crew v. eop: regarding missing wh emails: 12/29/08 - crews reply in support of renewed motion for...

8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 12/29/08 - CREWs Reply in Support of Renewed Motion for Leave to

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UNITED STATES DISTRICT COURTFOR 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 REPLY IN SUPPORT OF RENEWED MOTION FORLEAVE TO CONDUCT EXPEDITED DISCOVERY

In 2005 when the White House discovered many millions of emails from critical time

periods mysteriously had gone missing from White House servers, top administration officials

made the decision to do nothing. When plaintiff CREW first learned of this outrage and pressed

the administration for answers the White House continued to do nothing, denying there was even

a problem in the first place. When the House Committee on Oversight and Government Reform

demanded answers White House officials stalled for time, claiming a complete re-review of the

situation was required and promising forthcoming answers, which they never supplied. And

when CREW made public a White House draft request for proposal it had receiving seeking a

Case 1:07-cv-01707-HHK-JMF Document 95 Filed 12/29/2008 Page 1 of 11


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1 Indeed, defendants characterize plaintiffs request as seeking accelerated discovery,Ds Oppos. at 2 (emphasis in original), notwithstanding that CREW filed its complaint onSeptember 25, 2007.

2 Defendants Opposition to Plaintiff CREWs Renewed Motion to Conduct ExpeditedDiscovery (Ds Oppos.), p. 10.

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contractor to restore the missing emails, the White House pulled the proposal and apparently

took no further steps toward restoration. Thus, over three years after the discovery of the

missing emails we are no closer to the truth and the American public continues to be deprived of

its historical legacy.

Defendants opposition to plaintiff CREWs renewed request for discovery is simply

more of the same. Discovery more than one year into this case is unwarranted, defendants

argue, 1 because at some unidentified time in the future defendants will move for summary

judgment based on an administrative record they have yet to compile, much less produce. They

even hint at their forthcoming arguments: the re-inventory, analysis and quality assurance

phases of the process they described for Congress back in February completely moots CREWs

claims, 2 even though they refuse to reveal what that re-inventory and analysis shows and have

yet to do more than re-analyze the situation. But this is sufficient, they argue, because the

Federal Records Act (FRA) does not demand absolute compliance with its prescriptions.

Ds Mem. at 4.

On the eve of a presidential transition defendants goal could not be clearer: run out the

clock and stave off public accountability for their unlawful actions. Once this whole mess is

dumped in NARAs lap on January 20, 2009, the public most likely will not learn for many years

which White House emails are missing or which back-up tapes are unreadable. Toward that end,



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defendants now oppose CREWs request for discovery, aimed at ascertaining precisely what the

White House defendants know about the missing email scandal, when they knew it, and why

they have done virtually nothing about it. Such discovery is necessary and time-sensitive;

defendants unsubstantiated claims to the contrary, the upcoming transition raises serious

questions about CREWs ability to access all relevant discovery.

1. Defendants Failure To Produce An Administrative Record MoreThan 15 Months Into This Litigation And Their Still UnfulfilledPromise To File A Summary Judgment Motion Justify CREWsRequested Discovery.

Virtually ignoring CREWs claims for mandamus relief, defendants argue that discovery

is completely unwarranted here because CREW brings claims under the Administrative

Procedure Act (APA) for which review is limited to the administrative record. That to date

defendants have refused outright to produce such an administrative record fatally undermines

this argument.

Most recently, in response to a request from counsel for plaintiff National Security

Archive (NSA) for the administrative record, defendants stated only that they were currently

assembling the appropriate records for defendants anticipated summary judgment motion and

would provide both plaintiffs a copy of the relevant records as soon as they are collected and

prepared for disclosure . . . Letter from Helen H. Hong to Sheila Shadmand, December 18,

2008 (Hong Letter) (attached as Exhibit 1) (emphasis added). Far from promising an

administrative record, defendants have represented only that at some future point they will

provide what they consider to be appropriate records they deem relevant to their still unfiled

motion for summary judgment.

Defendants letter is particularly troubling given the specificity of NSAs request, which



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3 Hong Letter. This language suggests defendants anticipate making redactions orwithholdings, at least some of which are likely to lead to satellite litigation over theirappropriateness.

4

noted the expectation:

that the complete record will include the 20,000 pages of e-mailsand documents produced to the House Committee on Oversight andGovernment Reform, including both those made public by the

Committee, as well as those not made public . . . In addition, therecord may include any or all of the following: documents andmaterials present before the agency when the EOP decided todiscontinue the use of the ARMS automatic archiving system;current and former document retention policies within the WhiteHouse; emails and reports from government technology officers, aswell as the vendors of Lotus Notes and Outlook; and documentsrelated to the EOPs decision not [to] effectuate a recovery, suchas the OAs recovery plan, records of the availability of backuptapes, and any record of communication with the Archivist inresponse to Federal Records Act duties at the time the emails

were lost.

Letter from Sheila L. Shadmand to Helen H. Hong, December 11, 2008 (attached as Exhibit 2).

Defendants response fails to address any of these records, instead expressing defendants belief

that they retain absolute discretion to decide what is relevant and then only for purposes of

their as yet unfiled summary judgment motion.

Thus, over 15 months into this litigation and having failed to succeed on their motion to

dismiss, defendants offer only a vague promise to share with plaintiffs at some still unidentified

date some subset of records after it has been prepared for disclosure 3 that may or may not bear

any resemblance to an administrative record. Defendants transparent desire to stall judicial

review until the current administration has left office simply is no basis on which to deny CREW

leave to conduct discovery.

2. The Nature Of CREWs Claims Justifies Discovery.



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4 The irony of defendants argument should not be lost. Stressing that through its APAclaims CREW is not asking the Court enjoin the defendants to recover the deleted e-mails,Ds Oppos. at 6 (emphasis in original), defendants argue that discovery accordingly is precluded.Yet in support of their motion to dismiss defendants characterized CREWs claims as improperlyseeking to have the deleted e-mails restored, relief they argued was not available under the FRA.

5

Ignoring that CREW has brought claims for mandamus relief under the All Writs Act, 28

U.S.C. 1651(a), defendants argue no discovery is warranted here because this is an APA

review case. 4 This argument, however, confuses judicial review with the scope of discovery and,

more fundamentally, overlooks that here discovery is both appropriate and necessary.

As CREW explained in its opening brief, while judicial review of agency action under

the APA generally is limited to an administrative record, discovery often is not so limited, in

particular where, as here, it is not clear that defendants have designated an administrative record

or on what basis they will do so. Institute for Wildlife Protection v. U.S. Fish & Wildlife

Service, 2007 U.S. Dis. LEXIS 90969, *32 (D. Or. 2007) (emphasis in original) (citations

omitted). Defendants response makes clear they too are confusing judicial review with scope of

discovery, arguing that CREW should be denied discovery because APA review is limited to

[the] administrative record. Ds Oppos. at 7.

Defendants also claim the D.C. Circuit has ruled that in all APA claims discovery is

permitted based only on a showing of bad faith or improper behavior or when the record is so

bare that it prevents effective judicial review. Ds Oppos. at 7 (citation omitted) (emphasis in

original). This gross overstatement is not supported by the case they cite, in which the agency

had filed the administrative record in advance of filing its dispositive motion. Here, by contrast,

defendants have not filed an administrative record and there is nothing from which the Court can

safely conclude it will be able to conduct effective judicial review.



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5 Ds Oppos. at 8 (citation omitted).

6 Just as unlikely is defendants anticipated outcome that, on the basis of their summaryjudgment motion alone, they will establish that plaintiffs are entitled to no relief on their firstfour claims. Ds Oppos. at 9.

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The need for discovery here is particularly compelling given that not only have

defendants failed to designate an administrative record, but they have promised only to present

those records they deem relevant to their forthcoming summary judgment motion. And

defendants opposition demonstrates they have a fundamentally different view of CREWs

claims, which they erroneously believe are rendered moot merely by the fact that the Office of

Administration (OA) conducted some kind of re-analysis of the missing email problem. See

Ds Oppos. at 9-10. Defendants truncated view of the merits necessarily means a truncated

view of which documents are relevant, leading to the presentation of a seriously incomplete

administrative record.

In addition, awaiting defendants filing of those records they deem relevant to their

promised summary judgment motion, far from promoting judicial economy and efficiency, 5

will only delay the ultimate resolution of this lawsuit. As illustrated by defendants failure to

respond to NSAs well-placed expectation that the administrative record will include specified

documents and defendants extremely narrow view of the issues, it is exceedingly unlikely that

defendants will present a full and adequate administrative record. 6 This will result in further

delay as the parties litigate issues such as the completeness of the administrative record and

plaintiffs continuing need for discovery, issues that are best foreclosed by allowing plaintiffs an

opportunity to conduct relevant discovery now.

Finally, CREWs mandamus claims alone justify discovery to provide the Court with a



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sufficient record from which to gauge the degree to which defendants have failed to comply with

their non-discretionary duties under the FRA. Defendants offer no basis to deny CREW

discovery on these claims, as there is none.

3. Postponing Discovery Until After January 20, 2009 Threatens CREWWith A Loss Of Access To Critical Documents And Information.

Finally, defendants oppose any discovery before January 20, 2009, based only on the

unsupported assertion of their counsel that the upcoming presidential transition will not disrupt

CREWs ability to access critical documents and information in a timely fashion. There is no

basis in the record whatsoever for defendants claim that any relevant records will be accessible

in a timely manner pursuant to any court-ordered discovery. Ds Oppos. at 12.

Beyond the lack of factual support for their claims, it is far from clear defendants will

preserve all relevant documents at the end of this administration. As their opposition brief here

makes clear, defendants take a narrow view of the obligations federal record keeping laws

impose on them, stressing emails may not be records worthy of preservation, Ds Oppos. at 3,

defendants have a limited need to preserve records, id., and the destruction of some record

material is of no legal moment because the FRA does not demand absolute compliance with its

prescriptions. Id. at 4. Far from offering the requisite assurances as to why discovery now is

not necessary, defendants have proven the very point they seek to rebut: only if CREW is

afforded discovery before January 20, 2009, can it be assured access to critical documents and

information.

In addition, defendants take issue with facts documenting the National Archives and

Records Administrations (NARA) lack of readiness to receive the electronic records of the

Bush administration, pointing to NARAs expressed confidence. Ds Oppos. at 12. But



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NARAs confidence is not backed up by any evidence. To the contrary, NARAs Contingency

Plan documents just how unprepared NARA is; on the eve of the transition the agency offers

only promises that it is developing project timelines with key dates of performance that will

serve as triggers to initiate contingency actions. Continency Plan for Presidential Records

(Document 93-2) at 4.

Further buttressing how ill-prepared NARA is to receive the Bush administrations

records is a report issued by the U.S. Government Accounting Office in September 2008,

INFORMATION MANAGEMENT The National Archives and Records Administrations Fiscal

year 2008 Expenditure Plan (GAO Report) (attached as Exhibit 3). GAO noted the significant

risk NARA would not have the capability to process the Bush administrations records,

notwithstanding the Archivists contrary assessment, based in part on the ongoing uncertainty

about the format and volume of records to be transferred. GAO Report at 5. The Report goes

on to note:

NARA has identified numerous project risks and reported them to

OMB and the Congress, including the risk that it will not havethe capability to process the outgoing administrations records atthe time of the January 2009 presidential transition. However,NARA has not yet developed a plan to mitigate this risk Insteadthe agency intends to develop a mitigation plan at the end of 2008,when it expects to know more about the types and volumes of presidential records that it is to receive. This proposed schedule,however, will leave NARA little time to prepare for and implementthe plan, decreasing the assurance that it will be adequatelyprepared to meet the requirements of Congress, the incomingPresident, and the courts for information contained in the previous

administrations records.

Id. at 15 (emphasis added). Given that NARAs Contingency Plan, issued one month later, still

is short on specifics about the types and volumes of presidential records NARA will receive,



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7 Moreover, defendants claim of harm is made in the context of the incorrect analyticaltest set forth in Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982). Not only have the courts in thisdistrict rejected this approach, see, e.g., Ellsworth Associates, Inc. v. U.S., 917 F.Supp. 841, 844(D.D.C. 1996), but Notaro was decided based on a pre-amended version of Rule 26, furthernegating its applicability here.

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there remains a significant risk that CREW will not be able to access information contained in

the Bush administrations records after January 20, 2009.

Moreover, even if NARAs Contingency Plan issued in November were adequate --

which it decidedly is not -- the late date at which it was issued demonstrates NARA will not

have the capability to handle the Bush administration records by the time of the presidential

transition in January 2009. Id. at 44. Defendants offer nothing to counter this evidence beyond

their own short-sighted and patently flawed interpretation of the Contingency Plan, relying on

NARAs blustering confidence as a substitute for the facts that would evidence NARAs ability

to grant CREW ready access to all relevant information and documents. See, e.g., Ds Oppos. at

12 (citing to NARAs confiden[ce] that the ERA EOP system as currently developed by LMC

can ingest all of the systems listed above) (quotation omitted).

Equally unsubstantiated is defendants claim that permitting CREW discovery now

would impose on OA a crippling burden. Id. at 14. While defendants cite to the declaration of

then-OA Chief Information Officer Theresa Payton (who is no longer employed by OA), Ds

Oppos. at 15 n.5, Ms. Payton said nothing about preparations for the transition, limiting her

testimony to the support that her office provides generally. The unsubstantiated claims of

counsel are not an adequate substitute for the evidence this Court would need to postpone

discovery because of the harm it would cause defendants. 7 Nor should the Court grant

defendants request for a status conference to present evidence they failed to present with their



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opposition. See Ds Oppos. at 16. Having shown no reason why they could not now

substantiate their claim of burden, defendants request for such a conference is clearly designed

to produce further delay.

Finally, defendants take issue with the fact that documents already have been destroyed,

Ds Oppos. at 14 n. 4, demonstrating once again their failure to even acknowledge the millions

of emails missing from White House servers. Attempting to negate the impact of this evidence,

defendants insist that in any event they have taken appropriate steps to ensure the preservation

of potentially relevant information in this case. Ds Oppos. at 14 n.4. As with their other

claims, however, defendants broad assurances are not backed up by specific facts.

For example, in response to a letter from CREWs counsel concerning the recent

replacement of computers in at least one office within the Executive Office of the President

(attached as Exhibit 4), defendants counsel stated defendants have taken appropriate steps to

ensure the preservation of potentially relevant information in this case, including any emails

from the March 2003 to October 2005 time frame . Letter of November 14, 2008, from Helen

H. Hong (attached as Exhibit 5) (emphasis added). Beyond the facial insufficiency of

defendants broad assurances, completely lacking in specifics, defendants have improperly

cabined their responsibilities to the time period of March 2003 through October 2005. Yet the

Courts preservation order (document 18) is not so limited, requiring defendants more broadly to

preserve media, no matter how described, presently in their possess[ion] or under their custody

or control, that were created with the intention of preserving data in the event of its inadvertent

destruction. Order of November 12, 2007, p. 2. Nor are defendants preservation obligations

stemming from the existence of this litigation so limited. Thus, far from supplying adequate



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assurances of preservation, defendants refusal to provide plaintiffs with the specifics they

rightfully requested heightens the concern that defendants are not preserving all potentially

relevant information, further supporting CREWs request for discovery.

CONCLUSION

For the foregoing reasons and those set forth in CREWs opening brief, CREWs

renewed motion to conduct discovery should be granted.

Respectfully submitted,

____/s/_____________________

Anne L. Weismann(D.C. Bar No. 298190)Melanie Sloan(D.C. Bar No. 434584)Citizens for Responsibility and Ethics

in Washington1400 Eye Street, N.W., Suite 450Washington, D.C. 20530Phone: (202) 408-5565Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: December 29, 2008



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