The opinion of the court was delivered by: Royce C. Lamberth United States District Court
This matter comes before the court on Plaintiffs' Motion  to Compel Defendant Hillary Rodham Clinton to Provide Appropriate Responses to Plaintiffs' Second Requests for Production of Documents. Upon consideration of this motion, and the opposition and reply thereto, the court will GRANT IN PART AND DENY IN PART plaintiffs' motion, as discussed and ordered below.
The underlying allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that their privacy interests were violated when the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees from the Reagan and Bush Administrations.
This particular dispute revolves around the plaintiffs' second set of requests for the production of documents, which was served on defendant Hillary Rodham Clinton on October 27, 1998. Mrs. Clinton served her responses to these requests on February 1, 1999. These responses included several specific and general objections. After making these objections, Mrs. Clinton then responded to most requests by stating that "[s]ubject to these objections and without waiving them, responsive documents, to the extent they exist and are in the defendant's possession, will be produced." No documents, however, were ever produced. In response to all other requests, Mrs. Clinton refused to produce documents based on her objections to the requests as overly broad, irrelevant, unduly burdensome and redundant with the plaintiffs' first set of requests to Mrs. Clinton. After conferring with opposing counsel by telephone on June 8, 1999, plaintiffs filed their motion to compel further answers to their second set of requests on June 14, 1999.
1. Request Numbers 1,2,17,18 and 24.
For these requests, Mrs. Clinton argues that no responsive documents exist, or they would have been produced. In her response, Mrs. Clinton makes several objections to these requests. She first objects generally to the extent that the requests seek any documents belonging to the White House or the Executive Office of the President ("EOP"), including the Office of the First Lady. Second, she objects that this set of requests is duplicative of the plaintiffs' first set of requests for documents, to which she has already responded. Third, Mrs. Clinton states that she has construed all requests as not seeking privileged communications. Next, Mrs. Clinton objects generally to the plaintiffs' definitions of "defendants," "government records," and "you and your" as overbroad. Finally, Mrs. Clinton objects specifically to each request as "overly broad, unduly burdensome, and seek[ing] discovery that is neither relevant to this case nor reasonably calculated to lead to the discovery of admissible evidence."
After making these objections, Mrs. Clinton states in her responses that "[s]ubject to these objections and without waiving them, responsive documents, to the extent they exist and are in the defendant's possession, will be produced." No documents, however, have been produced.
In their opposition, defense counsel assert that, as "Mrs. Clinton agreed to produce any responsive documents that existed and that were in her possession, notwithstanding her general and specific objections to the requests," the fact that no documents have been produced simply means no additional responsive documents exist. Opposition of Hillary Rodham Clinton at 9 (emphasis omitted). They further state that no documents were withheld due to privilege. Thus, they argue, given these representations, which were made to the plaintiffs during the parties' Local Rule 108(m) *fn1 telephone conference, the instant motion is based only on the plaintiffs' disbelief that there are no documents being withheld. Accordingly, as the plaintiffs do not provide any evidence demonstrating that responsive documents do, in fact, exist and are being unlawfully withheld, their motion to compel must fail. See Judicial Watch, Inc. v. United States Dep't of Commerce, 34 F.Supp.2d 47, 53 (D.D.C. 1998)(holding that in order to compel documents, the plaintiffs "must demonstrate to the Court that documents are being unlawfully withheld, not merely posit that documents may be being wrongfully withheld.")
The plaintiffs, however, respond that their motion is not based on their refusal to believe Mrs. Clinton and her counsel's representations that there are no responsive documents. Rather, their motion rests on the fact that the representations made to them actually seem to indicate that Mrs. Clinton's search for responsive documents was legally insufficient. They argue that Mrs. Clinton simply defined away the scope of her discovery obligations before asserting that those obligations had been met. In particular, they take issue with Mrs. Clinton's statement that documents will be produced only to the extent that they are in her possession.
Rule 34(a) of the Federal Rules of Civil Procedure provides: "Any party may serve on any other party a request [for ] . . . any designated documents . . . which are in the possession, custody, or control of the party upon whom the request is served." FED R. CIV. P. 34(a). It is well established that "control", which is defined not as possession, but as the legal right to obtain documents on demand, is the test as to whether the production is required. See Searock v. Stripling, 736 F.2d 650, 653 (11 th Cir. 1984); Tavoulareas v. Piro, 93 F.R.D. 11, 20 (D.D.C. 1981) (both holding that under Rule 34(a), a party must produce those documents that he has a legal right to control or obtain); see also 8A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §2210 (2d ed. 1994)("Inspection can be had if the party to whom the request is made has the legal right to obtain the document, even though in fact it has no copy.")
Mrs. Clinton stated in her responses that she would produce only those documents in her possession. She did not, therefore, include in her response any documents that she does not currently possess, but that she has the legal right to obtain. Furthermore, despite the fact that the plaintiffs clearly argued in their motion that it appeared that Mrs. Clinton did not include such documents in her responses, counsel for Mrs. Clinton conspicuously fail to address the issue. They make no representation regarding whether documents not within Mrs. Clinton's possession, but still within her control were searched in response to the plaintiffs' requests. *fn2 See Opposition of Hillary Rodham Clinton at 10-11 (simply reiterating Mrs. Clinton's statement that she would produce any responsive documents that exist and that were in her possession and stating that no documents were produced because no additional responsive documents exist). Therefore, because both Mrs. Clinton and her defense counsel fail to represent that all responsive documents within Mrs. Clinton's control have been produced, as required by Federal Rule 34(a), the court will order that Mrs. Clinton, within twenty days of the entry of ...