CREW v. Cheney Et Al: Regarding VP Records: 11/18/08 - Joint Status Report

8/7/2019 CREW v. Cheney Et Al: Regarding VP Records: 11/18/08 - Joint Status Report

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND :ETHICS IN WASHINGTON, et al., :

:Plaintiffs, ::

v. : Civil Action No. 08-1548 (CKK):

THE HON. RICHARD B. CHENEY, et al., ::

Defendants. :____________________________________:

JOINT STATUS REPORT

By Order dated November 14, 2008, the Court directed the parties to submit a

Joint Status Report no later than November 18, 2008, “indicating how the parties want to

proceed, including a proposed briefing schedule.” Pursuant to that Order the parties

hereby submit this Report.

Plaintiffs’ Position

For the reasons outlined in plaintiffs’ motion for leave to depose David Addington

and re-depose Nancy Smith, filed on this date (Dkt. 35), plaintiffs seek leave to depose

David Addington in light of the complete inability of Claire O’Donnell to address and

resolve the questions raised by the Court that form the rationale for the authorized

discovery. Alternatively, plaintiffs respectfully request that the Court hold a hearing at

which Mr. Addington would testify to the areas identified in the Court’s discovery order.

As the D.C. Circuit noted in denying in large part defendant Cheney’s mandamus

petition, such a hearing would lead to no “‘unwarranted impairment’ of the functioning of

OVP.” In re Richard B. Cheney, October 31, 2008, Op. at 6 (quotation omitted).

Case 1:08-cv-01548-CKK Document 37 Filed 11/18/2008 Page 1 of 12



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Plaintiffs also seek to re-depose Nancy Smith on the contents of a memorandum

prepared by White House Counsel Fred Fielding that the Court has ruled is both within

the scope of discovery and not subject to any privilege. Ms. O’Donnell had no

familiarity whatsoever with this memorandum leaving Ms. Smith as the only witness

competent to speak to its contents. As a less costly and burdensome alternative, plaintiffs

have requested that the Court order defendants to produce the memorandum to plaintiffs.

Plaintiffs request a very modest extension of time in which to conduct this

discovery, until December 3, 2008; the intervening Thanksgiving holiday makes an

earlier deadline unrealistic. The short delay in briefing the merits is amply justified bythe expectation that at long last the Court will receive answers to the critical and

fundamental questions that Ms. O’Donnell’s declarations raise.

Plaintiffs note that defendants set forth herein their objection to this discovery.

Relying on sentences plucked from various briefs plaintiffs have filed here and before the

D.C. Circuit, defendants argue that all of plaintiffs’ questions have now been answered.

Not only is this false, but it fails to take into account the fundamental purpose of the

discovery -- to answer the Court’s factual, legal, and hybrid factual/legal questions.

Defendants also oppose the discovery as untimely, apparently faulting plaintiffs

for using the process contemplated by Rule 26 of the Federal Rules of Civil Procedure to

attempt to reach accommodation on discovery issues. Ms. O’Donnell’s deposition did

not conclude until November 13, 2008, and less than 24 hours later, after reviewing the

transcript of her deposition, plaintiffs contacted defendants requesting that they identify

an additional, competent witness. Defendants did not respond to this request until

Monday, November 17, notifying plaintiffs that they disputed any need for additional




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discovery. Under these circumstances, plaintiffs filed their motion as expeditiously as

possible. Moreover, the Court issued its ruling on the discoverability of the Fielding

memorandum after Nancy Smith’s deposition. Under these circumstances plaintiffs

cannot be faulted for waiting until today to seek leave to conduct additional discovery. 1

In addition, defendants have now filed a motion to dismiss based on three

threshold legal grounds that defendants assert deprive this Court of subject-matter

jurisdiction. This motion was filed with no advance notice to plaintiffs and without leave

of the Court. While plaintiffs have not had an opportunity to read this motion

thoroughly, a few points bear mention.First, during the Status Hearing this Court conducted on September 23, 2008, the

Court made it clear that the Court – and not the parties – would set out a briefing

schedule for any further briefing. Transcript, p. 22 (attached as Exhibit 5). Defendants’

unilateral decision to file a motion to dismiss without such a briefing schedule in place is

a blatant end-run around the Court’s processes that should not be permitted.

Second, and equally troubling, the Court also made clear during the September

23, 2008 Status Hearing that there would be only one round of briefing that included

briefing on any threshold defenses as well as merits briefing. See Transcript, p. 27 (Court

stated: “Let me just make this clear. I am not doing another round on a Motion to

Dismiss in terms of separating it out from the rest,” and shortly thereafter “So, we’re

going to do it all together.”). Yet defendants have now filed a motion to dismiss that

divorces threshold jurisdictional issues from merits briefing.

1 Plaintiffs willingly accommodated defendants’ proposed dates for the depositions of Ms. Smith and Ms.O’Donnell, even though that brought them to the edge of the discovery cut-off, leaving virtually no time forfollow-up such as that authorized by the Court’s Minute Order of November 12, 2008.




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This course of conduct illustrates a central theme in this litigation: defendants’

attempt to unilaterally set the pace of this litigation, doling out facts as they see fit and

attempting to dictate to the Court how the case will proceed. Given that defendants’

motion to dismiss was filed in flagrant disregard for the process this Court had set in

place, it should be stricken on that basis alone. Alternatively, defendants should be

deemed to have waived any merits defense by their filing of a premature and

unauthorized motion to dismiss.

Plaintiffs’ Proposed Briefing Schedule

In light of the need to conduct discovery and defendants’ newly filed motion todismiss, plaintiffs propose that any additionally authorized discovery be completed by

December 3 and that defendants’ motion -- if permitted to be filed -- be held in abeyance

pending the completion of discovery. Thereafter, plaintiffs respectfully request that the

following briefing schedule be adopted:

Plaintiffs’ Opposition to Defendants’ MotionTo Dismiss and any Cross-Motion: December 17, 2008

Defendants’ Reply and OppositionTo any Cross-Motion: December 24, 2008

Plaintiffs’ Reply: January 2, 2009

Defendants’ Position Defendants have filed a motion to dismiss plaintiffs’ Amended Complaint and

propose that the Court issue a briefing schedule that accommodates the Court’s schedule

in resolving the matter on defendants’ motion to dismiss. Although the Local Civil Rules

dictate that plaintiffs file their opposition by December 1, defendants are amenable to any

reasonable schedule that plaintiffs request or that the Court requires. Defendants request




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ten days from the date of plaintiffs’ opposition briefing to file their reply. Accordingly,

defendants propose the following schedule:

Defendants’ Dispositive Motion: November 18, 2008

Plaintiffs’ Opposition: December 1, 2008

Defendants’ Reply December 10, 2008

Plaintiffs, however, request two additional weeks to conduct additional

discovery specifically the deposition of the Chief of Staff to the Vice President 2 and

to propose a briefing schedule only at the conclusion of that additional discovery.

Defendants object. The motion to dismiss is dispositive of the case and establishes thatthis Court lacks subject matter jurisdiction over plaintiffs’ claims. Nonetheless, as

justification for the additional discovery, plaintiffs’ counsel has asserted that

the Court in the above-referenced case authorized discovery to clarify‘existing factual, legal, and hybrid factual/legal issues’ raised by thevarious declarations defendants submitted. Yesterday’s deposition of Claire O’Donnell did not answer any of these questions, as she lacks anypersonal knowledge on virtually every relevant issue and is simply not acompetent witness to testify to the matters contained in her declarations –the very declarations that generated the outstanding legal and factualissues.

See Ex. 1 (Nov. 14, 2008 Letter from A. Weismann to H. Hong); see also Ex. 2 (Nov. 17,

2008 Email from A. Weismann to H. Hong); Ex. 3 (Nov. 17, 2008 Letter Response from

H. Hong to A. Weismann). As defendants made clear in response to plaintiffs’ request,

no further discovery is warranted as Ms. O’Donnell testified that she had personal

2 Plaintiffs’ counsel has also suggested that she would like to re-open the deposition of Ms. NancySmith, or, in the alternative, to seek document discovery of a 2008 memorandum written byWhite House Counsel. Defendants object. First, discovery closed on November 14, andplaintiffs’ counsel did not request to re-open Ms. Smith’s deposition or seek documents beforethen. See Minute Order of Oct. 31, 2008 (“The parties shall complete their discovery no laterthan November 14, 2008.”). The deadline for discovery has passed. Second, for the reasons setforth below and in defendants’ motion to dismiss, further discovery is simply not warranted.




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knowledge of the guidance provided to OVP personnel in complying with the terms of

the Presidential Records Act. See Ex. 4, O’Donnell Dep. Tr. at 19:18-20 (“Q: Do you

have responsibility for records management within the Office of the Vice President? A:

Yes.”); 21:13-16 (“Q: Have you received any training specifically on records

management since coming to the OVP? A: Yes. Q: And describe for me what that

training has been. A: It was a memo that we received when when we came on board

and we have been reminded on regular basis verbally and in ethics briefings.”); 25:19-

27:14 (describing guidance at staff meetings and ethics briefings about the PRA); 37:2-19

(explaining familiarity with the Presidential Records Act because “it was part of theorientation when we came on and it’s just been a practice that I have been told to make

sure the Vice President’s Office practices”); 54:1-3 (“I have general knowledge of the

practices that we have all been told to adhere to.”); 54:15-16 (“I just go ahead and make

sure everybody understands the rules.”); 87:21-88:6 (explaining understanding that Vice

President would transfer “all of the papers, records, notes, recordings, memos that the

Vice President has created since January 20 th, 2001 . . . as vice presidential material

turned over to NARA under the Presidential Records Act”); 95:19-96:4 (explaining

understanding of the OVP’s guidance and practices); 96:11-97:6 (explaining that her

responsibilities include making “people . . . aware of the guidance and the practices they

should be adher[ed] to”); 99:19-100:22 (explaining understanding that the OVP complies

with PRA through “interpretation that I have always taken from the guidance and that I

know the meaning, the guidance that we have been given because it’s given on a regular

basis”); 130:1-5 (“The general guidance of any document that is created or received in

our capacities to support the Vice President and in his capacity and his executive




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responsibilities, would be covered under the PRA.”); 139:16-140:2 (“Q: And do you

know whether in fact those records are being preserved under the Presidential Records

Act? A: If they have been created by the Vice President’s staff, I believe they are being

preserved. Q: What is the basis for your belief? A: The guidance that the staff that we

trust has been given.”). Moreover, this Court’s Order [30] of October 31, 2008

specifically substituted Ms. O’Donnell for the Chief of Staff to the Vice President based

on the D.C. Circuit’s conclusion that a deposition of Mr. Addington would “constitute an

‘unwarranted impairment’ of the functioning of OVP.” In re Cheney, Civ. App. No. 08-

5412 at 6 (D.C. Cir. 2008). That remains the case today.Plaintiffs presumably challenge Ms. O’Donnell’s personal knowledge of the PRA

guidance provided to OVP staff, based on a line of questions seeking responses about

Ms. O’Donnell’s specific, personal knowledge on the location and treatment of specific

alleged records by specific employees. See, e.g., Ex. 4, O’Donnell Dep. Tr. at 126:10-

157:20. But as Ms. O’Donnell testified, she has knowledge about the guidance provided

within OVP to “the staff that we trust” and that staff are “expected to adhere to.” Id. at

139:16-140:2, 54:1-3 (“I have general knowledge of the practices that we have all been

told to adhere to.”); 79:22-80:5 (stating that Vice President “supports the guidance that I

have been asked to give out and the processes, processes that we follow”). Under

plaintiffs’ theory, discovery could not be complete unless all 84 staff members of the

OVP, including the Vice President himself, testified about PRA compliance with respect

to each particular, specific record. That is not what even plaintiffs represented would be

the purpose of this discovery and is improper, even under the Federal Records Act. See,

e.g., Pls.’ Resp. to Emerg. Pet. for Writ of Mandamus, Civ. App. No. 08-5412 at 21




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(“Ascertaining the guidelines that the vice president and OVP use to decide ‘what is,

and what is not, a presidential record,’ does not in any way intrude on the constitutional

prerogatives of the president.”); Armstrong v. Bush, 924 F.2d 282, 293-94 (D.C. Cir.

1991) (“[E]ven if a court may review the adequacy of an agency’s guidelines [under the

FRA], agency personnel will implement the guidelines on a daily basis. Thus agency

personnel, not the court, will actually decide whether specific documents . . . constitute

“records” under the guidelines. [M]ost importantly, the only issue the court would be

asked to consider, i.e., the adequacy of appellants’ recordkeeping guidelines and

directives, is clearly appropriate for judicial review.”). Of course, as defendants explainin their motion to dismiss, the PRA (as opposed to the FRA) does not permit even

judicial review of the Vice President’s recordkeeping guidelines and directives and

further discovery on those topics is unwarranted. See Defs.’ Mot. to Dismiss.

However, given Ms. O’Donnell’s deposition testimony, and the opportunity

afforded plaintiffs’ counsel to ask questions of her, it is nevertheless clear that no further

deposition testimony is necessary to answer those questions about the guidelines and

directives regarding vice presidential records. For illustrative purposes, the following

chart identifies specific questions for which plaintiffs sought clarification. Each was

answered at the deposition:

Plaintiffs’ Purported Question Ms. O’Donnell’s Deposition Testimony

Plaintiffs’ counsel explaining that “centralquestion” that plaintiffs sought to answer at thedepositions was: “are defendants preserving alldocuments at issue?” Pls.’ Resp. to Emerg.Pet. for Writ of Mandamus, Civ. App. No. 08-5412, at 11.

“Question: If a document is covered by thePRA, and by that I mean if a document is vicepresidential, if it meets the definition of vicepresidential, of a vice presidential record withinthe meaning of the PRA, is it yourunderstanding that that document has to bepreserved? Answer: Yes.” O’Donnell Dep. Tr. 128:17-




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129:1“The six delineated areas of inquiry werecrafted to resolve factual issues concerning‘core classification issue,’ specifically, whetherthe defendants’ guidelines defining ‘whichexisting materials will be treated as presidentialrecords in the first place,’ . . . square with thePRA’s definition of vice presidential records.”Pls.’ Resp. to Emerg. Pet. for Writ of Mandamus, Civ. App. No. 08-5412, at 18.

See Ex. 2, Dep. Tr. of Claire M. O’Donnell,37:15-38:1 (“Q: And what is yourunderstanding of the documents that the VicePresident is required to transfer to NARA at theend of his administration? A: All of hisexecutive and legislative files. Q: Okay. Doyou have any more specific understanding thanthat? A: Any documents that he has eithercreated or received in his official functions.”);55:16-20 (“Again, every document that wereceive or create in our capacities, meaning thestaff of the Vice President, to assist him in hisduties are to be kept for the PresidentialRecords Act.”); 54:6-9 (same); 99:19-100:22(explaining that OVP’s guidance is to transferall vice presidential records as defined underthe PRA that have been created or generatedduring the vice presidency of Richard B.Cheney); 102:7-103:14 (explaining that “for allpractical purposes, everything is consideredofficial” and maintained under the PRA, except“something really personal in your personal lifeoutside of anything official,” like “a bank statement or a thank you note for a weddingreception); 119:11-12 (“[I]t’s the general policyeverything is a presidential record.”); 128:17-129:1 (Q: “If a document is covered by thePRA, and by that I mean if a document is vicepresidential, if it meets the definition of vicepresidential, of a vice presidential record withinthe meaning of the PRA, is it yourunderstanding that that document has to bepreserved? A: Yes.”); 136:12-16 (“I knowthat, again in general, everything that isprepared by any staff member for the VicePresident or by the Vice President is considereda [vice] presidential record.”); 139:5-140:2(explaining that “guidance that the staff that wetrust” has been given is to preserve records thathave been created by the Vice President’sstaff); 140:8-12 (“I believe all documents, all

documents in the Vice President’s office,created or received by the Vice President or theVice President’s staff are being kept under thePresidential Records Act.”); 141:4-7 (“To thebest of my knowledge, like all other records, if records have been prepared for the VicePresident, they are being kept under thePresidential Records Act”); 141:17-19 (same);142:6-14 (same); 142:18-143:6 (same); 144:22-




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145:8 (same); 147:11-13 (same); 147:20-149:2(same); 151:5-8 (“If an employee of the Officeof the Vice President keeps records that have todo with the Vice President’s executive orlegislative duties, they are kept for the PRA);156:18-21 (“I believe that any documents thathave been created or received by the VicePresident and her staff or his staff areconsidered [vice] presidential documents.”);77:15-22 (“I could only answer that I don’t getinto the legalese of all the Vice President’sduties. We view it that everything he does heis doing on behalf of the President and that’sour practice and that’s the guidance I give topeople that, everything you are doing here is insupport of the Vice President and it’sconsidered a [vice] Presidential document.”);78:9-13 (“Again, if he is – I don’t get into thelegalese. If there are documents created, orreceived on behalf of his duties, and if he sitson that board because he is Vice President, thenwe would consider it a [vice] Presidentialdocument.”); 78:14-79:2 (similar).

“Unaccounted for are records related to allother activities in which Vice President Cheneyengages, such as any functions he performs inhis self-proclaimed non-executive branchcapacity, those functions he performs in hisself-proclaimed non-executive branch capacity,those functions he performs that are not‘specially assigned’ to him by the president –including his more general and wide-sweepingadvisory role – and those functions he performspursuant to statute.” Joint Status Report [18]at 2; id. (“As a result, plaintiffs need discoveryon the universe of functions the vice presidentperforms that are still not addressed and thedocuments he creates in fulfilling thosefunctions. To be clear, plaintiffs are notseeking discovery on defendants’ policies as tohow these other categories of documents aretreated for purposes of the Presidential Records

Act (‘PRA’).”).

See O’Donnell Dep. Tr. at 84:16-19 (Q:“Okay. And are there any other responsibilitiesthat he has? A: Everything would fall underthose two categories, everything else hedoes.”); 83:18-84:1 (Q: Is it yourunderstanding that everything that the VicePresident does in his executive capacity isspecially assigned by the President? A: Ingeneral terms and in specific terms, yes. It’s all– they are all assigned by the President);172:10-22 (“Q: “The Vice President relies insubstantial part on OVP personnel for supportin the performance of his official functions.What, as used herein, what does the termofficial functions include? A: All of hisexecutive and legislative functions. Q: Anddoes that term differ in any way from thosefunctions that are specially assigned by thePresident? A: It encompasses those functions,

specially assigned.”); 66:12-22 (“He is there totake on responsibilities that the Presidentassigns to him. He has no other responsibilitiesother than to assist and work for thePresident. . . . When we first came into office,that’s what we were told. We were there asVice Presidential staff to assist the VicePresident in carrying out his function inworking for the President.”); 73:5-10 (“And




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how does this definition, by this definition Imean Vice Presidential support of Presidentialfunctions differ from the specially assigneddefinition that you offered in the currentlitigation? A: For me, it doesn’t differ.”).

“Still unaccounted for, however, are thoserecords within the possession, custody orcontrol of the vice president, including recordsin his Senate office.” Id.

Id. at 61:17-22 (explaining that legislativerecords are treated “the same as the executiverecords are kept. Everything is considered adocument that has to be kept or filed.”); seealso Smith Rough Dep. Tr. at 199:6-9 (“Theyconfirmed to NARA that in response to aquestion we asked that they were treatingrecords that Cheney created in the Senate officeas vice presidential record.”); 202:10-15(“NARA specifically asked Gary Stern askedhow were they treating legislative or recordscreated in the Senate office and they respondedover I think it was several conversations, not allof which I were involved in, that they weretreating them as vice presidential record.”);203:7-12 (same).

“But neither of these categories includes thevice president’s duties assigned by statute,including his membership on the NationalSecurity Council, 50 U.S.C. § 402(a), and theBoard of Regents of the SmithsonianInstitution, 20 U.S.C. § 42.” Id.

Id. at 78:14-79:2 (responding specifically toquestions about the Vice President’s duties onthe National Security Council, “They are partof his executive duties”); 78:1-13 (explainingthat any documentary material created inconnection with the Vice President’s dutieswith regard to the Smithsonian Institutionwould be considered vice presidential records).

“The vice president believes he is not part of the executive branch and therefore has theability to unilaterally opt out of executiveduties and responsibilities at his discretion. Allthree of the O’Donnell declarations speak tothe vice president’s ‘executive-relatedfunctions,’ but say nothing about his self-proclaimed non-executive functions. Nowherein the declarations is there a statement or otherassurance that these functions are accountedfor.” Id.

See O’Donnell Dep. Tr. at 84:16-19 (Q:“Okay. And are there any other responsibilitiesthat he has? A: Everything would fall underthose two categories, everything else hedoes.”); 83:18-84:1 (Q: Is it yourunderstanding that everything that the VicePresident does in his executive capacity isspecially assigned by the President? A: Ingeneral terms and in specific terms, yes. It’s all– they are all assigned by the President). “Question: If a document is covered by thePRA, and by that I mean if a document is vice

presidential, if it meets the definition of vicepresidential, of a vice presidential record withinthe meaning of the PRA, is it yourunderstanding that that document has to bepreserved? Answer: Yes.” O’Donnell Dep. Tr. 128:17-129:1




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For the reasons set forth above and in Defendants’ Motion to Dismiss, defendants

respectfully request that the Court issue a briefing schedule on the motion to dismiss and

reject plaintiffs’ continuing attempts to seek additional discovery.

Respectfully submitted,/s/____________________________

Anne L. Weismann(D.C. Bar No. 298190)Melanie Sloan(D.C. Bar No. 434584)

Citizens for Responsibility and Ethicsin Washington1400 Eye Street, N.W., Suite 450Washington, D.C. 20005Phone: (202) 408-5565Fax: (202) 588-5020Attorneys for Plaintiffs

GREGORY G. KATSASAssistant Attorney General

JEFFREY A. TAYLORUnited States Attorney

/s/ Helen H. Hong _______________JOHN R. TYLER (DC Bar No. 297713)HELEN H. HONG (CA SBN 235635)Trial AttorneysU.S. Department of Justice, Civil DivisionP.O. Box 883, 20 Massachusetts Ave., NWWashington, D.C. 20044T: (202) 514-5838Counsel for Defendants

November 18, 2008




EXHIBIT 1JOINT STATUS REPORT

Case 1:08-cv-01548-CKK Document 37-2 Filed 11/18/2008 Page 1 of 2










From: Anne WeismannTo: Hong, Helen (CIV); cc : David Sobel; Subject: CREW, et al. v. Cheney, et al.Date: Monday, November 17, 2008 2:24:56 PM

Helen, I write pursuant to the Court's minute order of November 14, 2008,directing the parties to file a joint status report no later than November 18"indicating how the parties want to proceed." As set forth in my letter to you ofNovember 14, plaintiffs believe an additional deposition is warranted in light ofClaire O'Donnell's lack of knowledge on the issues outlined by the Court'sDiscovery Order and Ms. O'Donnell's inability to shed any light on the questionsposed by the Court. We have requested that you identify for us an appropriatedeponent and, absent such an identification, will seek to depose DavidAddington. In addition, we will seek to either re-depose Nancy Smith on thecontents of the Fielding Memorandum or seek the memorandum itself, which is

both within the scope of discovery and not privileged. We believe production ofthe document is the most expeditious way to proceed, particularly as it avoids thetime, expense and burden of bringing Ms. Smith back for another deposition.Accordingly, please let me know if defendants are willing to produce the FieldingMemorandum without requiring us to move the Court for its production. As for the Joint Status Report, we propose telling the Court that additionaldiscovery in the form of a deposition is necessary, seeking a short window oftime in which to complete this discovery (two weeks), and proposing a briefingschedule that is tied to the close of discovery.

In light of the need to file a joint status report, please let me know as soon aspossible -- but no later than 5:00 p.m. today -- your position on what the JointStatus Report should say. Anne Anne WeismannChief CounselCitizens for Responsibility and Ethics in Washington1400 Eye Street, N.W., Suite 450Washington, D.C. 20005202-408-5565 This email and any attachments are for the sole use of the intended recipientsand may be privileged or confidential. Any distribution, printing or other use byanyone else is prohibited. If you are not the intended recipient, please contact


mailto:[email protected]

mailto:/O=USDOJ/OU=CIVIL/CN=RECIPIENTS/CN=MAILBOXES/CN=HHONG



mailto:/O=USDOJ/OU=CIVIL/CN=RECIPIENTS/CN=MAILBOXES/CN=HHONG




the sender immediately and permanently delete this email and attachments.Thank you.













IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY

AND ETHICS IN WASHINGTON, ET AL.,Plaintiffs, CA No. 08-1548Washington, DCSeptember 23, 2008

vs. 3:05 P.M.

RICHARD B. CHENEY,VICE PRESIDENT OF THE UNITED STATESOF AMERICA, ET AL.,

Defendant.___________________________________

TRANSCRIPT OF STATUS HEARINGBEFORE THE HONORABLE COLLEEN KOLLAR-KOTELLY

UNITED STATES DISTRICT JUDGE

APPEARANCES: For the Plaintiffs: ANNE L. WEISMANN, ESQUIRE

Citizens for Responsibilityand Ethics in Washington

1400 Eye Street, NWSuite 450Washington, DC 20005(202) 408-5565

For the Defendants: HELEN HONG, ESQUIREARTHUR GOLDBERG, ESQUIREU.S. Department of Justice20 Massachusetts Avenue, NW6th FloorWashington, DC 20530(202) 514-5838




Court Reporter: Lisa M. Hand, RPROfficial Court ReporterU.S. Courthouse, Room 6706333 Constitution Avenue, NWWashington, DC 20001

(202) 354-3269

Proceedings recorded by mechanical stenography; transcriptproduced by computer-aided transcription




P R O C E E D I N G S

THE COURT: Good afternoon, everybody. Let me call

the case. This is CREW, et al, versus the Honorable Richard

Cheney, et al. Civil Action Number 08-1548. We are on the

record with a court reporter. Would the Plaintiff counsel

identify herself?

MS. WEISMANN: This is Anne Weismann for the

Plaintiffs, Your Honor.

THE COURT: Defense counsel, who is on?

MS. HONG: Good afternoon, Your Honor, it's Helen

Hong with the Department of Justice, along with Arthur

Goldberg.

THE COURT: All right. What I'm going to ask is,

I'm going to set out certain things and then I will call on

you at the end. So, I would ask that you not speak until I

call on you so we make sure we have the record. And when you

do, if I'm calling on you or if you're answering in other

ways, please make sure that you identify yourself so we

ascribe the comments to the correct individuals.

I now have the Defendant's Motion to Reconsider and

Clarification. And I also have the Court ordered joint status

report, which addresses the Plaintiff's request for discovery,

the Defendant's objections, and the two proposed briefing

schedules. Let me note at the outset that we're now at round

four of the Defendant's explaining their position, and the




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1 third declaration from Ms. O'Donnell.

2 The Defendant's Motion to Reconsider, again,

3 provides a new explanation as to why the Defendants believe

4 there is no case or controversy because their two definitions

5 would cover all of the Vice-President's functions within the

6 Office of the Vice-President. I would say, I wonder why this

7 wasn't said so at the beginning and not at the third round.

8 But, at any rate.

9 The Court, I will say this, has been treated and

10 sort of privy to information in this litigation on a need to

11 know basis, slowly leaking out the information. It would have

12 been helpful not to have lost all this time doing all of these

13 rounds. I would also like to correct a misapprehension. The

14 Court did not misunderstand the declarations, I went over them

15 very carefully and they said what they said and what they

16 didn't say. As to standing, clearly, it's the Plaintiff's

17 burden. But the Defendant's argument on this is circular. It

18 all goes back to their interpretation of the PRA statute and

19 the two definitions.

20 If the Defendant is correct on the merits, then

21 Plaintiff has no case or controversy and no standing. But if

22 the Plaintiff is correct on the merits, then the Plaintiff

23 does have a case or controversy and does have standing. I

24 reviewed the Motion to Reconsider, although not fully

25 responded to by the Plaintiff. The key issue has not changed.




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1 The Defendant's approach is still ipse dixit as far as I'm

2 concerned. There's still no explanation as to why there is a

3 need for these two sub-definitions, if they're allegedly

4 coextensive with the broad PRA definition in the statute. The

5 two definitions certainly on their face appear to be limiting,

6 which is why I called them so.

7 And I also don't have -- where is the legal

8 underpinning for these two definitions. It's unclear why they

9 were deemed necessary to be created, and they seem to be

10 created out of whole cloth. I would note that certainly 3

11 U.S.C. Section 106, which is a budgetary and appropriation

12 provision, which gives a VP authority to hire and pay

13 salaries, does not seem -- there is no explanation as to why

14 you would be using that provision somehow to support one of

15 the definitions.

16 I would also note in passing that the 3 U.S.C. 106

17 was passed by Congress two days prior to the PRA. And the

18 PRA -- both were enacted in 1978, but 106 was done two days

19 before the PRA. And if Congress, in later enacting, but

20 around the same time of the PRA, wanted to use this language

21 describing of specially assigned by the President, they could

22 have done so and they didn't.

23 Also, I would note that the NSC functions and some

24 other functions, which I would consider statutory functions

25 that have been set out by Congress as things that the




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1 Vice-President is expected to do, do not naturally fit in the

2 definition of specially assigned by the President. So, at

3 this junction, I'm prepared to discuss the issue of discovery

4 which the Plaintiffs have requested. And it's my view that

5 what should happen is that the Motion to Reconsider should be

6 held in abeyance, which can then be rolled into the decision

7 on the merits at a later date in the briefing, since we're

8 moving -- trying to move this on a fairly expedited basis.

9 In terms of the discovery that's been requested by

10 the Plaintiff, let me go through the objections as I

11 understand them. One is that this is an APA action and,

12 therefore, there's no need for discovery. I haven't heard

13 anything about an administrative record. Does one even exist?

14 Or is this just a legal theory to justify the two definitions,

15 in which case there isn't an administrative action. I would

16 note that the Plaintiff's action involved also the Declaratory

17 Judgment Act and mandamus.

18 Now, there's also an argument that the Defendant

19 has not been required to respond to the complaint, and that's

20 because it's not due until November 10th. But I think we need

21 to look at this in context. I granted the PI. The Defendant

22 moved to reconsider. And it's clear that a factual predicate

23 is required as well as maybe a factual/legal question. Some

24 elucidation of the Defendant's legal underpinnings for the two

25 definitions, which may turn out to be a question of fact and




7

1 law, or maybe just factual.

2 I think it needs to be done on an expedited basis.

3 It would be done in the context of the PI and the Motion to

4 Reconsider. The preliminary injunction I've already granted.

5 The request is for two depositions, they're certainly limited.

6 They're appropriate deponents. There's no request to go into

7 the content of the records. It can be done at the courthouse.

8 It can be monitored by the magistrate judge and myself as an

9 appeal instantaneously if there are any privilege issues that

10 arise. There is certainly a need to do this quickly since the

11 transition is going to occur in January.

12 The parties have had advance notice of this

13 question of discovery, that's why I called the parties in

14 advance in order to find out what your positions were.

15 Frankly, to have another round of briefings as to whether the

16 Plaintiff is entitled to expedited discovery is a waste of

17 time, and frankly going to cut into your briefing schedule.

18 So, my suggestion is we go forward. It would be done, the

19 discovery, in the context of the PI and the Motion to

20 Reconsider. And it could eventually be rolled into the merits

21 briefing as appropriate to allow this very limited and

22 expedited discovery. But I'm allowing it at this point in the

23 context of the PI and the Defendant's Motion to Reconsider.

24 There's an argument the Defendant has made that

25 because of the jurisdictional questions that you have and you




8

1 want to file a dispositive motion, that discovery should be

2 stayed. Again, this is a circular argument because it all

3 comes back to whether there's any merit to the two definitions

4 that you have proposed.

5 So, is there anything else the Defendant wants to

6 raise on the issue of discovery? If not, I'll move into some

7 other issues that the Plaintiff has raised. Ms. Hong,

8 anything you want to say?

9 MS. HONG: Yes, Your Honor. I mean, I think we

10 need to step back one moment here. It sounds like the

11 discovery that you're contemplating is in connection with the

12 motion for reconsideration, even though as of now the

13 preliminary injunction has been issued and is in place. Is

14 that correct?

15 THE COURT: That's correct.

16 MS. HONG: So --

17 THE COURT: Because the Motion to Reconsider

18 relates to the appropriateness of the PI. So, it seems to me

19 in order -- you've raised issues that raised, frankly, factual

20 questions that go back to it. Your arguments and declarations

21 that have been provided, as I've indicated, go around to the

22 same issue. So, in order to resolve the Motion to Reconsider,

23 and frankly, I think it could be done in the context, you

24 know, of the -- if you hadn't filed the Motion to Reconsider

25 and I was now moving to the briefs on the merits and they




9

1 requested discovery, I think it would have been appropriate to

2 allow them discovery. And certainly under 56(f) on a whole

3 series of different issues, a factual predicate is required

4 here, a very limited one and an expedited one.

5 MS. HONG: And I guess I'll start with the

6 understanding that the Vice-President has offered a limiting

7 definition of the PRA and Presidential record on the PRA. If

8 we step back and look at what the amended complaint alleged,

9 what Plaintiffs have alleged in their amended complaint is

10 that the legislative related records or legislative-type

11 records were not being preserved by the Office of the

12 Vice-President.

13 THE COURT: Ms. Hong, that is an argument you made

14 two telephone calls ago. Ms. Hong, let me finish. Remember

15 what I said. Let me finish. From my perspective, we've gone

16 over this argument before. They have a whole series of

17 different arguments in the complaint, and their preliminary

18 injunction focuses on several things. So, they certainly have

19 raised that issue and I'm well-aware of it. The question is,

20 is they have raised other issues as well. We've now narrowed

21 it down to these two definitions.

22 It is your position in your Motion to Reconsider

23 and the earlier iterations, although it's taken us awhile to

24 get here, that these are coextensive. And my point is that I

25 think there's a factual issue here as to whether they are or




10

1 are not, and that's where we are. That's the reason I gave

2 the PI in order to resolve that. Your Motion to Reconsider

3 indicates that this is -- that these definitions are

4 coextensive. The Plaintiffs have raised questions, not

5 necessarily about the accuracy or even the good faith of Ms.

6 O'Donnell, as to what she knows and has stated. But they have

7 pointed out the problem in terms of the factual questions

8 whether the VP maintains records separate from the OVP that

9 are not personal and are not in Ms. O'Donnell's custody and

10 control.

11 The Plaintiff also questions what Ms. O'Donnell

12 does not address. What the Plaintiff has described as the VP

13 acting in his, quote, self-proclaimed non-executive capacity,

14 unquote. So, as far as I'm concerned, you're going back to --

15 you argued that it was an APA. Is there any administrative

16 record?

17 MS. HONG: Your Honor, that is -- I mean, to the

18 extent that the Defendants here have been responding to the

19 Plaintiff's Motion for Preliminary Injunction, our Motion to

20 Dismiss and our jurisdictional defenses, once raised, with

21 appropriate declarations when the Defendants have an

22 opportunity to do so, would properly layout whatever is

23 required for Defendants to dismiss this case because we do

24 believe that this case should be dismissed on jurisdictional

25 grounds.




11

1 THE COURT: Fine. And, Ms. Hong, you will have

2 your opportunity to do so. However, before that there is

3 going to be discovery. There is, in the context of both the

4 Motion to Reconsider, which I may roll into a merits --

5 frankly, the merits briefing, and not have a separate briefing

6 of their responding to that. But since we're doing this on a

7 very expedited basis in order to have this done well before

8 the transition in January, it seems to me that the opportunity

9 that you will have to indicate there's no case or controversy,

10 and therefore, they have no standing, which you've argued

11 already, and which is premised under the same problem that I

12 found already.

13 We need to move this further and get a little more

14 information. If it turns out that your interpretation, and

15 you prevail on this, then there is no case in controversy and

16 no standing. However, if the Plaintiffs -- because you've

17 taken a very, you know, position -- a very straightforward in

18 terms of, yes, this is the way it is, or no, it's not. If

19 they prevail, then there is a case in controversy and there is

20 standing. We can't get to that issue because we keep going

21 around in circles.

22 MS. HONG: Your Honor, I mean, to clarify the

23 record, I think it's important here to know that the

24 Vice-President and the Office of the Vice-President has not

25 purported to suggest that the two functions that have been




12

1 outlined in the declarations of Ms. O'Donnell, that the

2 definitions of those are coextensive in legal statutory terms

3 with the definition of Presidential records in the PRA --

4 THE COURT: Excuse me a moment. Hold on one

5 second. I thought that the papers that you have presented,

6 leaving aside -- you're not talking about personal things, not

7 personal papers?

8 MS. HONG: No. Personal papers that are --

9 THE COURT: Okay. All right. Let's put the

10 personal aside. Are you telling me then that there are

11 records that would fit not in either of these definitions, but

12 would still be under the PRA?

13 MS. HONG: No. No. No. No. That is not what

14 we're saying.

15 THE COURT: Okay. Then tell me what you are saying.

16 MS. HONG: What we have provided is not a legal

17 interpretation, a constitutional, statutory or other official

18 or ceremonial duty. What we have provided is a fact that the

19 Office of Vice-President as well as the Vice-President have

20 two functions, and all of the documentary material that the

21 Vice-President receives or creates in the course of his duties

22 fall under the two categories that the Office of

23 Vice-President has outlined. It's not that those definitions,

24 for example, specially assigned by the President, is a

25 definition we would import into the definition of Presidential




13

1 records --

2 THE COURT: Let me interrupt for a second. What

3 about the statutory functions in terms of the statute,

4 Congress requires the VP be involved with the National

5 Security Agency. It doesn't seem to fit naturally, although

6 you've tried to shoehorn them in the specially designated by

7 the President category.

8 MS. HONG: And what the Office of Vice-President

9 attempted to do -- basically the Office of Vice-President

10 could have said Category A and Category B, is all that the

11 Vice-President does. So, because the complaint initially

12 focused on legislative records, some of this confusion may

13 have been created by this bifurcation created as being

14 executive related functions.

15 THE COURT: Well, you provided it. We've now had

16 several rounds. Ms. Hong, let me just say this. We keep

17 going around in circles with the same thing. You keep saying

18 all of this is covered and they're doing the right thing. I

19 don't know whether they are or not. And it seems to me that

20 the way to move the ball forward at this point is to allow,

21 you know, not another declaration for Ms. O'Donnell, but to

22 allow the two depositions. Get whatever information there is.

23 You know, if there's -- they're not going to go into content,

24 but if there's some issue about privilege, et cetera, it will

25 be decided on the spot. You can do it at the courthouse.




14

1 We'll have the magistrate judge and me available to resolve

2 any of these issues. You then can move -- Ms. Hong, don't

3 interrupt. We then can move to the next stage, which is to

4 file the briefing. And if you have support for it, fine.

5 You're making the same argument that you've made before that

6 I, frankly, have not found persuasive in terms of what you're

7 doing.

8 MS. HONG: I want to put on the record, Your Honor,

9 the --

10 THE COURT: No. Let me just say in terms of

11 putting it on the record, you have a lot of -- this is an

12 argument you've put on the record. You've had at least three

13 rounds to put this on the record. And it slowly eked out

14 farther and farther in terms of each one. There's a little

15 bit more information that's provided. You will have the

16 opportunity with the briefing schedule to put your best

17 argument out there, whatever you've got, as will the

18 Plaintiffs, and that will be it. Not just sort of each round

19 bringing something new in.

20 You've made these arguments, they're already on the

21 papers. If you have a new argument that has not been brought

22 up that you think is important in my decision about the

23 discovery, then I'll hear it. Otherwise, you're making the

24 same arguments I've already heard and they're not persuasive

25 in the context of not allowing discovery. Anything else on




15

1 the discovery?

2 MS. HONG: Yes, Your Honor.

3 THE COURT: Okay.

4 MS. HONG: The second supplemental declaration of

5 Ms. O'Donnell, Paragraph 6 specifically shows that all of the

6 documentary material that is created or received by the Office

7 of Vice-President, which includes the Vice-President, falls

8 within one of the two categories that has been enumerated.

9 There is no other mountain of documents. There's no

10 documentary materials aside from those of a purely private or

11 nonpublic character that is specifically accepted by the PRA,

12 and Ms. O'Donnell attested to that. There is nothing more

13 that Plaintiffs could get in discovery than what Ms. O'Donnell

14 has provided in Paragraph 6 of her second supplemental

15 declaration.

16 THE COURT: Yes, but it's all the Office of the

17 Vice-President. And the question -- one of the questions, and

18 I don't know the answer to it, that the Plaintiffs raised is

19 whether the -- Ms. O'Donnell can talk about the Office of the

20 Vice-President, and clearly the Vice-President is in that

21 office, but there may be records that the Vice-President has

22 that are not in the Office of the Vice-President. I don't

23 know the answer to that. The Plaintiffs have at least raised

24 an issue. And, frankly, based on the way this is -- the

25 arguments that have been set out, it's still not clear why




16

1 you -- why the arguments are made about defining the records

2 in these two definitions as opposed to discussing it in the

3 context of the full definition that's in the PRA. I still

4 don't have an answer for it, and you keep shifting around in

5 terms of the reasons.

6 And I'm not going to, at this point, my feeling is

7 you're not giving me -- what you quoted last time was from the

8 budget, okay, that's the reason for doing it. Now you seem to

9 be saying an argument that, well, maybe they don't have those

10 definitions, and this was just a way of describing what the

11 records are. You know, because each iteration keeps changing,

12 my feeling is that I'm not willing to go through another round

13 of something that's basically not the final round. Okay.

14 And to have the final round, I think that the

15 Plaintiffs are allowed to have two depositions that they set

16 out, and give it their best shot at coming up as to whether to

17 test factually. Whether, as you have stated in various

18 different ways, although, frankly, there's always a little

19 nuance issue that I pointed out that each pleading sort of

20 moves along and answers, but I still don't feel, frankly, that

21 I have the full answer. And once they have that, they'll

22 either have information or they won't have information, and

23 then we'll move to the final round. But I'm not willing to do

24 this -- keep going through it over and over again.

25 Tell me a reason not to do -- give me a new reason




17

1 that you've not put already in the papers why the -- I've read

2 all the papers with a fine tooth comb, and I've read what the

3 material -- give me another reason, if you have one, for the

4 discovery. If there isn't, I'll hear from Plaintiffs briefly

5 and then I'll move on.

6 MS. HONG: Your Honor, there is two points that I

7 just want to address. The first point is, you had asked

8 whether -- or you suggested that Ms. O'Donnell spoke on behalf

9 of the Office of the Vice-President as opposed to the

10 Vice-President. In Paragraph 7 of her second supplemental

11 declaration she provides an outline of the universe of

12 functions that the Vice-President has. But in terms of --

13 THE COURT: The Office of the Vice-President,

14 that's correct. The Vice-President operates in the Office of

15 the Vice-President, I'm not questioning that.

16 MS. HONG: Paragraph 7 identifies the functions

17 that the Vice-President himself has.

18 THE COURT: Okay.

19 MS. HONG: And in conjunction with Paragraph 6, we

20 believe that there is no discovery that is required or merited

21 here because there is a sworn declaration under penalty of

22 perjury that all of the documentary material created or

23 received by the Office of Vice-President, which includes the

24 Vice-President, covers all of those documentary materials

25 relating to or having an effect upon the Vice-President's




18

1 universe of functions.

2 THE COURT: All right. Ms. Weismann, would you

3 like to weigh in at this point.

4 MS. WEISMANN: I'm not sure I have anything more to

5 add beyond the papers and how the Court has summarized the

6 issues. We agree. I just don't think it would be very

7 fruitful to have a back and forth on the, you know, exact

8 meaning of each paragraph. I mean, we've said we see it

9 differently and we see holes. I think this whole exercise, in

10 our view, has highlighted why we need to move forward with

11 depositions. And as we put in our papers, in our section of

12 the joint report, we're prepared to move as quickly as we can

13 as soon as we know the deponents' availability.

14 THE COURT: If you can hold on just one second for

15 a minute.

16 OFF THE RECORD.

17 THE COURT: Let me ask one thing. I'm looking at

18 Paragraph 7. Are you indicating that if he has no -- if he

19 acts, not in his personal capacity, but in some official

20 capacity, not in those two categories, that he's not acting as

21 the Vice-President, Ms. Hong?

22 MS. HONG: No, Your Honor, absolutely not. It's

23 like if we called the categories cats and dogs, it's just that

24 the Vice-President is articulating all of his functions all

25 within those two descriptions. This may be a result of the




19

1 way that the amended complaint was originally framed. What we

2 attempted to do was suggest and show that all of the

3 legislative related records were being preserved and

4 maintained by the Office of Vice-President under the PRA. I

5 mean, simply put, all of the documentary material, I don't

6 know how else to --

7 THE COURT: Ms. Hong, let me just ask this. The

8 two definitions that were provided, were they provided in the

9 context of this litigation or did they exist before that?

10 MS. HONG: No. These are definitions that are

11 provided in the context of explaining, based on the amended

12 complaint, that there are executive related functions and

13 legislative functions. The legislative related functions

14 being those of the Vice-President --

15 THE COURT: So, they didn't exist beforehand?

16 MS. HONG: Well, I can't say that they didn't exist

17 beforehand.

18 THE COURT: Well, then why did -- one of the things

19 is that -- it's not clear to me why you would have -- I don't

20 see how the statutory functions that you have Congress fit

21 in -- can naturally fit into the description that you have

22 there. And the PRA broad one has statutory. You've come back

23 with another definition that says something different.

24 MS. HONG: And to the extent that that was

25 conveyed, that was not intended at all. The statutory




20

1 functions, we explained in our brief, are subsumed and

2 considered to be executive related functions. The

3 Vice-President cannot act, under the Constitution, absent the

4 direction of the President.

5 THE COURT: So, everything that the Vice-President

6 does in his official capacity, the President knows about?

7 MS. HONG: It's considered to be specially assigned

8 to the Vice-President by the Vice-President.

9 THE COURT: Based on what? Based on what?

10 MS. HONG: To the extent -- by the Vice-President.

11 And it's explained in our Motion for Reconsideration where

12 we --

13 THE COURT: We're back to, Ms. Hong, to the problem

14 here. I mean, to my mind there's a couple of different

15 issues. We've pointed them out in terms of the statutory, in

16 terms of if the President doesn't know about something, I

17 don't see how this is suddenly specially designated by the

18 President. It's not the normal meaning of what that is.

19 MS. HONG: But that's an activity that the

20 Vice-President considers. It's an either or, we have a sort

21 of binary universe of Vice-President functions here. It's

22 either one that is considered legislative as to the President

23 of the Senate, or it's an executive related function. Whether

24 or not the Vice-President is considered part of the Executive

25 Branch is not one question that is material here. All that is




21

1 material is our declaration saying that the universe of the

2 Vice-President functions are covered by the PRA, meaning, the

3 Office of Vice-President has preserved everything, all the

4 documentary material created or received by the Office of

5 Vice-President in conducting the universe of his functions,

6 everything that the Vice-President does, aside from those

7 purely private or not public activities.

8 THE COURT: Can you hold on one second. Just a

9 minute.

10 OFF THE RECORD.

11 THE COURT: Sorry to do this, but I need to look at

12 some of the papers here. The two additional things that I

13 don't understand here, this is to some degree a new argument

14 that you're raising here that these -- when we asked for legal

15 authority and pointed that out, I don't understand why you

16 didn't come forward, and say, well, we came up with these

17 definitions strictly for the purpose of this litigation.

18 That certainly wasn't -- because we made it

19 clear -- raised questions about, Where did this come from?

20 Why were they developed? Nobody ever answered this in the

21 context that this somehow were definitions that you were

22 trying to respond to the complaint, and that this was done

23 strictly in the context of this litigation. The other issue

24 is, I don't understand if this was actually the case, and this

25 covered every record except for his personal. In other words,




22

1 anything the Vice-President did officially, depending I

2 suppose on when one wants to determine that. But officially

3 as the Vice-President, whether in the Office of the OVP or

4 whether he did it on his own or whatever else was covered by

5 this, then I don't understand why there was an argument to

6 begin with in terms of not covering certain things when we

7 were trying to move away from the PI and move to a briefing on

8 the merits.

9 Part of my concern, Ms. Hong, is that the arguments

10 keep changing. And I think I would like to have an

11 opportunity to have -- and you've indicated factual bases, and

12 my concern is that the arguments keep shifting slightly. They

13 keep developing. And there's always some little spot in there

14 that we need to keep filling in as we go through. Instead of

15 going through this exercise for another set of couple rounds,

16 we need to move forward to getting this briefed on the merits

17 and getting this resolved one way or the other, and we're

18 running out of time.

19 So, from my perspective, I still think there's a

20 potential factual issue here in the context of making a

21 decision on the Motion to Reconsider which rolls itself back

22 into the merits. And I think under these circumstances I'm

23 going to hold the Motion to Reconsider that you have set out

24 in abeyance. I'm going to allow the two depositions. And,

25 you know, I will set out a briefing schedule, and either --




23

1 you need to do your best shot, both the Plaintiff and

2 Defendants, I don't want to have this over and over again.

3 What I probably will do is have the Plaintiffs roll into their

4 merits brief and the response to the Motion to Reconsider,

5 since we're going to set this up fairly quickly, and I'll look

6 at it in that context.

7 I, frankly, don't think it's useful to have a

8 Motion to Dismiss first, based on the pleadings so far. We've

9 got a short period of time. This presumes that discovery

10 would be done quickly. You have two options. You can either

11 do what the Plaintiff's suggested, which was their Motion for

12 Summary Judgment October 17th, Defendant's opposition and

13 their cross motion, whatever it is, November 3rd. Plaintiff's

14 reply and opposition to the motion to -- the Defendant's

15 motion, November 12th, and then the Defendant's reply to their

16 own motion by the 17th.

17 Or you can do three rounds only. Both of you could

18 file your cross motions at the same time, your oppositions at

19 the same time, and your reply at the same time. Those are

20 your options. I want them done by November 17th. The only

21 other issue that I would ask the Plaintiffs about is, the

22 Defendants did ask for a clarification as to the PI order, do

23 you agree to that or oppose it?

24 MS. WEISMANN: I just want to confirm, I think we

25 have no opposition. As I understand it, one of the




24

1 clarifications was their ability to dispose of bulk mail to

2 which we have no objection and have no problem. The other

3 concern, as I understand it, I just want to make sure I have

4 an accurate understanding, was they wanted to make sure that

5 records that are considered to fall under the Federal Records

6 Act continue to be treated that way. Am I accurately --

7 THE COURT: On the bottom of Page 9, it wouldn't

8 cover documentary material --

9 MS. WEISMANN: Otherwise, maintained --

10 THE COURT: -- and supercede the disposal

11 authority -- bulk mail --

12 MS. WEISMANN: The multiple copies is the only

13 thing that gives me pause, only because I think there's always

14 room -- I'm not sure what the context of that would be, and I

15 think that there -- to the extent that it could be relevant,

16 for example, that the Office of the Vice-President has a

17 particular document that is also found in another office

18 within the Executive Office of the President, I wouldn't want

19 that kind of a clarification to be construed as license to

20 destroy one of those copies just because it is a duplicate.

21 I guess what I'm not saying well is that two

22 different offices within the Executive Office of the President

23 may each have independent reasons or requirements to preserve

24 the same document. So, I don't feel like I have enough at

25 this point for us to say that we agree that that's a




25

1 clarification that should be made.

2 MS. HONG: And, Anne, Ms. Weismann, this is Helen

3 Hong, I can clarify on that point. It would be pegged to what

4 otherwise wouldn't be required to be preserved under 44 U.S.C.

5 Section 2201(2)(b)(4), which means that, as you suggested, it

6 would be multiple copies, for example, that one employee or

7 the same office has. They could be stacked. It's the same

8 document, there's no difference between them, not different

9 drafts or anything, it's just multiple copies.

10 THE COURT: And you're talking about within the

11 same office?

12 MS. HONG: Yes, Your Honor.

13 THE COURT: I mean --

14 MS. WEISMANN: With that explanation, we would have

15 no --

16 THE COURT: I'll make that modification. Now, back

17 to your briefing schedule. Plaintiffs, do you want -- you

18 proposed this one with the four levels?

19 MS. WEISMANN: Right.

20 THE COURT: Do you want to consider doing them at

21 the same time?

22 MS. WEISMANN: My only hesitation on that, Your

23 Honor, is my experience has always been that cross motions are

24 somewhat awkward because you end up -- but, on the other hand,

25 to limit the briefing to three rounds is very attractive. So,




26

1 if the Defendants are willing to do that, we certainly would

2 be.

3 THE COURT: Ms. Hong?

4 MS. HONG: Yeah, I think we would prefer the four

5 rounds.

6 THE COURT: Okay. That's fine. I don't have a

7 problem with that, I was just giving you an opportunity in

8 terms of --

9 MS. HONG: And, Your Honor, this doesn't mean that

10 we agree with the dates that the Plaintiff has provided in her

11 proposed briefing schedule.

12 THE COURT: Okay. Well, then tell me what dates

13 you would like. The bottom line is November 17th.

14 MS. HONG: Your Honor, if I could just go back for

15 one moment about our jurisdictional defenses and the Motion to

16 Dismiss that the Defendant's anticipate filing. The

17 jurisdictional defenses are not only those that have been teed

18 up, for example, in the declarations. Our jurisdictional

19 defenses do not solely go to whether Plaintiff has an actual

20 injury because all of the documents have been maintained under

21 the Presidential Records Act, because they have.

22 But we have additional ones, for example, that

23 there isn't an actual imminent injury, which doesn't depend on

24 these declarations. If we filed that brief quickly it would

25 obviate the need for discovery because the Court --




27

1 THE COURT: No. Let me just make this clear. I am

2 not doing another round on a Motion to Dismiss in terms of

3 separating it out from the rest. Okay. There is a very short

4 period of time here to get this done. You've had a couple of

5 rounds back and forth. We probably could have done some of

6 these rounds in a shorter thing if more information had been

7 provided up front. That hasn't been done. There's sort of

8 been a course of conduct of leaking out information over a

9 period of time. So, we're now left in the position that we

10 are, it needs to be briefed by the 17th.

11 I will certainly consider when you file these,

12 obviously jurisdictional issues need to be resolved before you

13 get to the rest. But I'm going to set it up this way, and it

14 does not obviate the necessity for discovery. I'm not doing

15 your motions then deciding that you don't prevail, and then

16 going through discovery and doing another round, it wouldn't

17 work.

18 MS. HONG: Your Honor --

19 THE COURT: So, we're going to do it all together.

20 The Court fully understands that you don't reach merits issues

21 until, from the Court's perspective, until you consider the

22 jurisdictional. However, jurisdictional can certainly allow,

23 on occasion, you can allow discovery on that issue as well.

24 So, from my perspective I want this all together. We need to

25 do this on an expedited basis. And I think there's a basis




28

1 for the discovery. I'll put something out more specific, but

2 at least I've given you my rulings now. So, I'm not doing the

3 Motion to Dismiss as a separate round and then the rest,

4 you're going to do it all together. And I will make the

5 decision based on, clearly, the order in which -- when the

6 Court needs to make these decisions. Now --

7 MS. HONG: Your Honor, in terms of the expedited

8 schedule, given that the preliminary injunction is in place,

9 is there still a need to go at this accelerated rate if all

10 the documents at issue in this litigation are subject to the

11 preservation order?

12 THE COURT: Well, I'm assuming that some

13 decision -- you want it to be made before January 20th when

14 there is a transition or before. And I want to leave enough

15 time, frankly, for me to make a decision beforehand. It

16 doesn't do any good to have a decision after the January 20th

17 time, it needs to be done before that. So, these are not

18 going to be simple issues, as far as I can tell. And, so,

19 under those circumstances, I want to make sure that it gets --

20 the discovery's done, the briefing is done, and that I have

21 enough time to get it done.

22 MS. HONG: But if the documents are being preserved

23 come January 20th, there's nothing magical about that January

24 20th transition date that would --

25 THE COURT: As I recall, Ms. Hong, you did not




29

1 agree to have this -- if the Court rules and there's an issue

2 on appeal, you didn't agree to have this PI go beyond that.

3 No, it's not in the materials that were proposed. No. It was

4 not in the materials that were proposed.

5 MS. HONG: I apologize, I may have misspoken. I

6 was suggesting that -- if there is -- I guess from our

7 perspective, given that there is a preliminary injunction in

8 place during the pendency of the Court's consideration of the

9 merits in this case, that there will be whatever protection

10 that Plaintiffs deem that they need, all of the documents are

11 being preserved. So there is no concern about what happens to

12 the documents because they are under Court ordered

13 preservation.

14 THE COURT: What happens at January 20th when the

15 new Vice-President comes in? What happens to all of these

16 records in the meantime?

17 MS. HONG: I guess if the litigation is ongoing, I

18 mean, frankly, because all of the documentary materials are

19 being treated as PRA, they will all have gone to the National

20 Archives.

21 THE COURT: Ms. Weismann.

22 MS. WEISMANN: Yeah, I just want to point out that

23 separate and apart from the issue of preservation, if the

24 Government is willing to have the preservation order extend

25 beyond January 20th, I still don't think that addresses the




30

1 issue, if in fact we believe that there are additional

2 documents that are not covered and they are not in the

3 possession, custody or control of the OVP. Let say,

4 hypothetically, they were in the possession of the

5 Vice-President, it's not at all clear to me what would happen

6 to those records after January 20th when he leaves office or

7 where they would go. So, I think it would raise some

8 difficult issues, and it still, I think, is in everybody's

9 interest to have this resolved before January 20th.

10 THE COURT: All right. In terms of -- Ms. Hong,

11 what is it that you want to push out? My feeling is this was

12 the -- this was the -- more or less, not exactly, but

13 certainly this is a schedule that can be met. What is your

14 problem with it and how far out would you push it?

15 MS. HONG: I mean, I guess if you look at the last

16 brief that Defendant's would file right now, Plaintiffs have

17 provided Defendants with three business days in which to

18 respond or file their reply. It's a schedule that, frankly,

19 cuts off the Defendant's time to file briefing. And in part

20 here I think that the accelerated --

21 THE COURT: So, give me what -- within this -- the

22 November 17th date is a fixed date, as far as I'm concerned,

23 in terms of this schedule. I'm not making it any later for

24 me. This would be a reply in terms of your own motion, it's

25 not going to be, you know, the bigger -- the two key things,




31

1 it seems to me, is the Defendant's opposition and cross

2 motion, and the Plaintiff's reply and opposition are going to

3 be more extensive briefing. Yours on the 17th is a reply to

4 their motion. I assume that people -- so, what is it that you

5 would propose, Ms. Hong?

6 MS. HONG: If you can give me a moment, I'm going

7 to pull up my calendar. Your Honor, with their preference to

8 file their Motion to Dismiss first, given the Court's

9 preference for this briefing schedule, we will be amenable to

10 whatever it is that the Court orders, and we will file our

11 briefs by the date on which we are ordered to file our briefs.

12 THE COURT: Okay. Then I will enter an order

13 setting out the briefing schedule.

14 MS. HONG: Your Honor, if could I just go back for

15 one moment to -- one issue that is open on the discovery

16 front?

17 THE COURT: All right.

18 MS. HONG: The Plaintiffs have identified two

19 specific deponents that they seek to depose.

20 THE COURT: That's correct.

21 MS. HONG: Clearly, it seems that they have

22 selected some fairly -- at least with regard to David

23 Addington, a high level, close Vice-Presidential adviser. If

24 Plaintiff seeks instead to do a 30(b)(6), for example, we

25 still continue to object to discovery, but given that the




32

1 Court is inclined to order it, that we be provided the

2 opportunity to provide the appropriate deponent for these

3 issues.

4 THE COURT: Ms. Weismann?

5 MS. WEISMANN: We would object to that, Your Honor.

6 We think it's critical, given the back and forth that's gone

7 on and the failure to tie down these issues definitively, that

8 we be permitted to depose someone that we have selected who we

9 think is in the best position to answer these questions.

10 THE COURT: It seems to me that -- I think in terms

11 of the positions that they hold that it's appropriate. It's

12 also going to be fairly limited. This isn't going to be, you

13 know, they're around very discreet subjects here. So, I don't

14 see this as being a particularly long deposition, assuming

15 everybody answers. But if you want to have it at the

16 courthouse, I'm perfectly willing to do that, and make a

17 magistrate judge and myself available to make any rulings if

18 some privilege issues arise, in terms of the questions that

19 are requested.

20 But since they have indicated that they're not

21 really getting into the content, but would be more in the

22 context of descriptive of the kinds of records without going

23 into what is exactly in them, it seems to me -- I would think

24 there wouldn't be privilege issues, but there might be, in

25 which you can do it. But I think that if they have limited it




33

1 to two, I think these are the two people that have -- that are

2 most likely, and certainly Mr. Addington has made statements

3 relating to how he sees -- reflective presumably of the

4 Vice-President, Mr. Cheney, of how he sees that office

5 operating. So, I think it's, frankly, a perfectly natural

6 selection to have made.

7 MS. HONG: But, Your Honor, Ms. O'Donnell is the

8 Assistant to the Vice-President, the Deputy Chief of Staff.

9 I'm not saying that she would necessarily be the appropriate

10 deponent, but at a minimum, providing if we have notice of

11 exactly what the contours of this deposition is, then we

12 should be provided an opportunity to the extent possible to

13 select who we believe would best answer the questions.

14 THE COURT: I don't think that this is -- if you

15 were doing a full discovery across the board and they were

16 asking for a 30(b)(6), that's one thing, clearly, you make the

17 selection. They're not asking for a 30(b)(6) witness.

18 They've limited it to two individuals. We have Ms.

19 O'Donnell's declarations, I think we now have four. And so it

20 seems to me that if they have chosen two other people, and I

21 think one connected to NARA and one connected to the

22 Vice-President, then it makes sense to do these.

23 And I think under the circumstances that based on

24 statements that have been made that it's a natural choice to

25 have made the two, and their positions in terms of doing them.




34

1 So, at this point I'm going to leave it with the two that they

2 have identified at this point. Obviously, you'll have to

3 determine their availability. I don't see these as being

4 long. The scope is fairly narrow, based on the way this case

5 has been presented, and the issues that have been identified.

6 So, at this point I'm going to leave it the way it

7 is. I will be doing an order that sets out the briefing

8 schedule. I will also do an order that sets out the discovery

9 and discusses how I'm handling the Motion to Reconsider, et

10 cetera, so that there is something that is on the record

11 besides what comments I've made today, since I made them in

12 the context of what I received -- since I wasn't here at

13 midnight last night when you filed it, what I saw this morning

14 and the joint report that was filed.

15 MS. HONG: And, Your Honor, is the discovery in

16 connection only with the Motion for Reconsideration, so that

17 if that were withdrawn, the discovery order would be withdrawn

18 or is the --

19 THE COURT: No, the Motion to Reconsider to --

20 withdrawing it isn't going to get rid of the discovery. As I

21 mentioned, I'm certainly doing it in that context at this

22 point, because I think -- that's why I would roll them into

23 the -- I would roll a decision on the merits into it because I

24 think they are one and the same in terms of your Motion to

25 Reconsider, goes to the merits. And we're going to be doing




35

1 briefing on the merits.

2 And I would have allowed, if they asked for it, in

3 the context of a merits briefing because I think there is a

4 factual issue that needs to be resolved one way or the other,

5 and I don't know which way it should be resolved. I don't

6 know what the answers are going to be. So, I don't have any

7 view one way or the other. I just think that there needs to

8 be an opportunity to see whether there's a factual predicate

9 here or not.

10 And whether or not your view prevails on the

11 merits, then that's the end of it. If your view doesn't

12 prevail, then that's a different issue. So, at this point

13 withdrawing it isn't going to obviate the necessity for the

14 discovery. But I'm doing it in part in that context in terms

15 of doing it on an expedited basis. But both of these things

16 go to the merits. I mean, the decision in the Motion to

17 Reconsider, the whole focus predominantly, other than the

18 standing argument, which I said I think is circular, still

19 goes back to the merits. So, we're dealing with the merits at

20 this point.

21 But I still think the issue, whether it's the

22 Motion to Reconsider or a merits briefing, is still going to

23 be the same scope for these depositions. It's a fairly

24 straightforward narrow scope that I see.

25 MS. HONG: Just so I can be clear, what is the




36

1 scope of the discovery then? Will that come in the Court's

2 order?

3 THE COURT: Yes. I'll set out what I think are the

4 areas that are appropriate for resolution here. All right.

5 Parties are excused.

6 MS. WEISMANN: Thank you, Your Honor.

7 MS. HONG: Thank you, Your Honor.

8 END OF PROCEEDINGS AT 3:55 P.M.

9 C E R T I F I C A T E

10 I, Lisa M. Hand, RPR, certify that the

11 foregoing is a correct transcript from the record of

12 proceedings in the above-titled matter.

13

14

15

16 _____________________________

17 Lisa M. Hand, RPR

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Documents

CREW v. Cheney Et Al: Regarding VP Records: 11/18/08 - Joint Status Report