CREW v. EOP: Regarding Missing WH Emails: 6/11/2010 - Letter to Ferriero With Exhibit
CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
Transcript of 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
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 1/45
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 2/45
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.
2
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
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 3/45
3
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
Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 4/45
4
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.).
Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 5/45
5
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]
Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 6/45
6
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
Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 7/45
6 In fact, it is the inadmissible iteration of their counsel, completely unsupported by any
factual evidence of record.
7
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
Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 8/45
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.
8
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
Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 9/45
9
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.
Case 1:07-cv-01707-HHK Document 13 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 10/45
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.
10
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
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 11/45
11
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
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 12/45
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 13/45
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
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 14/45
2
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?
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 15/45
3
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.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 16/45
4
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 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE MAGISTRATE JUDGE: L e t ' s s e e . L e t ' s assume
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 17/45
5
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?
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 18/45
6
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
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 19/45
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 20/45
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
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
care fu l ly .
MS. WEISMANN:
8
I 'm t ry ing to l i s t en
-- ve ry n arrowly t a i l o r ed response.
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pa
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 21/45
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 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 22/45
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 ,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MS. WEISMANN: Right .
THE MAGISTRATE JUDGE: But I would not cons ider
10
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 23/45
11
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 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 24/45
12
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,
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 25/45
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
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reasons . F i r s t of a l l , as we've t r i ed to expla in to them,
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 26/45
14
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
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 27/45
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
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 28/45
16
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?
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 29/45
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?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 MS. HONG: For th e Off ice o f Adm in is tr at io n
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 30/45
18
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
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 31/45
19
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 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 32/45
20
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.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE MAGISTRATE JUDGE: In th e cases b efo re the
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 33/45
21
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 ?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I f I may?
MS. HONG: I f you hold on one moment, Your Honor.
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 34/45
22
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:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 35/45
23
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
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 36/45
24
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.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 THE MAGISTRATE JUDGE: Thank you. Counsel?
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 37/45
25
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 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 38/45
26
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 - -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE MAGISTRATE JUDGE: How would it be improved,
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 39/45
27
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 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
But those are the minor what I th ink are
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 40/45
28
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
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 41/45
29
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
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 42/45
30
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:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Your Honor. Thank you.
Yes, I wi l l do t ha t t h i s af te rnoon,
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 43/45
31
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
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 44/45
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 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag
8/7/2019 CREW v. EOP: Regarding Missing WH Emails: 10/26/07 - CREWs Response to WH Objections
http://slidepdf.com/reader/full/crew-v-eop-regarding-missing-wh-emails-102607-crews-response-to-wh-objections 45/45
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
(
Case 1:07-cv-01707-HHK Document 13-2 Filed 10/26/2007 Pag