Case 1:14-cv-01242-RCL Document 43 Filed 05/26/16 Page 1 of 15

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.
Plaintiff,
v.

Civil Action No. 14-cv-1242 (RCL)

U.S. DEPARTMENT OF STATE,

Defendant.
DEFENDANTS RESPONSE TO
PLAINTIFFS PROPOSED ORDER FOR DISCOVERY
INTRODUCTION
Judicial Watch, in its Proposed Order for Discovery (Proposed Order), throws aside all
pretense of seeking limited discovery, seeking instead to transform these proceedings into a
wide-ranging inquiry into matters beyond the scope of the Courts Order and unrelated to the
FOIA request at issue in this case. As such, Judicial Watchs proposed discovery order is neither
limited nor tailored to this case, Mem. and Order at 1, 3 (ECF No. 39) (Order), and fails to
comply with the Courts explicit instructions. For that reason alone, the Court should reject the
majority of Plaintiffs discovery requests as improper. Instead, it should adopt the State
Departments position, as set forth herein, which properly implements this Courts order for
tailored, limited discovery and avoids the type of cumulative and duplicative proceedings that
Judicial Watch has proposed.
As an initial matter, Plaintiffs proposed order seeks discovery far beyond what
Plaintiffs counsel attested was necessary to oppose States motion for summary judgment.
Judicial Watch has not even attempted to justify its purported need for broad-ranging discovery
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into a large number of searches by State on topics far broader than the limited FOIA request at
issue in this case. Plaintiff seeks documents and depositions related to the State Departments
searches for all Benghazi-related documentsnot only to searches performed in response to
Plaintiffs many FOIA requests, but also to searches initiated by other FOIA requesters as well as
searches in response to requests entirely unrelated to FOIA, much less the narrow FOIA request
that is the subject of this case. See Proposed Order at 1-2. Judicial Watch did not address those
topics in either its motion for discovery or the affidavit which it attached to that motion. For this
reason, it is not entitled to discovery on those topics under Rule 56(d).
Plaintiffs other requests, which relate to the use of non-state.gov email addresses, as well
as the clintonemail.com server, substantially overlap discovery already underway in another
case, Judicial Watch v. State, Civ. No. 13-1363 (D.D.C.). Judicial Watch makes no attempt here
to justify why the witnesses it names would provide any relevant information that is not
redundant and cumulative of the discovery that has already been ordered and initiated in Civil
Action 13-1363. See Proposed Order at 2. Indeed, given the discovery before Judge Sullivan
between the same parties, Plaintiff cannot logically know what additional discovery it may
need that is relevant to this case until discovery in that case is completed. Allowing the plan
agreed to by the parties in that case to run its course would reduce the burden of overlapping
discovery and allow the parties to evaluate any request for further discovery based on what
information has already been gathered on the same subject.
Instead of Plaintiffs overbroad request, the Court should adopt States position, which
would provide Plaintiff with a deposition witness to testify about the search for emails
responsive to Plaintiffs FOIA Request. Such testimony, when properly cabined to non-

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cumulative issues that are relevant to this case, should take no more than two hours. In addition,
while State cannot accept a notice of deposition on behalf of former employee Jacob Sullivan,
State would not object to Judicial Watch seeking to serve him with a subpoena for a deposition,
provided it is on the limited topic of the use of non-state.gov email accounts by himself and other
officials and staff within the Office of the Secretary. If, after completion of the above-described
discovery and the discovery agreed to by the parties in Civil Action 13-1363, Judicial Watch
believes that further discovery related to this case is still necessary, it could seek leave of this
Court to conduct such discovery in a filing that appropriately details why such discovery would
be both relevant and non-cumulative. State would then have the opportunity to object.
States position strikes the appropriate balance between Judicial Watchs stated need for
discovery regarding the adequacy of States search in this case, and the need to avoid the burden
and expense of discovery that replicates activities already underway in another, overlapping case
between the parties.
BACKGROUND
Judicial Watchs Freedom of Information Act (FOIA) request sought two narrow
categories of records from the Office of the Secretary, a component of Defendant United States
Department of State (State): (1) copies of updates and talking points about the attacks of
September 11, 2012, in Benghazi, Libya, that were given to former United States Ambassador to
the United Nations Susan Rice, and (2) any communications about such updates or talking
points. The request duplicated an earlier, identical request that Judicial Watch sent to the United
States Mission to the United Nations, where Ambassador Susan Rice worked. State conducted a
search for responsive documents that were in its custody and control at the time the FOIA

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request was received. After obtaining additional documents from former Secretary Clinton and
several of her aides, State conducted additional searches of those records as well. After all
searches were conducted, State located four (4) responsive records among the records in the
Office of the Secretary, all of which duplicated documents produced in response to the earlier
request made to the U.S. Mission to the United Nations; no responsive records among the
approximately 55,000 pages provided to State from the former Secretary; and one (1) responsive
record among the documents provided to State by former Secretary Clintons former aides after
their departure. See Govt. Mem. in Support of Mot. for Summary Judgment at 9-11 (ECF No.
19-1).
After State moved for summary judgment, Judicial Watch filed a motion for limited
discovery of facts. Pl.s Mot. to Allow Time for Limited Disc. Pursuant to Rule 56(d) at 1, ECF
No. 22 (Pl. Motion). Plaintiff did not take issue with the searches that State had already
conducted, and made no effort to discredit the sworn declaration describing those searches that
accompanied the Departments motion for Summary Judgment. Rather, Judicial Watch alleged a
need to understand[] . . . the facts and circumstances surrounding Mrs. Clintons . . . [and] other
officials use of clintonemail.com accounts, Pl.s Reply in Supp. of Mot. to Allow Time for
Limited Disc. Pursuant to Rule 56(d) at 10 (Pl. Reply). In other words, Plaintiff sought
discovery not about the searches that State conducted, but about searches that it claims State
should have conducted of records that it did not have. See Pl. Motion at 8.
In granting Plaintiffs request for discovery, this Court agreed with Judicial Watch that
limited discovery is appropriate. Order at 1. The Court noted that Plaintiff was entitled to
discovery on the facts and circumstances surrounding Secretary Clintons extraordinary and

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exclusive use of her clintonemail.com account to conduct official government business, as well
as other officials use of this account and their own personal email accounts to conduct official
government business. Order at 1. In granting Plaintiffs request for discovery, however, this
Court also noted that Judge Sullivan authorize[d] limited discovery in Civil Action 13-1363
and acknowledged that the sheer volume of pending cases involving these issues is a burden.1
The Court instructed Judicial Watch to file [a] specific proposed order detailing what additional
proposed discovery, tailored to this case, it seeks to have. Id. at 23 (emphasis added).
ARGUMENT
THE COURT SHOULD REJECT JUDICIAL WATCHS PROPOSED
ORDER FOR DISCOVERY, WHICH IS OVERBROAD AND DUPLICATIVE
In accordance with this Courts Order, and without waiving its prior objections to
discovery, 2 State objects as follows to Judicial Watchs proposed course of discovery.
A. Because Judicial Watch has not Provided an Affidavit Addressing Much of the
Discovery it Seeks, Discovery on Those Topics is Improper Under Rule 56(d)
Judicial Watch sought limited discovery under Civil Rule 56(d). See Pl.s Mot. at 1.
Rule 56(d) requires a party to submit an affidavit which, among other things, must outline the
particular facts [plaintiff] intends to discover and describe why those facts are necessary to the
litigation. U.S. ex rel. Folliard, 764 F.3d 19, 26 (D.C. Cir. 2014) (citing Convertino v. U.S.

There are approximately 60 cases pending in this district that involve searches of the emails of
former Secretary Clinton or her aides.

It remains States position that discovery in this action is not appropriate for the reasons set
forth in its Opposition to Plaintiffs Motion to Allow Time for Limited Discovery Pursuant to
Rule 56(D), (ECF No. 27).
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Dept of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012)).3 Judicial Watch submitted such an affidavit
with its motion for discovery. But neither the affidavit nor the motion discusses the need for
discovery into the processing of already completed searches related to Benghazi. See Pl.s Mot.
at 8 (listing the limited subject matters of inquiry, which do not include any mention of search
processes); Decl. of Ramona R. Cotca 5 (listing the topics about which Plaintiff seeks limited
discovery) (ECF No. 22-1).
Without providing any reason why it now seeks discovery on topics not mentioned in its
original discovery motion or affidavit, Judicial Watch seeks both documents and depositions on
any and all searches of the Office of the Secretary for emails relating to the September 11, 2012
Benghazi attack and its aftermath and all communications that concern or relate to the
processing of all such searches. Judicial Watch has not madeindeed, has not even attempted to
makethe necessary showing to justify such broad discovery under Rule 56(d). The Court has
therefore been deprived of the opportunity to assess all the requirements discussed in
Convertino with respect to those topics. U.S. ex rel. Folliard, 764 F.3d at 26. Thus, any
discovery on those topics, see Proposed Order at Item 1 and cross-references thereto at pages 23, should be denied. Id.4

As the Court noted in U.S. ex rel. Folliard, 764 F.3d at 27 n.3, Convertino discussed what was
then Rule 56(f) and is now Rule 56(d). Rule 56(d) carrie[d] forward without substantial change
the provisions of former subdivision (f). Fed. R. Civ. P. 56 advisory committees notes to 2010
Amendments.
4

Requests for production of documents are generally inappropriate in a Freedom of Information

Act case which itself is premised upon a request for documents. Stern v. United States, No. 773812-C, 1980 U.S. Dis. LEXIS 10603, *5 (D. Mass. 1980). Such a document request is
generally objectionable because it would allow plaintiff to expand his request without going
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Further, Judicial Watch has offered no arguments or evidence that undermines the
reasonableness of States search of its own records systems. See, generally, Declaration of John
F. Hackett (ECF No. 19-2) (describing extensive searches within the Office of the Secretary).
Indeed, Judicial Watchs own pleadings make clear that it does not contest States internal
search, but rather, it views the search as inadequate because State failed to search records outside
of its control. See Pl.s Reply at 3 (It is immaterial that Defendant searched the Office of the
Secretary when it knew relevant federal records were being stored somewhere else.). As such,
Document Requests 1 and 2to the extent they relate to this caseraise issues that are
unchallenged by either party and should not be the subject of discovery. See Citizens for
Responsibility & Ethics in Wash. v. Office of Admin., 566 F.3d 219, 226 (D.C. Cir. 2009) (The
district court appropriately refused CREWs discovery requests that . . . pertained to matters not
in dispute.).
Notwithstanding these deficiencies, State is willing to provide a witness to be deposed
under Rule 30(b)(6) on the limited topic of the search for emails responsive to the FOIA request
at issue in this case. Such a deposition would provide Judicial Watch the opportunity to inquire
into how searches were conducted in a manner properly limited and tailored to this case, as
required by the Courts Order. That deposition should not, however, repeat Judicial Watchs
lines of inquiry directed at the Rule 30(b)(6) witness in the case before Judge Sullivan. If

through the administrative procedures which are a prerequisite to an action for information under
the Freedom of Information Act. Id. (italics omitted). Thus, apart from the fact that Judicial
Watchs three Document Requests are overbroad and fall outside of the scope of the Courts
Order, they generally constitute improper vehicles for discovery in a FOIA action.
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properly cabined in this manner, two hours should be more than sufficient to complete this
deposition.
B. The Scope of Judicial Watchs Proposed Discovery is Impermissibly Broad
Even had Judicial Watch properly attested to the reasons it needs the discovery it seeks,
its proposed discovery is excessively broad. Indeed, it is far broader than what Judicial Watch
requested in the case before Judge Sullivan, despite the fact that the two cases involve the same
parties, and that Judicial Watch sought discovery in both on the basis of the same legal
principles. Here, Judicial Watch identifies three categories of document requestsand
additionally seeks to depose seven individuals on those topicseach of which strays far beyond
the bounds of its original FOIA request and the Courts order. Judicial Watchs FOIA request
sought records relating to talking points given to Former Ambassador Rice, and the Courts
Order specifically authorized discovery regarding Secretary Clintons and others use of
clintonemail.com. Order at 1. Judicial Watchs first two document requests, however, seek all
documents and communications relating to all searches of the Office the Secretary regarding the
2012 Benghazi attack, including searches for the Accountability Review Board, the House
Committee on Oversight and Government Reform, in preparation for Secretary Clintons
testimony before Congress in 2013, and other FOIA requests. Proposed Order at 12. In no
sense are these requests either limited or tailored to this case. Order at 1, 3. These first two
documents requests are not even limited to searches conducted in response to FOIA requests, and
should be rejected outright as being irrelevant to this case.
Judicial Watchs third document request is similarly outside the scope of what both this
Court and Judge Sullivan identified as relevant. That request seeks records relating to States

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policies, practices, procedures, and/or actions . . . to secure, inventory, and/or account for
records of Secretary Clinton, Cheryl Mills, Huma Abedin, and Jacob Sullivan prior to their
departures from State. Proposed Order at 3. However, it is the Federal Records Act, not FOIA,
that governs the creation, management, and disposal of federal records. Armstrong v. Bush,
924 F.2d 282, 284 (D.C. Cir. 1991); see also Competitive Enter. Inst. v. Office of Sci. & Tech.
Poly, 82 F. Supp. 3d 228, 234 (D.D.C. 2015) (appeal pending). As such, Judicial Watchs
request for documents relating to the process by which State secures, inventories, and accounts
for federal records is well outside the bounds of the Courts discovery order.
C. Judicial Watchs Discovery Plan Overlaps Ongoing Discovery in Civil Action
13-1363, and the Court Should Therefore Wait Until that Discovery is
Completed Before Deciding Whether Judicial Watch is Entitled to Discovery
Beyond What State Proposes Here.
Other discovery Judicial Watch proposes would be duplicative of that already underway
in Judicial Watch v. State, No. 13-cv-1363 (D.D.C. filed Sept. 10, 2013). Discovery in that case
encompasses the creation and operation of clintonemail.com for State Department business, as
well as the State Departments approach and practice for processing FOIA requests. Mem. and
Order at 12, Judicial Watch, No. 12-1363, ECF No. 73 (Sullivan Order).
The overlapsboth in terms of substance and in timingbetween the discovery Judicial
Watch requests here and the discovery already ordered by Judge Sullivan highlight the
difficulties of setting forth a discovery plan in this case that does not interfere with the ongoing
discovery in Judge Sullivans case. There is simply no way to know what additional . . .
discovery, tailored to this case, Order at 3, will be necessary before discovery in Judge

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Sullivans case concludes.5 Indeed, Judge Sullivan specifically ordered that Judicial Watch
must seek the Courts permission to conduct discovery beyond the depositions and the
interrogatories identified in his Order. Sullivan Order at 15. To permit such overlapping
discovery to go forward here would circumvent the precaution put in place by Judge Sullivan,
which required completion of the eight-week discovery planto which Judicial Watch and State
both agreedand review of those efforts before considering requests for any further discovery.
In light of the circumstances discussed above, the best course would be to follow the plan
agreed to by the parties in Civil Action 13-1363 and wait until discovery in that case is complete
before addressing what discovery, in addition to that described in Section D below, might be
needed here.6 This would reduce the burden of duplicative discovery and allow the parties to
evaluate any further discovery based on what information has already been gathered on the same
subject. See Order at 2 (The Court does understand the Governments argument that the sheer
volume of pending cases involving these issues is a burden . . . .).
Regarding depositions, for the reasons already discussed, State objects to any attempt by
Judicial Watch to question the individuals identified in its Proposed Order regarding Document
Requests 1, 2, and 3overbroad topics that fall outside of the scope of discovery in the FOIA

As one example, Judicial Watch seeks in this case to depose Cheryl Mills. Proposed Order at
2. However, States response to Judicial Watchs Proposed Order is due the day before Ms.
Mills is scheduled to be deposed in Civil Action 13-1363, thus leaving both parties unable to
determine the extent to which a second deposition would be duplicative or necessary.
6

Discovery in Civil Action 13-1363 is underway and currently scheduled to conclude at the end
of June 2016.
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context and as set by the Court.7 State also objects to Judicial Watchs request to take a second
30(b)(6) deposition, in addition to the one already scheduled in Civil Action 13-1363, beyond the
limited topic of the search for emails responsive to the FOIA request at issue in this case. As
proposed by Judicial Watch, that deposition would be wide-ranging and completely untethered
from this case, including questions regarding Document Requests 1, 2, and 3overbroad topics
that fall outside of the scope of discovery in the FOIA context and as set by the Court.
Moreover, preparing for a 30(b)(6) deposition requires a significant investment of time and
resources on the part of State, which are already being expended in Civil Action 13-1363, and
Judicial Watch offers no reason why a second 30(b)(6) deposition (beyond the limited scope
State proposes) is necessary in the present case.
Judicial Watchs other requested depositions present additional concerns. Plaintiff seeks
to depose Cheryl Mills regarding the use of non-state.gov email accounts by herself and other
officials and staff within the Office of the Secretary, as well as the private search of Secretary
Clintons clintonemail.com account. Proposed Order at 4.8 Neither topic is appropriate. First,

Cheryl Mills, Jacob Sullivan, Secretary Clinton, Lauren Jiloty, and Monica Hanley are not
current State employees and are not parties to this litigation. Because they are non-parties, State
cannot accept notices of deposition on their behalf.
That said, State will not object to Judicial Watch attempting to serve Jacob Sullivan with a
subpoena for a deposition on the limited topic of the use of non-state.gov email accounts by
himself and other officials and staff within the Office of the Secretary. Because the emails of
Mr. Sullivan are not at issue in Civil Action 13-1363, but were searched in this case, a deposition
limited to that topic would be tailored to this case and properly limited in scope.
8

Judicial Watch never explains what it means by the private search. We assume Judicial
Watch is referring to the review conducted by Secretary Clintons lawyers for the purpose of
responding to States request to return any federal records to the State Department.
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Ms. Mills is already scheduled to be deposed in Civil Action 13-1363, the scope of which
includes the operation of clintonemail.com for State Department business. Sullivan Order at
12. The topics about which Judicial Watch seeks to question Ms. Mills in this case overlap
extensively with the topics on which she has agreed to be deposed in that matter. Permitting an
overlapping second deposition in this case would be redundant and wasteful of time and
resources.
Additionally, Judicial Watchs request to depose Secretary Clinton is wholly
inappropriate given Judge Sullivans prior ruling on the matter. Per his Order, [i]f [Judicial
Watch] believes Mrs. Clintons testimony is required, it [may] request permission from the
Court to conduct such a deposition after discovery in that case is complete, and after citing
information learned during discovery demonstrating that the deposition of Mrs. Clinton [is]
necessary. Sullivan Order at 14. Judicial Watch itself proposed that approach to Judge
Sullivan, see Proposed Discovery Plan 2, Judicial Watch, No 13-cv-1363, ECF 58-1, and it
offers no reason for deviating from it here. Indeed, doing so would allow the discovery
proceedings in this case to jump ahead of the proceedings in Civil Action 13-1363, which the
Court here specifically sought to avoid in its Order.9
Finally, Judicial Watchs requests to depose Lauren Jiloty, Monica Hanley, and Clarence
Finney are cumulative and extensively overlap depositions already scheduled in Civil Action
13-1363. Judicial Watch cites no reason why any of those individuals would be able to shed
9

Former Secretary Clinton testified under oath at a public hearing of the Benghazi Select
Committee in October 2015. At that hearing, she testified about clintonemail.com and her email
practices. The full transcript is available online at https://www.washingtonpost.com/news/postpolitics/wp/2015/10/22/transcript-clinton-testifies-before-house-committee-on-benghazi/.
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light on the use of non-state.gov email accounts by persons in the Office of the Secretary other
than their respective positions at State. And Judicial Watch has already deposed, or is scheduled
to depose, three individuals who held or hold higher positions in the Office of the Secretary:
Stephen D. Mull (former Executive Secretary), Lewis A. Lukens (former Executive Director of
the Executive Secretariat), and Patrick F. Kennedy (Under Secretary for Management since
2007). Before these depositions are complete, there is no reason to believe that depositions of
Ms. Jiloty, Ms. Hanley, and Mr. Finney in this case would provide anything above and beyond
what Mr. Mull, Mr. Lukens, and Mr. Kennedy will be able to provide in Civil Action 13-1363.
This is especially true given that Judicial Watch seeks information about email generally within
the Office of the Secretary, and the individuals scheduled to be deposed in Civil Action 13-1363
all had greater oversight over and responsibility for activities occurring in that office.10
D. States Position
Pursuant to the Courts order, limited and targeted discovery in this case, on two subjects
not covered by the discovery in Civil Action 13-1363, is more appropriate and reasonable than
Plaintiffs far reaching proposal. Such discovery should not include overbroad requests for
production of the sort Plaintiff has posed here. States position is as follows:
(1)

State will produce a witness to be deposed under Rule 30(b)(6), for up to two
hours, on the limited topic of the search for emails responsive to the FOIA request
at issue in this case.

10

The Office of Inspector General report on email records management in the Office of the
Secretary may provide some of the information Plaintiff seeks. See Office of the Secretary Evaluation of Email Records Management and Cybersecurity Requirements, available at
https://oig.state.gov/reports/9926 (last accessed May 26, 2016). Any request for additional
discovery Judicial Watch may make after the completion of discovery in Civil Action 13-1363
should avoid seeking information already available in the report.
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(2)

State will not object to Judicial Watch seeking to serve Jacob Sullivan with a
subpoena for a deposition on the limited topic of the use of non-state.gov email
accounts by himself and other officials and staff within the Office of the
Secretary.

(3)

After the resolution of the above-described discovery and the discovery in Civil
Action 13-1363, Judicial Watch may choose to seek the Courts permission to
conduct additional discovery concerning clintonemail.com, if necessary, and State
reserves its right to object. Awaiting the completion of those proceedings puts the
Court and the parties in the best position to judge what additional . . . discovery
would be needed to determine whether the search conducted here reasonable
produced all responsive documents. Order at 1, 3.

Discovery would be conducted in accordance with the relevant Federal Rules of Civil Procedure
and subject to the conditions set forth in the Minute Order entered on May 26, 2016 by Judge
Sullivan ordering that all audiovisual copies of depositions taken in this case shall be sealed
until further order of the Court.11 Taken together with the discovery in Civil Action 13-1363,
this would provide Judicial Watch with as many as nine depositions and four interrogatories, as
well as opportunities to seek additional discovery in both cases. A proposed order reflecting this
position is attached.12

11

Judge Sullivan issued this order to protect a party or person from annoyance, embarrassment,
oppression or undue burden or expense. Minute Order of May 26, 2016, Judicial Watch, Civ.
No. 13-1363 (quoting Fed. R. Civ. P. 26(c)(1)). The Court noted that [t]he public has a right to
know details related to the creation, purpose and use of the clintonemail.com system. Thus, the
transcripts of all depositions taken in this case will be publicly available. It is therefore
unnecessary to also make the audiovisual recording of those depositions public. Id.
12

The proposed order contains several provisions to which Judicial Watch and State agreed in
Civil Action 13-1363, including a provision allowing State to elect to have a brief period of time
to examine transcripts for information that must be protected from public release and to seek an
order precluding public release of such information. See Joint Proposed Order, Judicial Watch,
Civ. No. 13-1363 (ECF No. 65-1).
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Date: May 26, 2016

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
ELIZABETH J. SHAPIRO
Deputy Branch Director
/s/ Robert J. Prince
ROBERT J. PRINCE (D.C. Bar No. 975545)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 305-3654
robert.prince@usdoj.gov
Counsel for Defendant

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