CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Motion for Discovery

8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Motion for Discovery

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, ))

Plaintiff, )

)

v. ) Civil No. 1:07cv1707 (HHK) (JMF)

)

EXECUTIVE OFFICE OF THE )

PRESIDENT, et al., )

)

Defendants. )

____________________________________)

PLAINTIFFS MOTION

FOR LEAVE TO CONDUCT EXPEDITED DISCOVERY

AND TO COMPEL RULE 26(f) CONFERENCE

Pursuant to Rules 26(d) and 34(b) of the Federal Rules of Civil Procedure, plaintiff

Citizens for Responsibility and Ethics in Washington hereby moves the Court to enter an order

granting plaintiff leave to conduct expedited discovery. Plaintiff also moves the Court to compel

the defendants to meet and confer as Rule 26(f) of the Federal Rules of Civil Procedure requires.

As grounds for this motion, the Court is respectfully referred to the attached memorandum of

points and authorities.

Pursuant to LCvR 7(m), counsel for plaintiff contacted counsel for defendants and left a

voice-mail message requesting defendants position on this motion. Plaintiff has not heard back

from defendants counsel.

Respectfully submitted,

____/s/_____________________

Anne L. Weismann

(D.C. Bar No. 298190)

Case 1:07-cv-01707-HHK Document 14 Filed 10/26/2007 Pag


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Melanie Sloan

(D.C. Bar No. 434584)

Citizens for Responsibility and Ethics

in Washington

1400 Eye Street, N.W., Suite 450

Washington, D.C. 20530Phone: (202) 408-5565

Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: October 26, 2007

Case 1:07-cv-01707-HHK Document 14 Filed 10/26/2007 Pag


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1 On this same date the National Security Archive will also be filing a motion for leave to

serve expedited discovery requests in a lawsuit virtually identical to this one, The National

Security Archive v. Executive Office of the President, Civil No. 07-1577 (HHK). The discovery

that the National Security Archive will seek is identical to the discovery CREW is seeking here.

Given the pending unopposed motion to consolidate the two cases, CREW requests that the

Court consider the two motions together and grant both CREW and the National Security

Archive leave to conduct expedited discovery of the defendants.

2 CREW is the acronym for plaintiff Citizens for Responsibility and Ethics in

Washington.



____________________________________



Plaintiff, )

)


)



)

Defendants. )

____________________________________)

MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO

CONDUCT EXPEDITED DISCOVERY1 AND MOTION TO COMPEL

RULE 26(f) CONFERENCE

STATEMENT

Through this lawsuit CREW2 seeks to preserve for history the records of the Bush

presidency. The historical importance of a presidents records cannot be gainsaid; they offer

invaluable insight into the decisions of a president and his administration and remain relevant

long after a president leaves office. Books about our earliest presidents continue to be best-

sellers and often are based on treasure troves of information mined from their letters and papers.

With a year left in the Bush presidency and great uncertainty about the status of his

Case 1:07-cv-01707-HHK Document 14-2 Filed 10/26/2007 Pag


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records, CREW hereby requests leave to conduct expedited targeted discovery while there is still

time to take action to prevent further record destruction and ensure that the greatest number of

records are preserved. Specifically, CREW seeks to ascertain with more precision the universe

of email records deleted from White House servers, the universe of still-existing back-up copies

that could be used to restore the deleted records and to obtain documents created by defendant

Office of Administration when it discovered the missing emails, which would assist the Court in

determining what needs to be preserved on an interim basis. All this discovery has one goal:

preserving the records of this presidency for their rightful owner, the American people.

Plaintiff had hoped, through the vehicle of a Rule 26(f) conference, to work with the

defendants to, among other requirements of the rule, develop a proposed discovery schedule an

discuss further issues related to preserving discoverable information. While this would not have

eliminated the need for the expedited discovery requested here, it may have helped narrow the

issues for discovery and any discovery disputes. Defendants, however, have refused to meet as

Rule 26(f) requires.

BACKGROUND

On September 25, 2007, CREW filed its eight-claim complaint in this action against the

Executive Office of the President (EOP), the Office of Administration (OA) and its director,

the National Archives and Records Administration (NARA) and the archivist. The complaint

challenges as contrary to law the knowing failure of the defendants to recover, restore and

preserve millions of email records created and/or received within the White House and the

failure of the archivist and head of OA to take enforcement action to ensure adequate

preservation of all federal records. Complaint, 1. Plaintiff also seeks an order compelling the



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defendants to implement an adequate electronic records management system in compliance with

federal law. Id. at 2. This complaint is nearly identical to a complaint filed on September 5,

2007, by the National Security Archive against the same defendants, The National Security

Archive v. Executive Office of the President, Civil No. 07-1577 (HKK) (D.D.C.).

The factual background to the complaint includes the OAs discovery in October 2005

that millions of email records covering a two and one-half year period were missing from White

House servers where they had been dumped for archival storage, id. at 32-34, a discovery the

White House has not denied. After analyzing the problem and determining the extent of the

missing emails, the periods of time covered by the missing emails and the Executive Office of

the President (EOP) components from which the missing emails originated, the OA developed

a recovery plan that called for restoring the deleted emails from then-existing back-up tapes. Id.

at 36. The White House, however, never implemented this plan or any other; to date, the

White House has failed to restore any of the deleted emails. Id. at 36, 39. As a result, the

back-up copies created by the White House are the only repository for the deleted emails. Id. at

41. Those tapes contain both presidential and federal records in a commingled form. Id.

The deleted emails had been stored on White House servers as a substitute for the

previous electronic record-keeping system in place, ARMS (Automated Records Management

System). Complaint, 32. There were and continue to be no controls in place to protect

against anyone with access to the servers altering or destroying the electronic records stored on

these servers. Id. Despite the expenditure of significant sums of money and the development of

several electronic record-keeping management systems to replace ARMS, the White House has



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3 Among other things, the White House defendants refused to explain what they meant by

disaster recovery tapes, to what extent they included back-up copies stored on other mediums

such as CD ROMs and disks, the time-frame covered by the disaster recovery tapes they were

agreeing to preserve, and whether or not they had already transferred custody, possession or

control of any back-up copies to other non-EOP entities.

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to date failed to implement an appropriate and effective electronic records management system.

Id. at 36-40.

Contemporaneously with filing this lawsuit CREW sent a letter to the OA seeking

assurances that all back-up copies of the deleted records would be preserved pending the

resolution of this litigation. When the OAs counsel refused to provide those assurances,3

CREW sought a temporary restraining order (TRO) to compel the defendants to preserve all

back-up copies.

On October 17, 2007, the matter was heard by United States Magistrate Judge John

Facciola, who issued a report and recommendation on October 19, 2007, recommending that this

Court enter the requested TRO. Judge Facciola concluded that absent this relief, CREW will

suffer irreparable harm; as he noted, the threat that back-up media would be destroyed is a text

book example of irreparable harm. Report and Recommendation, October 19, 2007, p. 2. He

further found that the public interest favored preservation since the e-mails at issue may have

historical and public importance. Id. Finally, Judge Facciola weighed the irreparable harm to

CREW, the absence of harm to the defendants and the substantiality of the legal questions

presented to conclude that the TRO should be issued. Id. at 4-5. In particular on the merits of

the defendants claim that the OA is not an agency and therefore not subject to the requirements

of the Federal Records Act, Judge Facciola found that after reviewing the briefs presented in

another case on this issue, I certainly cannot say that CREW has no likelihood of prevailing on



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that issue. Id. at 4. On October 23, 2007, the defendants filed objections to this report and

recommendation.

On October 18, 2007, CREW sent a letter to defendants counsel requesting that,

pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, counsel provide CREW with

dates and times on which she is available to confer. Letter to Helen H. Hong from Anne L.

Weismann, October 18, 2007 (attached as Exhibit 1). The letter noted that Rule 26(f) directs the

parties to confer as soon as practicable and suggested any time during the entire week of

October 22 through 26 for holding such a conference. Id.

On the evening of October 22, 2007, defendants counsel sent an email response to this

letter which stated in pertinent part: we are currently considering your request[] and we will be

in touch soon. Email from Helen Hong to Anne Weismann, October 22, 2007 (attached as

Exhibit 2). The following day CREW sent an email to defendants counsel requesting, pursuant

to Rule 26(f), that counsel advise CREW by close of business October 25 whether you will be

able to meet either this week or next . . Email from Anne Weismann to Helen Hong, October

23, 2007 (attached as Exhibit 3). Defendantss counsel never responded to this email or

otherwise advised CREW of her availability to meet.

ARGUMENT

I. EXPEDITED DISCOVERY IS NECESSARY AND APPROPRIATE TO

ENSURE THE GREATEST POSSIBLE PRESERVATION OF THE

RECORDS OF THE BUSH PRESIDENCY.

As with any civil litigation, this Court has broad discretion on whether and particularly

what discovery CREW should be granted. See, e.g., SafeCard Servs., Inc. v. Securities and

Exchange Commission, 926 F.2d 1197, 1200 (D.C. Cir. 1991). That discretion includes the



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4 Some courts apply the same standard as that required to obtain a preliminary injunction,

see, e.g., Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982), while other courts apply a

reasonableness or good cause standard. See Special Situations Cayman Fund v. Dot Com

Entertainment Group, Inc., 2003 U.S. Dist. LEXIS 25083 *5 (W.D.N.Y. 2003).

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ability to expedite discovery. Ellsworth Associates, Inc. v. U.S., 917 F.Supp. 841, 844 (D.D.C.

1996). Expedited discovery is particularly appropriate when a plaintiff seeks injunctive relief

because of the expedited nature of injunctive proceedings. Id. Moreover, where, as here, one

party has an effective monopoly on the relevant information the need for discovery is especially

acute. Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 833 (D.C.

Cir. 1979).

While the courts are split as to the standard that a party seeking expedited discovery must

satisfy,4 the courts in this district generally apply a good cause standard. See, e.g., Ellsworth

Associates, Inc., 917 F.Supp. at 844. Under that standard, a litigant is entitled to expedited

discovery unless the opposing party can show good cause for why discovery should be denied.

Id. Moreover, a partys need for timely information constitutes good cause to grant a request for

expedited discovery. Whitkop v. Baldwin, 1 F.R.D. 169 (D. Mass. 1939); Optic-Electronic

Corp. v. U.S., 683 F.Supp. 269, 271 (D.D.C. 1987).

Here, expedited discovery is warranted under either standard based on the compelling

and urgent need to ensure the greatest possible preservation of the records of President Bush. As

even the White House admits, at least five million email records generated over at least a two

and one-half year period from multiple components of the EOP are missing. The missing

electronic records span critical years of the Bush presidency, from the United States invasion of

Iraq to Hurricane Katrina and the administrations formulation of a position on global warming.



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5 Defendants Local Rule 72.3(b) Objections to Report and Recommendations on

Plaintiffs Motion for a Temporary Restraining Order (Ds Objections), p. 2 n.1.

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Plaintiffs request for a TRO was premised on the urgent need to ensure preservation of all back-

up copies of the deleted emails pending resolution of this lawsuit because without this assurance,

plaintiff and the public risk losing access to this important body of historical documents. As

Judge Facciola recognized, if the only remaining copies of these records are not preserved this

lawsuit becomes essentially an academic exercise. Transcript of Motions Hearing Before the

Honorable John M. Facciola, October 17, 2007, p. 6 (attached as Exhibit 4).

While the preservation order recommended by Judge Facciola protects against the loss of

valuable historical records, it leaves unanswered critical questions that cannot be answered

without additional factual inquiry. Most fundamentally, the White House defendants have

refused to identify anything about the still-existing body of back-up copies, including what time

period they cover, the extent to which they contain any of the missing emails and whether there

are other copies beyond what the defendants have referred to as [d]isaster recovery tapes

relating to the official, unclassified Executive Office of the President email system.5 Nor have

the White House defendants identified the precise number of deleted emails and the extent to

which back-up copies of the deleted emails were destroyed prior to September 2007. This

missing information is crucial in determining the extent to which the missing email records can

be reconstructed and therefore the extent to which the plaintiff can be afforded full and effective

relief.

This information is also very time-sensitive. In just 14 months there will be a new

administration and there is no assurance that in the ensuing transition copies of deleted emails



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6 If defendants have their way, any preservation order will require them to preserve only

disaster recovery tapes for the official, unclassified [EOP] email system currently in the OAs

possession, custody or control, Ds Objections at pp. 2 n.1, 8, leaving them free to destroy other

copies that may exist, including what may be the only remaining copies of deleted emails.

7 The likelihood that such destruction has already occurred may be inferred from the

defendants opposition to plaintiffs motion for a TRO (Ds Oppos.), in which they attach a

single exhibit: a November 5, 1995 schedule authorizing the destruction of backup tapes which

contain records that are duplicated elsewhere for preservation and disposition. Ds Oppos.,

Exhibit 1, p. 4, 8. From this the White House defendants argue that the OA was permitted

under the FRA [Federal Records Act] to recycle, or delete, backup tapes when 90 days old.

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and other documents necessary or useful to restoration will be preserved.6 These same concerns

led the court in Bush v. Armstrong to enter a TRO at the end of the Reagan administration as

well as a TRO at the close of the Bush administration in 1992. See 807 F.Supp. 816, 820

(D.D.C. 1992) ([I]f records are erased at the end of the Bush Administration, the publics right

to access the subject records will be irreparably lost and harmed.). See also Express One Intl,

Inc. v. U.S. Postal Service, 814 F.Supp. 87, 92 (D.D.C. 1992) (recognizing need for quick

discovery in light of upcoming transition to new contractor).

Accordingly, it is critical to ascertain what time period is covered by the presently

existing back-up copies and, in particular, the disaster recovery tapes relating to the official,

unclassified [EOP] email system. To the extent this particular set of tapes does not encompass

all of the missing emails, it is essential that other copies are preserved, whether or not they were

created specifically for disaster recovery efforts and whether or not they are currently in the

OAs possession, custody or control.

This information may also reveal the extent to which any of the defendants has already

destroyed any back-up copies of the deleted email records or transferred them out of the OAs

possession, custody or control.7 Separate and apart from the illegality of any such action, it is



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Ds Oppos. at 11.

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critical to ascertain what back-up copies may have been destroyed to determine what additional

steps can and should be taken to replicate those copies before the end of President Bushs term in

office. These other copies, however, whether in hard drives or other repositories, are only

accessible for the duration of President Bushs term, after which they will be cleaned out for the

incoming president. Accordingly, it is critical to pinpoint what back-up copies are presently

available and what back-up copies have been destroyed to explore, in the short time that remains,

alternative methods of restoring the millions of deleted email records.

It is also essential to secure the documentation assembled by the OA when it first

discovered the missing email problem in October 2005. This documentation will shed light on

the scope of the missing email problem and how it can be redressed. In particular, the recovery

plan that the OA developed after it discovered the deleted emails, which called for restoring the

deleted emails from then-existing back-up tapes, will confirm what back-up copies must

presently be preserved for a successful restoration effort. Given the current dispute between the

parties as to precisely what should be preserved to prevent irreparable injury, this document

would streamline the courts processes, would limit or eliminate altogether lengthy satellite

litigation over threshold preservation issues, and would present no hardship for the White House

defendants to produce.

CREW has sought this information under the Freedom of Information Act (FOIA) and

its FOIA request is the subject of a separate lawsuit, CREW v. OA, Civil No. 07-0964 (CKK)

(D.D.C.), in which the White House has argued that the OA is not an agency and therefore is not



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8 In arguing that it is not an agency subject to the FOIA, the OA reversed the course it has

followed since its inception of holding itself out as an agency and complying with all of the

FOIAs requirements, including the promulgation of FOIA regulations (found at 5 C.F.R. Part

2502).

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subject to the FOIA.8 The status of these documents as agency or non-agency records for

purposes of the FOIA, however, does not place them beyond CREWs reach in this litigation,

where they are clearly fair game for discovery. As highly relevant evidence of the scope of the

email problem and what needs to be preserved to ensure the Courts ability to award plaintiff full

and effective relief, these documents should be disclosed at the outset of this litigation.

Finally, documents about the architecture of the email storage system that the EOP used

between March 2003 and October 2005, the period during which the millions of emails were

deleted, and the email storage system currently in use by the EOP (to the extent, if any that it

differs) would be enormously useful in sharpening the focus of this litigation, especially as the

Court grapples with what preservation obligations it should impose on the defendants. The

White House defendants have made it clear that absent discovery, they will not provide answers

to even the most basic questions. See, e.g., Defendants Opposition to Plaintiffs Motion for a

Temporary Restraining Order, p. 17. Yet basic information about how the email storage system

works will go a long way towards assessing what must currently be preserved and why. And, as

with the recovery plan developed by the OA, production of these documents will not be a

hardship for the defendants.

In sum, the backdrop of this case presents compelling reasons why expedited discovery is

warranted. Under this administrations watch, millions of email have gone missing and the

White House has done nothing to reconstruct those historically important federal records or take



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steps to prevent further document destruction. When confronted with requests for information

about the missing email problem, the White House has unilaterally removed itself from the

public arena altogether by declaring that the OA is no longer an agency subject to government

sunshine laws. In the short life of this lawsuit the White House defendants have refused to give

adequate assurances of document preservation, refused to provide basic information and refused

to meet with plaintiffs counsel to plan for discovery. Most recently, in their objections to Judge

Facciolas report and recommendation, the defendants have objected to preserving back-up

copies under conditions that will permit their eventual use. Defendants Objections, p. 7.

Clearly the defendants do not share the plaintiffs goal of preserving these documents for future

public access. The defendants conduct coupled with the risk that critical evidence will not be

preserved provide ample support for the limited discovery plaintiff seeks to conduct at this

juncture.

II. THE COURT SHOULD COMPEL THE DEFENDANTS IMMEDIATELY

TO MEET AND CONFER AS RULE 26(f) REQUIRES.

Rule 26(f) of the Federal Rules of Civil Procedure states in clear, unambiguous terms that

the parties to a civil lawsuit must, as soon as practicable confer on a number of issues,

including the nature and basis of their claims and defenses, to arrange for the initial disclosures

that Rule 26(a)(1) requires of the parties, to discuss any issues relating to preserving

discoverable information, and to develop a proposed discovery plan . . . The Rule further

provides that [t]he attorneys of record . . . are jointly responsible for arranging the conference,

for attempting in good faith to agree on the proposed discovery plan, and for submitting to the

court within 14 days after the conference a written report outlining the plan. Fed. R. Civ. P.

26(f)(6).



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Courts interpreting this rule have emphasized that [t] responsibility for arranging this

conference and initiating discovery is placed squarely on the shoulders of the attorneys of record

and not on the district court. Scott v. Graphic Communications Internatl Union, 2004 U.S.

App. LEXIS 4979 *3 (3d Cir. 2004). Moreover, [w]hile Rule 26(f) does not state with

precision when such a conference between the parties must occur, it does provide that it should

take place as soon as practicable . . . OMG Fidelity, Inc. v. Sirius Technologies, Inc., 239

F.R.D. 300, 303 (N.D.N.Y. 2006).

Pursuant to this mandatory obligation, CREW has attempted more than once to arrange

for a conference, proposing complete availability within a two-week window of time. To date,

however, defendants counsel has refused to respond substantively to this request, refused to

identify her availability to meet and refused to provide alternative dates. This conduct is a

complete abrogation of the responsibilities that defendants counsel shares with plaintiffs

counsel under Rule 26(f).

It may be that defendants are attempting to avoid discovery, given the prohibition in Rule

26(d) on conducting discovery prior to the Rule 26(f) conference, absent agreement of the parties

or court order. This, of course, would be highly improper, particularly given that one of the

purposes that the Rule 26(f) conference is intended to serve is to identify the parties positions

on discovery.

Under these circumstances and particularly in view of the pressing need for discovery

and the time-sensitive nature of this lawsuit, as discussed herein, defendants should be ordered to

meet and confer immediately with plaintiff pursuant to Rule 26(f), whether or not the Court also

grants plaintiff leave to conduct expedited discovery.



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CONCLUSION

For the foregoing reasons, plaintiff respectfully requests that its motion for expedited

discovery be granted. Plaintiff further requests that defendants be ordered to immediately meet

with plaintiff pursuant to Rule 26(f) of the Federal Rules of Civil Procedure.

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 450

Washington, D.C. 20530

Phone: (202) 408-5565

Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: October 26, 2007



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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

- - - - xIn the Matte r of:CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON, D.C.P l a i n t i f f ,

vs .THE EXECUTIVE OFFICE OF

THE PRESIDENT, e t a l . ,Defendants .

Civ i l Action No. 07-1707

Washington, D.C.- - - - - - - - - - - - - - - - x October 17, 2007

TRANSCRIPT OF MOTIONS HEARINGBEFORE THE HONORABLE JOHN M. FACCIOLA

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:For th e P l a i n t i f f :

For the Defendants :

ANNE L. WEISMANN, ESQ.MELANIE SLOAN, ESQ.HELEN HONG, ESQ.JOHN TYLER, ESQ.CARL NICOLS, ESQ.

P roce ed ings r eco rded by the Court , t r an sc r i p t produced byPro-Typi s t s , Inc . , 1012-14 th St r ee t , N.W., Sui t e 307,Washington, D.C. 20005, 202-347-5395, www.pro-typists .comM2085V/bf



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1 P R O C E E D I N G S2 THE CLERK: Civ i l Case 07-1707, Cit izens fo r3 Respons ib i l i ty and Ethics in Wash ingt on , D .C ., versus the4 Execut ive Off ice of the Pres ident , e t a l . Anne Weismann5 fo r the Pla in t i f f , Helen Hong fo r the Defendants. This i s6 a motions hearing on a temporary re s t ra in ing order fo r7 Ms. Weismann ( inaudib le) .8 MS. WEISMANN: Good morning, Your Honor, and I 'm9 here also with Melanie Sloan, our execut ive d i r ec to r .

10 THE MAGISTRATE JUDGE: Good morning. Good11 af te rnoon, I 'm sorry .12 MS. HONG: Good af te rnoon, Your Honor. Helen Hong13 on beha l f of the United Sta tes Defendants, and along w ith me14 are John Tyler and Carl Nicols .15 THE MAGISTRATE JUDGE: Good af te rnoon.16 A ll r i gh t . I ' ve reviewed the p ap ers here and I17 was wondering if it i s poss ib le a t t h i s po in t to forge a18 s t i pu l a t i on t ha t would be s imi la r to the s t i pu l a t i on t ha t19 the l a t e Judge Penn brought about in 2006.20 As I understand it - - and t h i s i s what confuses me21 i s th e problem a t th is po in t and the d i f fe rence between22 you, th e d i f fe rence between backup t apes and d i sas t e r23 recovery backup tapes? And if so, what i s the d i f fe rence24 between those two th ings , if there i s a d i f fe rence .25 MS. WEISMANN: May I address t h a t , Your Honor?



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I am answering your ques t ion , butMS. WEISMANN:

THE MAGISTRATE JUDGE: Please .MS. WEISMANN: Thank you. Your Honor, t h a t ' s one

i s sue , but l e t me t e l l you - -THE MAGISTRATE JUDGE: Well, it's the i s sue I want

to t a l k about r i gh t now.MS. WEISMANN: Right , okay, yes . Becau s e - -THE MAGISTRATE JUDGE: I f you - - l e t me ask you

As your understanding i s , we know t ha t e f fec t ive ont h i s .September 27 when th i s l awsui t got s t a r t ed , the government - I'll use th e word as broadly as I can, because the re areso many Defendants here - - s topped recycl ing t apes becauseof the exis tence of th i s lawsui t . Do you understand t ha tany o ther backup tapes ex i s t t ha t came in to exis tence beforeSeptember 27th, 2007, and have not been recyc led? And i ft h a t ' s so , why can ' t we j u s t put them to one s ide fo r thet ime being? Would t ha t resolve your concern?

with a little l a t i tude because he re ' s the problem. What wedon ' t know and what we have been t ry ing to get from theWhite House Defendants i s an explana t ion of what theexis t ing body of backup t apes and copies are . And I say"copies" because it's our unders tand t ha t they may ex i s t ino ther mediums bes ides tapes , but a l l t ha t we have been to ldi s th e word "d i s a s t e r recovery t ape , " and we don ' t know i ft ha t encompasses these o ther mediums.

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t h i s was t h e o rd in ar y c i v i l c a s e , Suzie Smith a g a i n s t JoeBlow o r something. All r i g h t . We know, under t h e amendedFedera l Rules , p a r t i e s would be o b l i g e d t o g e t t o g e t h e r andt a l k about p r e s e r v a t i o n . The i s s u e would q u i c k l y a r i s e , Isuppose, what kind of backup t a p e s a r e i n e x i s t e n c e . And

And of course t h e r e i s a disagreement , j u s t so youa p p r e c i a t e , Your Honor, between them saying t h e i r onlyo b l i g a t i o n i s under the Federa l Rules o f C i v i l Procedure andour p o s i t i o n , which i s by law you a r e r e q u i r e d t o preserve amuch l a r g e r universe of t a p e s than j u s t what was i n yourp o s s e s s i o n as o f September 25th.

So t h e only r e p r e s e n t a t i o n t h a t we have today,and t h i s i s a l l I can t e l l you because t h i s i s a l l t h a t t h egovernment has t o l d us, i s t h a t whatever they had i n t h e i rhands as f a r as d i s a s t e r recovery t a p e s on September 25ththey w i l l keep, I have no idea what t h a t encompasses. I f itdoes not encompass a l l of the backup copies t h a t they have,we say t h a t it i s p a t e n t l y d e f i c i e n t .

So because -- and I t h i n k t h a t i s - - we had hoped,Your Honor, and t h a t ' s why we went back t o them again andagain , t o be a b l e t o forge some kind of a s t i p u l a t i o n , but

j u s t c o u l d n ' t g e t th e n ec essa ry i n f o r m a t i o n . So Ic e r t a i n l y welcome t h i s o p p o r t u n i t y if t h i s Court i s mores u c c e s s f u l than we a r e .

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1 t ha t ' s my quest ion to you. And it's the same quest ion I2 j u s t asked her .3 Independently of the backup t apes t ha t were In4 exis tence on September 27, 2007, are th ere o ther backup5 t apes t ha t are p resen t in e xis ten ce and, if they are , would6 you be wi l l ing to p re se rv e th ose un t i l Judge Kennedy can7 ru le more subs tan t ive ly on the i s sues presented .8 MS. HONG: Sure. Your Honor, I th ink --9 THE MAGISTRATE JUDGE: "Sure , " you wil l?

10 MS. HONG: Well, l e t me address t ha t in two par t s .11 The f i r s t i s , we have represented what we mean by d i s a s t e r12 recovery t apes . In Exhib i t 5 to P l a i n t i f f ' s motion, w e've13 ind ica ted to Pla in t i f f t ha t the d i sas t e r recovery tapes are14 the backup tapes to which CREW r e f e r r ed in t h e i r f i r s t and15 second l e t t e r s . Second, the re are add i t iona l backup t apes16 in a dd it io n to the ones t ha t were in the O ffice of17 Admin is t r a t ion ' s possess ion on September 25th .18 We have represented t ha t to the ex ten t t ha t there19 are backup tapes fo r e -m a ils g en era te d by EOP components20 a f t e r September 25th, t ha t those backup tapes are not being21 recyc led and wi l l be mainta ined by the Office of22 Adminis t ra t ion cons i s t en t with i t s prese rva t ion ob l iga t ions .23 THE MAGISTRATE JUDGE: Well, l e t me -- you can24 help me here . Let me t e l l you what happens in t h i s25 courthouse . A ll r igh t?



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1 On Tuesday evening, the backup tapes fo r our2 opera t ion on Monday and T uesday are d eliv ere d to IMM and3 taken from the premises . On Thursday, the same people come4 back and br ing the tapes they have and exchange them fo r the5 ones t ha t have been created fo r Wednesday and Thursday.6 That c on sta nt r ec y cli ng process i s always going on. Which7 leads me to be lieve t ha t on Thursday, the backup tape t ha t8 was used on Tuesday has been ob l i t e r a t ed and recycled.9 Is t ha t what you mean?

10 MS. HONG: The backup tapes t ha t have been crea ted11 a f t e r September 25th, 2007, have not been recyc led .12 THE MAGISTRATE JUDGE: So they are s i t t i ng13 somewhere, and t he re ' s no doubt in anyone 's mind t ha t you14 wi l l p rese rv e th ose and you wi l l not recyc le them.15 MS. HONG: As we have ind ica ted to P l a i n t i f f on16 numerous occasions.17 THE MAGISTRATE JUDGE: All r i gh t , but you see18 P l a i n t i f f ' s problem. She wants to know about a l l these19 o ther backup t apes t ha t are in exis tence t ha t are somewhere20 in th at o ff ic e t ha t came in to exis tence before21 September 25th, 2007. And what I thought she was t ry ing to22 get with her l e t t e r s was an assurance from you t ha t whether23 or not they are sub jec t to the FRA, they wi l l be preserved24 so t ha t her lawsui t doesn ' t become an academic exerc i se .25 Because they wi l l be the only d ep os ito ry o f t ha t which i s



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it may be gone. And t h e r e f o r e , you w i l l keep them.In a sense, t h e same o b l i g a t i o n I would a t l e a s t

cons ider imposing on o r d i n a r y c i v i l l i t i g a n t s before me.All r i g h t , d o n ' t d e s t r o y t h a t s t u f f j u s t y e t . I d o n ' t knowif t h e y ' r e e n t i t l e d t o it, I d o n ' t know if t h e y ' l l ever getnear the backup t a p e s , but t h e r e ' s no reason t o worry aboutt h a t . All we got t o do i s put them i n a s e p a r a t e drawer sothey c a n ' t be r e c y c l e d . Are you w i l l i n g t o do t h a t ?

MS. HONG: We have r e p r e s e n t e d t o t h e P l a i n t i f ft h a t a l l o f t h e backup t a p e s , or t h e d i s a s t e r recoveryt a p e s , i n t h e O f f i c e of A d m i n i s t r a t i o n ' s p o s s e s s i o n beforeSeptember 25th , 2007, a r e being and w i l l cont inue t o bemainta ined during t h e course of t h i s l i t i g a t i o n .

THE MAGISTRATE JUDGE: And they w i l l not ber e c y c l e d .

MS. HONG: They w i l l not be r e c y c l e d and have notbeen r e c y c l i n g - - r e c y c l e d .

THE MAGISTRATE JUDGE: Does t h a t s a t i s f y you,ma'am?

MS. WEISMANN: No, Your Honor, it d o e s n ' t . Istill t h i n k - - excuse me -- what w e ' r e g e t t i n g i s -

THE MAGISTRATE JUDGE: Why d o n ' t you s i t down,counsel .

MS. WEISMANN: We're g e t t i n g a very - - I t h i n k ifyou l i s t e n c a r e f u l l y , we're g e t t i n g a - -

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Because f i r s t of a l l , l e t me poin t out t h a t the Defendantsin t h i s case inc lude the others beyond the Office ofAdminis t ra t ion . And if I heard co r rec t l y , I heard anadmission from White House counsel - - from t h e i r counselt ha t th e re a re documents or backup copies in othe r en t i t i e s 'possess ion . So we bel ieve t ha t what they must bea cc ounta ble h ere fo r i s the -- whatever backup copies werecrea ted from 2003 forward. And if they have beent r ans fe r red to con t rac to r s , if they 've been t rans fe r red toother en t i t i e s with the Executive Office of the P residen t,which i s i t s e l f a named Defendant here , they must beaccountable fo r them.

And I guess my concern, Your Honor, i s t ha t whatI 'm hear ing i s th i s very -- what to me sounds l ike a verynarrow rep resen ta t ion . Which, aga in , comes down to ,whatever they phys ica l ly had in t h e i r possess ion they wil lcont inue to preserve , but what they h av en 't sa id i s , beyondt ha t what 's th e un iverse .

And I go back to , in our minds the re i s still nota common und ers ta nd in g o f what d i sas t e r recovery tapesmeans. And when we asked very spec i f i ca l l y , what aboutdisks , what about DVDs, what about CDs, we d idn ' t get a

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s t r a i g h t answer, and t h a t ' s not a compl ica ted q u e s t i o n .THE MAGISTRATE JUDGE: Well , I t h i n k we'd a l l

agree we would put DVDs and CDs i n a very d i f f e r e n t c a t e g o r y

not s e m a n t i c . T h a t ' s very d i f f e r e n t . The p r o c e s s I ' mt a l k i n g a b o u t , t h e I r o n Mountain p r o c e s s , t h a t happensi n d ep e n d e n t ly o f my w i l l as a p a r t i c i p a n t i n t h e network.But as r e c e n t l y as y e s t e r d a y , t o keep t h e c l u t t e r o f mye - m a i l from d r i v i n g me c r a z y , I t r a n s f e r r e d q u i t e a few o ft h e e - m a i l s t o a DVD. Now, I p u t t h a t away.

I t a l k about when I r o n Mountain comes h e r e . The l a r g emagnet ic t a p e s on which d a t a i s r e c o r d e d . CDs and DVDs, Iagree - - I t h i n k we a l l a g r e e , do not f a l l w it h i n t h ed e f i n i t i o n o f d i s a s t e r r e c o v e r y t a p e s . But you want themp r e s e r v e d as w e l l .

MS. WEISMANN: Well , it's my u n d e r s t a n d i n g - - andI have no way t o t e s t t h i s u n l e s s t h e government i s w i l l i n gt o give me t h i s i n f o r m a t i o n - - t h a t some o f what we wouldc a l l d i s a s t e r recovery t a p e s may be s t o r e d i n mediums l i k eDVD t h a t i n f a c t -- I know i n t h e c o r p o r a te world t h e y a r eg oin g tow ard t h e s e o p t i c a l t h i n g s . So I ' m still t a l k i n gabout what we would c a l l t h e backup c o p i e s t h a t werei n t e n d e d , you know, t o be a backup copy i n t h e wake o f ad i s a s t e r where t h e m a t e r i a l i s d e l e t e d .

THE MAGISTRATE JUDGE: But, you know, b u t t h a t ' s

D i s a s t e r r e c o v e r t a p e s a r e whato f d i s a s t e r recovery t a p e s .

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t ha t any so r t of a backup t ape in the same sense t ha t i f ,God forbid , the re was a t ra ge dy here and the cour t systemcol lapsed, we could still open tomorrow morning becauseth ese tapes are in e xis te nc e. That DVD doesn ' t have thesame func t ion . And I would not ca l l it pa r t of a d i s a s t e rbackup t ape . It's a d i f f e r en t th ing . I th ink it's f a i r tosay it i s other media designed, in ten ded or capable ofpreserving informat ion, and you want t ha t preserved, aswel l .

MS. WEISMANN: What we want preserved i s whateverbackup media the i n s t i t u t ion of the Execut ive Office of thePres ident , through the Office of Adminis t ra t ion , i s ourunders tanding, uses to preserve da ta t ha t can be usedfo rens ica l ly fo r discovery recovery.

I f ind iv idua l s w ithin th e White House createsepara te ly t h e i r own DVDs, we had not intended t ha t to beencompassed, but I j u s t want to be c l ea r , because I f ee ll ike t he re ' s been such a re lu cta nc e to engage in a dialogueor have informat ion f low, t ha t when we say " tapes , " i f infac t , as an i n s t i t u t i ona l mat te r , they automat ical ly back upth ings in a DVD and it happens beyond the wi l l of anyind iv idua l , t ha t t ha t would be encompasses, as well .

We j u s t want those assu rances, o r e l se to be to ld ,

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sure I brought the copy with me.THE MAGISTRATE JUDGE: All r i gh t . Let me read it

I 'm j u s t

I f we couldTHE MAGISTRATE JUDGE: All r i gh t .

MS. HONG: No, I know we submi t t ed it.

"Well, as it tu rns out , the only medium we use i s tapes ,"and t ha t ' s what we've been a f t e r . I 'm not asking tha t everyind iv idua l w ith in the White House must preserve every copy.And we h av en 't g otte n tha t kind of assurance .

THE MAGISTRATE JUDGE: Is th a t c le a r now?MS. HONG: You know, I don ' t know how the White

House Defendants could have made more c l ea rTHE MAGISTRATE JUDGE: Okay. Maybe - - I ' ve looked

a t the exchange of correspondence between you. Is ithe lp fu l to look a t the I assume t he re ' s a - - there mustbe, I know I saw t h i s , so I assume it's co r rec t - - the re i san order in here t ha t Defendants proposed?

MS. HONG: There was a proposed order , Your Honor.

have it.

f ind t ha t , maybe you could show me where i t s def ic iency i sand we could get down to prac t i c a l cases and t a lkspec i f i ca l l y about what we' re going to say and resolve i t .Give me a moment. I'll have to f ind it.

MS. HONG: You know, I 'm th inking t ha t I may notI 'm sorry .THE MAGISTRATE JUDGE: No, he re ' s the proposed

ord er h ere .

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1 so we both have it. Did you want me t o - - why d o n ' t we t a k e2 two minutes and g e t copies f o r everybody.3 MS. HONG: I apologize .4 THE MAGISTRATE JUDGE: Get copies o f t h i s for5 everyone. W e ' l l g e t a copy f o r you, counsel . J u s t a6 moment. Thank you.7 A l l r i g h t , l e t ' s look a t t h e proposed o r d e r .8 Okay. What I was t h i n k i n g of doing, s i n c e t h e s u r e s t way t o9 d e s t r o y a document i s have it d r a f t e d by a committee, I was

10 t h i n k i n g o f t a k i n g a ten-minute r e c e s s t o see if you can11 maybe work t h i s o u t . I f you can, I'll come back. So why12 d o n ' t we say 2:30, okay? I 'm sure sweet reason w i l l13 p r e v a i l .14 W e ' l l be i n r e c e s s till 2:30. Talk t o each o t h e r ,15 okay?16 (Whereupon, a b r i e f r e c e s s was t a k e n . )17 THE CLERK: We're back on t h e record , Judge.18 THE MAGISTRATE JUDGE: How a r e we doing?19 MS. WEISMANN: Well, Your Honor, speaking for the20 P l a i n t i f f , we made two p r o p o s a l s , n e i t h e r o f which was21 accepted .22 F i r s t , we were advised about midway through, t h a t23 i n f a c t t h e White House Defendants a r e both completely24 l l i n g t o - -25 THE MAGISTRATE JUDGE: Why d o n ' t you s i t down,



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THE MAGISTRATE JUDGE: Why don ' t you t e l l me whyso I can t e l l Judge Kennedy.

MS. WEISMANN: Okay. Real ly , t he re ' s a couple of

we be l ieve we' re t a lk ing about the - - we are t a lk ing aboutthe body of backup copies t ha t ex i s t s throughout the EOP,and it's d i f f i c u l t to imagine what dec la ran t they could gett ha t would have the au thor i ty to t a lk to a l l t ha t .

But I th ink more s i gn i f i can t , Your Honor, we

counse l , so she can --MS. WEISMANN: Completely unwil l ing to agree to a

Court -ordered - - to a Court orde r .THE MAGISTRATE JUDGE: Okay.MS. WEISMANN: And t ha t we also then proposed what

about a s t ipu la t ion between the par t i e s t ha t ' s submit ted tothe Court fo r and were to ld th a t th a t also wasnot acceptable .

Before tha t we had proposed some modifyinglanguage to our own order to address what we unders toodt h e i r concerns were. And in a dd it io n, the of f e r they havemade and I 'm ce r ta in ly happy to l e t them expla in i t , i st hey ' r e wi l l ing to do a dec la ra t ion t ha t theywould provide to us. And t ha t ' s unacceptable and I can t e l lthe Court why, but we ' re happy to But as I sa id

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1 r e a l l y need some th in g t h a t , if it's not complied with , we2 have some mechanism t o seek r e l i e f . And we a l s o t h i n k , Your3 Honor, j u s t the course of the d e a l i n g s between the p a r t i e s4 on t h i s i s s u e so f a r r e a l l y , you know, b r i n g s very5 heightened concerns , you know, t h a t t h e r e ' s so much6 wordsmithing and p a r s i n g going on, we t h i n k w h a t ' s c r i t i c a l7 t h i s p o i n t , we j u s t need a c r y s t a l - c l e a r o r d e r t h a t both8 p a r t i e s unders tood e x a c t l y what it means.9 And, you know, what I d o n ' t want t o happen and I 'm

10 sure nobody does, i s t h a t we have a l o t of s a t e l l i t e11 l i t i g a t i o n over t h i s i s s u e . So we t h i n k t h e b e s t way i s12 through a Court o r d e r o r , as I s a i d , we're w i l l i n g t o agree13 t o a s t i p u l a t i o n t h a t ' s e n t e r e d as a Court o r d e r . E i t h e r14 way.15 THE MAGISTRATE JUDGE: But t h a t ' s not acceptable16 t o t h e United S t a t e s , i s t h a t t r u e ?17 MS. HONG: Yes, Your Honor. Our p o s i t i o n i s t h a t18 t h e P l a i n t i f f has not p r e s e n t e d t h e p r e d i c a t e case f o r an19 o r d e r on a temporary r e s t r a i n i n g o r d e r t o - -20 THE MAGISTRATE JUDGE: Okay, w e l l , l e t ' s -- I21 unders tand your p o s i t i o n . Let me then t u r n t o t h a t i s s u e .22 We're a l l agreed t h a t t h e s t a n d a r d s a r e wel l23 a r t i c u l a t e d In t h e case law of t h i s j u r i s d ic t i o n . So we24 have, f i r s t of a l l , l i k e l i h o o d of success on t h e m e r i t s , we25 have a t h r e a t of i r r e p a r a b l e harm, we have t o a s c e r t a i n



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A d m i n is tr a t io n m a in ta in s p o s s e s s io n and c o n t r o lTHE MAGISTRATE JUDGE: Counse l , can I ask you

something? What 's so t e r r i b l y s i g n i f i c a n t aboutSeptember 27? Admit tedly , t h e F e d e r a l Rules o f C i v i lProcedure as amended d i r e c t our a t t e n t i o n t o t h ecommencement o f t h e l a w s u i t .

But a t common law, as t h e many c a s e s on s p o l i a t i o ni n d i c a te t o us , p a r t i e s have a common law r e s p o n s i b i l i t y t op r e s e r v e what may be evidence. So it would fo llow , then ,t h a t e l e c t r o n i c evidence t h a t came i n t o e x i s t e n c e p r i o r t ot h e i n c e p t i o n o f t h i s l a w s u i t may n e v e r t h e l e s s have t o bep r e s e r v e d a t t h e r i s k o f t h e r e being s p o l i a t i o n .

where t h e p u b l i c i n t e r e s t l i e s .Now, i n terms o f i r r e p a r a b l e harm and t h e p u bl i c

i n t e r e s t , would you concede t h a t o b v i o u s l y if i n f o r m a t i o n i sd e s t r o y e d t h a t i s a t t h e very h e a r t o f a l a w s u i t , t h a t t h eharm t h r e a t e n e d , a t l e a s t , t o t h e P l a i n t i f f s i s i r r e p a r a b l eand t h a t t h e r e i s a p u b l i c i n t e r e s t i n i t s p r e s e r v a t i o n a tl e a s t u n t i l Judge Kennedy can a c t ?

MS. HONG: And t h e r e i s no harm t h r e a t e n e d here ,Your Honor. The Defendants have made t h e r e p r e s e n ta ti o nt h a t it would p r e s e r v e and m a i n t a i n t h e backup t a p e s or t h ed i s a s t e r r e c o v e r y t a p e s t h a t were i n e x i s t e n c e as o fSeptember 25th , 2007. In our d i s c u s s i o n s , we o f f e r e d t o

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MS. HONG: Yeah, and based on th e rep re sen ta t ionst h a t Defendants have made, the re i s no need to again enmeshthe Cour t in t h a t type of determina t ion .

THE MAGISTRATE JUDGE: And f i na l ly , on success onthe mer i t s . This may t ake a b i t of t ime. I apologize if Ikeep you up t he re too long .

But as I unders tand your pos i t i on , and I hope I 'mge t t i ng it r i gh t , we'd a l l agree in l i gh t of the Ci r cu i t ' sdec is ion in Armstrong versus th e Execut ive Office of thePres iden t , t ha t t he re are two s ta tu te s a t i s sue , thePre s i den t i a l Records Act and th e Federa l Records Act a remutual ly exc lus ive . It's imposs ib le fo r a document to bein both p laces . It's e i the r one o r the othe r .

P l a i n t i f f s contend, neve r the le s s , t h a t t he re i san independent s ta t ut o ry r e s p o n s ib i li ty under the Federa lR ecords A ct t ha t would per t a in to th e maintenance of recordsby t h i s pa r t , sec t ion or d iv i s ion with in the White House,it's Defendant ca l led th e Execut ive Off ice of the Pres ident ,Execut ive Off ice of the Presen t O ff ice of Admin i s t ra t ion .

But as I unders tand your pos i t i on from yourpapers , you drop a foo tno te and you con tes t whether thoseen t i t i e s a re agencies fo r the purposes of the app l ica t ion ofthe Federal Records Act. I s t h i s a t rue s ta tem ent of yourpos i t ion?

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FRA. "

THE MAGISTRATE JUDGE: Well, and t h a t ' s what

s p e c i f i c a l l y . The O ffic e o f A dm in is tra tio n does not f a l lw it h i n t h e d e f i n i t i o n of agency as used i n t h e FRA. Yes,Your Honor.

When I read t h a t along with t h e Court o f Appeals 'd ec i s i o n i n Armstrong versus the Executive O f f i c e of theP r e s i d e n t , i s n ' t it f a i r t o say t h a t a t l e a s t P l a i n t i f f shave some l i k e l i h o o d of success upon p r e v a i l i n g upon t h e i r

Because I found Judge Richey 's d e c i s i o n i nconcerns me.1995, i n which he s t a t e d , quotes , "In a r e l a t e d case,Armstro ng v . Executive Off ice o f t h e P r e s i d e n t __ I I f o rpurposes of the reco rd it should note t h a t I 'm read in g from876 Fed. Sup. , 1300, w h a t ' s s a i d t o be page 3 here i n theLexis copy of t h i s .

I read again , "In a r e l a t e d case, Armstrong versusExecutive O ffice of t h e P re s i d en t --" d e l e t e c i t a t i o n s - " t h i s Court held t h a t e l e c t r o n i c records c r e a t e d by theagency components of the Executive O ffice of t h e P re s i d en ta r e s u b j e c t t o t h e Federa l Records A ct and e n j o i n thea r c h i v i s t t o take a l l necessary s t e p s t o p r e s e r v e thee l e c t r o n i c f e d e r a l re co rd s g en er ate d by the e x e c u t i v eagencies i n t h i s system." Then he goes on t o say, "Thisi n j u n c t i o n did not apply t o p r e s i d e n t i a l r e c o r d s t h a t ares u b j e c t t o t h e P r e s i d e n t i a l Records Act r a t h e r than the

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a d m i n i s t r a t i o n , i s t h a t t h e case b e f o r e Judge Penn?MS. HONG: No, Your Honor.THE MAGISTRATE JUDGE: The c a s e b e f o r e Judge Penn

i n v o l v e s what agency o r component o f t h e P r e s i d e n t ' s Office?

c o n t e n t i o n t h a t t h e two Defendants h e r e , t h e Execut iveO ff i c e o f t h e P r e s i d e n t , t h e Execut ive O ff i c e o f t h eP r e s i d e n t ' s O f f i c e o f A d m i n i s t r a t i o n , a r e i n f a c t agenciess u b j e c t t o FRA?

MS. HONG: No, I t h i n k if you look a t t h e s p e c i f i ccla ims t h a t a r e a t i s s u e f o r t h e temporary r e s t r a i n i n g o r d e rh e r e , Counts 1 through 4, t h e y claim t h e r e t h a t t h e head o ft h e a g e n c i e s as w e l l as t h e a r c h i v i s t has f a i l e d i n t h e i rwhat t h e y c a l l a mandatory duty t o i n i t i a t e a c t i o n t o

by t h e i r t e rms , apply t o t h e head o f t h e a g e n c i e s o r t o t h ea r c h i v i s t s , n o t n e c e s s a r i l y t o t h e a g e n c i e s i n t o t o .

To t h e e x t e n t t h a t t h e r e a r e o b l i g a t i o n s f o ragency components o f t h e Execut ive O f f i c e o f t h e P r e s i d e n tt o m a i n t a i n r e c o r d s under t h e Federa l Records Act, c e r t a i n l ywe would a g r e e t h a t t h e Federa l Records Act does apply t oc e r t a i n a g e n c i e s w it h i n t h e Execut ive O f f i c e o f t h eP r e s i d e n t . There i s c u r r e n t l y ongoing l i t i g a t i o n , however,about whether t h e O f f i c e of A d m i n i s t r a t i o n f a l l s w i t h i n t h ed e f i n i t i o n o f an agency w it h i n t h e meaning o f t h e FRA.

C u r r e n t ongoing

Those s t a t u t e s ,

THE MAGISTRATE JUDGE:

r e c o v e r perhaps m i s s i n g o r d e l e te d r ec o r ds .

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Court of Appeals and Judge Richey 's d ec is io ns , th ere wasspec i f ic re fe ren ce to the s t a t u t e s t h a t crea ted NSC in terms

MS. HONG: The case before Judge Penn involved theDepartment of Homeland Secur i ty .

THE MAGISTRATE JUDGE: Oh, t h a t ' s r i gh t . Ithought t ha t in vo lv ed th e Secre t Service , i s t ha t - -

MS. HONG: And the Secre t Serv ice , you 're cor rec t .THE MAGISTRATE JUDGE: And Armstrong versus the

EO, Execut ive Office of the Pres ident , in vo lv ed th e Nat ionalSecur i ty Counci l .

MS. HONG: As one of the agency components of theExecut ive Office of the Pres ident , a l though

THE MAGISTRATE JUDGE: But again, i s Judge Richeywrong in h is i n t e rp r e t a t i on of FRA? This Court held tha te lec t ronic records created by th e agency components of theExecut ive Office of the P re sid en t a re sub jec t to the FederalRecords Act. Are not the Execut ive Office of th e P resid en tOffice of Adminis t ra t ion , i s t ha t not an agency component towhich Judge Richey was re fe r r ing?

MS. HONG: The agencies w ith in th e ExecutiveOffice of the P res iden t inc lude, fo r example, OMB or CEQUA.The Office of Adminis t ra t ion, however, i s not one of thoseagenc ies t ha t f a l l s within the de f in i t i on of an agencywithin the meaning of the FRA.

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THE MAGISTRATE JUDGE: In th e cases b efo re the



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of a t t empt ing to understand what th e Court of Appeals ca l l edwhether they had independent s t a t u t o ry r e spons ib i l i t y .Where would I f ind the s ta tu to r y d e f in i t io n of th er e s pons i b i l i t i e s of the Execut ive Off ice of the Pres iden t ,th e O ffice o f Adminis t ra t ion?

THE MAGISTRATE JUDGE: Well , I d idn ' t mean to pu tyou on th e spo t , bu t i s it c o ng re s si on a lly c re a te d o r was itc rea ted by th e pres iden t pursuan t to a CFR. From where doesit draw its au thor i ty?

MS. HONG: I haven ' t had an o pp or tu nity to reviewa l l o f t ho se mate r i a l s

THE MAGISTRATE JUDGE: A ll r i gh t .MS. HONG: -- and I can confer with my counse l

here , if you would l i k e . You know - -THE MAGISTRATE JUDGE: But th e po in t I 'm t ry ing to

make i s Judge Richey ' s dec i s i on , as th e man who, a f t e r a l l ,decided Armstrong versus EOP, i s t h a t th e agency componentsof th e EO, th e Execut ive Off i ce , a re su bje c t to th e FRA.

MS. HONG: Righ t , and th e agency components , tothe ex t en t t h ey are agenc ies w ith in the meaning o f th eFedera l Reco rds A ct. We wouldn ' t con t e s t - -

THE MAGISTRATE JUDGE: But he sa id agency - - buthe s a id agency components . Did he mean something d i f f e r en t ?

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I f I may?MS. HONG: I f you hold on one moment, Your Honor.



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1 t apes in i t s possess ion as of September 25th, 2007, are2 bei ng ma in ta in ed .3 I th ink t ha t Judge Richey 's order in the f i r s t4 Armstrong case , the 807 F. Sup., 816 case decided in 1992,5 i s i n s t ruc t ive fo r ou r p urpo se s here . There, the Cour t ' s6 order , unders tanding the ce r ta in narrow and eme rgency r e l i e f7 t h a t was reques ted in the temporary re s t ra in ing order8 motion, the re Judge Richey ordered, "De fend an ts h er eby are9 d i rec ted and ordered from t h i s day forward to preserve a l l

10 the cur ren t and ex i s t ing compu te r backup t apes in t h e i r11 custody as of the date of th i s order or herea f te r crea ted12 from the e lec t ronic communication systems. I t i s fu r the r13 ordered t ha t the Defendants are not to wri te over , erase or14 des t roy any of the informat ion on the aforementioned t apes . "15 Defendants here , the O ffice of Adminis t ra t ion , has16 provided to P l a i n t i f f prec i se ly t ha t rep resen ta t ion . Has17 of fe red to provide t ha t informat ion in a dec la ra t ion . And18 P la in t i f f has found t ha t inadequate. To th e ex ten t t ha t19 they seek the Court to exerc ise i t s emergency powers here ,20 they have provided not a shred of evidence in dic at in g t ha t21 i r r epa rable harm would accrue , par t i cu l a r l y in l i gh t of the22 rep resen ta t ions t h a t the Defendants have made.23 THE MAGISTRATE JUDGE: But I th ink you'd have to -24 - as I understand what t hey ' r e saying i s , t he re i s still a25 s s i b i l i t y t ha t without a Court order t h a t may happen. And



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s i n c e t h e burden on you i s not t h a t g r e a t ; indeed, it i s nog r e a t e r than t h e burden you are w i l l i n g t o undertake, thenhow can you say t h a t t h e p u bl i c i n t e r e s t i s not advanced bydoing t h a t .

I mean, if t h e TRO s t a n d a r d s a r e , as we know,an e v e r - s l i d i n g c a l c u l u s , the burden t o you i s e i t h e rn o n e x i s t e n t , because you say y o u ' r e w i l l i n g t o undertake it,or i n f i n i t e s i m a l . There i s a t l e a s t a compl icated l e g a li s s u e with r e f e r e n c e t o whether or not t h e Office ofAdminis t ra t ion i s an agency s u b j e c t t o FRA. There i s nodownside r i s k t o the p u b l i c i n t e r e s t by t h e p r e s e r v a t i o n .Haven ' t they made out t h e i r case f o r a TRO?

MS. HONG: No, the l e g a l s t a n d a r d r e q u i r e s t h a tP l a i n t i f f p r e s e n t a convincing p r e s e n t a t i o n or persuasivedemonst ra t ion t h a t i r r e p a r a b l e i s l i k e l y , and it's not onlyl i k e l y but it w i l l and imminently occur . Based onDefendants ' r e p r e s e n t a t i o n s t o the P l a i n t i f f and i t s f u r t h e rassurances t o provide what i s more than - - what i s r e q u i r e dmore than under t h e law, by providing a d e c l a r a t i o n ,P l a i n t i f f has sim ply not made out a case a t a l l f o r thei ssuance o f a temporary r e s t r a i n i n g o r d e r , be ca use th ey haveprovided no evidence and they c a n ' t provide evidence basedon Defendants ' r e p r e s e n t a t i o n s t h a t i r r e p a r a b l e harm wouldaccrue t o them.

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25 THE MAGISTRATE JUDGE: Thank you. Counsel?



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I want to , without so r t of being too piecemealabout t h i s , I want to address the i s sue t ha t was in the

the f a c t t ha t the tapes fo r the cour thouse are s to red of f s i t e . I t i s j u s t not simply - - it's no t t rue , Your Honor,it's simply not t rue t ha t they have p rovi de d a de qu ateassurances . And t ha t alone, we th ink , i s enough fo r ourr e l i e f .

about what we still don ' t know, because I th ink t ha t ' simpor tan t on the r e l i e f i s sue and on the m eri ts of ourrequ es t fo r r e l i e f . With a l l of the words t ha t have beenexchanged with the Court today, we still do not know whatthe body of ex i s t ing backup recovery tapes , whether we ca l lthem d i sas t e r recovery t apes or backup tape I mean,assuming we mean the same th ing , we don ' t know what theyare . All we have are r ep resen ta t ions about what i s in theOArs custody and con t ro l . And as we have expla ined to them,in t ry ing to c r a f t a s t i pu l a t ed order , t h a t the r e l i e f weare seeking i s broader than t ha t .

Unless they can t e l l us t ha t any and a l l copies ,if they ex i s t , would only be the re , and they haven ' t beenwi l l ing to say t ha t . This i s not a su i t bro ught onlyaga ins t the Office of Adminis t ra t ion . They have not beenw illing to t e l l us, fo r example, if t apes were t rans fe r red

I 'd l ike to s t a r t o ff by t a lk ing

You made re fe ren ce to

MS. WEISMANN:

o f f - s i t e to con t rac to rs , e t ce te ra .

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in your po in t of view?MS. WEISMANN: I t h ink , aga in , it can ' t - - it has

- - wel l . Looking from our language, I mean, it j u s t has tosay everyth ing t h a t ' s in t he i r possess ion , custody and

Armstrong Court t ha t counsel has asked t h i s Court to use asa model. The fac tua l se t t ing was very d i f fe ren t , and Ith ink t h a t 's c r i t ic a l. Armstrong came about because the rewas about to be a pres ident ia l t r ans i t i on . And the concernwas not what had happ en ed in the pas t , but the fac t , thel ike l ihood t ha t in the course of t ha t t r ans i t i on recordswould get l o s t . And t ha t i s why the emergency r e l i e f t h a twas sought and awarded was prospec t ive going forward.

We have a very d i f f e r en t case , Your Honor. As youknow, our l awsu i t i s premised on what has happened, in pa r t ,over the l a s t th ree years . The fac t t ha t mil l ions of e-m ailhave been de le ted from White House se rvers , the fac t t h a tthe White House has refused to take s teps to recover thoset apes , to preserve , res to re those t apes . The fac t th a t toth i s date the White House still does not have an appropr ia teand e f f ec t ive e lec t ronic record-keeping system. That ' s whatthe core of our l awsu i t i s about . It's a very, veryd i f f e r en t fac tua l s i t ua t ion than Armstrong, which i s why wedon ' t th ink the same order i s appropr ia te here .

I also want to t a lk a little - -

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THE MAGISTRATE JUDGE: How would it be improved,



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And I j u s t want to make a - - Your Honor had

r e l a t i ve ly minor tweaks. And then I th ink we have an ordert ha t I th ink appropr ia te ly provides us the kind of r e l i e fwe're se ek in g h ere , so we can l i t i g a t e and get to themer i t s .

con t ro l as of a d a te -c er ta in w i ll be preserved . And j u s tto be, you know - - so l e t me t e l l you what exact ly it i s ,looking a t our order , the tweaks t ha t we had proposed.

One was t ha t in the fourth l i ne , it says "Archivalcondi t ion backup copies in exis tence as of __ " and the datet ha t we would propose i s September 5th , 2007, the reasonbeing t ha t the Nat iona l Secur i ty Archive has also f i led alawsui t a lso before Judge Kennedy. Thei r l awsui t was f i l edon September 5th. So t ha t seems the appropr ia te date tobegin with .

We would inc lude language t ha t says t ha t t h i sobl iga t ion app l ie s to any and a l l copies in th e p oss es sio n,custody or con tro l of any and a l l of the White HouseDefendants .

And f ina l ly , Your Honor, we would want languagea t the end t ha t makes it c l ea r t h a t by agree ing to t ha t datethe P l a i n t i f f reserves the r igh t to seek r e l i e f fo r anydes t ruc t ion of backup tape or documents t ha t occurred pr io rto t ha t da te .

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But those are the minor what I th ink are



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1 s t a r t e d out with Judge Penn 's o r d e r . I 'm counsel of record2 i n t h a t c a s e . I 'm a l s o counsel o f record i n the O ffice of3 A d m i n i s t r a t i o n case, which i s before Judge K o l l a r - K o t e l l y .4 T h a t ' s t h e case t h a t r a i s e s the i s s u e of the OA s t a t u s as an5 agency. So I 'm p r e t t y wel l versed i n those arguments and6 would be happy t o answer your q u e s t i o n s .7 But Judge Penn 's case , again , was a very d i f f e r e n t8 c a s e . We were s o r t of i n the midst , you know, ongoing9 l i t i g a t i o n when a document t h a t t h e government f i l e d r a i s e d

10 a concern t o us t h a t they were not p r e s e r v i n g documents.11 We brought a motion. And what happened t h e r e , we had12 argument, t h e Judge - - I mean, t h e r e ' s a w r i t t e n t r a n s c r i p t ,13 so what I 'm saying i s r e f l e c t e d i n t h e t r a n s c r i p t . The14 Court was very concerned t h a t t h e government had not15 provided any proof , they wanted t o r e s t simply on t h e16 s ta te m e nt s o f counsel . Once the government o f f e r e d sworn17 d e c l a r a t i o n s -- and t h e r e was an o r d e r t h a t accompanied them18 - - we d i d agree v o l u n t a r i l y t h a t t h e case was moot.19 I mean, the concern we have here , as I s a i d20 e a r l i e r , however, i s t h a t we j u s t f e e l l i k e t h e r e ' s been so21 much wordsmithship and narrowness , and j u s t on a r e a l b a s i c22 l e v e l a r e f u s a l t o provide s o r t o f b a s i c i n f o r m a t i o n , t h a t23 we j u s t - - we f e e l t h a t a Court o r d e r i s c r i t i c a l .24 And I would say t h a t i n t h e case b e f o r e Judge25 Penn, t h e o t h e r t h i n g t h a t was so d i f f e r e n t than here i s we



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1 knew exac t ly what they were t a lk ing about . They came in2 with dec l a r a t i on s t h a t sa id , "These a re a l l th e records we3 have , and t h i s i s where t h ey ' r e being p rese rved and how4 t h ey ' r e be ing p rese rved . " And in f ac t , every t ime in t h a t5 case t h a t th e Sec re t Serv ice o r one o f its components has6 discovered new records , they have come in to Court w ith a new7 dec l a r a t i on , making it c l e a r t h i s i s what ' s in ex i s t ence .8 Here we c an ' t even get th e most bas ic exp lana t ion ,9 even if we have an order , o f what t h a t ' s going to cover , and

10 we t h ink t h a t would be c r i t i c a l . We t h ink everybody needs11 to know what a re t h e i r obl iga t ions and, you know, a re they12 complying with them.13 On th e mer i t s , I th ink - - to answer some o f your14 ques t ions about th e Off i ce of Admin i s t r a t i on . It was15 c rea ted by Pres iden t Car t e r by an e xe cu tiv e o rd er . It's a16 c r ea t i on o f e xe cu tiv e o rde r . And s ince its i n cep t i on , it17 has alw ays ac ted as an agency. Unt i l our l i t i g a t i on it has18 had a whole FOIA scheme, it publ i shed r egu l a t i on s . I f you19 went to th e White House web s i t e , un t i l q u ite r ec en tly , it20 in f a c t sa id very exp ress l y t h a t th e O ff ice o f21 Admin i s t r a t i on i s an agency. I t l i s t ed it a long with the22 EQIOIB.23 But, Your Honor, I don ' t even t h ink you need to24 de lve too deep ly in to t h a t i s sue , because whether o r no t the25 O ffic e o f A dm in is tra tio n i s an agency, we' re t a l k ing about



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THE MAGISTRATE JUDGE: Anything e l se?MS. HONG: I j u s t want to address one of the f i r s t

points t h a t Ms. Weismann r a i s ed , which was her concern tha tthe re a re d i s a s t e r recovery tapes or o the r tap es o uts id e ofthe Office of Adminis t ra t ion 's custody, possess ion or

records t h a t inc lude federa l records, and the governmentcan ' t deny t ha t . The problem i s , t hey ' r e commingled.Unlike th e C lin ton adminis t ra t ion , which had an ef fec t ivee lec t ron ic record-keeping system ca l l ed ARMS, which dumpedth ings in buckets , e i t he r it was a f edera l record or apre s iden t i a l record , t h i s adminis t ra t ion has dumped them inse rver s , t hey ' r e a l l commingled. So whether or not theOff ice o f Admin is tr at io n i s an agency, it can ' t be deniedtha t the miss ing e-mai l s inc lude f edera l records and t ha tthe backup tap e inc lu de federa l records . So I th ink in somerespects it's s o r t of a red herr ing to go down t ha t road.

I 'd be happy to answer any ques t ions you have onthe mer i t s .

THE MAGISTRATE JUDGE: I mean, I th ink you'veanswered a l l of them. What I would l ike you to do, i f youwould, i s , if you 'd be so kind, i s , in l i gh t of today 'sd iscuss ion , if you wanted to send me a r ev i sed proposedorder bye -ma i l , I 'd l ike to take a look a t it.

MS. WEISMANN:

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obviously would have no way of knowing whether the model weused here i s the same one used there . I don ' t know if theyof f - s i t e .

t rue , t ha t the Off ice of Adminis t rat ion wi l l maintain andwi l l cont inue to maintain fo r the pendency of t h i sl i t i ga t i on the d i sa s t e r recovery tapes t h a t were inex is tence as of September 25th or September 5th , 2007.

Adminis t rat ion has made the representa t ion t ha t it wil lmaintain and preserve a l l backup t apes in i t s possess ion,custody or cont ro l , which include a l l the r e levan t d i s a s t e rrecovery tapes .

( inaudible) Your Honor.THE MAGISTRATE JUDGE: No, I don ' t . I j u s t would

be, f rankly , very surpr i sed i f they d idn ' t go o f f - s i t e .That ' s why you send them of f - s i t e , so in the event of ad i sa s t e r you can ( inaudible) Okay. Thank you very much.I apprec ia te your answer.

I t ake it t ha t in the next couple of days, as Iformulate what I 'm going to do fo r Judge Kennedy, thee wi l lbe no des t ruc t i on . I have your assurance t ha t nothing wi l lchange, i s t ha t t rue?

The Office of

Yes, I don ' t know, and

Unless you have any fu r ther quest ions ,

The represen ta t ions we have made remain

THE MAGISTRATE JUDGE:

MS. HONG:

MS. HONG:

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THE MAGISTRATE JUDGE: Thank you.MS. WEISMANN: Your Honor, I don ' t mean to be

d i f f i cu l t here , but can we take t ha t to mean a ny th ing w i th inthe custody, possess ion or contro l of the White HouseDefendants?

THE MAGISTRATE JUDGE: That ' s the way I 'm

t h i s case , yes.MS. WEISMANN: Thank you.THE MAGISTRATE JUDGE: Unt i l I ru le . That ' s my

unders tanding. I f I 'm mistaken in t ha t unders tanding, Iexpect somebody to t e l l me very soon. Thank you.

The Court wi l l be in recess .(Whereupon, proceedings were concluded)

to ordinary pr inc ip les in the i n t e rp r e t a t i on of the FederalRules of Civ i l Procedure. And they have, s ince 1938, beenin te rpre ted to extend to informat ion or documents which area pa r t y ' s possess ion , custody or con t ro l .

MS. WEISMANN: But I j u s t wanted to - -THE MAGISTRATE JUDGE: So I give not ice tha t I

i n t e rp re t those words in the same exac t way.MS. WEISMANN: Okay. And fo r a l l the White House

Defendants and not ( inaudib le) .THE MAGISTRATE JUDGE: For a l l th e Defendants in

I mean, a l l I can do here i s reso r tin te rpre t ing it, yes .

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UNITED STATES OF AMERICACiv i l Action No. 07-1707

DISTRICT OF COLUMBIA

I , PAUL R. CUTLER, do hereby ce r t i f y t ha t arecording o f the foregoing proceed ings in th e above matterwas dup l ica ted from an or ig ina l recording by the Office ofthe C lerk , United Sta tes Dis t r i c t Court fo r the Dis t r i c t ofColumbia, and t ha t sa id dupl ic at e r ec or din g o f theproceedings was t r anscr ibed under my d i r ec t ion totypewri t ten form.

PAUL R. CUTLERI do hereby ce r t i fy t ha t the foregoing t ransc r ip t

was typed by me and t ha t sa id t r an sc r i p t i s a t rue record ofth e re co rd ed p ro ceed in gs to the bes t

i(

Case 1:07-cv-01707-HHK Document 14-3 Filed 10/26/2007 Page


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____________________________________



Plaintiff, )

)


)



)

Defendants. )

____________________________________)

[PROPOSED] ORDER

The Court having considered plaintiffs motion for leave to conduct expedited discovery

and to compel a Rule 26(f) conference, defendants opposition thereto and the entire record

herein, it is hereby ORDERED that plaintiffs motion is GRANTED, and that plaintiff is hereby

given leave to conduct expedited discovery and it is further

ORDERED that the parties meet and confer within three business days of this order

pursuant to Rule 26(f) of the Federal Rules of Civil Procedure.

Dated: _________________ ______________________________

HENRY H. KENNEDY, JR.

United States District Judge

Case 1:07-cv-01707-HHK Document 14-4 Filed 10/26/2007 Pa

Documents

CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Motion for Discovery