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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZEN FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON )
)Plaintiff, )
)
v. ) Civil Action No: 1:07-CV-00964 (CKK)
)
OFFICE OF ADMINISTRATION )
)
Defendant. )
)
DEFENDANTS RESPONSE TO PLAINTIFFS MOTION TO
SUPPLEMENT OPPOSITION TO DEFENDANTS MOTION FORJUDGMENT ON THE PLEADINGS
Defendant Office of Administration (OA) hereby responds to plaintiffs motion to
supplement its opposition to defendants motion for judgment on the pleadings. As the
undersigned informed plaintiffs counsel shortly after plaintiffs motion to supplement was filed,
OA does not oppose the motion.
Dated: September 26, 2007
Respectfully submitted,
PETER D. KEISLER
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
JOHN TYLER
Senior Trial Counsel
Federal Programs Branch
____/s/________________________
JEAN LIN
Trial Attorney
Federal Programs Branch
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Department of Justice, Civil Division
20 Massachusetts Ave., N.W.
Washington, D.C. 20530
Tel.: (202) 514-3716
Fax: (202) 514-8470
E-mail: jean.lin@usdoj.gov
Counsel for Defendant
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 07-1577 (HHK/JMF)
THE NATIONAL SECURITY
ARCHIVE,
Plaintiff,
v.
EXECUTIVE OFFICE OF THE
PRESIDENT, et al.,
Defendants.
MEMORANDUM ORDER
Before the court is Plaintiffs Motion for Leave to Serve Expedited Discovery
Requests and to Compel Rule 26(f) Conference (Motion), which was referred to me for
resolution by Judge Henry H. Kennedy, Jr. on November 28, 2007.
a. Background
This case involves a claim by plaintiff, the National Security Archive (the
Archive), that several million email messages have been improperly deleted from White
House computer servers. Complaint for Declaratory, Injunctive, and Mandamus Relief
(Complaint) at 13-14. In its Complaint, filed on September 5, 2007, the Archive seeks
an order requiring the defendants to recover and restore certain electronic
communications created and/or received within the White House. Id. at 1.
On October 18, 2007, the Archive requested a meeting with defendants pursuant
to Rule 26(f)1 of the Federal Rules of Civil Procedure. Memorandum in Support of
1 All references to the Federal Rules of Civil Procedure are to the version that became effective December
1, 2007.
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Plaintiffs Motion for Leave to Serve Expedited Discovery Requests and to Compel Rule
26(f) Conference (NSA Mem.) at 4. That rule requires the parties to meet and confer
as soon as practicable to:
consider the nature and basis of their claims and defenses and thepossibilities for promptly settling or resolving the case; make or arrange
for the disclosures required by Rule 26(a)(1); discuss any issues about
preserving discoverable information; and develop a proposed discovery
plan.
Fed. R. Civ. P. 26(f)(1), (2). Six days later, the Archive filed the instant Motion seeking
an order expediting the commencement of discovery and compelling the parties to meet
pursuant to Rule 26(f) as soon as possible. Motion at 1.
b. The Motion
The Archive is primarily focused on obtaining answers to what back-ups of EOP
emails still exist and how their preservation is ensured. NSA Mem. at 7. Judge
Kennedy answered the latter question when, in a related case, he ordered defendants to
preserve all back-ups in the possess[ion of EOP] or under their custody or control.
Citizens for Responsibility and Ethics in Washington (CREW) v. Exec. Office of the
President, Civil Action No. 07-1707, Order at 2 (Nov. 12, 2007). Pursuant to that order,
defendants must preserve the media under conditions that will permit their eventual use,
if necessary, and shall not transfer said media out of their custody or control without
leave of this court. Id.As to the question of what back-ups of EOP emails still exist, the Archive seeks
to determine whether the back-ups now being preserved pursuant to Judge Kennedys
order contain the several million email messages it alleges have been improperly deleted
from White House computer servers. NSA Mem. at 7-9. If the back-ups do not contain
this information, the Archive would likely seek to recover the missing records from
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other sources, including individual workstations, or through other forensic means. NSA
Mem. at 9. That would not come without a fight, however. Defendants have vigorously
challenged the standing of the Archive to seek, and the jurisdiction of this court to
compel, restoration of electronic records.2
Defendants Consolidated Opposition To
Plaintiffs Motions For Leave To Conduct Expedited Discovery And Motion To Compel
Rule 26(F) Conference (Opp.) at 3 ([w]hether and how restoration efforts will be
undertaken is action committed to the administrative scheme); Defendants
Consolidated Motion to Dismiss Plaintiffs Complaints (Mot. to Dismiss) at 8-14.
c. Conclusion
To the extent that the missing emails are contained on the back-ups preserved
pursuant to Judge Kennedys order, there is simply no convincing reason to expedite
discovery particularly where, as here, there is a pending motion to dismiss. If the
missing emails are not on those back-ups, however, the relief likely to be requested by
the Archive will be beyond the scope of the present Motion and, indeed, beyond the
scope of this referral. The request for that relief will also be time-sensitive: emails that
might now be retrievable from email account folders or slack space 3 on individual
workstations are increasingly likely to be deleted or overwritten with the passage of time.
It is thus possible that a small amount of information not currently in the record
may have a large affect on the resolution of this Motion and the direction of this lawsuit.
2This argument is not without merit, as evidenced by a recent decision in which Judge Richard J. Leon
dismissed a similar case after holding that the court lacked jurisdiction to prevent the unlawful removal or
destruction of records protected by the Federal Records Act. CREW v. U.S. Dept. of Homeland Sec., No.
06-883, Slip. Op. at 17-18 (D.D.C. Dec. 17, 2007).
3 See United States v. Triumph Capital Group, Inc., 211 F.R.D. 31, 46 n.7-8 (D. Conn. 2002) (Slack
space is the unused space at the logical end of an active file's data and the physical end of the cluster or
clusters that are assigned to an active file. Deleted data, or remnants of deleted data can be found in the
slack space . . . until it is overwritten by new data.).
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With that understanding, the court will order the defendants to provide answers4
to the
following questions:
1. Are the back-ups5 catalogued, labeled or otherwise identified to indicatethe period of time they cover?
2. Are the back-ups catalogued, labeled or otherwise identified to indicatethe data contained therein?
3. Do the back-ups contain emails written and received between 2003-2005?4. Do the back-ups contain the emails said to be missing 6 that are the subject
of this lawsuit?
I will proceed to resolve the Motion after receipt of the defendants answers.
SO ORDERED.
Date: January 8, 2008 /s/
JOHN M. FACCIOLAUNITED STATES MAGISTRATE JUDGE
4 The answers are to be provided by counsel in a sworn declaration within the next five business days.
5 For purposes of these questions, the word back-up refers to media, no matter how described, presently
in their possession or under their custody or control, that were created with the intention of preserving
data in the event of its inadvertent destruction, and that are being preserved in accordance with JudgeKennedys order.
6 See NSA Mem. at 2 (The White House acknowledged in two April 2007 press conferences that as
many as 5 million emails may be missing.). Id. at 2 n.2 (Press Release, White House Office of the Press
Secretary, Press Gaggle by Dana Perino and Dr. Ali Al-Dabbagh, Spokesman for the Government of Iraq
(April 13, 2007) (White House spokesperson quoted as saying, I wouldnt rule out that there were a
potential 5 million emails lost); Press Release, White House Office of the Press Secretary, Press Briefing
by Dana Perino (April 16, 2007) (White House spokesperson quoted as saying, we are aware that there
could have been some emails that were not automatically archived because of a technical issue).).
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