn Berge, Deputy Assistant SecretaryJennifer Yezak, Director, External and Intergovernmental Affairs


Sherrod“Shirley Sherrod”GA/RD“GA RD”“Georgia RD”GA-RDBreitbart“Larry O’Connor”

3. USDA proposes to search the Office of Executive Correspondence correspondence files for the term “Sherrod”excluding the terms “Sherrod Brown” and “Senator Sherrod” if technically feasible.

The estimated costs of these searches will be approximately $50,000-60,000 and take up to 45 days once thesearches begin. This time and cost is exclusive of review time.

Thanks, David

***********************************************************IRS Circular 230 Disclosure:To ensure compliance with requirements imposed by the U.S. Internal Revenue Service, we inform you that any taxadvice contained in this communication (including any attachments) was not intended or written to be used, and cannot beused, by any taxpayer for the purpose of (1) avoiding tax-related penalties under the U.S. Internal Revenue Code or (2)



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promoting, marketing or recommending to another party any tax-related matters addressed herein.

The information contained in this communication is confidential, may be attorney-client privileged, may constitute insideinformation, and is intended only for the use of the addressee. It is the property of Kirkland & Ellis LLP or Kirkland & EllisInternational LLP. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibitedand may be unlawful. If you have received this communication in error, please notify us immediately by return e-mail or bye-mail to [email protected], and destroy this comm