Case 1:07-cv-01707-HHK-JMF Document 93 Filed 12/04/2008 Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil No. 07-01707 (HHK/JMF)
)
EXECUTIVE OFFICE OF THE )
PRESIDENT, et al., )
)
Defendants. )
____________________________________)
NATIONAL SECURITY ARCHIVE, )
)
Plaintiff, )
)
v. ) Civil No. 07-01577 (HHK/JMF)
)
EXECUTIVE OFFICE OF THE )
PRESIDENT, et al., )
)
Defendants. )
____________________________________)

PLAINTIFF CREW’S RENEWED MOTION FOR LEAVE TO CONDUCT

EXPEDITED DISCOVERY AND SUPPORTING MEMORANDUM

STATEMENT

Over one year ago CREW1 filed this lawsuit to compel the White House defendants and

the Archivist to comply with their mandatory record-keeping obligations under the Federal

Records Act (“FRA”). Facing the disappearance of many millions of missing email and the

White House’s refusal to implement an appropriate electronic records management system,

plaintiff and the nation risk losing a critical piece of our history, memorialized in the records of

1
CREW is the acronym for plaintiff Citizens for Responsibility and Ethics in
Washington.
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the Bush presidency.

Today, as this administration draws to a close and we face an upcoming transition to a

new administration, the proper preservation of those records remains in grave doubt. A recently

disclosed contingency plan prepared by the National Archives and Records Administration

(“NARA”) reveals how ill-prepared NARA is to receive the electronic records of the Bush

administration and how little it knows about those records, despite the fact that the transition is

less than two months away. And the White House defendants, rather than directing their efforts

to complying with their legal obligations, have sought to erect every conceivable procedural

roadblock in this lawsuit from standing to a lack of judicial review and have fought every effort

to impose even minimal preservation obligations.

Accordingly, with so little time remaining in the Bush presidency and the continued

uncertainty about the status of the administration’s electronic records, CREW renews its request

to conduct expedited discovery. Specifically, CREW seeks to depose a few key individuals

before the administration comes to a close and to access key documentary evidence while it is

still in the hands of the White House defendants. Defendants can claim no prejudice; their

motion to dismiss has now been denied on all grounds and merits discovery is plainly the next

appropriate step.

BACKGROUND

On September 25, 2007, CREW filed its eight-claim complaint in this action against the

Executive Office of the President (“EOP”), the Office of Administration (“OA”) and its director,

NARA, and the archivist. The complaint challenges as contrary to law the knowing failure of

the defendants to recover, restore and preserve millions of email records created and/or received

2
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within the White House and the failure of the archivist and head of OA to take enforcement

action to ensure adequate preservation of all federal records. Complaint, ¶ 1. Plaintiff also seeks

an order compelling defendants to implement an adequate electronic records management system

in compliance with federal law. Id. at ¶ 2. This complaint is nearly identical to a complaint filed

on September 5, 2007, by the National Security Archive (“NSA”) against the same defendants in

the now-consolidated case, The Nat’l Sec. Archive v. Executive Office of the President, Civil

No. 07-1577 (HKK) (D.D.C.).

The factual background to the complaint includes OA’s discovery in October 2005 that

millions of email records covering a two and one-half year period were missing from White

House servers where they had been dumped for archival storage. Id. at ¶¶ 32-34. After

analyzing the problem and determining the extent of the missing emails, the periods of time

covered by the missing emails, and the EOP components from which the missing emails

originated, OA developed a recovery plan that called for restoring the deleted emails from then-

existing back-up tapes. Id. at ¶ 36. The White House, however, never implemented this plan or

any other; to date, the White House has failed to restore any of the deleted emails. Id. at ¶¶ 36,

39. As a result, the back-up copies created by the White House are the only repository for the

deleted emails. Id. at ¶ 41. Those tapes contain both presidential and federal records in a

commingled form. Id.

The deleted emails had been stored on White House servers as a substitute for the

previous electronic record-keeping system in place, ARMS (“Automated Records Management

System”). Complaint, ¶ 32. There were and continue to be no controls in place to protect

against anyone with access to the servers altering or destroying the electronic records stored on

3
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these servers. Id. Despite the expenditure of significant sums of money and the development of

several electronic record-keeping management systems to replace ARMS, the White House has

to date failed to implement an appropriate and effective electronic records management system.

Id. at ¶¶ 36-40.

Contemporaneously with filing this lawsuit CREW sent a letter to OA seeking assurances

that all back-up copies of the deleted records would be preserved pending the resolution of this

litigation. When OA’s counsel refused to provide those assurances, CREW sought a temporary

restraining order (“TRO”) to compel the defendants to preserve all back-up copies. By order

dated November 12, 2007 (Document 18), the Court ordered defendants to preserve all media

“created with the intention of preserving data in the event of its inadvertent destruction,” and

further ordered defendants to not transfer this media out of their custody or control without leave

of the Court.

Defendants then filed a motion to dismiss (Document 39), arguing that plaintiffs’

complaints are precluded by both the Presidential Records Act (“PRA”) and the FRA; that

CREW and NSA lack standing; that EOP is an improperly named party; and that plaintiffs

cannot maintain their mandamus claims because they are duplicative of plaintiffs’ claims under

the Administrative Procedure Act (“APA”). On November 10, 2008, the Court issued a

Memorandum Opinion and Order (Document 90), denying defendants’ motion in all respects.

ARGUMENT

GOOD CAUSE EXISTS TO GRANT PLAINTIFF EXPEDITED

DISCOVERY.

This Court has broad discretion as to whether and to what extent CREW should be

granted discovery. See, e.g., SafeCard Servs., Inc. v. Securities and Exchange Comm’n, 926

4
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F.2d 1197, 1200 (D.C. Cir. 1991). That discretion includes the ability to expedite discovery,

Ellsworth Associates, Inc. v. U.S., 917 F.Supp. 841, 844 (D.D.C. 1996), and to permit discovery

prior to the parties having conducted a Rule 26(f) conference. Fed. R. Civ. P. 26(d). Moreover,

where, as here, “one party has an effective monopoly on the relevant information” the need for

discovery is especially acute. Founding Church of Scientology v. Nat’l Sec. Agency, 610 F.2d

824, 833 (D.C. Cir. 1979).

While courts are split as to the standard that a party seeking expedited discovery must

satisfy,2 the courts in this district generally apply a good cause standard. See, e.g., Ellsworth

Associates, Inc., 917 F.Supp. at 844. Under that standard, a litigant is entitled to expedited

discovery unless the opposing party can show good cause why discovery should be denied. Id.

Moreover, a party’s need for timely information constitutes good cause to grant a request for

expedited discovery. Optic-Electronic Corp. v. U.S., 683 F.Supp. 269, 271 (D.D.C. 1987);

Whitkop v. Baldwin, 1 F.R.D. 169 (D. Mass. 1939);.

Here, expedited discovery is warranted3 under either standard based on plaintiff’s

compelling and urgent need to gain access to key documents and deponents prior to January 20,

2009, when the Bush administration ends and documents are transferred out of the White House

2
Some courts apply the same standard as that required to obtain a preliminary injunction,
see, e.g., Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982), while other courts apply a
“reasonableness” or “good cause” standard. See Special Situations Cayman Fund v. Dot Com
Entertainment Group, Inc., 2003 U.S. Dist. LEXIS 25083 *5 (W.D.N.Y. 2003). Of note, Notaro
was decided based on a pre-amended version of Rule 26. See Semitool, Inc. v. Tokyo Electron
America, 208 F.R.D. 273, 274 (N.D. Cal. 2002) (explaining why Notaro standard should not
apply).
3
The requested discovery is only “expedited” to the extent it would occur prior to any
Rule 26(f) conference; the case itself is over a year old and defendants have already presented
multiple threshold legal defenses, all of which the Court rejected.

5
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defendants’ custody and control. Many of the documents plaintiff seeks through discovery are

under the possession and control of defendant OA, an EOP component recently determined to be

a non-agency subject to the PRA. See CREW v. Office of Administration, 565 F.Supp.2d 23

(D.D.C. 2008). For example, CREW will seek the documentation OA prepared when it

discovered the missing emails as well as documents related to at least two electronic records

management systems that were developed but never implemented. This documentation will

confirm the scope of the missing email problem and how it can be redressed. But unless the

district court’s determination that OA is not an agency is overturned on appeal, all of OA’s

documents will be transferred to NARA at the end of the Bush administration by operation of the

PRA.

Given the enormous volume of records NARA anticipates it will receive and its general

lack of familiarity with those records,4 plaintiff’s timely access to responsive documents is far

from assured. Equally in doubt is plaintiff’s ability to do any timely follow-up as the records

quite literally will be out of OA’s hands. Plaintiff will be similarly hampered with any other

discovery request that seeks documents covered by the PRA as such documents will also be

transferred to NARA and out of the EOP’s custody and control at the close of the Bush

administration. Likewise, plaintiff’s ability to get full and timely access to deponents will be

restricted once those deponents no longer work at the EOP.

Moreover, there is no assurance that all documents plaintiff seeks through discovery will

be preserved. Here and in other litigation the White House defendants have made clear their

4
For example, NARA recently executed a contingency plan for presidential electronic
records (attached as Exhibit 1), that estimates NARA will receive email data consisting of
“hundreds of millions of messages.”

6
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view that they have the complete and unreviewable discretion under the PRA to determine which

documents are to be preserved. Documents have already been destroyed; former OA Chief

Information Officer Theresa Payton confirmed in her testimony before Congress the White

House practice of erasing the hard drives of all departing employees. House of Representatives

Committee on Oversight and Government Reform, Hearing on the Electronic Records

Preservation at the White House, February 26, 2008, Preliminary Transcript at p. 100.5 Still

unknown is the extent to which other documents existing on other media will be cleaned out in

anticipation of a new administration. Comparable concerns led the court in Bush v. Armstrong

to enter a preservation order to prevent the destruction of certain backup tapes as part of the

transition at the end of the Reagan administration as well as at the close of the Bush

administration in 1992. See 807 F.Supp. 816, 820 (D.D.C. 1992) (“[I]f records are erased at the

end of the Bush Administration, the public’s right to access the subject records will be

irreparably lost and harmed.”). See also Express One Int’l, Inc. v. U.S. Postal Service, 814

F.Supp. 87, 92 (D.D.C. 1992) (recognizing need for quick discovery in light of upcoming

transition to new contractor).

Expedited discovery is particularly warranted given the nature of this case, which differs

from the typical civil litigation brought against a federal agency official. In such cases, an

administration change results in the automatic substitution of the official’s successor and the

case continues. See Fed. R. Civ. P. 25(d). Here, however, plaintiff is challenging policies and

5
The full hearing transcript is included as Exhibit 2 (Document 57-4) to Plaintiff
CREW’s Motion to Show Cause Why Defendants Should Not Be Held In Contempt And For
Sanctions (Document 57).

7
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practices unique to and concerning the records of the Bush administration6 and the incoming

administration will not inherit those records. Although an administrative change will not moot

any of plaintiff’s claims, it will hinder plaintiff’s access to relevant discovery.

By contrast, permitting expedited discovery now will cause defendants no harm.

Defendants’ previous objections to discovery were based in large part on their desire to resolve

this case through a motion to dismiss.7 Defendants have now filed such a motion, which the

Court denied in all respects, leaving only the merits of plaintiffs’ claims for resolution.

Defendants also objected previously to discovery on the ground that because this lawsuit

is brought under the APA, it must be decided on the basis of an administrative record

unsupplemented by any discovery. This claim is equally unavailing given the nature of the

claims at issue, which challenge agency inaction, and the non-existence of any formal

administrative record.

Although judicial review of agency action generally is limited to the administrative

record,8 “discovery often is not so limited, in particular where, as here, it is not clear that

defendants have designed an administrative record or on what basis they will do so.” Institute

for Wildlife Protection v. U.S. Fish & Wildlife Service, 2007 U.S. Dist. LEXIS 90969, *32 (D.

Or. 2007) (emphasis in original) (citations omitted). Plaintiffs’ claims here, based in part on the

APA, challenge defendants’ failure to take any actions “to recover, restore and preserve

6
The prior administration, for example, used the ARMS system to manage its electronic
records. At issue here, inter alia, is the decision of the Bush administration to discontinue
ARMS, while failing to replace it with another appropriate electronic record keeping system.
7
See Defendants’ Consolidated Opposition to Plaintiffs’ Motions for Leave to Conduct
Expedited Discovery and Motion to Compel Rule 26(f) Conference (Document 16).
8
See, e.g., Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985).

8
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electronic communications created and/or received within the White House” and “to establish an

electronic records management system that complies with the FRA.” Memorandum Opinion and

Order, November 10, 2008, pp. 1-2 (“Mem. Op.”). As such, they present the paradigmatic

exception to the general rule disfavoring discovery in APA claims; as a challenge to agency

inaction there is no designated administrative record, no discernable basis on which defendants

could designate an administrative record, and discovery is necessary to shed light on defendants’

inaction. Cf. Seattle Audubon Soc’y v. Norton, 2005 U.S. Dist. LEXIS 42243, *7 (W.D. Wash.

2005) (in cases challenging agency inaction “there simply are more holes in the administrative

record for the parties to identify and plug.”).

Tellingly, in opposing the previously requested discovery defendants offered only

boilerplate arguments about the general scope of review in an APA action and did not address

what, if any, existing administrative record documents the bases for all of defendants’ inaction.

Indeed, it is almost inconceivable that defendants would willingly make public the full record of

why they failed to act; their refusal to date to even publicly acknowledge the extent of the

missing email, their last-minute decision to declare OA is no longer an agency subject to the

Freedom of Information Act to prevent having to disclose documents revealing the extent of

their knowledge and failure to act, and their stubborn refusal to provide Congress and the public

with the details of any analysis they conducted most recently all demonstrate an effort to conceal

the full extent of their inaction.

In sum, the current posture of this case presents compelling reasons why expedited

discovery is warranted. Under this administration’s watch, millions of emails have gone missing

and the White House has done nothing to reconstruct those historically important federal records

9
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or prevent further document destruction. The upcoming transition coupled with the risk that

critical evidence will either not be preserved or not be accessible provide ample support for the

expedited discovery plaintiff seeks.

CONCLUSION

For the foregoing reasons, plaintiff respectfully requests its motion for expedited

discovery be granted.

Pursuant to LCvR 7(m) counsel for plaintiff contacted defendants’ counsel about this

motion on December 4, 2008. Defendants’ counsel stated that defendants oppose expedited

discovery as well as any discovery.

Respectfully submitted,

____/s/_____________________
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20530
Phone: (202) 408-5565
Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: December 4, 2008

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil No. 1:07cv1707 (HHK) (JMF)
)
EXECUTIVE OFFICE OF THE )
PRESIDENT, et al., )
)
Defendants. )
____________________________________)

[PROPOSED] ORDER

The Court having considered plaintiff’s motion for leave to conduct expedited discovery,

defendants’ response and the entire record herein, it is hereby ORDERED that plaintiff’s motion

is GRANTED, and that plaintiff is hereby given leave to conduct expedited discovery.

Dated: _________________ ______________________________

HENRY H. KENNEDY, JR.
United States District Judge