CREW v. EOP: Regarding Missing WH Emails: 12/29/08 - CREWs Reply in Support of Renewed Motion For Leave To Conduct Expedited Discovery

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

FOR THE DISTRICT OF COLUMBIA
____________________________________
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil No. 07-01707 (HHK/JMF)
)
EXECUTIVE OFFICE OF THE )
PRESIDENT, et al., )
)
Defendants. )
____________________________________)
NATIONAL SECURITY ARCHIVE, )
)
Plaintiff, )
)
v. ) Civil No. 07-01577 (HHK/JMF)
)
EXECUTIVE OFFICE OF THE )
PRESIDENT, et al., )
)
Defendants. )
____________________________________)
PLAINTIFF CREW’S REPLY IN SUPPORT OF RENEWED MOTION FOR

LEAVE TO CONDUCT EXPEDITED DISCOVERY
In 2005 when the White House discovered many millions of emails from critical time
periods mysteriously had gone missing from White House servers, top administration officials
made the decision to do nothing. When plaintiff CREW first learned of this outrage and pressed
the administration for answers the White House continued to do nothing, denying there was even
a problem in the first place. When the House Committee on Oversight and Government Reform
demanded answers White House officials stalled for time, claiming a complete re-review of the
situation was required and promising forthcoming answers, which they never supplied. And
when CREW made public a White House draft request for proposal it had receiving seeking a
contractor to restore the missing emails, the White House pulled the proposal and apparently
took no further steps toward restoration. Thus, over three years after the discovery of the
missing emails we are no closer to the truth and the American public continues to be deprived of
its historical legacy.
Defendants’ opposition to plaintiff CREW’s renewed request for discovery is simply
more of the same. Discovery more than one year into this case is unwarranted, defendants
argue,1 because at some unidentified time in the future defendants will move for summary
judgment based on an administrative record they have yet to compile, much less produce. They
even hint at their forthcoming arguments: the “re-inventory, analysis and quality assurance
phases” of the process they described for Congress back in February completely moots CREW’s
claims,2 even though they refuse to reveal what that re-inventory and analysis shows and have
yet to do more than re-analyze the situation. But this is sufficient, they argue, because the
Federal Records Act (“FRA”) “does not demand absolute compliance with its prescriptions.”
Ds’ Mem. at 4.
On the eve of a presidential transition defendants’ goal could not be clearer: run out the
clock and stave off public accountability for their unlawful actions. Once this whole mess is
dumped in NARA’s lap on January 20, 2009, the public most likely will not learn for many years
which White House emails are missing or which back-up tapes are unreadable. Toward that end,
1
Indeed, defendants characterize plaintiffs’ request as seeking “accelerated discovery,”
Ds’ Oppos. at 2 (emphasis in original), notwithstanding that CREW filed its complaint on
September 25, 2007.
2
Defendants’ Opposition to Plaintiff CREW’s Renewed Motion to Conduct Expedited
Discovery (“Ds’ Oppos.”), p. 10.
2
defendants now oppose CREW’s request for discovery, aimed at ascertaining precisely what the
White House defendants know about the missing email scandal, when they knew it, and why
they have done virtually nothing about it. Such discovery is necessary and time-sensitive;
defendants’ unsubstantiated claims to the contrary, the upcoming transition raises serious
questions about CREW’s ability to access all relevant discovery.
1. Defendants’ Failure To Produce An Administrative Record More

Than 15 Months Into This Litigation And Their Still Unfulfilled
Promise To File A Summary Judgment Motion Justify CREW’s
Requested Discovery.
Virtually ignoring CREW’s claims for mandamus relief, defendants argue that discovery
is completely unwarranted here because CREW brings claims under the Administrative
Procedure Act (“APA”) for which review is limited to the administrative record. That to date
defendants have refused outright to produce such an administrative record fatally undermines
this argument.
Most recently, in response to a request from counsel for plaintiff National Security
Archive (“NSA”) for the administrative record, defendants stated only that they were “currently
assembling the appropriate records for defendants’ anticipated summary judgment motion” and
would “provide both plaintiffs a copy of the relevant records as soon as they are collected and
prepared for disclosure . . .” Letter from Helen H. Hong to Sheila Shadmand, December 18,
2008 (“Hong Letter”) (attached as Exhibit 1) (emphasis added). Far from promising an
administrative record, defendants have represented only that at some future point they will
provide what they consider to be “appropriate” records they deem relevant to their still unfiled
motion for summary judgment.
Defendants’ letter is particularly troubling given the specificity of NSA’s request, which
3
noted the expectation:
that the complete record will include the 20,000 pages of e-mails
and documents produced to the House Committee on Oversight and
Government Reform, including both those made public by the
Committee, as well as those not made public . . . In addition, the
record may include any or all of the following: documents and
materials present before the agency when the EOP decided to
discontinue the use of the ARMS automatic archiving system;
current and former document retention policies within the White
House; emails and reports from government technology officers, as
well as the vendors of Lotus Notes and Outlook; and documents
related to the EOP’s decision not [to] effectuate a recovery, such
as the OA’s recovery plan, records of the availability of backup
tapes, and any record of communication with the Archivist in
response to Federal Records Act duties at the time the emails
were lost.
Letter from Sheila L. Shadmand to Helen H. Hong, December 11, 2008 (attached as Exhibit 2).
Defendants’ response fails to address any of these records, instead expressing defendants’ belief
that they retain absolute discretion to decide what is “relevant” and then only for purposes of
their as yet unfiled summary judgment motion.
Thus, over 15 months into this litigation and having failed to succeed on their motion to
dismiss, defendants offer only a vague promise to share with plaintiffs at some still unidentified
date some subset of records after it has been “prepared for disclosure”3 that may or may not bear
any resemblance to an administrative record. Defendants’ transparent desire to stall judicial
review until the current administration has left office simply is no basis on which to deny CREW
leave to conduct discovery.
2. The Nature Of CREW’s Claims Justifies Discovery.
3
Hong Letter. This language suggests defendants anticipate making redactions or
withholdings, at least some of which are likely to lead to satellite litigation over their
appropriateness.
4
Ignoring that CREW has brought claims for mandamus relief under the All Writs Act, 28
U.S.C. § 1651(a), defendants argue no discovery is warranted here because this is an APA
review case.4 This argument, however, confuses judicial review with the scope of discovery and,
more fundamentally, overlooks that here discovery is both appropriate and necessary.
As CREW explained in its opening brief, while judicial review of agency action under
the APA generally is limited to an administrative record, “discovery often is not so limited, in
particular where, as here, it is not clear that defendants have designated an administrative record
or on what basis they will do so.” Institute for Wildlife Protection v. U.S. Fish & Wildlife
Service, 2007 U.S. Dis. LEXIS 90969, *32 (D. Or. 2007) (emphasis in original) (citations
omitted). Defendants’ response makes clear they too are confusing judicial review with scope of
discovery, arguing that CREW should be denied discovery because “APA review is limited to
[the] administrative record.” Ds’ Oppos. at 7.
Defendants also claim the D.C. Circuit has ruled that in all APA claims discovery is
permitted based only on a showing of “‘bad faith or improper behavior’ or when the record is so
bare that it prevents effective judicial review.’” Ds’ Oppos. at 7 (citation omitted) (emphasis in
original). This gross overstatement is not supported by the case they cite, in which the agency
had filed the administrative record in advance of filing its dispositive motion. Here, by contrast,
defendants have not filed an administrative record and there is nothing from which the Court can
safely conclude it will be able to conduct effective judicial review.
4
The irony of defendants’ argument should not be lost. Stressing that through its APA
claims CREW is not asking the Court enjoin the defendants “to recover the deleted e-mails,”
Ds’ Oppos. at 6 (emphasis in original), defendants argue that discovery accordingly is precluded.
Yet in support of their motion to dismiss defendants characterized CREW’s claims as improperly
seeking to have the deleted e-mails restored, relief they argued was not available under the FRA.
5
The need for discovery here is particularly compelling given that not only have
defendants failed to designate an administrative record, but they have promised only to present
those records they deem relevant to their forthcoming summary judgment motion. And
defendants’ opposition demonstrates they have a fundamentally different view of CREW’s
claims, which they erroneously believe are rendered moot merely by the fact that the Office of
Administration (“OA”) conducted some kind of re-analysis of the missing email problem. See
Ds’ Oppos. at 9-10. Defendants’ truncated view of the merits necessarily means a truncated
view of which documents are “relevant,” leading to the presentation of a seriously incomplete
administrative record.
In addition, awaiting defendants’ filing of those records they deem relevant to their
promised summary judgment motion, far from promoting “judicial economy and efficiency,”5
will only delay the ultimate resolution of this lawsuit. As illustrated by defendants’ failure to
respond to NSA’s well-placed expectation that the administrative record will include specified
documents and defendants’ extremely narrow view of the issues, it is exceedingly unlikely that
defendants will present a full and adequate administrative record.6 This will result in further
delay as the parties litigate issues such as the completeness of the administrative record and
plaintiffs’ continuing need for discovery, issues that are best foreclosed by allowing plaintiffs an
opportunity to conduct relevant discovery now.
Finally, CREW’s mandamus claims alone justify discovery to provide the Court with a
5
Ds’ Oppos. at 8 (citation omitted).
6
Just as unlikely is defendants’ anticipated outcome that, on the basis of their summary
judgment motion alone, they “will establish that plaintiffs are entitled to no relief on their first
four claims.” Ds’ Oppos. at 9.
6
sufficient record from which to gauge the degree to which defendants have failed to comply with
their non-discretionary duties under the FRA. Defendants offer no basis to deny CREW
discovery on these claims, as there is none.
3. Postponing Discovery Until After January 20, 2009 Threatens CREW

With A Loss Of Access To Critical Documents And Information.
Finally, defendants oppose any discovery before January 20, 2009, based only on the
unsupported assertion of their counsel that the upcoming presidential transition will not disrupt
CREW’s ability to access critical documents and information in a timely fashion. There is no
basis in the record whatsoever for defendants’ claim that “any relevant records will be accessible
in a timely manner pursuant to any court-ordered discovery.” Ds’ Oppos. at 12.
Beyond the lack of factual support for their claims, it is far from clear defendants will
preserve all relevant documents at the end of this administration. As their opposition brief here
makes clear, defendants take a narrow view of the obligations federal record keeping laws
impose on them, stressing emails may not be records worthy of preservation, Ds’ Oppos. at 3,
defendants have a limited need to preserve records, id., and the destruction of some record
material is of no legal moment because “the FRA does not demand absolute compliance with its
prescriptions.” Id. at 4. Far from offering the requisite assurances as to why discovery now is
not necessary, defendants have proven the very point they seek to rebut: only if CREW is
afforded discovery before January 20, 2009, can it be assured access to critical documents and
information.
In addition, defendants take issue with facts documenting the National Archives and
Records Administration’s (“NARA”) lack of readiness to receive the electronic records of the
Bush administration, pointing to NARA’s expressed confidence. Ds’ Oppos. at 12. But
7
NARA’s confidence is not backed up by any evidence. To the contrary, NARA’s Contingency
Plan documents just how unprepared NARA is; on the eve of the transition the agency offers
only promises that it “is developing project timelines with key dates of performance that will
serve as triggers to initiate contingency actions.” Continency Plan for Presidential Records
(Document 93-2) at 4.
Further buttressing how ill-prepared NARA is to receive the Bush administration’s
records is a report issued by the U.S. Government Accounting Office in September 2008,
INFORMATION MANAGEMENT The National Archives and Records Administration’s Fiscal
year 2008 Expenditure Plan (“GAO Report”) (attached as Exhibit 3). GAO noted the significant
risk NARA would not have the capability to process the Bush administration’s records,
notwithstanding the Archivist’s contrary assessment, based in part on the “ongoing uncertainty
about the format and volume of records to be transferred.” GAO Report at 5. The Report goes
on to note:
NARA has identified numerous project risks and reported them to

OMB and the Congress, including the risk that it will not have
the capability to process the outgoing administration’s records at
the time of the January 2009 presidential transition. However,
NARA has not yet developed a plan to mitigate this risk Instead
the agency intends to develop a mitigation plan at the end of 2008,
when it expects to know more about the types and volumes of
presidential records that it is to receive. This proposed schedule,
however, will leave NARA little time to prepare for and implement
the plan, decreasing the assurance that it will be adequately
prepared to meet the requirements of Congress, the incoming
President, and the courts for information contained in the previous
administration’s records.
Id. at 15 (emphasis added). Given that NARA’s Contingency Plan, issued one month later, still
is short on specifics about the types and volumes of presidential records NARA will receive,
8
there remains a significant risk that CREW will not be able to access information contained in
the Bush administration’s records after January 20, 2009.
Moreover, even if NARA’s Contingency Plan issued in November were adequate --
which it decidedly is not -- the late date at which it was issued demonstrates “NARA will not
have the capability to handle the Bush administration records by the time of the presidential
transition in January 2009.” Id. at 44. Defendants offer nothing to counter this evidence beyond
their own short-sighted and patently flawed interpretation of the Contingency Plan, relying on
NARA’s blustering confidence as a substitute for the facts that would evidence NARA’s ability
to grant CREW ready access to all relevant information and documents. See, e.g., Ds’ Oppos. at
12 (citing to NARA’s “confiden[ce] that the ERA EOP system as currently developed by LMC
can ingest all of the systems listed above”) (quotation omitted).
Equally unsubstantiated is defendants’ claim that permitting CREW discovery now
would impose on OA a “crippling burden.” Id. at 14. While defendants cite to the declaration of
then-OA Chief Information Officer Theresa Payton (who is no longer employed by OA), Ds’
Oppos. at 15 n.5, Ms. Payton said nothing about preparations for the transition, limiting her
testimony to the support that her office provides generally. The unsubstantiated claims of
counsel are not an adequate substitute for the evidence this Court would need to postpone
discovery because of the harm it would cause defendants.7 Nor should the Court grant
defendants’ request for a status conference to present evidence they failed to present with their
7
Moreover, defendants’ claim of harm is made in the context of the incorrect analytical
test set forth in Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982). Not only have the courts in this
district rejected this approach, see, e.g., Ellsworth Associates, Inc. v. U.S., 917 F.Supp. 841, 844
(D.D.C. 1996), but Notaro was decided based on a pre-amended version of Rule 26, further
negating its applicability here.
9
opposition. See Ds’ Oppos. at 16. Having shown no reason why they could not now
substantiate their claim of burden, defendants’ request for such a conference is clearly designed
to produce further delay.
Finally, defendants take issue with the fact that documents already have been destroyed,
Ds’ Oppos. at 14 n. 4, demonstrating once again their failure to even acknowledge the millions
of emails missing from White House servers. Attempting to negate the impact of this evidence,
defendants insist that in any event they “have taken appropriate steps to ensure the preservation
of potentially relevant information in this case.” Ds’ Oppos. at 14 n.4. As with their other
claims, however, defendants’ broad assurances are not backed up by specific facts.
For example, in response to a letter from CREW’s counsel concerning the recent
replacement of computers in at least one office within the Executive Office of the President
(attached as Exhibit 4), defendants’ counsel stated “defendants have taken appropriate steps to
ensure the preservation of potentially relevant information in this case, including any emails
from the March 2003 to October 2005 time frame.” Letter of November 14, 2008, from Helen
H. Hong (attached as Exhibit 5) (emphasis added). Beyond the facial insufficiency of
defendants’ broad assurances, completely lacking in specifics, defendants have improperly
cabined their responsibilities to the time period of March 2003 through October 2005. Yet the
Court’s preservation order (document 18) is not so limited, requiring defendants more broadly to
“preserve media, no matter how described, presently in their possess[ion] or under their custody
or control, that were created with the intention of preserving data in the event of its inadvertent
destruction.” Order of November 12, 2007, p. 2. Nor are defendants’ preservation obligations
stemming from the existence of this litigation so limited. Thus, far from supplying adequate
10
assurances of preservation, defendants’ refusal to provide plaintiffs with the specifics they
rightfully requested heightens the concern that defendants are not preserving all potentially
relevant information, further supporting CREW’s request for discovery.
CONCLUSION
For the foregoing reasons and those set forth in CREW’s opening brief, CREW’s
renewed motion to conduct discovery should be granted.
Respectfully submitted,
____/s/_____________________
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20530
Phone: (202) 408-5565
Fax: (202) 588-5020
Attorneys for Plaintiff
Dated: December 29, 2008
11
Case 1:07-cv-01707-HHK-JMF Document 95-2 Filed 12/29/2008 Page 1 of 65

CREW v. EOP: Regarding Missing WH Emails: 12/29/08 - CREWs Reply in Support of Renewed Motion For Leave To Conduct Expedited Discovery

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CREW v. EOP: Regarding Missing WH Emails: 12/29/08 - CREWs Reply in Support of Renewed Motion For Leave To Conduct Expedited Discovery

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

UNITED STATES DISTRICT COURT

PLAINTIFF CREW’S REPLY IN SUPPORT OF RENEWED MOTION FOR

its historical legacy.

Defendants’ opposition to plaintiff CREW’s renewed request for discovery is simply

questions about CREW’s ability to access all relevant discovery.

1. Defendants’ Failure To Produce An Administrative Record More

motion for summary judgment.

noted the expectation:

their as yet unfiled summary judgment motion.

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

leave to conduct discovery.

2. The Nature Of CREW’s Claims Justifies Discovery.

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

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

defendants’ opposition demonstrates they have a fundamentally different view of CREW’s

opportunity to conduct relevant discovery now.

discovery on these claims, as there is none.

3. Postponing Discovery Until After January 20, 2009 Threatens CREW

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

Further buttressing how ill-prepared NARA is to receive the Bush administration’s

INFORMATION MANAGEMENT The National Archives and Records Administration’s Fiscal

NARA has identified numerous project risks and reported them to

the Bush administration’s records after January 20, 2009.

Moreover, even if NARA’s Contingency Plan issued in November were adequate --

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

Equally unsubstantiated is defendants’ claim that permitting CREW discovery now

to produce further delay.

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

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

relevant information, further supporting CREW’s request for discovery.

renewed motion to conduct discovery should be granted.

Attorneys for Plaintiff

Dated: December 29, 2008

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