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Alexander v. Federal Bureau of Investigation

March 6, 2000

CARA LESLIE ALEXANDER, ET AL., PLAINTIFFS,
V. FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth United States District Judge

MEMORANDUM AND ORDER

Plaintiffs move to compel the production of documents and testimony from third-party United States Department of Defense ("DoD" or "Department of Defense"). Specifically, plaintiffs seek documents relating to the DoD's investigation into the release of information from DoD employee Linda Tripp's security clearance form to a reporter from The New Yorker magazine. In addition to materials relating to DoD's internal investigation, plaintiffs seek a host of other documents that may not be contained in DoD's investigatory file. Moreover, plaintiffs have requested that DoD produce a custodian of records for deposition. Finally, plaintiffs move for leave to supplement their motion to compel with a letter they received from an anonymous source, and which they contend demonstrates White House involvement in the release. Non-party DoD and the government defendants oppose these motions, claiming that the investigatory file materials are shielded from disclosure by the law enforcement privilege and that the other requests fall outside the scope of permissible discovery authorized by the Court. Upon consideration of the memoranda in support of and opposition to plaintiffs' motion, the relevant law, an ex parte hearing with the government, and an in camera review of the entire investigative file, the Court hereby GRANTS plaintiffs' motion for leave to supplement its motion to compel and GRANTS in part and DENIES in part plaintiffs' motion to compel documents and testimony from the Department of Defense. Non-party Department of Defense's motion for a protective order and to vacate the deposition of custodian of records is DENIED in part and GRANTED in part.

I. BACKGROUND

The instant matter derives from what has become popularly known as the "Filegate" case. In "Filegate," plaintiffs allege that their privacy interests were violated when, in 1993 to 1994, the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush Administrations.

The issues before the Court today, however, focus upon a somewhat different allegation of improper conduct--the March 13, 1998 release by the Defense Department of information contained in Linda Tripp's security clearance form to a reporter from The New Yorker magazine. By previous order, the Court authorized discovery into the circumstances surrounding the release of Ms. Tripp's background security information, to the limited extent that this inquiry was "reasonably calculated to lead to the discovery of a White House connection to the release of Tripp's private government information." See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 6-7 (D.D.C. April 13, 1998). In so ruling, the Court reasoned that discovery into the DoD release might be relevant if it could establish circumstantial evidence of White House misuse of government information, similar to the conduct alleged in Filegate. While authorizing discovery into this "limited area," however, the Court expressly foreclosed the possibility that such discovery would degenerate into a "roving commission" to investigate alleged White House and Executive Branch scandals. Id. at 7.

In addressing plaintiffs' first motion to compel targeted at this line of discovery, and after conducting in camera review of documents withheld pursuant to the attorney-client privilege and the deliberative process privilege, the Court ordered DoD to produce a number of these documents. Alexander v. FBI, 186 F.R.D. 154,158-65 (D.D.C. 1999). At the same time, the Court ordered DoD to produce in camera those materials for which it claimed the law enforcement privilege and to submit briefing and declarations explaining how the ten factors set forth in In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988)(citing Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa. 1973)) apply to these documents. Id. at 166-168. Subsequently, in conducting its preliminary in camera review of the investigatory files materials, the Court noticed that non-party Department of Defense had produced documents in existence only up to the return date of the Rule 45 subpoena, which was May 6, 1998. While commenting that such an approach was entirely proper, given that a non-party served with a subpoena duces tecum is under no duty to supplement its discovery responses, the Court authorized plaintiffs to serve an additional Rule 45 subpoena on the Department of Defense that would cover any documents post-dating the return date of the original subpoena. Alexander v. FBI, Civ. No. 96-2123l 97- 1288, Memorandum and Order at 2-3 (D.D.C. June 25, 1999) (noting the differing obligations imposed on parties and non- parties under Fed.R.Civ.P. 26(e) and Fed.R.Civ.P. 45(d)). By the same order, the Court required DoD to supplement its previous in camera submission of investigatory files with any documents responsive to a subsequent subpoena. Id. at 4.

In its second Rule 45 subpoena, issued in June 1999, plaintiffs seek documents not yet produced to the plaintiffs or the Court that relate to DoD's release of information from Linda Tripp's security clearance form. In addition, plaintiffs seek all documents related to the DoD's communications to the media regarding Tripp, all documents relating to Investigative Group, Inc., and its employees including Terry Lenzner and Larry Potts, all documents relating to Anthony Marceca's detailing to the White House, all documents concerning the White House's obtaining of FBI files, reports or other data concerning former Reagan and Bush appointees, all records relating to comments by George Stephanopoulos on the so-called "Ellen Rometsch strategy," and all telephone records documenting calls relating to the aforementioned requests. And, most recently, plaintiffs have moved to supplement their motion to compel with a January 1999 letter written by Les Blake, Chief, Office of FOIA and Privacy at the Department of Defense, to Jay Willer at the U.S. Government Accounting Office. Notably, the letter recounts a March 18 meeting between Blake and the Director of the Defense Security Service, Margaret Munson, in which she criticized Blake for creating a "record" of Clifford Bernath's request for the information from Tripp's file and remarked that "this is a very serious issue which could involve the impeachment of the President." Exhibit 1, Plaintiffs' Motion for Leave to Supplement Plaintiffs' Motion to Compel Production of Documents and Testimony from the Department of Defense (filed January 4, 2000).

The Department of Defense presents a host of challenges to plaintiffs' second subpoena. To start, DoD asserts that certain of the materials requested under the second subpoena are protected from disclosure by the law enforcement privilege. In addition, to the extent that plaintiffs' requests target materials not covered by the investigatory records privilege, DoD maintains that such requests exceed the scope of the additional Rule 45 subpoena authorized by this Court, as well as the limited scope of discovery allowed against the Department of Defense. Specifically, DoD contends that in its order permitting plaintiffs to serve an additional subpoena, the Court foreclosed them from seeking any information beyond what might be contained in DoD's "investigatory files." Alternatively, DoD asserts that these requests are not "reasonably calculated to lead to the discovery of admissible evidence on the issues of the obtaining and misuse of Tripp's government files," and thus exceed the narrow scope of discovery this Court permitted against the DoD. Alexander v. FBI, Civ. No. 96-2123; 97-1288, Memorandum and Order at 6-7 (D.D.C. April 13, 1998). DoD further objects to a deposition of a custodian of records, contending that the Court's previous order only authorized a subpoena duces tecum, that plaintiffs have exceeded the number of depositions allowed by the Local Rules, and that "there is no particular 'custodian of records'" for the DoD.

The government defendants also oppose the second motion to compel. They argue that plaintiffs have exceeded their 20- deposition limit and assert that these requests constitute "general discovery," which was suspended on June 12, 1999 and that any further general discovery would resume only after the resolution of the class certification and scope-of-employment issues.

DoD also opposes plaintiffs' motion for leave to supplement its motion to compel. To start, DoD correctly asserts that it was under no obligation under the first subpoena to produce the Blake letter as it was created after the return date (May 6, 1998). By contrast, however, DoD advances that it is not obligated to produce the Blake letter in response to plaintiffs' second subpoena, despite the fact that it falls within the time period covered by the subpoena, because the DoD has objected to that subpoena in its entirety. Moreover, the DoD asserts that "the Blake letter had nothing to do with, and is not a part of the Inspector General's file produced in camera to the Court." Memorandum of Points and Authorities in Support of the Department of Defense's Opposition to Plaintiffs' Motion for Leave to Supplement Plaintiffs' Motion to Compel, at 6 n.5, (filed January 28, 2000). Thus, according to DoD, the Blake letter was not considered responsive to the subpoena and, hence, was not produced to either the plaintiff or the Court because the discussion recounted in it occurred after the release and thus, had "no bearing on the release itself, as it concerned Blake's creation of a written record of the circumstances of the release, not the specific contents of that record." Id. at 8 n.8. Suffice it to say that the Court is mind-boggled as to how the DoD can seriously maintain that this document was not responsive to a request that asks for the following:

Any and all records, correspondence, notes, communications or other documents, that have not yet been produced to the Plaintiffs or the Court, concerning or relating to the U.S. Department of Defense's (DoD) and/or the White House's release of information from Linda Tripp's DoD files to reporter Jane Mayer and/or others and any and all attempts to withhold information from the public and/or investigators about the details of that release. . . . (Plaintiffs' Request No. 1)

Simply put, DoD's assertion that the Blake letter is not responsive to this request is incredulous. Moreover, DoD's excessive parsing of the request in order to avoid production of a responsive document calls into question both the adequacy of DoD's search for responsive documents and its good faith efforts to comply with the subpoena.

As explained below, the Court hereby GRANTS in PART and DENIES in part plaintiffs' motion to compel documents and testimony from non-party Department of Defense. DoD's motions to vacate the notice of deposition of a custodian of records and for a protective order ...


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