Court orders expedited hearing on Judicial Watch request for discovery as to electronic devices and servers.
Will Hillary Clinton be subject to a deposition under oath as to her use of various electronic devices and servers as part of the Judicial Watch FOIA federal lawsuit seeking records as to Huma Abedin’s outside employment?
That is a distinct possibility in light of the State Department’s apparent failure to comply with a Court order as to its efforts to search Hillary’s original server for records.
The Court, at the request of Judicial Watch, has expedited a status conference originally scheduled for September 10, to August 19:
MINUTE ORDER. In light of the State Department’s August 14, 2015 Status Report and Judicial Watch’s August 17, 2015 reply thereto, a status hearing will be held on Thursday, August 20, 2015 at 12:00 p.m. in Courtroom 24A. The State Department shall file a reply to Judicial Watch’s August 17, 2015 response no later than 12:00 p.m. on August 19, 2015. Signed by Judge Emmet G. Sullivan on August 17, 2015. (lcegs4) (Entered: 08/17/2015)
In its papers , Judicial Watch says it intends to seek discovery, which normally does not take place in FOIA cases, because of the State Department’s non-compliance. (Full embed of Judicial Watch request at bottom of post.)
While Judicial Watch has not specified what discovery it seeks to take, “discovery” can include depositions, which are sworn testimony on the record. Other forms of discovery would appear inadequate given the history of the case.
Given the players involved, discovery logically would include Hillary, Abedin, and Cheryl Mills, not to mention Hillary’s attorney David Kendall as custodian of at least some records.
Judicial Watch provided the following statement in response to our inquiry:
“We believe that discovery is now the only way to receive the necessary information, wherever that may lead.”
Background – How We Got Here
On Friday, August 14, 2015, we covered the State Department’s Court-ordered Status Report in
That court order came after the Court ordered Hillary, Abedin and Cheryl Mills not to destroy records, and other court proceedings as to whether all electronic devices had been searched for records.
That August 14 Status Report was supposed to detail whether and to what extent the Department was working with other agencies to recover data from the server Hillary Clinton turned over the Department of Justice.
The State Department’s response was that it will not even attempt to search Hillary’s server because it has not duty to review data in the possession of other agencies, and because it relied on a declaration by Hillary under penalty of perjury that all federal records had been produced.
Judicial Watch today filed a Response in which it alleges non-compliance by the State Department with the Court order. That Response states, in part:
1. Like its previous filings, Defendant’s August 14, 2015 Status Report fails to provide the basic information requested by the Court. See Plaintiff’s August 10, 2015 Response.
2. The Court ordered Defendant to identify any and all servers, accounts, hard drives, or other devices currently in the possession or control of the State Department or otherwise that may contain responsive information. In response, Defendant submitted a declaration by the head of Defendant’s FOIA office in which he testifies that Defendant “is not currently aware of any personal computing devices issued by the Department to former Secretary Clinton, Ms. Abedin, or Ms. Mills that may contain responsive records.” Defendant’s August 14, 2015 Status Report at ¶ 8.
3. Taking this sworn statement on its face, it appears as though the declarant made no effort whatsoever to find out what electronic devices the former head of the agency and two of her closest advisors used to conduct official government business for four years and where these electronic devices may be located or if they are still in existence.
4. Similarly, Defendant offered no evidence whatsoever concerning servers, backups, or other devices in its possession.
5. In addition, Defendant does not identify whether former Secretary Clinton was
provided or used a state.gov email address.
6. Moreover, only now – more than 18 months after the initial searches were conducted – does Defendant disclose that it searched the state.gov email accounts of “two other former employees.” August 14, 2015 Status Report at ¶ 7. Defendant does not identify who those employees are or whether they also used former Secretary Clinton’s email server or any other non-state.gov email address to conduct official government business. The mere fact that two other unnamed individuals may have records responsive to Plaintiff’s FOIA request is material, should have been disclosed at the July 31, 2015 Status Hearing, if not sooner, and raises a variety of additional questions.
7. While wholly ignoring the Court’s directive, Defendant dismisses the Court’s concerns as irrelevant by attempting to revive an argument already rejected by the Court.
8. During the July 31, 2015 Status Hearing,1 Defendant argued that this case is an ordinary FOIA lawsuit and the next step should be dispositive briefing concerning the adequacy of Defendant’s searches. The Court rejected this argument. The Court stated:
But there’s one thing about me sending the Government off on a fishing expedition to try and find something. There’s another thing though for the Government to ask former government employees tell us whether or not you maintained our files on your private servers and other electronic devices or
otherwise. And otherwise would be electronic devices or in that box in their garage or whatever. Tell us that. And if the answer is yes, you must declare under penalty whether or not you have provided the Government with copies of all of those materials. And if you haven’t, give us those materials and then we determine whether bases exist for other kinds of discovery.
Transcript at 21 (emphasis added).
9. Following the July 31, 2015 Status Hearing, the Court gave Defendant the opportunity to provide answers to questions that are fundamental to whether Defendant has satisfied its obligations under FOIA. Defendant did not do so. It has only submitted partial answers with material omissions. Until complete answers are provided to these questions, the Court and Plaintiff cannot even hope to understand – let alone determine – whether Defendant has conducted searches reasonably calculated to uncover all relevant documents.
10. Because Defendant and the three individuals – who apparently are really five individuals – have now failed to comply with the Court’s order and to provide complete answers to basic questions, Plaintiff agrees with the Court’s assessment that a time may come that other kinds of discovery” would be appropriate. That time may be now.
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