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Case 1:11-cv-00477-RJL Document 94 Filed 03/03/14 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
SHIRLEY SHERROD,
Plaintiff,
v.
ANDREW BREITBART, et al.,
Defendants.

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CIV. A. NO. 11-00477 (RJL)


ORAL ARGUMENT REQUESTED

PLAINTIFF SHIRLEY SHERRODS MOTION TO ADOPT


MODIFIED USDA DISCOVERY PLAN

Thomas D. Yannucci, P.C. (D.C. Bar #358989)


Michael D. Jones (D.C. Bar #417681)
Thomas A. Clare, P.C. (D.C. Bar #461964)
Beth A. Williams (D.C. Bar #502522)
Peter A. Farrell (D.C. Bar #975579)
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
Tel: (202) 879-5000
Fax: (202) 879-5200
Attorneys for Plaintiff
Dated: March 3, 2014

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 4
ARGUMENT.................................................................................................................................. 8
I.

THE COURT SHOULD ORDER USDA TO ADOPT PLAINTIFFS


JANUARY 27, 2014 DISCOVERY PROPOSAL.............................................................. 8
A.

Plaintiffs January 27, 2014 Proposal Requests Relevant Documents. .................. 8

B.

USDA Has Not Established That Plaintiffs January 27, 2014 Proposal
Will Impose An Undue Burden On USDA............................................................. 9
1.

Plaintiffs January 27, 2014 Proposal Is Not Unduly


Burdensome. ................................................................................. 10

2.

The Undue Burdens USDA Has Identified Relate To


Mr. OConnors Discovery Proposal, Not Plaintiffs
Proposal......................................................................................... 11

3.

Plaintiff Remains Willing To Discuss Any Legitimate


Concerns USDA Has About Her January 27, 2014
Proposal......................................................................................... 13

CONCLUSION............................................................................................................................. 14

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INTRODUCTION
Plaintiff desires to move this case along as expeditiously as possible and avoid any
further delay. For that reason, on January 27, 2014, Plaintiff sent the Department of Justice a
proposed discovery plan that would govern USDAs response to the subpoena Plaintiff
previously served. Ex. 1 (Jan. 27, 2014 S. Thibault Letter). Plaintiffs January 27 proposal
substantially narrowed her subpoena requests, and was in fact based on DOJs own
December 19, 2013 proposal for responding to Plaintiffs subpoena and the two subpoenas
Defendant OConnor served. In particular, Plaintiffs proposal:
x

Explains that she is seeking only a handful of hard copy documents, such as her own
USDA personnel file;

Accepts DOJs proposal that email searches cover the period June 1, 2010
October 31, 2010;

Adopts DOJs list of forty individuals whose email accounts would be searched; and

Adopts DOJs list of search terms that would be used to identify responsive emails.

Plaintiffs proposal also asks that DOJ add seven additional email custodians whose names
appeared in relevant documents USDA previously produced, and that DOJ add a handful of
additional search terms. For example, Plaintiff asked DOJ to add biggovernment* as a search
term given that the Defendants blog post was published on Mr. Breitbarts BigGovernment.com
website.
Since January 27, 2014, DOJ has refused to accept or meaningfully discuss the
particulars of Plaintiffs proposal. Instead, it has offered two categorical responses, both of
which lack merit. First, DOJ has asserted that each and every one of the documents that would
be produced under Plaintiffs proposal is irrelevant to Plaintiffs claims. For example, DOJ
believes that the following emailwhich was sent hours after the Defendants published their
blog posthas no relevance to the claims alleged in the Complaint:

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Ex. 2 (July 19, 2010 J. Berge Email). Emails of this sort are plainly relevant to Mrs. Sherrods
claims, and they are also the sort of emails that would be produced under Plaintiffs January 27,
2014 discovery proposal.
Second, DOJ has asserted that Plaintiffs proposal would impose an undue burden on
USDA. That is a puzzling assertion given that the vast majority of the searches in Plaintiffs
proposal were originally proposed by DOJ itselfand because DOJ apparently has agreed to
conduct most of those searches anyway in response to a third partys FOIA request. In light of
those facts, Plaintiff repeatedly has asked DOJ to explain why it would be unduly burdensome to
add seven custodians and thirteen search terms to the forty custodians and thirteen search terms
DOJ suggested. DOJ, however, has not responded to the particulars of Plaintiffs proposal.
Instead, DOJ combined Plaintiffs proposal with Mr. OConnors much broaderand thus more
burdensomeproposal, and since then has insisted that the combined proposal DOJ created is
unacceptable or that it would take more than eight months to complete.
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Plaintiff agrees that Mr. OConnors proposal is overbroad in several respects.

For

example, he asked USDA to search for emails that were sent as early as July 25, 2008two
years before the Defendants published their July 19, 2010 blog post, and a year before USDA
offered to appoint Mrs. Sherrod Georgia State Director for Rural Development. See Feb. 11,
2011 Compl. [Dkt. 1-2] 20.

Moreover, Mr. OConnor asked USDA to search the email

accounts of 20 additional custodians, and asked USDA to include dozens of additional search
terms like Black Panthers and Pigford, which have no obvious relevance to the issues in this
case. Indeed, as Plaintiff pointed out at the February 20, 2014 status conference, the Defendants
motion to dismiss focused on the purported actions of the Tea Party and the NAACP, not the
Pigford v. Glickman class action that USDA settled several years ago.
But the fact that Mr. OConnors proposal is overbroad does not mean that Plaintiffs
proposal is overbroad, too. Nor does it provide a legitimate basis for DOJs refusal to explain
why it believes Plaintiffs proposal on its own presents an undue burden. If DOJ has specific
concerns about Plaintiffs January 27, 2014 plan (even though it was based on DOJs own plan),
Plaintiff stands ready to consider those issues. To date, however, neither DOJ nor USDA has
explained any such concerns or why they might be legitimate.
In the meantime, though weeks have passed, USDA apparently has only started the
process of identifying and collecting emails that are responsive to DOJs own discovery
proposal. When it sent that proposal last December, DOJ stated that it would take up to
45 days to collect responsive emails. Now, however, USDA estimates that it will need several
months just to collect emails from the time period DOJ proposed (and Plaintiff accepted), with
additional time needed after that for word searches, attorney review, and production. Ex. 3

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(Feb. 27, 2014 D. Glass Email). Moreover, USDA estimates that it will need an additional fourand-a-half months just to collect emails in response to Mr. OConnors broader requests. Id.
Because of DOJs and USDAs positions, Plaintiff was left with little choice but to file
this motion. DOJ has not identified any legitimate reason why it cannot or should not adopt
Plaintiffs January 27, 2014 proposal. Instead, it has wasted weeks insisting that Mr. OConnor
must narrow his requests. Ex. 4 (Feb. 10, 2014 S. Thibault Email). If Mr. OConnor will not
voluntarily focus his proposal on relevant documents, then this Court may have to address that
issue. But in all events, USDAs response to Plaintiffs requests should not be delayed simply
because Mr. OConnor and DOJ cannot resolve their dispute. Accordingly, Plaintiff respectfully
requests that the Court order DOJ and USDA to adopt and comply with Plaintiffs January 27,
2014 discovery proposal. 1
BACKGROUND
This is a defamation case against Defendants Breitbart and OConnor based on the false
and misleading statements and video clips they included in their July 19, 2010 blog post on
BigGovernment.com. Among other defamatory assertions, the blog post purported to offer
video proof that then-USDA official Shirley Sherrod admits that in her federally appointed
position, overseeing over a billion dollars ... [s]he discriminates against people due to their race.
Compl. 4 (ellipsis in original). Like countless others, Mrs. Sherrods supervisors at USDA
were misled by Defendants blog post and immediately demanded that Mrs. Sherrod resign.
On October 30, 2013, Plaintiff served a Rule 45 subpoena on USDA requesting the
production of documents related to the claims she alleged in the Complaint. For example, the

Pursuant to Local Rule 7(m), Plaintiff states that her counsel discussed the issues described in this motion with
DOJ counsel and counsel for Defendants Breitbart and OConnor in a good faith effort to resolve these matters.
Plaintiff understands that DOJ, on behalf of USDA, intends to oppose Plaintiffs motion.

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subpoena requested documents related to Mrs. Sherrods March 27, 2010 speech to the Coffee
County NAACP in Douglas, Georgia, see Compl. 29, and documents related to USDAs
demand that Mrs. Sherrod resign on July 19, 2010 after the Defendants published their blog post.
After serving the subpoena, Plaintiffs counsel spoke with DOJ and explained that Plaintiff was
willing to meet and confer regarding any concerns DOJ or USDA had about the subpoena. For
its part, DOJ explained that it was already preparing to produce additional electronic documents
in response to a third partys FOIA request and asked for more time to respond to Mrs. Sherrods
subpoena. Ex. 5 (Nov. 21, 2013 B. Williams Email). On December 5, 2013, DOJ objected to
Mrs. Sherrods subpoena on several grounds, including relevance and undue burden. Ex. 6
(Dec. 5, 2013 D. Glass Email).
On December 6, 2013, counsel for the parties met with DOJ to discuss USDAs response
to Mrs. Sherrods subpoena and the governments response to separate subpoenas Mr. OConnor
had served on USDA and the Executive Office of the President (EOP). During the December 6
meeting, DOJ stated that it was preparing a proposal for responding to the subpoenas and hoped
to send the proposal the following week. After the meeting, Plaintiffs counsel spoke to the DOJ
attorney and reiterated Plaintiffs hope that the parties could reach a mutually acceptable
agreement regarding the production of USDA documents. Plaintiffs counsel also noted the
discovery deadlines incorporated in the Courts scheduling order and explained that Plaintiff
hoped USDA would begin producing documents soon.
On December 19, 2013, DOJ sent its proposal for responding to the subpoenas
Mrs. Sherrod and Mr. OConnor had served, which apparently would also address the
outstanding third-party FOIA responses USDA had agreed to supplement. Ex. 7 (Dec. 19, 2013
D. Glass Email). In general terms, DOJ stated that it would search USDAs Rural Development

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agency archive and exchange server backups for emails sent or received by forty custodians
between June 1, 2010 and October 31, 2010 using thirteen search terms, including Breitbart
and Larry OConnor. The custodians included Secretary Tom Vilsack and several other
individuals who were involved in USDAs decision to demand that Plaintiff resign after the
Defendants published their blog post. In its December 19 proposal, DOJ estimated that it would
take up to 45 days (not including review time) to collect and identify responsive emails.
After receiving DOJs proposal, Plaintiffs counsel spoke to DOJ several times to clarify
or confirm several aspects of the searches USDA would conduct and documents it would
produce under DOJs plan. For example, Plaintiff asked DOJ to explain the difference between
the Rural Development agency archive and the exchange server backups that were
referenced in DOJs December 19 email. Plaintiff also asked DOJ to confirm whether USDA
possessed performance reviews and similar documents regarding Mrs. Sherrod or the Georgia
Rural Development office that might be responsive to Mrs. Sherrods subpoena.
Based on DOJs responses to Plaintiffs requests for confirmation and clarification,
Mrs. Sherrod sent her January 27, 2014 proposal. Ex. 1 (Jan. 27, 2014 S. Thibault Letter). With
respect to DOJs proposed email searches, Mrs. Sherrod agreed to DOJs suggestion that the
searches look for emails sent or received between June 1, 2010 and October 31, 2010.
Mrs. Sherrod also adopted DOJs list of custodians and its list of search terms (with some minor
changes, e.g., changing Coffee County NAACP to NAACP), but asked DOJ to add several
search terms and seven custodians whose names appeared in relevant emails that USDA
previously produced in response to FOIA requests. With respect to other documents, Plaintiff
asked USDA to produce Plaintiffs official personnel file (OPF) and documents related to the
performance of the Georgia Rural Development office while Mrs. Sherrod was State Director.

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On the same day, Mr. OConnor sent DOJ his own discovery proposal, Ex. 8 (Jan. 27,
2014 T. Hogan Email), which amended an earlier proposal Mr. OConnor had sent, Ex. 9
(Jan. 21, 2014 OConnor Discovery Plan). Among other things, Mr. OConnors January 27,
2014 proposal asked USDA to search for emails that had been sent as early as July 25, 2008
two years before the Defendants published their July 19, 2010 blog post, and a year before
USDA offered to appoint Mrs. Sherrod Georgia State Director for Rural Development.
Mr. OConnor also asked USDA to search the email accounts of 20 individuals who were not on
DOJs or Plaintiffs list of custodiansand asked USDA to include dozens of additional search
terms, such as 13 million, appropriations, Black Panthers, Congressional Black Caucus,
and Pigford. Many of the search terms were directed at the Pigford v. Glickman class-action
litigation USDA settled several years ago, not the claims alleged in Plaintiffs Complaint.
Since January 27, 2014, Plaintiff repeatedly has asked DOJ to confirm that it agrees to
Plaintiffs proposal or to explain the reasons DOJ will not agree. Indeed, as recently as last
week, Plaintiffs counsel wrote to DOJ three separate times to ask that DOJ explain its position
regarding Plaintiffs January 27 proposal. Ex. 10 (Feb. 24, 2014 S. Thibault Email); Ex. 11
(Feb. 25, 2014 S. Thibault Letter); Ex. 12 (Feb. 27, 2014 S. Thibault Email). DOJ has not
responded except to state that (1) all of the documents requested by Plaintiffs January 27, 2014
proposal are irrelevant, even though DOJ itself proposed most of the searches; and (2) when
combined with Mr. OConnors broader proposal, the requests together would impose an undue
burden on USDA and require months of work to complete. Moreover, DOJ and USDA stated
that it will take substantially longer than the 45 days it initially estimated to conduct the searches
DOJ proposed. Ex. 3 (Feb. 27, 2014 D. Glass Email).

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ARGUMENT
I.

THE COURT SHOULD ORDER USDA TO ADOPT PLAINTIFFS JANUARY 27,


2014 DISCOVERY PROPOSAL.
Under Rules 45 and 26 of the Federal Rules of Civil Procedure, this Court has the power

to compel production of relevant documents from a nonparty served with a subpoena duces
tecum. See, e.g., In re Denture Cream Prods. Liability Litig., 292 F.R.D. 120, 123 (D.D.C.
2013). If the responding party refuses to produce relevant documents, that party bears the
burden of showing that the requested documents are privileged, or that producing the documents
would impose an undue burden because (1) the discovery is available from other sources, (2) the
discovery is unreasonably cumulative or duplicative, and (3) the burden on the party resisting
the discovery outweighs any benefit to the party requesting the discovery. See id. at 127.
Here, Plaintiffs January 27, 2014 proposal requests documents that are relevant to her
claims, but USDA has not established that Plaintiffs proposalas opposed to Mr. OConnors
proposalwould impose an undue burden. Accordingly, because USDAs refusal to produce
documents in response to Plaintiffs requests lacks merit, the Court should order USDA to
comply with or adopt Plaintiffs January 27, 2014 discovery proposal.
A.

Plaintiffs January 27, 2014 Proposal Requests Relevant Documents.

Notwithstanding DOJs categorical assertion that each and every document requested by
Plaintiffs proposal is irrelevant to her claims, DOJ has made no showing that any particular
aspect of Plaintiffs proposal seeks irrelevant information. That is not surprising given that
Plaintiffs proposal targets information that is directly related to her claims:
x

Search Period. The Defendants published their blog post and Plaintiff was forced to
resign on July 19, 2010. Plaintiffs proposal asks USDA to search for emails that
were sent beginning June 1, 2010 (to show that there was no issue with Plaintiffs job
performance leading up to the publication of Defendants blog post) and endingat
DOJs suggestionOctober 31, 2010 (to show USDAs reaction to the Defendants
blog post and the circumstances of USDAs demand that Mrs. Sherrod resign).
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Custodians. Most of the custodians included on Plaintiffs list were originally


proposed by DOJ, presumably because those forty individuals had some involvement
in USDAs response to the Defendants blog post. For example, Cheryl Cook is the
USDA employee who contacted Mrs. Sherrod hours after the blog post was published
and demanded that she resign immediately. The seven additional custodians Plaintiff
proposed also appear to have been involved in USDAs response to the blog post
given that their names appear on relevant emails USDA previously produced.

Search Terms. Similarly, most of the search terms included on Plaintiffs list were
originally proposed by DOJ. All of the termse.g., Breitbart, biggovernment*,
NAACP, Georgia State Director, and administrative leavewere designed to
identify emails related to the Defendants blog post and USDAs demand that
Mrs. Sherrod resign.

Performance and Salary Information.


Based on DOJs description of
Mrs. Sherrods official personnel file (OPF), it apparently contains documents that
are relevant to her salary and other information related to the terms of her USDA
employment. Mrs. Sherrod has also asked USDA to produce documents related to
the performance of the Georgia Rural Development office while Mrs. Sherrod was
State Director, which would show that Mrs. Sherrod was performing well in her
position before the Defendants published their blog post.

See Ex. 1 (Jan. 27, 2014 S. Thibault Letter). DOJ has not established that any of these requests
seeks irrelevant information. Indeed, the time period and the vast majority of the search terms
and custodians included in Plaintiffs proposal were originally proposed by DOJ and USDA.
B.

USDA Has Not Established That Plaintiffs January 27, 2014 Proposal Will
Impose An Undue Burden On USDA.

Because Plaintiffs January 27, 2014 proposal requests relevant documents, USDA must
produce those documents unless it establishes that the documents are privileged or that document
production would be unduly burdensome. See In re Denture Cream Prods. Liability Litig.,
292 F.R.D. at 127. But DOJ and USDA have not asserted that any category of documents
Plaintiff requested is privileged and thus not discoverable. Ex. 6 (Dec. 5, 2013 D. Glass Email).
They also have not shown that producing documents in accordance with Plaintiffs January 27
proposal would impose an undue burden.

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1.

Plaintiffs January 27, 2014 Proposal Is Not Unduly Burdensome.

First, DOJ and USDA have not shown that the discovery Plaintiff has requested is
available from other sources. This is somewhat obvious: although USDAs public statements
might be available from other sources, the only source of documents showing USDAs internal
response to the Defendants blog postincluding USDAs demand that Plaintiff resignis the
USDA itself. If some other source of the same information exists, neither DOJ nor USDA has
identified it.
Second, DOJ and USDA have not shown that Plaintiffs proposal seeks unreasonably
cumulative or duplicative documents.

See In re Denture Cream Prods. Liability Litig.,

292 F.R.D. at 127. USDA has not yet produced any emails in response to Plaintiffs subpoena or
her January 27, 2014 proposal. And although USDA has produced some documents in response
to third-party FOIA requests, see Feb. 20, 2014 DOJ Status Conf. Memo. [Dkt. 89] at 5, DOJ
previously explained to Plaintiff that the searches conducted to identify those documents were ad
hoc and not systematic. 2 That is presumably part of the reason USDA has agreed to conduct
electronic searches to supplement its earlier FOIA responses.
Third, DOJ and USDA have not shown that the burden Plaintiffs proposal would impose
on USDA outweighs the benefit of the discovery to Plaintiff. On the one hand, the discovery
would benefit Plaintiff in several ways: it will show (among other things) that the Defendants
July 19, 2010 blog post was false and misleading, that the false and misleading assertions in the
blog post received national media attention, and that Plaintiff lost her job because of the blog
post. On the other hand, Plaintiffs proposal would impose little additional burden on USDA
given that it apparently has already agreed to conduct substantial email searches in response to a
2

Certain USDA employees apparently reviewed their own emails and printed some documents, which USDA
produced in response to FOIA requests it received several years ago.

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third partys FOIA request. Indeed, that was part of the reason Plaintiff based her January 27,
2014 proposal on DOJs December 19, 2013 proposal.
2.

The Undue Burdens USDA Has Identified Relate To Mr. OConnors


Discovery Proposal, Not Plaintiffs Proposal.

The similarity between Plaintiffs proposal and DOJs own proposal may also explain
why DOJ did not mention Plaintiffs January 27, 2014 letter in its February 20, 2014 status
conference memorandumand why DOJ has insisted upon combining Plaintiffs proposal with
Mr. OConnors proposal when claiming that the requested discovery is objectionable. For
example, the heading of Section III in DOJs February 20 submission asserts that the third-party
subpoenas of Plaintiff and Defendant OConnor are objectionable because they seek discovery
from [the Executive Office of the President] (emphasis added) even though Plaintiff did not
serve a subpoena on EOP. Mr. OConnor did.
DOJ has taken the same approach in its discussions with Plaintiff. Despite multiple
requests that DOJ explain why it believes Plaintiffs January 27, 2014 proposal is objectionable,
e.g., Ex. 10 (Feb. 24, 2014 S. Thibault Email); Ex. 11 (Feb. 25, 2014 S. Thibault Letter); Ex. 12
(Feb. 27, 2014 S. Thibault Email), DOJ repeatedly has stated that it will only discuss Plaintiffs
proposal in combination with Mr. OConnors proposal and that the two proposals together are
unduly burdensome. For example, after Plaintiff and Mr. OConnor asked DOJ to explain in
writing how long it would take USDA to conduct the searches Plaintiff and Mr. OConnor each
requested, DOJ sent its February 27, 2014 summary. Ex. 3 (Feb. 27, 2014 D. Glass Email). In
that summary, DOJ estimated that it would take:
x

More than 133 days to produce emails dating back to July 25, 2008even though
Plaintiffs proposal does not ask USDA to produce emails sent that long ago.
Mr. OConnors proposal does. (Plaintiffs proposal adopted DOJs suggestion that
the search period begin with June 1, 2010.)

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More than 108 additional days to produce emails sent as recently as December 31,
2012even though Plaintiffs proposal does not ask USDA to produce emails sent
years after USDA demanded her resignation. Mr. OConnors proposal does.
(Plaintiff adopted DOJs suggestion that the search period end with October 31,
2010.)

More than ten days to collect all of the emails in Mrs. Sherrods USDA email
accounteven though Plaintiffs proposal does not ask USDA to produce all of the
emails in her account. Mr. OConnors proposal does.

See id. Thus, although DOJ refuses to confirm the point, it seems clear that Mr. OConnors
proposalnot Plaintiffs proposalis the source of the undue-burden objection DOJ continues
to assert.
Mr. OConnors proposed search terms undoubtedly will present a similar issue. Many
of those terms, such as Black Panthers and appropriations, have no apparent connection to
Mrs. Sherrods claims. See Ex. 8 (Jan. 27, 2014 T. Hogan Email). And other of Mr. OConnors
search terms seem not just irrelevant, they likely would also delay USDAs overall document
production by causing USDA to collect and review a large number of emails with no relation to
this case.
For example, Mr. OConnors January 27 proposal includes multiple search terms
designed to discover emails related to the Pigford v. Glickman class-action litigation that USDA
settled several years ago. Id. Although Mr. OConnor has suggested through discovery requests
and responses that he believes Plaintiff was fired because of Pigford, Plaintiff has seen no such
evidenceand Mr. OConnor has identified none. But because USDA or DOJ attorneys would
have to review all of those emails to protect privileges and determine relevance, USDAs overall
response to Plaintiffs requests and Mr. OConnors requests would be delayed substantially. It
makes no sense to pursue that course absent a real showing by Mr. OConnor that his Pigfordrelated search terms will identify emails that are relevant to this case.

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The key point here, however, is that the undue-burden objection DOJ has asserted in
opposition to Plaintiffs January 27, 2014 proposal is, in fact, an objection based on the breadth
and burdens of Mr. OConnors January 27, 2014 proposal. Because Mr. OConnor has refused
to limit his requestsand because DOJ has refused to address Plaintiffs proposal on its own
Mrs. Sherrod was left with little choice but to file this motion.
3.

Plaintiff Remains Willing To Discuss Any Legitimate Concerns USDA


Has About Her January 27, 2014 Proposal.

To be clear, if USDA has legitimate concerns about Plaintiffs January 27, 2014 proposal,
Plaintiff remains willing to discuss those concerns.

If, for example, USDA believes that

shortening the June 1, 2010October 31, 2010 time period DOJ proposed would alleviate an
undue burden, Plaintiff would be happy to consider a shorter period that will not significantly
sacrifice the production of relevant documents. The same goes for custodians and search terms.
To date, however, USDA has not explained why or how Plaintiffs proposal (as opposed to
Mr. OConnors proposal) presents an undue burden and thus should not be accepted.
Absent that showing, Plaintiff respectfully submits that the best path forward is this: the
Court should order USDA to adopt Plaintiffs January 27, 2014 proposal and move expeditiously
in its review and productionand further order that USDA not delay its response to Plaintiffs
requests while it continues to oppose Mr. OConnors plan. Although Plaintiff agrees that much
of Mr. OConnors proposal does not fit the facts of this case, there is no good reason to hold up
USDAs response to Plaintiffs proposal simply because Mr. OConnor and DOJ cannot resolve
their dispute. Alternatively, should the USDA insist on moving forward with only one review,
Plaintiff respectfully submits that Mr. OConnors proposal could be significantly pared down
now (in terms of time period, custodians, and search terms) so that USDAs review is as
manageable and relevant as possible, and thus completed as quickly as possible.
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CONCLUSION
For the foregoing reasons, Plaintiffs motion should be granted.
Dated: March 3, 2014

Respectfully submitted,

By: /s/ Thomas A. Clare, P.C.


Thomas D. Yannucci, P.C. (D.C. Bar #358989)
Michael D. Jones (D.C. Bar #417681)
Thomas A. Clare, P.C. (D.C. Bar #461964)
Beth A. Williams (D.C. Bar #502522)
Peter A. Farrell (D.C. Bar #975579)
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
Tel: (202) 879-5000
Fax: (202) 879-5200
thomas.yannucci@kirkland.com
michael.jones@kirkland.com
thomas.clare@kirkland.com
beth.williams@kirkland.com
peter.farrell@kirkland.com
Attorneys for Plaintiff

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Exemption b5

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Farrell, Peter A.
From:
Sent:
To:
Subject:
Attachments:

Glass, David (CIV) <David.Glass@usdoj.gov>


Thursday, February 27, 2014 1:19 PM
Farrell, Peter A.; Thibault, Stephanie S.; Hogan, Thomas E.; Eric Dubelier
(edubelier@reedsmith.com)
Sherrod: USDA Time Estimates
USDA Time Estimates (Feb. 27, 2014).docx

Peter/Stephanie/Tom/Eric
Please see attached. We will be available to discuss these estimates during our conference call at 6 p.m. this evening. I
am also available before then to respond to any questions any of you may have.
David

Pre-eComply***
eComply
(Ds V searching Sherrod with 3 exceptions)

108.9 days****

108.9 days****
N/A

6 weeks

6 weeks
4 weeks

6 weeks

6 weeks

N/A

OSEC(WCTS)**

****The 133 and either of the 108.9 day periods (depending on which is chosen) do not run concurrently.

***eComply=In mid-2011, USDA transitioned from multiple agency email systems to a Departmentwide cloud-based system. eComply refers to the protocol
used to search that system.

**OSEC = Office of the Secretary which includes not only the immediate office but staff offices such as the Office of Communications serviced by the Office of
Chief Information Officer, Washington Communications Technology Service (WCTS)

*RD = Rural Development serviced by the Office of Chief Information Officer, Information Technology Service (ITS)

6/1/10-10/31/10 Timeframe proposed by USDA and accepted by Plaintiff

7/31/10-12/31/12 All custodians in Defendants part III and IV and Plaintiffs

7/15/10-7/30/10 All custodians in Defendants part III and IV and Plaintiffs

2.7 days

133 days****

7/25/08-7/14/10

All custodians in Defendants part III and IV and Plaintiffs

10.4 days

7/25/09 -7/19/10 Sherrods email box

RD(ITS)*

The below estimates include the combined list of custodians proposed by plaintiff in its January 27 letter and defendant OConnors list proposed on January
27. It represents the estimated time to retrieve email boxes of custodians per each time period and custodian parameter identified. It does not include the
time to run searches for search terms boxes (except for OSEC(WCTS) post-eComply which can be searched) or review time.

Time estimates to Retrieve USDA Records for Searching in Response to Sherrod Subpoenas (2-27-2014)

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Farrell, Peter A.
From:
Sent:
To:
Cc:
Subject:

Thibault, Stephanie S.
Monday, February 10, 2014 11:09 AM
Glass, David (CIV)
Farrell, Peter A.
RE: Sherrod v. Breitbart et al.

David,
I write regarding our January 30, 2014 telephone conversation. I understood from our January 30 discussion that USDA
has decided not to search for or produce emails and similar documents in response to Mrs. Sherrods subpoena until Mr.
OConnor further narrows his requested search protocol and/or the Court provides guidance regarding the scope of Mr.
OConnors requested searches at the status conference scheduled for February 19, 2014. Please let me know if that is
no longer USDAs position. I also understood from our January 30 conversation that USDA will bear the cost of searching
for and producing the performance and salary information, and the Georgia USDA Rural Development documents,
described in my January 27, 2014 letter. Thank you again for confirming that point.
Best,
Stephanie S. Thibault
Kirkland & Ellis LLP
655 Fifteenth St., N.W. Washington, D.C. 20005
Tel +1-202- 879-5961 Fax +1-202-879-5200
stephanie.thibault@kirkland.com

Case 1:11-cv-00477-RJL Document 94-5 Filed 03/03/14 Page 1 of 1


Farrell, Peter A.
From:
Sent:
To:
Cc:
Subject:

Williams, Beth A.
Thursday, November 21, 2013 3:33 PM
david.glass@usdoj.gov
Farrell, Peter A.
USDA subpoena re Sherrod v. Breitbart et al.

David:
Thank you for the call yesterday. Two follow-up questions for you first, you indicated that you would send
the FOIA request materials and related papers from the individual who had appealed the USDAs previous
production. Would you please send those to us? Second, you mentioned that the USDA was conducting a further
review based on those FOIA requests and was planning to produce many additional documents related to Mrs. Sherrods
case. Could you give us a sense of the anticipated release of that production? As we discussed, were dealing with
some time pressure under the discovery order in our case.
Finally, with regard to your requested extension for time to respond to our subpoena, we agree to your request
to extend the response time to December 6. We hope that in the interim period we can reach agreement on the USDAs
response to our subpoena without the need for objections on your part. I have copied my partner, Peter Farrell, on this
email who will be following up with you after the holiday to further discuss the USDAs response. In the meantime, if
you could send us the documents referenced above, we would appreciate it.
Happy Thanksgiving,
Beth
Beth A. Williams

KIRKLAND & ELLIS LLP



 


Case 1:11-cv-00477-RJL Document 94-6 Filed 03/03/14 Page 1 of 1


Farrell, Peter A.
From:
Sent:
To:
Subject:

Glass, David (CIV) <David.Glass@usdoj.gov>


Thursday, December 05, 2013 4:27 PM
Farrell, Peter A.; Mark I. Bailen (mbailen@bakerlaw.com); Glass, David (CIV)
Sherrod: Subpoenas: Objections

Peter/Mark
The U.S. Department of Agriculture (USDA) hereby objects on the following grounds to the requests for production
contained in plaintiffs subpoena and Freedom of Information Act/Privacy Act request to USDA dated October 30, 2013:
Requests 1, 3, 7, burdensomeness, relevance, availability from other sources; Requests 2, 5-6, 8-10, burdensomeness,
relevance; Request 4, relevance. Without prejudice to the foregoing, USDA is prepared to respond to Request 4.
USDA hereby objects on the following grounds to the requests for production contained in the subpoena of
defendant OConnor to USDA dated November 19, 2013: Requests 1-2, 4-5, 7, 11, 16-19, 21-26, 29, 31-37, 40, 42-44,
burdensomeness, relevance; Requests 3, 6, 8-10, 12-15, 27-28, 30, 41, burdensomeness, relevance, availability from
other sources; Request 20, burdensomeness, relevance, vagueness; Requests 38-39, burdensomeness, availability from
other sources.
The Executive Office of the President (EOP) hereby objects on the following grounds to the requests for
production contained in the subpoena of defendant OConnor to EOP dated November 20, 2013: Requests 1-5, 8, 15-16,
26, 29, burdensomeness, relevance, availability from other sources; Requests 6-7, 9-14, 17-20, 23-25, 27-28,
burdensomeness, relevance; Requests 21-22, burdensomeness, availability from other sources.
USDA and EOP reserve the right at any time to revise, supplement, correct, amend, or clarify any of the above
objections. By asserting those objections, USDA and EOP do not waive any claim of privilege they may have with respect
to any requested document or any statutory exemption from production that may apply to any such document.
Thanks, David

Case 1:11-cv-00477-RJL Document 94-7 Filed 03/03/14 Page 1 of 2


Farrell, Peter A.
From:
Sent:
To:
Subject:

Glass, David (CIV) <David.Glass@usdoj.gov>


Thursday, December 19, 2013 10:45 AM
Farrell, Peter A.; Thibault, Stephanie S.; Mark I. Bailen (mbailen@bakerlaw.com); Hogan,
Thomas E.; Harrison J. Dossick (hdossick@reedsmith.com); Glass, David (CIV)
Sherrod: Proposed Electronic Searches

Peter/Stephanie/Mark/Tom/Harrison:
The U.S. Department of Agriculture (USDA) proposes to conduct the following electronic searches for emails
pertaining to Shirley Sherrod in response to the subpoenas issued to it in Sherrod v. Breitbart and all outstanding requests
under the Freedom of Information and Privacy Acts. Please let me know if you have any questions or comments.
For the period June 1-October 31, 2010:
1. USDA proposes to search the Rural Development agency archive for emails of the following individuals:
Shirley Sherrod
Donnie D. Thomas, Assistant State Director, Georgia State Rural Development Office
Donna I. Graves, Director, Administrative Programs, Georgia State Rural Development Office
using the following search terms (words in quotes will be searched as a phrase):
Coffee County NAACP
banquet
Breitbart
video
blog
Larry OConnor
Freedom Fund
2. USDA proposes to search exchange server backups for emails of the following individuals:
Tom Vilsack, Secretary of Agriculture
Karen Ross, Chief of Staff
Carole Jett, Deputy Chief of Staff
David Lazarus, Senior Advisor to the Secretary
Robert Bonnie, Senior Advisor to the Secretary
Max Holtzman, Senior Advisor to the Secretary
Doug OBrien, Senior Advisor to the Secretary
Jane Hipp, Senior Advisor to the Secretary
Sarah Bittleman, Senior Advisor to the Secretary
Sally Cluthe, Director of Scheduling
Kevin Washo, White House Liaison
Kathleen Merrigan, Deputy Secretary
Suzanne Palmieri, Chief of Staff to the Deputy Secretary
Pearlie Reed, Assistant Secretary for Departmental Management
Alma Hobbs, Deputy Assistant Secretary
Robin Heard, Deputy Assistant Secretary
Bobbi Jeanquart, Chief of Staff
W. Russ Ashworth, Director, Management Services
Karen Messmore, Director, Office of Human Resource Management
Joe Leonard, Assistant Secretary for Civil Rights
1

Case 1:11-cv-00477-RJL Document 94-7 Filed 03/03/14 Page 2 of 2


Mary N. McNeil, Deputy Assistant Secretary
Dallas Tonsager, Under Secretary for Rural Development
Cheryl Cook, Deputy Under Secretary
Victor Vasquez, Deputy Under Secretary
Lisa Zaina, Chief of Staff
Timothy McNeilly, Director, Legislative & Public Affairs
Judith Canales, Administrator, Rural Business-Cooperative Service
Tammye Trevino, Administrator, Rural Housing Service
Jonathan Adelstein, Administrator, Rural Utilities Service
Chris Mather, Director, Office of Communication
David Sandretti, Deputy Director
Caleb Weaver, Press Secretary
Justin DeJong, Press Secretary
Steve Silverman, Deputy General Counsel and Acting General Counsel
Krysta Harden, Assistant Secretary for Congressional Relations
John Berge, Deputy Assistant Secretary
Jennifer Yezak, Director, External and Intergovernmental Affairs
using the following search terms (words in quotes will be searched as a phrase):
Sherrod
Shirley Sherrod
GA/RD
GA RD
Georgia RD
GA-RD
Breitbart
Larry OConnor
3. USDA proposes to search the Office of Executive Correspondence correspondence files for the term Sherrod,
excluding the terms Sherrod Brown and Senator Sherrod if technically feasible.
The estimated costs of these searches will be approximately $50,000-60,000 and take up to 45 days once the
searches begin. This time and cost is exclusive of review time.
Thanks, David

Case 1:11-cv-00477-RJL Document 94-8 Filed 03/03/14 Page 1 of 8


Farrell, Peter A.
From:
Sent:
To:
Cc:

Hogan, Thomas E. <thogan@bakerlaw.com>


Monday, January 27, 2014 5:53 PM
Glass, David (CIV)
Bailen, Mark; Babinski, Laurie A.; Harrison J. Dossick (hdossick@reedsmith.com)
(hdossick@reedsmith.com); Farrell, Peter A.; Thibault, Stephanie S.
Sherrod v. Breitbart, et al., Case No. 1:11-cv-00477(RJL)
USDA email search protocol (revised).DOCX

Subject:
Attachments:

Dear David,
I am writing in follow up on our call this afternoon about a protocol for searching USDAs email records in response to
our subpoena to the USDA in Sherrod v. Breitbart, et al., Case No. 1:11-cv-00477(RJL). The USDAs position that
Defendant Larry OConnor must accept USDAs proposal for collecting documents responsive to his subpoena even
though we know that it would fail to uncover approximately half of the responsive documents, or else USDA will move
to quash the subpoena, is an unreasonable ultimatum that we are compelled to reject. We also disagree with your
assertions that our proposal is unreasonable because of the number of search terms and the number of persons whose
emails are to be searched. As I explained during our call, we generated our list of search terms based on the language
actually used in the publicly available, but incomplete set of USDA emails; likewise, we identified our list of persons
whose emails files must be searched largely based on those records. Even then, our proposal may still miss some
responsive documents even in the short 16 day time period that is the primary, but not exclusive, focus of our
proposal. Nonetheless, we have revised our proposal in the hope that USDA will withdraw its ultimatum and accept a
reasonable compromise. Please review the attached revised proposal and let us know USDAs position.
Best regards,
Tom

My Bio | Web site | vCard


T 202.861.1577
F 202.861.1783
www.bakerlaw.com

Thomas E. Hogan
thogan@bakerlaw.com
BakerHostetler
Washington Square
1050 Connecticut Avenue, N.W., Suite 1100
Washington, D.C. 20036-5304

This email is intended only for the use of the party to which it is
addressed and may contain information that is privileged,
confidential, or protected by law. If you are not the intended
recipient you are hereby notified that any dissemination, copying
or distribution of this email or its contents is strictly prohibited.
If you have received this message in error, please notify us immediately
by replying to the message and deleting it from your computer.
Internet communications are not assured to be secure or clear of
inaccuracies as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses. Therefore,
we do not accept responsibility for any errors or omissions that are

Case 1:11-cv-00477-RJL Document 94-8 Filed 03/03/14 Page 2 of 8


present in this email, or any attachment, that have arisen as a result
of e-mail transmission.

Case 1:11-cv-00477-RJL Document 94-8 Filed 03/03/14 Page 3 of 8


January 27, 2014

Proposed protocol for searching the United States Department of Agricultures email
records in response to the subpoena served on USDA in Sherrod v. Breitbart, et al., Case No.
1:11-cv-00477(RJL) on behalf of Defendant Larry OConnor 1
I.

July 25, 2008 through July 14, 2010

Custodians
All custodians listed in Parts III and IV of this protocol.
Search Terms
Sherrod (excepting references to Sherrod Brown, Sen. Brown, and Senator Brown)
II.

July 25, 2009 through July 19, 2010

Custodians
Shirley Sherrod
Scope of the production
Produce all email and attachments.
Note: Ms. Sherrods email correspondence (with attachments) is relevant to her contention in this
case that she does not perceive the world through a prism of race and class distinctions.
III.

July 15, 2010 through July 30, 2010

Custodians
Karen Ross
Carole Jett
Krysta Harden
John Berge
Chris Mather
Kevin Washo
Dallas Tonsager
Cheryl Cook
Yeshimebet Abebe
Pearlie S. Reed
Suzanne Palmieri
Scope of the search
1

This proposed protocol is for purposes of discussion only and in full reservation of all rights.

Case 1:11-cv-00477-RJL Document 94-8 Filed 03/03/14 Page 4 of 8

Search all email and attachments.


Note: The documents produced by the USDA under the Freedom of Information Act suggest that
these 13 individuals were those most involved in Ms. Sherrods resignation and the USDAs
public response. It also appears that the issue of Ms. Sherrods resignation occupied most of
their time during this approximately two-week period. In light of the all-consuming nature of
this matter for these core individuals, reliance on search terms cannot reasonably substitute for a
review of their emails over this brief time period to determine which are responsive to the
subpoena.
IV.

July 15, 2010 through July 30, 2010

Custodians
Secretary
Tom Vilsack
Kathleen Merrigan
Sally Cluthe
Malcolm Eve
Doug OBrien
Monica Wyant
David Lazarus
Legislative Affairs
Erin Hannigan
Lilia McFarland
Tina May
Sarah Misailidis
Julie Allen
Todd Williamson
Janice Williams
Chris Church
Deputy Secretary
Chad Maisel
Rural Development
Lisa Zaina
Wayne Maloney
Timothy McNeilly
Georgia Rural Development
Donnie D. Thomas
EJ Stapler
Deborah Callahan
Donna Graves
2
602981449.2

Case 1:11-cv-00477-RJL Document 94-8 Filed 03/03/14 Page 5 of 8

Assistant Secretary for Administration


Terry DAddio
Robin Heard
Alma C. Hobbs
Quinton Robinson
Carolyn C. Parker
Bobbi Jeanquart
Assistant Secretary for Civil Rights
Joe Leonard
Mary McNeil
Communications
Justin DeJong
Caleb Weaver
General Counsel
Steve Silverman
Frederick Pfaeffle
J. Michael Kelly
Arlean Leland
Inga Bumbary-Langston
Farm Service Administration
Karis Gutter
Search Terms
13 million
appropriations
Ax*
Big Government
Bishop
blog
Black Panthers
Breitbart
Brietbart [for misspellings]
CBC
Chambliss
Charles Sherrod
Cherlin
Cheryl
Chris* Lu
Clyburn
Congressional Black Caucus
3
602981449.2

Case 1:11-cv-00477-RJL Document 94-8 Filed 03/03/14 Page 6 of 8

Cook
Dallas
Denise Wilson
discriminat*
dismiss*
Eric Lesser
Faya Rose Toure
FSC
Federation
fire*
firing
Fitz*
Fox
Freedom Fund
GA delegation
GA*RD
GA Rural Development
GA situation
GA state director
Gavin
George Ko
Georgia delegation
Georgia and governor
Georgia RD
Georgia state director
Gibbs
Green
Hill
Hotair.com
James Cruey
job plans
John Lewis
Kingston
Land Assistance Fund
leave
Martha Scott Poindexter
MSP
Meet the Press
NAACP
New Communities
OConnor
OReilly
OAO
offer*
Office of Advocacy and Outreach
Paige
4
602981449.2

Case 1:11-cv-00477-RJL Document 94-8 Filed 03/03/14 Page 7 of 8

Pearlie
Phyllis
Pigford
PPO
President*
race
racis*
Rahm
RD Director
Reed
resign*
reverse discrimination
Ron* Mitchell
Rose Sanders
Rural Development Leadership Network
Saxby
Schedule C Political Appointees
Sherrod (excepting references to Sherrod Brown, Sen. Brown, and Senator Brown if
technically feasible)
Shirley
Southern Coop*
Southwest Georgia Project
Spooner*
State Director of Agriculture of GA
Steve King
Stroman
SW G*
Tea Party
terminat*
tick tock
TJV
Towns
Track B
transcri*
vet*
video
white farmer*
Yeshi
V.

July 31, 2010 through December 31, 2012

Custodians
All custodians listed in Parts III and IV of this protocol.
Search Terms
5
602981449.2

Case 1:11-cv-00477-RJL Document 94-8 Filed 03/03/14 Page 8 of 8

Sherrod (excepting references to Sherrod Brown, Sen. Brown, and Senator Brown)

6
602981449.2

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 1 of 9


January 21, 2014

Proposed protocol for searching the United States Department of Agricultures email
records in response to the subpoena served on USDA in Sherrod v. Breitbart, et al., Case No.
1:11-cv-00477(RJL) on behalf of Defendant Larry OConnor
I.

July 25, 2008 through July 14, 2010

Custodians
All custodians listed in Parts III and IV of this protocol.
Search Terms
Sherrod (excepting references to Sherrod Brown, Sen. Brown, and Senator Brown)
II.

July 25, 2009 through July 19, 2010

Custodians
Shirley Sherrod
Scope of the production
Produce all email and attachments.
Note: Ms. Sherrods email correspondence (with attachments) is relevant to her contention in this
case that she does not perceive the world through a prism of race and class distinctions.
III.

July 15, 2010 through July 30, 2010

Custodians
Tom Vilsack
Karen Ross
Carole Jett
Krysta Harden
John Berge
Chris Mather
Kevin Washo
Dallas Tonsager
Cheryl Cook
Yeshimebet Abebe
Pearlie S. Reed
Kathleen Merrigan
Suzanne Palmieri
Scope of the search

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 2 of 9

Search all email and attachments.


Note: The documents produced by the USDA under the Freedom of Information Act suggest that
these 13 individuals were those most involved in Ms. Sherrods resignation and the USDAs
public response. It also appears that the issue of Ms. Sherrods resignation occupied most of
their time during this approximately two-week period. In light of the all-consuming nature of
this matter for these core individuals, reliance on search terms cannot reasonably substitute for a
review of their emails over this brief time period to determine which are responsive to the
subpoena.
IV.

July 15, 2010 through July 30, 2010

Custodians
Secretary
Sally Cluthe
Malcolm Eve
Doug OBrien
Monica Wyant
David Lazarus
Robert Bonnie
Max Holtzman
Jane Hipp
Sarah Bittleman
Legislative Affairs
Erin Hannigan
Lilia McFarland
Tina May
Sarah Misailidis
Julie Allen
Jennifer Yezak
Todd Williamson
Janice Williams
Chris Church
Deputy Secretary
Chad Maisel
Rural Development
Lisa Zaina
Katie Yocum
Wayne Maloney
Timothy McNeilly
Magdey Abdallah
2

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 3 of 9

Victor Vasquez
Judith Canales
Tammye Trevino
Jonathan Adelstein
Georgia Rural Development
Donnie D. Thomas
EJ Stapler
Deborah Callahan
Bryan Zulko
Donna Graves
Assistant Secretary for Administration
Terry DAddio
Robin Heard
Alma C. Hobbs
W. Russ Ashworth
Karen Messmore
Quinton Robinson
Carolyn C. Parker
Oscar Gonzales
Carmen Jones
Bobbi Jeanquart
Shirley Hill
Assistant Secretary for Civil Rights
Joe Leonard
Mary McNeil
Communications
David Sandretti
Justin DeJong
Caleb Weaver
Stephanie Chan
General Counsel
Steve Silverman
Frederick Pfaeffle
J. Michael Kelly
Arlean Leland
Inga Bumbary-Langston
Farm Service Administration
Karis Gutter
Carolyn Cooksie

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 4 of 9

Office of Executive Secretariat


Greg Diephouse
Charles Fromstein
Search Terms
$13 million
13 million
13 point
acting SD in GA
admin leave
admin. leave
administrative leave
Albany State
any news
appropriations
are things OK there
are you alone
are you guys available now for a call?
ASAP
assholes
Ax
Axelrod
Bachmann
banquet
Barbara Lee
Big Government
Bishop
blog
Black Panthers
Breitbart
Brietbart [for misspellings]
cage
call me
call my cell
call when you can
called you
calls with Hill
can we talk
CBC
Chambliss
Charles Sherrod
Cherlin
Cheryl
Chris* Lu
civil right*
4

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 5 of 9

Clyburn
CNN
Coffee County
confidential for you only
Congressional Black Caucus
Cook
Dallas
Denise Wilson
discriminat*
dismiss*
do not do over email
Donnie
employee e-mail
Elder
Eric Lesser
Faya Rose Toure
FSC
Federation
fire*
firing
Fitz*
Fox
Freedom Fund
full copy of the speech
GA delegation
GA RD
GA/RD
GA-RD
GA Rural Development
GA situation
GA state director
Gavin
George Ko
Georgia delegation
Georgia governor
Georgia issue
Georgia RD
Georgia state director
Gibbs
Goodlatte
Governor of Georgia
Green
Hot Air
Hotair.com
http*
IMP
5

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 6 of 9

in briefing
in my office
James Cruey
Jesse Jackson
job plans
John Lewis
just called you back
just tried you
Kingston
Land Assistance Fund
leave
Martha Scott Poindexter
MSP
Meet the Press
monitoring general mailbox
NAACP
need to talk
New Communities
not for email
OConnor
OReilly
OAO
offer*
Office of Advocacy and Outreach
our friend from Georgia*
Paige
Pearlie
Phyllis
Pigford
please call asap
POTUS
PPO
President*
Presidential Personnel
press
race
racis*
Rahm
RD Director
Reed
reporter
resign*
reverse discrimination
Ron* Mitchell
Rose Sanders
Rural Development Leadership Network
6

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 7 of 9

Saxby
Schedule C Political Appointees
shaming
Sharpton
she is on
Sherrod (excepting references to Sherrod Brown, Sen. Brown, and Senator Brown if
technically feasible)
Shirley
Southern Cooperatives
Southwest Georgia Project
Spooner*
Starry Krueger
State Director of Agriculture of GA
statement
Steve King
still on a call
Stroman
Super Urgent
SW Ga Project
SW Georgia
Tea Party
terminat*
The S
tick tock
TJV
todays issue
Towns
Track B
transcript*
transcrib*
TV
urgent
Valerie Green
vet*
video
we need to talk
we should huddle
what* your direct line
where r u
white farmer*
White House
will call asap
with S
worst day of his life
www*
Yeshi
7

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 8 of 9

you alone
you around
you OK
Note: Here is the same list as above in block form:
$13 million or 13 million or 13 point or acting SD in GA or admin leave or admin.
leave or administrative leave or Albany State or any news or appropriations or are
things OK there or are you alone or are you guys available now for a call? or ASAP or
assholes or Ax or Axelrod or Bachmann or banquet or Barbara Lee or Big Government or
Bishop or blog or Black Panthers or Breitbart or Brietbart or cage or call me or call my
cell or call when you can or called you or calls with Hill or can we talk or CBC or
Chambliss or Charles Sherrod or Cherlin or Cheryl or Chris* Lu or civil right* Clyburn or
CNN or Coffee County or confidential for you only or Congressional Black Caucus or
Cook or Dallas or Denise Wilson or discriminat* or dismiss* or do not do over email or
Donnie or employee e-mail or Elder or Eric Lesser or Faya Rose Toure or FSC or
Federation or fire* or firing or Fitz* or Fox or Freedom Fund or full copy of the speech or
GA delegation or GA RD or GA/RD or GA-RD or GA Rural Development or GA
situation or GA state director or Gavin or George Ko or Georgia delegation or Georgia
governor or Georgia issue or Georgia RD or Georgia state director or Gibbs or Goodlatte
or Governor of Georgia or Green or Hot Air or Hotair.com or http* or IMP or in briefing
or in my office or James Cruey or Jesse Jackson or job plans or John Lewis or just
called you back or just tried you or Kingston or Land Assistance Fund or leave or Martha
Scott Poindexter or MSP or Meet the Press or monitoring general mailbox or NAACP or
need to talk or New Communities or not for email or OConnor or OReilly or OAO or
offer* or Office of Advocacy and Outreach or our friend from Georgia* or Paige or Pearlie
or Phyllis or Pigford or please call asap or POTUS or PPO or President* or Presidential
Personnel or press or race or racis* or Rahm or RD Director or Reed or reporter or resign* or
reverse discrimination or Ron* Mitchell or Rose Sanders or Rural Development
Leadership Network or Saxby or Schedule C Political Appointees or shaming or Sharpton or
she is on or Sherrod or Shirley or Southern Cooperatives or Southwest Georgia Project or
Spooner* or Starry Krueger or State Director of Agriculture of GA or statement or Steve
King or still on a call or Stroman or Super Urgent or SW Ga Project or SW Georgia or
Tea Party or terminat* or The S or tick tock or TJV or todays issue or Towns or Track
B or transcript* or transcrib* or TV or urgent or Valerie Green or vet* or video or we need
to talk or we should huddle or what* your direct line or where r u or white farmer* or
White House or will call asap or with S or worst day of his life or www* or Yeshi or
you alone or you around or you OK
V.

July 31, 2010 through December 31, 2012

Custodians
All custodians listed in Parts III and IV of this protocol.
Search Terms
8

Case 1:11-cv-00477-RJL Document 94-9 Filed 03/03/14 Page 9 of 9

Sherrod (excepting references to Sherrod Brown, Sen. Brown, and Senator Brown)

Case 1:11-cv-00477-RJL Document 94-10 Filed 03/03/14 Page 1 of 5


Farrell, Peter A.
From:
Sent:
To:
Cc:
Subject:
Attachments:

Thibault, Stephanie S.
Monday, February 24, 2014 10:59 AM
Glass, David (CIV)
Farrell, Peter A.; 'Bailen, Mark'; Hogan, Thomas E.; 'Dossick, Harrison J.'
RE: Sherrod v. Breitbart et al.
20140218 Agreement Regarding Document Production and Protocols.pdf; 20140127
SThibault Letter to DGlass.pdf; 20140224 Plaintiff Redline Edits re Privacy Act Protective
Order.pdf

David,
We have not yet received a response regarding our electronic search proposal contained in our January 27, 2014 letter
to you or our request for clarification of cost issues per our January 30, 2014 email below. Following-up on the status
conference held on February 20, 2014, Plaintiff is prepared to file a motion for production of USDA documents. That
said, we remain willing to cooperate with USDA regarding our discovery requests without the Courts intervention and
to alleviate the time and expense of motion practice.
Plaintiffs January 27, 2014 Electronic Search Proposal: As previously indicated, our January 27, 2014 proposal largely
agrees to your December 19, 2013 proposal subject to minor modifications and additions. Ive re-attached for your
reference, our January 27, 2014 proposal. Please let us know whether this proposal is acceptable to the USDA. If,
however, USDA will not agree to our January 27, 2014 proposal, please let us know which aspects of our proposal USDA
will not agree to and the reasons for USDAs position.
Document Production & Protocols: For your reference, I have also attached the Agreement Regarding Document
Production and Protocols. It is a very straightforward, standard protocol. Please let us know if USDA will agree to
produce documents according to this format.
Privacy Act Protective Order: You have indicated USDAs release of Mrs. Sherrods official personnel file (OPF) will
require the parties agreement to your proposed Privacy Act protective order, which among other things, requires the
parties to file under seal, any record contained in a system of records that is produced by the USDA. We are amenable
to your proposed Privacy Act Protective Order subject to the minor edits indicated in redline in the attached. Please let
us know whether these edits are acceptable to USDA.
Please feel free to give me a call should you have any questions or wish to discuss these matters further.
Thank you,
Stephanie S. Thibault
Kirkland & Ellis LLP
655 Fifteenth St., N.W. Washington, D.C. 20005
Tel +1-202- 879-5961 Fax +1-202-879-5200
stephanie.thibault@kirkland.com

From: Thibault, Stephanie S.


Sent: Thursday, January 30, 2014 9:52 AM
To: 'Glass, David (CIV)'
1

Case 1:11-cv-00477-RJL Document 94-10 Filed 03/03/14 Page 2 of 5


Cc: Farrell, Peter A.; Mark I. Bailen (mbailen@bakerlaw.com); Hogan, Thomas E.; Harrison J. Dossick
(hdossick@reedsmith.com)
Subject: RE: Sherrod v. Breitbart et al.

David,
I understood from our January 27, 2014 telephone conversation that USDA would bear the costs associated with
identifying and producing documents responsive to the search proposal set forth in your December 19, 2013 email
because, as you state below, the USDA has already agreed to supplement its FOIA production in response to a FOIA
requester with whom it has been dealing for some time. Based on that understanding, we expected that the relatively
minor changes we requested in our January 27, 2014 letter (a handful of additional custodians and search terms) would
not materially increase USDAs costs given that, under your December 19, 2013 proposal, USDA already would be
incurring the expense of searching email backup tapes, reviewing documents, and other steps as part of its
supplemental FOIA response. Indeed, we prepared our January 27, 2014 proposal with the hope that it would not
impose any significant burden or expense on USDA.
If, however, USDA believes that our January 27, 2014 proposal would cause USDA to incur significant expenses, please
let us know what those significant expenses would be and how they would be attributable to our proposal -- e.g., the
difference in cost associated with the search, review, and production of documents under your December 19, 2013
proposal versus our revised January 27, 2014 proposal. Please also explain the breakdown and basis for each specific
cost, if any, that you believe Mrs. Sherrod and/or Kirkland & Ellis LLP should bear.
We look forward to receiving your response to our letter and clarification of these cost issues. Please do not hesitate to
call me if it would be helpful to discuss these matters by telephone.
Stephanie S. Thibault
Kirkland & Ellis LLP
655 Fifteenth St., N.W. Washington, D.C. 20005
Tel +1-202- 879-5961 Fax +1-202-879-5200
stephanie.thibault@kirkland.com

From: Glass, David (CIV) [mailto:David.Glass@usdoj.gov]


Sent: Tuesday, January 28, 2014 11:47 AM
To: Thibault, Stephanie S.
Cc: Farrell, Peter A.; Mark I. Bailen (mbailen@bakerlaw.com); Hogan, Thomas E.; Harrison J. Dossick
(hdossick@reedsmith.com)
Subject: RE: Sherrod v. Breitbart et al.

Stephanie
Thanks. We will consider your letter and Tom Hogans revised proposal but you may have misunderstood what I said
about the costs. USDA is prepared to bear search costs only insofar as it is not required to conduct searches beyond
what it perceives its obligation to be to one of the FOIA requesters with whom it has been dealing for some time.
David
From: Thibault, Stephanie S. [mailto:sthibault@kirkland.com]
Sent: Monday, January 27, 2014 7:18 PM
To: Glass, David (CIV)
Cc: Farrell, Peter A.; Mark I. Bailen (mbailen@bakerlaw.com); Hogan, Thomas E.; Harrison J. Dossick
2

Case 1:11-cv-00477-RJL Document 94-10 Filed 03/03/14 Page 3 of 5


(hdossick@reedsmith.com)
Subject: Sherrod v. Breitbart et al.

David:
Please see the attached correspondence.
Thank you,
Stephanie S. Thibault
Kirkland & Ellis LLP
655 Fifteenth St., N.W. Washington, D.C. 20005
Tel +1-202- 879-5961 Fax +1-202-879-5200
stephanie.thibault@kirkland.com

From: Glass, David (CIV) [mailto:David.Glass@usdoj.gov]


Sent: Thursday, December 19, 2013 10:45 AM
To: Farrell, Peter A.; Thibault, Stephanie S.; Mark I. Bailen (mbailen@bakerlaw.com); Hogan, Thomas E.; Harrison J.
Dossick (hdossick@reedsmith.com); Glass, David (CIV)
Subject: Sherrod: Proposed Electronic Searches
Peter/Stephanie/Mark/Tom/Harrison:
The U.S. Department of Agriculture (USDA) proposes to conduct the following electronic searches for emails
pertaining to Shirley Sherrod in response to the subpoenas issued to it in Sherrod v. Breitbart and all outstanding requests
under the Freedom of Information and Privacy Acts. Please let me know if you have any questions or comments.
For the period June 1-October 31, 2010:
1. USDA proposes to search the Rural Development agency archive for emails of the following individuals:
Shirley Sherrod
Donnie D. Thomas, Assistant State Director, Georgia State Rural Development Office
Donna I. Graves, Director, Administrative Programs, Georgia State Rural Development Office
using the following search terms (words in quotes will be searched as a phrase):
Coffee County NAACP
banquet
Breitbart
video
blog
Larry OConnor
Freedom Fund
2. USDA proposes to search exchange server backups for emails of the following individuals:
Tom Vilsack, Secretary of Agriculture
Karen Ross, Chief of Staff
Carole Jett, Deputy Chief of Staff
David Lazarus, Senior Advisor to the Secretary
Robert Bonnie, Senior Advisor to the Secretary
Max Holtzman, Senior Advisor to the Secretary
Doug OBrien, Senior Advisor to the Secretary
Jane Hipp, Senior Advisor to the Secretary
Sarah Bittleman, Senior Advisor to the Secretary
3

Case 1:11-cv-00477-RJL Document 94-10 Filed 03/03/14 Page 4 of 5


Sally Cluthe, Director of Scheduling
Kevin Washo, White House Liaison
Kathleen Merrigan, Deputy Secretary
Suzanne Palmieri, Chief of Staff to the Deputy Secretary
Pearlie Reed, Assistant Secretary for Departmental Management
Alma Hobbs, Deputy Assistant Secretary
Robin Heard, Deputy Assistant Secretary
Bobbi Jeanquart, Chief of Staff
W. Russ Ashworth, Director, Management Services
Karen Messmore, Director, Office of Human Resource Management
Joe Leonard, Assistant Secretary for Civil Rights
Mary N. McNeil, Deputy Assistant Secretary
Dallas Tonsager, Under Secretary for Rural Development
Cheryl Cook, Deputy Under Secretary
Victor Vasquez, Deputy Under Secretary
Lisa Zaina, Chief of Staff
Timothy McNeilly, Director, Legislative & Public Affairs
Judith Canales, Administrator, Rural Business-Cooperative Service
Tammye Trevino, Administrator, Rural Housing Service
Jonathan Adelstein, Administrator, Rural Utilities Service
Chris Mather, Director, Office of Communication
David Sandretti, Deputy Director
Caleb Weaver, Press Secretary
Justin DeJong, Press Secretary
Steve Silverman, Deputy General Counsel and Acting General Counsel
Krysta Harden, Assistant Secretary for Congressional Relations
John Berge, Deputy Assistant Secretary
Jennifer Yezak, Director, External and Intergovernmental Affairs
using the following search terms (words in quotes will be searched as a phrase):
Sherrod
Shirley Sherrod
GA/RD
GA RD
Georgia RD
GA-RD
Breitbart
Larry OConnor
3. USDA proposes to search the Office of Executive Correspondence correspondence files for the term Sherrod,
excluding the terms Sherrod Brown and Senator Sherrod if technically feasible.
The estimated costs of these searches will be approximately $50,000-60,000 and take up to 45 days once the
searches begin. This time and cost is exclusive of review time.
Thanks, David

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Case 1:11-cv-00477-RJL Document 94-10 Filed 03/03/14 Page 5 of 5


promoting, marketing or recommending to another party any tax-related matters addressed herein.
The information contained in this communication is confidential, may be attorney-client privileged, may constitute inside
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Case 1:11-cv-00477-RJL Document 94-11 Filed 03/03/14 Page 1 of 2

Case 1:11-cv-00477-RJL Document 94-11 Filed 03/03/14 Page 2 of 2

Case 1:11-cv-00477-RJL Document 94-12 Filed 03/03/14 Page 1 of 1


Farrell, Peter A.
From:
Sent:
To:
Cc:
Subject:

Thibault, Stephanie S.
Thursday, February 27, 2014 7:05 AM
Glass, David (CIV)
Farrell, Peter A.
Sherrod v. Breitbart et al.

David,
As we discussed yesterday afternoon with counsel for all of the parties, we look forward to receiving by noon today your
letter regarding the status of USDAs efforts to identify emails that may be responsive to our January 27, 2014 search
proposal. As I explained during the discussion yesterday and in previous communications with you, it would be helpful
for USDA to respond specifically to our January 27 proposal so that we can meaningfully discuss any concerns USDA may
have about our requests. I understood from the discussion yesterday, however, that you do not plan to address our
proposal in particular (except perhaps to reiterate your categorical position that each and every one of the documents
Plaintiff has requested is irrelevant to her claims). Instead, you intend to describe the time and steps you believe would
be required for USDA to collect emails based on a broader (and thus more-burdensome) search protocol that USDA
created by combining our proposal with Mr. OConnors proposal. Frankly, I dont see how your combined approach will
be more productive and efficient than addressing our proposal on its own given that our proposal is substantially
narrower than Mr. OConnors. Nevertheless, well review your letter and will be prepared to discuss it with you at 6:00
p.m. today.
Thank you,
Stephanie S. Thibault
Kirkland & Ellis LLP
655 Fifteenth St., N.W. Washington, D.C. 20005
Tel +1-202- 879-5961 Fax +1-202-879-5200
stephanie.thibault@kirkland.com

Case 1:11-cv-00477-RJL Document 94-13 Filed 03/03/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

SHIRLEY SHERROD,
Plaintiff,
v.
ANDREW BREITBART, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civ. A. No. 11-00477 (RJL)

[PROPOSED] ORDER
Upon consideration of Plaintiff Shirley Sherrods Motion to Adopt Modified USDA
Discovery Plan, it is hereby:
ORDERED that Plaintiffs motion is GRANTED; it is further
ORDERED that USDA shall begin producing documents in accordance with Plaintiffs
January 27, 2014 discovery plan on a rolling basis no later than ___________, 2014; it is further
ORDERED that USDA shall complete its document production in accordance with
Plaintiffs January 27, 2014 discovery plan no later than ___________, 2014.
SO ORDERED.
Dated: _______________
RICHARD J. LEON
United States District Judge

Case 1:11-cv-00477-RJL Document 94-13 Filed 03/03/14 Page 2 of 2

Copies to:
Thomas D. Yannucci, P.C.
Michael D. Jones
Thomas A. Clare, P.C.
Beth A. Williams
Peter A. Farrell
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
thomas.yannucci@kirkland.com
michael.jones@kirkland.com
thomas.clare@kirkland.com
beth.williams@kirkland.com
peter.farrell@kirkland.com
Attorneys for Plaintiff Shirley Sherrod
Bruce W. Sanford
Mark I. Bailen
Bruce D. Brown
BAKER & HOSTETLER LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036
bsanford@bakerlaw.com
mbailen@bakerlaw.com
bbrown@bakerlaw.com
Attorneys for Defendant Larry OConnor
Eric A. Dubelier
Daniel Z. Herbst
REED SMITH LLP
1301 K Street NW
6XLWH(DVW7RZHU
Washington, DC 20005
edubelier@reedsmith.com
dherbst@reedsmith.com
Harrison J. Dossick
REED SMITH LLP
1901 Avenue of the Stars
Suite 700
Los Angeles, CA 90067-6078
hdossick@reedsmith.com
Attorneys for Susannah Breitbart, as successor to Defendant Andrew Breitbart, Deceased

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