crew v. eop: regarding missing wh emails: 10/26/07 - crews response to wh objections

8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections

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3 See Defendants’ Local Rule 72.3(b) Objections to Report and Recommendations on

Plaintiff’s Motion for a Temporary Restraining Order (“Ds’ Objections”).

4 Under LCvR 72.3(c), this Court is to make “a de novo determination of those portions

of a magistrate judge’s findings and recommendations to which objection is made . . .”Moreover, the Court is free to make this determination “based solely on the record developed

before the magistrate judge, or may conduct a new hearing and receive further evidence.” Id.

5 Plaintiff incorporates herein its memorandum in support of its motion for a TRO as well

as its reply brief and adds below supplemental background to put defendants’ objections in the

proper context.

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use.3 As discussed below, each of these objections is unfounded and this Court’s de novo

review4 should compel it to conclude that a TRO is necessary here to prevent irreparable injury

and advance the public interest.

Defendants’ objections essentially ask this Court to ignore their past conduct and

systemic failure to comply with their record-keeping obligations, a failure that led directly to the

destruction of millions of email records. Moreover, the objections are based on unsworn

statements of counsel, which are no substitute for admissible evidence, are a complete distortion

of the record before the Court and raise more questions than they answer.

BACKGROUND5

After filing a complaint based on the defendants’ conduct over the course of years of

ignoring, if not outright flouting, their statutory obligations to ensure the preservation of White

House electronic records, plaintiff also sought assurances that during the pendency of this

lawsuit, back-up copies of the deleted emails would be preserved. With no direct knowledge of

what back-up copies might exist and in what form, plaintiff sent a letter to the director of the

Office of Administration (“OA”) requesting “immediate written assurances that the OA has

taken, and will continue to take, all steps necessary to preserve the back-up tapes and ensure

Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Pag



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their integrity and ability to be used in restoring any missing e-mail.” Letter to Alan R.

Swendiman from Anne L. Weismann, September 25, 2007 (Exhibit 2 to Memorandum in

Support of Plaintiff’s Motion for a Temporary Restraining Order) (“P’s TRO Mem.”).

By letter dated October 2, 2007, defendants’ counsel responded as follows: “The Office

of Administration is maintaining, and will continue to maintain for the pendency of this

litigation, unless otherwise permitted by the court or agreed upon or stipulated to by the parties,

all disaster recovery tapes that were in its possession as of September 25, 2007.” Letter to Anne

Weismann from Helen H. Hong, October 2, 2007 (Exhibit 3 to P’s TRO Mem.). Of note, the

letter used the term “disaster recovery tapes,” a term not used by the plaintiff, with no

explanation of what that term means.

Given the significant concerns and questions this letter raises, plaintiff again wrote to

defendants on October 2, 2007. Letter to Helen H. Hong from Anne L. Weismann, October 2,

2007 (Exhibit 4 to P’s TRO Mem.). First, CREW explained that the “back-up tapes” referenced

in its initial letter “were all of those tapes that contain any of the emails missing from White

House servers from March 2003 through the present.” Id. In light of defendants’ use of a

different term, CREW asked for an explanation of what defendants meant by “disaster recovery

tapes” and how that term differs, if at all, from “back-up tapes” as defined therein by CREW. Id.

CREW explained that this information is “especially critical information as it will dictate

whether and to what extent the OA and the EOP are preserving all of the back-up tapes that

contain any of the missing emails.” Id. Second, CREW asked if there are additional back-up

tapes or disaster recovery tapes that may contain the deleted emails and that were not in the

OA’s possession as of September 27, 2007. Id. CREW further requested assurances “that the




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tapes are being maintained in an appropriate environment that assures their continued integrity.”

Id.

CREW’s questions went unanswered. Instead, by letter dated October 3, 2007,

defendants’ counsel reiterated that the OA “is maintaining and will continue to maintain for the

pendency of this litigation . . . and in a manner that complies in all respects with Rule 26, all

disaster recovery tapes -- the Office of Administration’s only so-called “back up” tapes, as

referenced in your letters -- that were in the Office of Administration’s possession as of

September 25, 2007.” Letter to Anne Weismann from Helen H. Hong, October 3, 2007 (Exhibit

5 to P’s TRO Mem.).

The defendants’ refusal to given written responses to plaintiff’s questions led plaintiff to

propose a telephone discussion. See Email from Anne Weismann to Helen H. Hong, October 5,

2007 (Exhibit 6 to P’s TRO Mem.). As a starting point for such discussion, plaintiff identified a

list of questions still unanswered, that included the following: (1) an explanation of what

“disaster recovery tapes” are and how they differ, if at all, from “customary back-ups of the EOP

e-mail system”; (2) the time period covered by the disaster recovery tapes; (3) whether there are

disaster recovery tapes elsewhere, including in the possession of a third-party contractor; (4)

whether there are back-up copies of disaster recovery tapes elsewhere; (5) the mediums on which

back-up copies are stored; and (6) whether those other mediums are also being preserved. Id.

Defendants refused to have a telephone discussion or otherwise answer plaintiff’s

questions, beyond stating that disaster recovery tapes for emails generated within EOP

components after September 25, 2007, have been maintained. Email from Helen Hong to Anne

Weismann, October 9, 2007 (Exhibit 7 to P’s TRO Mem.).




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In view of the defendants’ complete failure to provide adequate assurances that back-up

copies of the deleted emails are being preserved, plaintiff filed a motion for a TRO seeking a

preservation order. After full briefing, a hearing on plaintiff’s motion was held on October 17,

2007, before Magistrate Judge John Facciola. At that hearing, counsel for the defendants

admitted that “there are additional backup tapes in addition to the ones that were in the Office of

Administration’s possession on September 25th.” Transcript of Motions Hearing, October 17,

2007, p. 5 (“Transcript”) (attached as Exhibit 1). Defendants’ counsel, however, never explained

what those additional back-up tapes consist of. Defendants’ counsel also reiterated that “all of

the backup tapes, or the disaster recovery tapes, in the Office of Administration’s possession

before September 25th, 2007, are being and will continue to be maintained during the course of

this litigation.” Id. at 7. Plaintiff’s counsel, in turn, explained that plaintiff was seeking

preservation of “whatever backup media the institution of the Executive Office of the President,

through the Office of Administration, is our understanding, uses to preserve data that can be used

forensically for . . . recovery.” Id. at 10. At no time during the hearing did defendants’ counsel

identify anything about the universe of tapes it was proposing to preserve, including the time-

period of those tapes and whether they are the only potential source of copies of the deleted

emails. See id. at 25.

On October 23, 2007, defendants filed objections to the report and recommendations of

Judge Facciola. In that document defendants, through their counsel, offered a new definition of

disaster recovery tapes, namely those “relating to the official, unclassified Executive Office of

the President email system” that “are media in the care, custody and control of the Office of

Administration created with the intention of restoring systems in the event of a disaster and [that]




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may potentially be used to restore data that may not have been otherwise preserved.” Ds’

Objections at 2 n.1 (emphasis added). Defendants did not explain what the unclassified EOP

email system is.

1. Judge Facciola Properly Concluded That Absent the Requested TRO,

Plaintiff is Threatened With Irreparable Injury.

According to the defendants, Judge Facciola’s recommended order is “wholly improper,”

Ds’ Objections at 4, because it was not based on any declaration or evidence of harm and ignores

“defendants’ repeated commitments to plaintiff to maintain the disaster recovery tapes” and their

“offer to provide a declaration -- under penalty of perjury -- committing to continue to preserve

disaster recovery tapes.” Id. at 4. Citing to cases where courts have found no irreparable harm

to justify a preliminary injunction, defendants argue that the same conclusion is compelled here.

Id. at 3-4. Defendants are wrong as a matter of fact and law.

First, defendants conveniently ignore the genesis of this lawsuit: a course of conduct

over at least two and one-half years in which a huge volume of email records inexplicably went

missing and the defendants’ concomitant refusal to restore the deleted emails or install an

appropriate and effective electronic records management system that would prevent further

deletions of White House records. In other words, defendants’ flagrant disregard for their

record-keeping obligations, a disregard that has already resulted in a loss of important historical

records, more than justifies the threat plaintiff and the public face that the only remaining copies

of the deleted emails will also go missing absent a preservation order.

Moreover, in the face of plaintiff’s repeated and legitimate requests for adequate

assurances and information, defendants offered something far short of what they now

characterize as “unambiguous commitments.” Ds’ Objections at 2. To the contrary, defendants




6 In fact, it is the inadmissible iteration of their counsel, completely unsupported by any

factual evidence of record.

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committed only to maintain whatever “disaster recovery tapes” the OA had it its possession on

September 25, 2007 (the date this lawsuit was filed) and refused to identify anything about that

universe of tapes, including what time-periods they cover or whether they are the only back-up

copies that exist for the deleted emails. As plaintiff’s counsel explained at the hearing, the so-

called assurances of the defendants cannot be deemed “adequate” where “we still do not know

what the body of existing backup recovery tapes, whether we call them disaster recovery tapes or

backup tape[s] . . we don’t know what they are” and whether “any and all copies, if they exist,

would still be [with the OA].” Transcript at p. 25.

Defendants’ latest iteration6

of what they are voluntarily willing to preserve (disaster

recovery tapes for the “official, unclassified EOP email system”), made at the proverbial 11th

hour, not only falls far short of answering critical questions but, in fact, raises a host of red flags

that suggest defendants are attempting to narrow their commitment even further. For example,

defendants now define disaster recovery tapes as those “created with the intention of restoring

systems in the event of a disaster.” Ds’ Objections at 2 n.1 (emphasis added). Read literally, this

could refer to tapes that back up programs used for data recovery, not the actual data itself.

Plaintiff’s TRO, by contrast, seeks the preservation of the actual data, specifically copies of the

millions of deleted emails.

Also unknown is whether these newly defined disaster recovery tapes are back-ups of the

email system itself, which will capture only those email messages currently in the system, or are

back-ups of the file server files in which the emails at issue here were stored after being




7 The defendants’ latest commitment is tied to tapes “in the care, custody and control” of

the OA. Id. The obligation that Judge Facciola’s proposed order imposes on the defendants,

however, would extend to those tapes in the care, custody or control of any defendant and not

just the OA. This wording difference is not insignificant; to the extent the EOP has transferred

back-up copies off-site they could be construed as no longer in the custody of the OA and so

would fall outside the OA’s commitment, but not that which Judge Facciola recommends

imposing.

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extracted from the email system. Only back-ups of the file server files will provide a

comprehensive set of emails.

Further, the defendants have still not identified precisely what the OA had in its

“possession, custody and control”7 as of September 25, 2007, a date they selected based on their

assessment that any obligation they have to preserve evidence pursuant to Rule 26 of the Federal

Rules of Civil Procedure commences when this suit was filed. As set forth in CREW’s briefs in

support of its TRO, the preservation order CREW seeks is not premised on discovery

obligations, but rather on the significant threat that absent such relief CREW will not be able to

get full and effective relief if it prevails in this lawsuit. Accordingly, if the OA did not have in

its possession, custody or control the full complement of back-up copies for the deleted emails, it

is necessary and appropriate to consider all other copies that may exist, whether or not they are

on “disaster recovery tapes.” The defendants’ persistence in withholding obviously critical

information belies their claim that an injunction is unwarranted because they have offered

adequate assurances.

Defendants’ objections are also without legal support. All of the cases defendants cite

are either inapposite or actually support Judge Facciola’s conclusion that absent an injunction

plaintiff will suffer irreparable injury. In District 50, UMW v. UMW, for example, the D.C.

Circuit reversed a grant of preliminary injunctive relief because there was no support in the




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record for the plaintiff’s claim that the embarrassment and confusion that would result absent an

injunction would be irreparable. 412 F.2d 165, 167 (D.C. Cir. 1969). In other words, the issue

was whether the alleged harm was irreparable, not whether it was too speculative. Similarly in

Nichols v. AID, 18 F.Supp.2d 1, 5 (D.D.C. 1998) (cited at Ds’ Objections, p. 4), the court was

considering whether an allegation of a temporary lack of income was irreparable. See also

Judicial Watch, Inc. v. U.S. Dep’t of Homeland Security, 2007 U.S. Dist. LEXIS 70446, *2-3

(D.D.C. 2007) (cited at Ds’ Objections, p. 4) (agency delay in processing plaintiff’s Freedom of

Information Act request was not irreparable where information was not time-sensitive). By

contrast, the threat that the back-up media will be obliterated here is “a text book example of

irreparable harm.” Report at p. 3.

In Wis. Gas Co. v. FERC, also cited by defendants (Ds’ Objections at 4), the D.C. Circuit

explained that an adequate showing that irreparable harm was “‘likely’ to occur” was made

where the movant demonstrates “that the harm has occurred in the past and is likely to occur

again . . . “ 758 F.2d 669, 674 (D.C. Cir. 1985). This is precisely the showing plaintiff has made

here. As explained above, plaintiff’s request for a preservation order is premised on the millions

of email records that have already been deleted and a course of conduct that includes defendants’

failure to give adequate assurances that absent the requested relief all necessary and appropriate

back-up copies will be preserved.

In sum, Judge Facciola properly concluded that a preservation order is both necessary

and appropriate given the irreparable harm that would fall to the plaintiff (and the public) absent

such relief. The defendants’ objections, far from offering a basis to reject that conclusion,

highlight even further the need for injunctive relief.




8 Included within the EOP are the following offices and agencies: Council of Economic

Advisers, Council on Environmental Quality, Office of Administration, Office of Management

and Budget, Office of National Drug Control Policy, Office of Science and Technology Policy,

President’s Foreign Intelligence Advisory Board, United States Trade Representative and White

House Office.

9 The written statement by defendants’ counsel that the OA “has the care, custody and

control of all existing disaster recovery tapes that may contain emails from the official,unclassified [EOP] system,” Ds’ Objections at p. 7, not only fails to speak to all existing copies

or explain precisely what is covered by the existing disaster recovery tapes, but is not admissible

evidence. See, e.g., Rule 801 of the Rules of Evidence.

10 Again, this statement is through their counsel with no factual support in the record to

back it up.

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2. The Proposed Order Fully Complies With Rule 65(d).

Defendants also object to Judge Facciola’s proposed order, arguing that it sweeps too

broadly because it is not limited to the OA and requires them to “preserve the media under

conditions that will permit their eventual use, if necessary[.]” Ds’ Objections at p. 7. These

objections are equally unfounded.

First, the defendants in this lawsuit include not only the OA, but the Executive Office of

the President (“EOP)”and its multiple components.8 As alleged in the complaint, the deleted

emails came from multiple EOP components. Complaint, ¶¶ 33-34. Absent definitive evidence

that the only still-existing copies of these deleted emails are in the possession, custody or control

of the OA, there is no basis to limit any preservation obligation to the OA.9

Second, the defendants’ objections to the requirement that they “preserve the media

under conditions that will permit their eventual use . . .” make no sense. Defendants state10 that

the OA already “is taking reasonable and appropriate steps to preserve the disaster recovery

tapes under conditions that will permit their eventual use, if necessary . . .” Ds’ Objections at p.

7. How, then, can there be any legitimate ambiguity about what this proposed order would

Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Page



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require?

If clarification is warranted, however, plaintiff suggests that the order be modified to

state that defendants are required to “preserve the media under conditions that will permit their

eventual use, if necessary, including conditions that will allow the extraction and reading of the

data stored on the media.” This additional language will eliminate any claimed ambiguity.

CONCLUSION

For the foregoing reasons and those set forth in plaintiff’s motion for a TRO and reply

brief, plaintiff’s motion should be granted and the Court should enter Judge Facciola’s

recommended order. If the Court determines that a hearing on these issues would be useful,

plaintiff is prepared to offer expert testimony to explain what preservation obligations make

sense in this case and why.

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

Telephone: 202-408-5565

Fax: 202-508-506

Attorneys for plaintiff

Dated: October 26, 2007

Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Page



Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa



UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

- - - - x

In 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 HEARING

BEFORE 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 by

Pro-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 .com

M2085V/bf




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1 P R O C E E D I N G S

2 THE CLERK: Civ i l Case 07-1707, Cit izens fo r

3 Respons ib i l i ty and Ethics in Wash ingt on , D .C ., versus the

4 Execut ive Off ice of the Pres ident , e t a l . Anne Weismann

5 fo r the Pla in t i f f , Helen Hong fo r the Defendants. This i s

6 a motions hearing on a temporary re s t ra in ing order fo r

7 Ms. Weismann ( inaudib le) .

8 MS. WEISMANN: Good morning, Your Honor, and I 'm

9 here also with Melanie Sloan, our execut ive d i r ec to r .

10 THE MAGISTRATE JUDGE: Good morning. Good

11 af te rnoon, I 'm sorry .

12 MS. HONG: Good af te rnoon, Your Honor. Helen Hong

13 on beha l f of the United Sta tes Defendants, and along w ith me

14 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 I

17 was wondering if it i s poss ib le a t t h i s po in t to forge a

18 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 t

19 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 me

21 i s th e problem a t th is po in t and the d i f fe rence between

22 you, th e d i f fe rence between backup t apes and d i sas t e r

23 recovery backup tapes? And if so, what i s the d i f fe rence

24 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 are

so many Defendants here - - s topped recycl ing t apes because

of the exis tence of th i s lawsui t . Do you understand t ha t

any o ther backup tapes ex i s t t ha t came in to exis tence before

September 27th, 2007, and have not been recyc led? And i f

t h a t ' s so , why can ' t we j u s t put them to one s ide fo r the

t ime being? Would t ha t resolve your concern?

with a little l a t i tude because he re ' s the problem. What we

don ' t know and what we have been t ry ing to get from the

White House Defendants i s an explana t ion of what the

exis 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 in

o ther mediums bes ides tapes , but a l l t ha t we have been to ld

i s th e word "d i s a s t e r recovery t ape , " and we don ' t know i f

t 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 Joe

Blow o r something. All r i g h t . We know, under t h e amended

Federa 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 and

t 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 , I

suppose, 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 you

a p p r e c i a t e , Your Honor, between them saying t h e i r only

o b l i g a t i o n i s under the Federa l Rules o f C i v i l Procedure and

our 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 a

much l a r g e r universe of t a p e s than j u s t what was i n your

p 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 e

government has t o l d us, i s t h a t whatever they had i n t h e i r

hands as f a r as d i s a s t e r recovery t a p e s on September 25th

they w i l l keep, I have no idea what t h a t encompasses. I f it

does 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 and

again , 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 I

c 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 more

s u c c e s s f u l than we a r e .

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THE MAGISTRATE JUDGE: L e t ' s s e e . L e t ' s assume




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1 t ha t ' s my quest ion to you. And it's the same quest ion I

2 j u s t asked her .

3 Independently of the backup t apes t ha t were In

4 exis tence on September 27, 2007, are th ere o ther backup

5 t apes t ha t are p resen t in e xis ten ce and, if they are , would

6 you be wi l l ing to p re se rv e th ose un t i l Judge Kennedy can

7 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 r

12 recovery t apes . In Exhib i t 5 to P l a i n t i f f ' s motion, w e've

13 ind ica ted to Pla in t i f f t ha t the d i sas t e r recovery tapes are

14 the backup tapes to which CREW r e f e r r ed in t h e i r f i r s t and

15 second l e t t e r s . Second, the re are add i t iona l backup t apes

16 in a dd it io n to the ones t ha t were in the O ffice of

17 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 there

19 are backup tapes fo r e -m a ils g en era te d by EOP components

20 a f t e r September 25th, t ha t those backup tapes are not being

21 recyc led and wi l l be mainta ined by the Office of

22 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 can

24 help me here . Let me t e l l you what happens in t h i s

25 courthouse . A ll r igh t?




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1 On Tuesday evening, the backup tapes fo r our

2 opera t ion on Monday and T uesday are d eliv ere d to IMM and

3 taken from the premises . On Thursday, the same people come

4 back and br ing the tapes they have and exchange them fo r the

5 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. Which

7 leads me to be lieve t ha t on Thursday, the backup tape t ha t

8 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 ted

11 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 ng

13 somewhere, and t he re ' s no doubt in anyone 's mind t ha t you

14 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 on

16 numerous occasions.

17 THE MAGISTRATE JUDGE: All r i gh t , but you see

18 P l a i n t i f f ' s problem. She wants to know about a l l these

19 o ther backup t apes t ha t are in exis tence t ha t are somewhere

20 in th at o ff ic e t ha t came in to exis tence before

21 September 25th, 2007. And what I thought she was t ry ing to

22 get with her l e t t e r s was an assurance from you t ha t whether

23 or not they are sub jec t to the FRA, they wi l l be preserved

24 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 know

if 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 get

near the backup t a p e s , but t h e r e ' s no reason t o worry about

t 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 so

they 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 f

t 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 recovery

t 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 before

September 25th , 2007, a r e being and w i l l cont inue t o be

mainta 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 be

r 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 not

been 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 . I

still 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 if

you 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 - -

7




Because f i r s t of a l l , l e t me poin t out t h a t the Defendants

in t h i s case inc lude the others beyond the Office of

Adminis t ra t ion . And if I heard co r rec t l y , I heard an

admission from White House counsel - - from t h e i r counsel

t 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 be

a cc ounta ble h ere fo r i s the -- whatever backup copies were

crea ted from 2003 forward. And if they have been

t r ans fe r red to con t rac to r s , if they 've been t rans fe r red to

other 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 be

accountable fo r them.

And I guess my concern, Your Honor, i s t ha t what

I 'm hear ing i s th i s very -- what to me sounds l ike a very

narrow 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 l

cont inue to preserve , but what they h av en 't sa id i s , beyond

t ha t what 's th e un iverse .

And I go back to , in our minds the re i s still not

a common und ers ta nd in g o f what d i sas t e r recovery tapes

means. And when we asked very spec i f i ca l l y , what about

disks , what about DVDs, what about CDs, we d idn ' t get a

THE MAGISTRATE JUDGE:1

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care fu l ly .

MS. WEISMANN:

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I 'm t ry ing to l i s t en

-- ve ry n arrowly t a i l o r ed response.




9

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 ' m

t 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 happens

i 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 my

e - 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 f

t 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 e

magnet 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, I

agree - - 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 e

d 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 them

p 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 - - and

I 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 g

t 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 would

c 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 e

DVD 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 e

g 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 g

about what we would c a l l t h e backup c o p i e s t h a t were

i n t e n d e d , you know, t o be a backup copy i n t h e wake o f a

d 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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Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag



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 system

col lapsed, we could still open tomorrow morning because

th ese tapes are in e xis te nc e. That DVD doesn ' t have the

same func t ion . And I would not ca l l it pa r t of a d i s a s t e r

backup t ape . It's a d i f f e r en t th ing . I th ink it's f a i r to

say it i s other media designed, in ten ded or capable of

preserving informat ion, and you want t ha t preserved, as

wel l .

MS. WEISMANN: What we want preserved i s whatever

backup media the i n s t i t u t ion of the Execut ive Office of the

Pres ident , through the Office of Adminis t ra t ion , i s our

unders tanding, uses to preserve da ta t ha t can be used

fo rens ica l ly fo r discovery recovery.

I f ind iv idua l s w ithin th e White House create

separa te ly t h e i r own DVDs, we had not intended t ha t to be

encompassed, but I j u s t want to be c l ea r , because I f ee l

l ike t he re ' s been such a re lu cta nc e to engage in a dialogue

or have informat ion f low, t ha t when we say " tapes , " i f in

fac t , as an i n s t i t u t i ona l mat te r , they automat ical ly back up

th ings in a DVD and it happens beyond the wi l l of any

ind 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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MS. WEISMANN: Right .

THE MAGISTRATE JUDGE: But I would not cons ider

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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 every

ind 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 r

THE MAGISTRATE JUDGE: Okay. Maybe - - I ' ve looked

a t the exchange of correspondence between you. Is it

he lp fu l to look a t the I assume t he re ' s a - - there must

be, I know I saw t h i s , so I assume it's co r rec t - - the re i s

an 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 s

and we could get down to prac t i c a l cases and t a lk

spec 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 not

I '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 e

2 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 for

5 everyone. W e ' l l g e t a copy f o r you, counsel . J u s t a

6 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 o

9 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 can

11 maybe work t h i s o u t . I f you can, I'll come back. So why

12 d o n ' t we say 2:30, okay? I 'm sure sweet reason w i l l

13 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 the

20 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 was

21 accepted .

22 F i r s t , we were advised about midway through, t h a t

23 i n f a c t t h e White House Defendants a r e both completely

24 l l i n g t o - -

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




13

THE MAGISTRATE JUDGE: Why don ' t you t e l l me why

so 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 about

the 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 get

t 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 to

the Court fo r and were to ld th a t th a t also was

not acceptable .

Before tha t we had proposed some modifying

language to our own order to address what we unders tood

t h e i r concerns were. And in a dd it io n, the of f e r they have

made and I 'm ce r ta in ly happy to l e t them expla in i t , i s

t hey ' r e wi l l ing to do a dec la ra t ion t ha t they

would provide to us. And t ha t ' s unacceptable and I can t e l l

the Court why, but we ' re happy to But as I sa id

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reasons . F i r s t of a l l , as we've t r i ed to expla in to them,




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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 , we

2 have some mechanism t o seek r e l i e f . And we a l s o t h i n k , Your

3 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 s

4 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 very

5 heightened concerns , you know, t h a t t h e r e ' s so much

6 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 l

7 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 both

8 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 e

11 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 s

12 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 agree

13 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 r

14 way.

15 THE MAGISTRATE JUDGE: But t h a t ' s not acceptable

16 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 t

18 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 an

19 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 -- I

21 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 l

23 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 we

24 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 , we

25 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




15

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 l

THE 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 about

September 27? Admit tedly , t h e F e d e r a l Rules o f C i v i l

Procedure as amended d i r e c t our a t t e n t i o n t o t h e

commencement 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 n

i 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 o

p 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 o

t 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 be

p 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 s

d 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 e

harm 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 e

and 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 t

l 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 n

t 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 e

d 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 f

September 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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p r o v i d e a d e c l a r a t i o n t o t h a t e f f e c t . The O ff i c e o f




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1 Do you d i s a g r e e with t h a t ?

2 MS. HONG: In a l l of the evidence t h a t was i n

3 e x i s t e n c e a t t h a t t ime -- we're not s t a t i n g t h a t we w i l l

4 p r e s e r v e only those tape s t h a t came i n t o e x i s t e n c e on

5 September 25th going forward. But a l l of those tapes t h a t

6 were 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 or custody

7 or c o n t r o l w i l l be ma in ta in ed thr oughou t t h e pendency of

8 t h i s l i t i g a t i o n .

9 THE MAGISTRATE JUDGE: But you won' t agree t o t h a t

10 i n a s t i p u l a t i o n .

11 MS. HONG: What we would be w i l l i n g t o agree t o i s

12 o f f e r a d e c l a r a t i o n , signed under p e n a l t y o f p e r j u r y , t h a t

13 would, as i n t h e o t h e r cases i n which P l a i n t i f f l i t i g a t e d ,

14 t h a t would moot ou t the need f o r any motion f o r a temporary

15 r e s t r a i n i n g o r d e r .

16 THE MAGISTRATE JUDGE: Okay

17 MS. HONG: Even absent t h a t d e c l a r a t i o n , though,

18 Your Honor, we b e l i e v e t h a t t h e P l a i n t i f f has not made out

19 the p r e d i c a t e

20 THE MAGISTRATE JUDGE: Well , l e t ' s t a l k a little

21 about t h e o t h e r p r e d i c a t e s . I t h i n k I have your i s s u e on

22 i r r e p a r a b l e harm. How about the p u b l i c i n t e r e s t ? Wouldn' t

23 t h a t be a p u b l i c i n t e r e s t , a t l e a s t i n terms o f conservat ion

24 of j u d i c i a l r e s o u r c e s ? That t h i s s t u f f , whatever media it

25 i s , would be p r e s e r v e d pending Judge Kennedy's decis ion?




17

MS. HONG: Yeah, and based on th e rep re sen ta t ions

t h a t Defendants have made, the re i s no need to again enmesh

the Cour t in t h a t type of determina t ion .

THE MAGISTRATE JUDGE: And f i na l ly , on success on

the mer i t s . This may t ake a b i t of t ime. I apologize if I

keep you up t he re too long .

But as I unders tand your pos i t i on , and I hope I 'm

ge 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 ' s

dec is ion in Armstrong versus th e Execut ive Office of the

Pres iden t , t ha t t he re are two s ta tu te s a t i s sue , the

Pre s i den t i a l Records Act and th e Federa l Records Act a re

mutual ly exc lus ive . It's imposs ib le fo r a document to be

in 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 s

an independent s ta t ut o ry r e s p o n s ib i li ty under the Federa l

R ecords A ct t ha t would per t a in to th e maintenance of records

by 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 your

papers , you drop a foo tno te and you con tes t whether those

en t i t i e s a re agencies fo r the purposes of the app l ica t ion of

the Federal Records Act. I s t h i s a t rue s ta tem ent of your

pos 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 l

w 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 the

P 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 s

have 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 r

purposes of the reco rd it should note t h a t I 'm read in g from

876 Fed. Sup. , 1300, w h a t ' s s a i d t o be page 3 here i n the

Lexis copy of t h i s .

I read again , "In a r e l a t e d case, Armstrong versus

Executive 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 the

agency components of the Executive O ffice of t h e P re s i d en t

a 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 the

a 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 the

e 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 e

agencies i n t h i s system." Then he goes on t o say, "This

i 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 are

s 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 ive

O 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 e

P 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 agencies

s 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 c

cla 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 r

h 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 f

t 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 r

what 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 e

a 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 r

agency 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 t

t 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 y

we would a g r e e t h a t t h e Federa l Records Act does apply t o

c 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 e

P 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 e

d 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 was

spec 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 the

Department of Homeland Secur i ty .

THE MAGISTRATE JUDGE: Oh, t h a t ' s r i gh t . I

thought 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 ional

Secur i ty Counci l .

MS. HONG: As one of the agency components of the

Execut ive Office of the Pres ident , a l though

THE MAGISTRATE JUDGE: But again, i s Judge Richey

wrong in h is i n t e rp r e t a t i on of FRA? This Court held tha t

e lec t ronic records created by th e agency components of the

Execut ive Office of the P re sid en t a re sub jec t to the Federal

Records Act. Are not the Execut ive Office of th e P resid en t

Office of Adminis t ra t ion , i s t ha t not an agency component to

which Judge Richey was re fe r r ing?

MS. HONG: The agencies w ith in th e Executive

Office 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 those

agenc ies t ha t f a l l s within the de f in i t i on of an agency

within 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 ed

whether 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 e

r 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 t

you 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 it

c rea ted by th e pres iden t pursuan t to a CFR. From where does

it draw its au thor i ty?

MS. HONG: I haven ' t had an o pp or tu nity to review

a 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 components

of 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 , to

the ex t en t t h ey are agenc ies w ith in the meaning o f th e

Federa l Reco rds A ct. We wouldn ' t con t e s t - -

THE MAGISTRATE JUDGE: But he sa id agency - - but

he 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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of th e P res id en t i s not an agency, who would bear the

r e spons ib i l i t y fo r compliance with the FRA? Within the

Execut ive Office .

what an agency i s , I don ' t you know, I 'm not sure what

Judge R ichey meant, but to be cons i s t en t with the s ta tu te he

would have meant, or he would have had to mean agencies

w ith in the meaning or t ha t f e l l w ithin the def in i t ion of the

Federa l Records Act.

n ot c on te nd in g t h a t the Execut ive Office of th e P resid en t i s

not necessa r i ly an agency w ith in the meaning of the Federal

Records Act. It's t ha t the Office of Adminis t ra t ion does

not f a l l within the de f in i t i on of agency w ith in the FRA.

THE MAGISTRATE JUDGE: But if t hey ' r e not doing

it, who wi l l do i t ?

MS. HONG: No, and the Execut ive Office of the

Pres ident does have agency components, inc luding OMB, fo r

example, or CEQUA, and those ag enc ies , th e head of those

agencies and the O ff ice of Adminis t ra t ion mainta ins custody

and possess ion and con t ro l over, in t h i s in s tance , th e

d i s a s t e r recovery tapes fo r e -mai l s generated from those EOP

components. Accordingly , the O ffic e o f A dm in istra tio n has

made th e representa t ion t ha t a l l of th e d i sas t e r recovery

THE MAGISTRATE JUDGE: I f the Execut ive Office

Because the Federal Records Act def ines

Right , and j u s t to make c lea r , we' re

MS. HONG:

MS. HONG:

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1 t apes in i t s possess ion as of September 25th, 2007, are

2 bei ng ma in ta in ed .

3 I th ink t ha t Judge Richey 's order in the f i r s t

4 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 ' s

6 order , unders tanding the ce r ta in narrow and eme rgency r e l i e f

7 t h a t was reques ted in the temporary re s t ra in ing order

8 motion, the re Judge Richey ordered, "De fend an ts h er eby are

9 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 r

11 custody as of the date of th i s order or herea f te r crea ted

12 from the e lec t ronic communication systems. I t i s fu r the r

13 ordered t ha t the Defendants are not to wri te over , erase or

14 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 , has

16 provided to P l a i n t i f f prec i se ly t ha t rep resen ta t ion . Has

17 of fe red to provide t ha t informat ion in a dec la ra t ion . And

18 P la in t i f f has found t ha t inadequate. To th e ex ten t t ha t

19 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 t

21 i r r epa rable harm would accrue , par t i cu l a r l y in l i gh t of the

22 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 a

25 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 no

g r e a t e r than t h e burden you are w i l l i n g t o undertake, then

how 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 by

doing 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 r

n 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 l

i s s u e with r e f e r e n c e t o whether or not t h e Office of

Adminis t ra t ion i s an agency s u b j e c t t o FRA. There i s no

downside 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 t

P 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 persuasive

demonst 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 only

l i k e l y but it w i l l and imminently occur . Based on

Defendants ' 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 r

assurances t o provide what i s more than - - what i s r e q u i r e d

more 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 the

i 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 have

provided no evidence and they c a n ' t provide evidence based

on 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 would

accrue 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 piecemeal

about 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 ate

assurances . And t ha t alone, we th ink , i s enough fo r our

r e l i e f .

about what we still don ' t know, because I th ink t ha t ' s

impor tan t on the r e l i e f i s sue and on the m eri ts of our

requ es t fo r r e l i e f . With a l l of the words t ha t have been

exchanged with the Court today, we still do not know what

the body of ex i s t ing backup recovery tapes , whether we ca l l

them 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 they

are . All we have are r ep resen ta t ions about what i s in the

OArs 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 we

are 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 been

wi l l ing to say t ha t . This i s not a su i t bro ught only

aga ins t the Office of Adminis t ra t ion . They have not been

w 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 to

say 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 as

a model. The fac tua l se t t ing was very d i f fe ren t , and I

th ink t h a t 's c r i t ic a l. Armstrong came about because the re

was about to be a pres ident ia l t r ans i t i on . And the concern

was not what had happ en ed in the pas t , but the fac t , the

l ike l ihood t ha t in the course of t ha t t r ans i t i on records

would get l o s t . And t ha t i s why the emergency r e l i e f t h a t

was 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 you

know, 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 ail

have been de le ted from White House se rvers , the fac t t h a t

the White House has refused to take s teps to recover those

t apes , to preserve , res to re those t apes . The fac t th a t to

th i s date the White House still does not have an appropr ia te

and e f f ec t ive e lec t ronic record-keeping system. That ' s what

the core of our l awsu i t i s about . It's a very, very

d i f f e r en t fac tua l s i t ua t ion than Armstrong, which i s why we

don ' 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 order

t ha t I th ink appropr ia te ly provides us the kind of r e l i e f

we're se ek in g h ere , so we can l i t i g a t e and get to the

mer 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 t

to 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 "Archival

condi t ion backup copies in exis tence as of __ " and the date

t ha t we would propose i s September 5th , 2007, the reason

being t ha t the Nat iona l Secur i ty Archive has also f i led a

lawsui t a lso before Judge Kennedy. Thei r l awsui t was f i l ed

on September 5th. So t ha t seems the appropr ia te date to

begin with .

We would inc lude language t ha t says t ha t t h i s

obl 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 House

Defendants .

And f ina l ly , Your Honor, we would want language

a t the end t ha t makes it c l ea r t h a t by agree ing to t ha t date

the P l a i n t i f f reserves the r igh t to seek r e l i e f fo r any

des t ruc t ion of backup tape or documents t ha t occurred pr io r

to 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 record

2 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 of

3 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 an

5 agency. So I 'm p r e t t y wel l versed i n those arguments and

6 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 t

8 c a s e . We were s o r t of i n the midst , you know, ongoing

9 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 had

12 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 . The

14 Court was very concerned t h a t t h e government had not

15 provided any proof , they wanted t o r e s t simply on t h e

16 s ta te m e nt s o f counsel . Once the government o f f e r e d sworn

17 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 them

18 - - 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 d

20 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 so

21 much wordsmithship and narrowness , and j u s t on a r e a l b a s i c

22 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 t

23 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 Judge

25 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 in

2 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 we

3 have , and t h i s i s where t h ey ' r e being p rese rved and how

4 t h ey ' r e be ing p rese rved . " And in f ac t , every t ime in t h a t

5 case t h a t th e Sec re t Serv ice o r one o f its components has

6 discovered new records , they have come in to Court w ith a new

7 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 needs

11 to know what a re t h e i r obl iga t ions and, you know, a re they

12 complying with them.

13 On th e mer i t s , I th ink - - to answer some o f your

14 ques t ions about th e Off i ce of Admin i s t r a t i on . It was

15 c rea ted by Pres iden t Car t e r by an e xe cu tiv e o rd er . It's a

16 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 , it

17 has alw ays ac ted as an agency. Unt i l our l i t i g a t i on it has

18 had a whole FOIA scheme, it publ i shed r egu l a t i on s . I f you

19 went to th e White House web s i t e , un t i l q u ite r ec en tly , it

20 in f a c t sa id very exp ress l y t h a t th e O ff ice o f

21 Admin i s t r a t i on i s an agency. I t l i s t ed it a long with the

22 EQIOIB.

23 But, Your Honor, I don ' t even t h ink you need to

24 de lve too deep ly in to t h a t i s sue , because whether o r no t the

25 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 t

the re a re d i s a s t e r recovery tapes or o the r tap es o uts id e of

the Office of Adminis t ra t ion 's custody, possess ion or

records t h a t inc lude federa l records, and the government

can ' 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 ive

e lec t ron ic record-keeping system ca l l ed ARMS, which dumped

th ings in buckets , e i t he r it was a f edera l record or a

pre s iden t i a l record , t h i s adminis t ra t ion has dumped them in

se rver s , t hey ' r e a l l commingled. So whether or not the

Off ice o f Admin is tr at io n i s an agency, it can ' t be denied

tha t the miss ing e-mai l s inc lude f edera l records and t ha t

the backup tap e inc lu de federa l records . So I th ink in some

respects 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 on

the mer i t s .

THE MAGISTRATE JUDGE: I mean, I th ink you've

answered a l l of them. What I would l ike you to do, i f you

would, i s , if you 'd be so kind, i s , in l i gh t of today 's

d iscuss ion , if you wanted to send me a r ev i sed proposed

order bye -ma i l , I 'd l ike to take a look a t it.

MS. WEISMANN:

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Your Honor. Thank you.

Yes, I wi l l do t ha t t h i s af te rnoon,




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obviously would have no way of knowing whether the model we

used here i s the same one used there . I don ' t know if they

of f - s i t e .

t rue , t ha t the Off ice of Adminis t rat ion wi l l maintain and

wi l l cont inue to maintain fo r the pendency of t h i s

l i t i ga t i on the d i sa s t e r recovery tapes t h a t were in

ex 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 l

maintain 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 r

recovery 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 a

d 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 I

formulate what I 'm going to do fo r Judge Kennedy, thee wi l l

be no des t ruc t i on . I have your assurance t ha t nothing wi l l

change, 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:

con t ro l t ha t are re lev an t to t h i s l awsu i t .1

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32

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 in

the custody, possess ion or contro l of the White House

Defendants?

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, I

expect 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 Federal

Rules of Civ i l Procedure. And they have, s ince 1938, been

in te rpre ted to extend to informat ion or documents which are

a 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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3

UNITED STATES OF AMERICA

Civ i l Action No. 07-1707

DISTRICT OF COLUMBIA

I , PAUL R. CUTLER, do hereby ce r t i f y t ha t a

recording o f the foregoing proceed ings in th e above matter

was dup l ica ted from an or ig ina l recording by the Office of

the C lerk , United Sta tes Dis t r i c t Court fo r the Dis t r i c t of

Columbia, and t ha t sa id dupl ic at e r ec or din g o f the

proceedings was t r anscr ibed under my d i r ec t ion to

typewri t ten form.

PAUL R. CUTLER

I 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 of

th e re co rd ed p ro ceed in gs to the bes t

i

(


crew v. eop: regarding missing wh emails: 10/26/07 - crews response to wh objections

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