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Alexander v. Federal Bureau of Investigation

June 5, 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 Court

MEMORANDUM OPINION

This matter comes before the court on Plaintiffs' Supplemental Brief to their Motion to Compel the Production of Documents Regarding their Second Request to the Executive Office of the President ("EOP") Regarding ARMS E-mail. This court issued a prior ruling, on May 17, 2000, on the Plaintiffs' Motion to Compel the Production of Documents. In that order, however, the court deferred on the plaintiffs' requests as to e- mails and hard drives. The parties then filed supplemental memoranda regarding the plaintiffs' request for an ARMS search of e-mail. Upon consideration of these memoranda, and the reply and surreply thereto, the court will GRANT IN PART AND DENY IN PART the plaintiffs' request for an ARMS e-mail search, as discussed and ordered below. The court will continue to DEFER on the plaintiffs' requests for hard drives and those e-mails that are not archived on the ARMS system.

I. Background

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.

The instant dispute revolves around the discovery of e-mails relevant to the pending action. In their first request for the production of documents, served on October 9, 1997, the plaintiffs made several document requests, including e-mails, of various individuals. The EOP responded to these requests by stating that responsive documents "will be produced as they are located." Alexander v. F.B.I., 1997 WL 1106579, at *1 (D.D.C. 1997). Plaintiffs then filed a motion to compel regarding their first request on December 5, 1997. In response, the EOP filed a motion to strike the plaintiffs' motion due to the fact that the plaintiffs had not conferred with the EOP before filing it, as required by Local Rule 108(m). On December 22, 1997, the court granted the EOP's motion to strike the plaintiffs' motion to compel and stated that it would not entertain any motions to compel filed by the plaintiffs until after a further status conference scheduled for January 13, 1998. *fn1 Id.

Negotiations between the parties regarding the plaintiffs' motion to compel ensued, and most of the issues were resolved. With regard to the e-mails, the EOP admitted that it had not performed any search of the e-mail systems and computer hard drives in response to the plaintiffs' first request for the production of documents. The EOP suggested that, rather than perform several piecemeal searches in response to the plaintiffs' requests for documents, the parties meet and agree on a reasonable number of relevant individuals' e-mail to be searched and a reasonable set of search terms. See Opp'n by Def. EOP to Pls.' Mot. to Compel Docs. Regarding Second Request to the EOP at 30, n.31. See Tr. of March 10, 2000 Hearing at 30 (statement of James Gilligan that since January of 1998 the EOP has asserted that the proper way to handle the discovery of e- mails is to conduct one, global search of all e-mail, rather than piecemeal searches, performed as the case progressed, which "cumulatively would impose an undue burden.") The EOP further stated that it was currently engaging in a process of restoring and reconstructing pre-July 14, 1994 e-mail *fn2, and, once that process was complete, a global e-mail search could be conducted on-line. See id. at 29; Decl. of Daniel Barry at ¶10 (March 4, 1998)(describing e-mail restoration process and estimating completion dates).

Plaintiffs then served their second set of requests for the production of documents on October 27, 1998. Request number 28 of this set of requests sought all e-mail correspondence to or from five individuals that was recovered in previous e-mail searches performed by the EOP as described by Daniel Barry, a computer specialist employed by the EOP Office of Administration, Information Systems and Technology Division (IS&T), in his June 11, 1998 deposition. The EOP objected to this request as overbroad and irrelevant. The EOP further responded that it "stands ready, as previously offered, to perform searches of archived White House e-mail within parameters as to date, users, and search terms reasonably calculated to lead to the discovery of relevant information without imposing an undue burden on the EOP." EOP Resp. to Pls.' Second Req. for Produc. of Docs. At 26.

On April 8, 1999, the parties conducted a Rule 108 conference prior to the plaintiffs' filing of their motion to compel for their second set of requests for documents. At this conference, the plaintiffs were informed that the e-mail restoration process was almost complete and that certain e-mail was available for searching. Accordingly, the plaintiffs then submitted in their motion to compel a "preliminary list" of approximately 40 persons whose e-mail should be searched and 36 relevant search terms. The EOP objected to this request as so markedly different in scope as to constitute an entirely new request. They further rejected the plaintiffs' request on the grounds that it is overly broad, seeks irrelevant information, and would impose an undue burden on the EOP. To support its claim of undue burden, the EOP provided another affidavit by Daniel Barry, which stated that the proposed search would cost approximately $687,180. See Decl. of Daniel Barry at ¶12 (July 9, 1999).

The plaintiffs replied that the change in their request for e-mails was a result of the fact that, at the parties' Local Rule 108 conference, in addition to informing the plaintiffs for the first time that all but two months of the e-mails were prepared to be searched, the EOP specifically and repeatedly invited the plaintiffs to submit a list of individuals whose e- mail should be searched and a list of search terms. Therefore, they argued, the parties were simply disagreeing about the number of terms and individuals for the initial search. They then proposed a narrower "initial" search of eleven individuals' e-mail for thirteen search terms.

There have been numerous recent developments, however, regarding the EOP's capability to perform on-line searches of all e-mail. A description of these recent developments is necessary to understand the particular issue at bar in this opinion.

In February of 2000, the plaintiffs discovered evidence that, contrary to Daniel Barry's July 9, 1999 affidavit, not all e-mail from November 1992 to July 14, 1994 *fn3 had been archived in an on-line format, and, as such, certain e-mail would not be searched by performing a global on-line inquiry. The plaintiffs filed a motion on February 19, 2000, to supplement their motion to compel with a declaration by Sheryl Hall, a computer specialist at the White House. In this declaration, Hall attests that, beginning in August 1996, incoming e-mails to nearly 500 people in the EOP, including top-level employees, were not transferred to the computer system in the White House, which is known as the Automated Records Management System ("ARMS"). Third Decl. of Sheryl Hall at 2 (Feb. 19, 2000). As a result, Hall stated, these e-mails, which number approximately 100,000, were not and can not now be word searched on-line. Id. Hall stated that most of these e-mails do still exist, however, on back-up tapes, and, therefore, can still be printed and the hard copies searched. Id. at 5. Hall also attested in her declaration that several employees who were aware of the e-mail problem were threatened with jail or the loss of their jobs if they told anyone else. Id. at 4-5.

In light of this declaration, the plaintiffs requested that the court hold an evidentiary hearing to determine why material evidence was not produced to them. Plaintiffs argued that such a hearing was particularly necessary due to the fact that Daniel Barry had filed a declaration in this court attesting incorrectly that all EOP e-mail would be susceptible to a global on-line word search.

Then, on February 25, 2000, plaintiffs filed a motion for leave to file a second supplement. This supplement included a declaration from another computer specialist at the White House, Betty Lambuth, who corroborated Hall's earlier declaration. On March 7, 2000, the plaintiffs filed a motion for an expedited ex parte conference concerning the possible destruction of hard drives in the White House. Plaintiffs attached to this motion the Fourth Declaration of Sheryl Hall. In this declaration, Hall stated that she had received information from a White House Office of Administration ("OA") employee that the White House was planning to destroy archival cartridge tapes of the computer hard drives of departed White House staff members.

On March 9, 2000, the plaintiffs filed a motion to file a third supplement to their motion to compel and a further request for an evidentiary hearing. Plaintiffs' third supplement consisted of two letters written by Congressman Dan Burton, Chairman of the House Committee on Government Reform, and two newspaper articles concerning the approximately 100,000 e-mails that appear to have been excluded from searches made in response to prior Congressional subpoenas.

A hearing was held on these motions on March 10, 2000. At that hearing, the court ordered that the EOP provide assurances that the material at issue will be preserved and protected until the court has an opportunity to rule on the plaintiffs' motion for an evidentiary hearing and motion to compel as to their request for e-mails and hard drives. The EOP responded by assuring the court that "the e-mail in question, to the extent it exists is being preserved, and is not being, and will not be overwritten." *fn4 EOP's Resp. to Mem. and Order of March 15, 2000 at 1. The EOP further provided the court with the name of the deputy to the associate director of IS&T, Terry Misich, who had been given the responsibility for preserving the integrity of the back-up tapes that are the subject of the controversy. *fn5 In response to Hall's Fourth Declaration, the EOP advised the court their current policy is to make back-up tapes of the hard drive files of departed employees, and not to destroy those back-up tapes. The EOP then reiterated their position that the best way to deal with discovery of e-mails is to perform one, global search for the entire case under reasonable parameters as to search terms and persons whose files are to be searched.

At the conclusion of the hearing, the court declined to take custody of the material at issue, stating that it would accept the representations made by the White House that they will not tamper with either the e-mails or the hard drives, but rather they would preserve the integrity of these materials. The court then granted the EOP two weeks to respond to the plaintiffs' motions to file their supplements to their motion to compel.

On March 21, 2000, the EOP filed their opposition to the plaintiffs' motion for leave to file their third supplement. As to the plaintiffs' first and second supplements, the EOP moved on March 23, 2000 to have the court indefinitely stay its consideration of the e-mail issue due to the overlapping investigations of the Department of Justice's Criminal Division and the Office of Independent Counsel. As to the question of hard drives raised in Sheryl Hall's fourth declaration, the EOP moved for an additional week to respond. The court held a hearing on the EOP's motion on March 24, 2000. At that hearing, the court took the EOP's motion to stay under consideration. At the EOP's suggestion, the court further ordered that the Criminal Division of the Department of Justice provide the court with periodic ex parte, in camera status reports in chambers on the progress of its investigation, beginning on March 30, 2000.

Also at the March 24, 2000 hearing, the plaintiffs first raised the issue of the possible existence of a "zip" disk containing several e-mails, which was made from the F: drive file of Robert Haas, a White House computer specialist. Counsel for the EOP, James Gilligan, responded that he had recently become aware that such a "zip" disk did exist. He further represented that he would later provide additional assurance to the court that the disk was being preserved. On March 27, 2000, Mr. Gilligan provided this assurance in the form of a letter to the court stating that the zip disk was being stored in the custody of Charles Easley, EOP Security Officer, under the same conditions of security as the 3,400 e-mail back-up tapes, as described in Mr. Easley's earlier affidavit.

On March 31, 2000, the plaintiffs filed a motion for an order to show cause concerning the "zip" drive and related matters and a request for an evidentiary hearing. The plaintiffs' motion was based on the March 30, 2000, testimony of White House Counsel, Beth Nolan, before the House Government Reform Committee, stating that the EOP had tried to read some of the zip disk material but were unable to do so, and, therefore, they had to go back to Mr. Haas' F: drive to make another zip disk. Plaintiffs argued that the court should hold an evidentiary hearing because the EOP had tampered with the "zip" disk. The plaintiffs further argued that a hearing was required due to the fact that the White House had indicated that it believed that this court's prior order to preserve material applied only to the e-mails and hard drives, and not the "zip" disk. A hearing was held on this motion on March 31, 2000, at which the court took the plaintiffs' motion for an order to show cause under advisement. The court clarified that its prior orders to preserve the material at issue encompassed the "zip" disk as well. The court further stated, however, that its orders were only that the information be preserved, and did not bar the White House from accessing the information.

On April 3, 2000, the EOP filed its response to the plaintiffs' motion for an evidentiary hearing on the preservation of hard drives. The EOP provided the declaration of Michael Lyle, Director of the Office of Administration, who stated that the EOP has no plan to alter or destroy the back-up tapes of the hard-drive files of departed EOP employees, and that he had assigned the task of safeguarding these tapes to Charles Easley, EOP Security Officer. Easley also provided a second declaration attesting that he was preserving the back-up tapes containing the hard-drive files (approximately 600 of them), and describing the manner in which they were being preserved.

On April 6, 2000, plaintiffs filed a fourth supplement to their motion to compel, renewing their request that the court take custody of the subject evidence. In this motion, the plaintiffs argued that such a measure is necessary based on evidence that the contractors hired by the White House to search and preserve the e-mails consists of former White House employees who worked closely with individuals who are the subject of the Department of Justice's criminal investigation.

On April 27, 2000, the court held another hearing regarding this dispute. At that hearing, the court again denied the plaintiffs' request that the court take custody of the e-mail back-up tapes, hard drives and zip disks. The court held the plaintiffs' motion for an evidentiary hearing and the plaintiffs' motion for an order to show cause concerning the zip disk in abeyance so as not to interfere with the Department of Justice's criminal investigation into the matter. Regarding the discovery of relevant e-mails, the court ordered the plaintiffs to file a supplemental memorandum regarding the parameters for the search of those e-mails that have been successfully transferred to the ARMS. The court further ordered that the EOP file a response to the plaintiffs' supplemental briefing. In addition, the court ordered the plaintiffs to file a separate supplemental memorandum concerning the search of non-ARMS e- mail, hard drives and other material, to which the EOP should then file its response. Then, on May 17, 2000, the court issued an order regarding the plaintiffs' second request for the production of documents, deferring on those requests concerning hard drives and e-mails.

In summary, there are three basic issues raised by the parties in the motions and hearings described above. The initial issue is the actual search for relevant material as part of discovery in the pending case. This search can be broken down into two further components: the search of all e-mails now archived on ARMS and capable of being word-searched, and the search of the approximately 100,000 e-mails not archived on ARMS but possibly contained within the 3,400 back-up tapes. The second issue is the preservation of the material, including the back-up tapes, the hard drives of departing employees and the Haas "zip" disk, until such time that they can be searched. *fn6 The third issue, which is primarily the focus of the DOJ criminal investigation, is the allegations that the White House "covered- up" the missing e-mails once they were discovered, by threatening employees and withholding information from this court and Congress.

As discussed above, the court has temporarily held the third issue in abeyance so as not to interfere with the DOJ investigation. As to the second issue, the court is satisfied at this time that the material is being preserved. Therefore, the court now turns only to the initial issue, raised in the plaintiff's original motion to compel - the search for relevant, discoverable material. In this order, the court will address only the search of that e-mail which is now archived on ARMS and capable of being word-searched. The remaining issues, including when and how an identical search can be performed on the approximately 100,000 e-mails available only on back-up tapes and what search should be performed regarding the hard drives, will be addressed in a later order.

Thus turning to the issue at bar, the plaintiffs filed their supplemental memorandum regarding the search of ARMS e-mails on May 2, 2000. In their brief, the plaintiffs requested that the search be conducted using 36 search terms and for 47 individuals. The plaintiffs also requested that the court order a general search of all e-mail for Craig Livingstone, Anthony Marceca, Bernard Nussbaum, Hillary Rodham Clinton, and William Kennedy for any documents responsive to the plaintiffs' prior document requests. On May 8, 2000, they filed their brief as to the parameters for the search of non-ARMS e-mails, in which they sought to add another individual and search term to their ARMS search request. Then, on May 11, 2000, the plaintiffs filed a motion for leave to supplement their May 2 nd brief in order to add another 9 individuals who had been recently named by the EOP in a supplement to their responses to the plaintiffs' third set of interrogatories.

The EOP filed their response to the plaintiffs' May 2 nd brief on May 12, 2000. They further sought leave to file an in camera, ex parte supplement to their response on May 17, 2000. The plaintiffs then filed a reply to the EOP's response on May 19, 2000. *fn7 The EOP then, on May 26, 2000, moved to strike the plaintiffs' reply, or, in the alternative, to file a surreply. In a separate order, the court granted the EOP leave to file their surreply, which the court has considered in its ruling today.

II. Analysis

As discussed above, plaintiffs first requested in their motion to compel that an "initial" search for relevant e-mail be conducted of approximately 40 individuals utilizing 36 search terms. The EOP objected to this request as overbroad and overly burdensome. *fn8 The plaintiffs then, in their reply, narrowed their "initial" request to only eleven individuals and thirteen search terms. In the plaintiffs' supplemental briefing regarding the parameters for a global search for all relevant e-mails, the plaintiffs again expand the number of persons whose e-mail should be searched to 47 individuals and the number of search terms to 37. They then supplement this request with an additional nine individuals.

The EOP objects to the plaintiffs' requested parameters as overbroad and unduly burdensome. To support its argument, the EOP provides a declaration by Leanna Terrell, Associate Director of IS&T in the Office of Administration. In her declaration, Ms. Terrell estimates that performing the search according to the parameters proposed by plaintiffs in their supplemental briefing (not including the fourteen individuals the plaintiffs seek to add to their request) would take over ten weeks to complete and would cost approximately $1,051,482. *fn9 See Amended Terrell Decl. at ¶11 (May 23, 2000).

Rule 34 of the Federal Rules of Civil Procedure, which governs the production of documents, states that any party may serve on any other party a request for documents or "any tangible things which constitute or contain matters within the scope of Rule 26(b) . . . ." FED. R. CIV. P. 34(a). Rule 26 (b) states that "[p]arties may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action." FED. R. CIV. P. 26 (b)(1). Pursuant to Rule 26(b)(2), the court may limit this discovery, either on its own initiative or pursuant to a motion for a protective order, if it determines that

(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in this action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issue at stake in the litigation, and the importance of the proposed discovery in resolving the issues. FED. R. CIV. P. 26(b)(2).

The court notes that the EOP cannot be objecting to the plaintiffs' request for e-mails in general as unreasonably cumulative or duplicative, given the fact that there has not yet been any search for e-mails throughout the course of discovery in this action. Instead, the EOP has repeatedly responded to the plaintiffs' requests by stating that it would perform only one, global search for relevant e-mails in order to avoid any cumulative discovery. Given these repeated assurances, there is also no issue regarding whether the plaintiffs have had ample opportunity by discovery in this action to obtain the information sought. A global search of the e-mails, by the EOP's own admission, could not be performed until the e-mails had been transferred to the ARMS system, a process that was not completed until shortly after August of 1999, when the plaintiffs filed their motion to compel. Therefore, the EOP's objections to the plaintiffs' request for e-mails must be based on either relevance or undue burden.

Because Rule 26 only allows discovery of material "relevant to the subject matter involved in the pending action", once a relevancy objection has been raised, the party seeking discovery must demonstrate that the information sought to be compelled is discoverable. FED. R. CIV. P. 26(b)(1); see also Alexander v FBI, 186 F.R.D. 185, 187 (D.D.C. 1999)(stating that the party seeking to compel information must first demonstrate its relevance); Alexander v. FBI, 186 F.R.D. 21, 45 (D.D.C. 1998) (same); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 631 (M.D.Pa. 1997)("Once a relevancy objection has been raised, the party seeking discovery must demonstrate that the request is within the scope of discovery.") For the purposes of discovery, relevancy is broadly construed and encompasses any material that bears on, or that reasonably leads to other matters that could bear on, any issue that is or may be in the case. See Alexander v. FBI, 186 F.R.D. 12, 18 (D.D.C. 1998); In re Aircrash Disaster Near Roselawn, Ind., 172 F.R.D. 295, 303 (N.D.Ill. 1997); see also 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §2008 (2d ed. 1994) (stating that relevance is to be construed liberally and that "it is not too strong to say that a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.") Once the relevance of the material sought has been established, the party objecting to that discovery then bears the burden of "show[ing] why discovery should not be permitted." Corrigan v. Methodist Hosp., 158 F.R.D. 54, 56 (E.D. Pa. 1994) (citing Amcast Indus. Corp. v. Detrex Corp., 138 F.R.D. 115, 118 (N.D. Ind. 1991)); see also Ellsworth Assocs., Inc. v. United States, 917 F.Supp. 841, 844 (D.D.C. 1996) ("A party opposing discovery bears the burden of showing why discovery should be denied.") In order to sustain an objection based on undue burden, the objecting party must make a specific, detailed showing of how the discovery request is burdensome. See Lohrenz v. Donnelly, 187 F.R.D. 1, 4 (D.D.C. 1999) (compelling the objecting party to fully answer the interrogatory at issue because there was no showing that the research required was unduly burdensome); Chubb Integrated Systems Ltd. v. Nat'l Bank of Washington, 103 F.R.D. 52, 60-61 (D.D.C. 1984)("An objection must show specifically how an interrogatory is overly broad, burdensome or oppressive, by submitting affidavits or offering evidence which reveals the nature of the burden.") With this in mind, the court now turns to the parties' proposals regarding the search of ARMS e-mails.

A. Plaintiffs' July 1999 Proposal

The EOP argues that the starting point for the court's analysis should be the parameters proposed by the plaintiffs in their reply to their motion to compel ("July 1999 proposal"). This proposal is as follows:

Individuals: Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Vincent Foster, Bill Kennedy, Marsha Scott, Betsy Pond, Deborah Gorham, Linda Tripp, and Mari Anderson. Search Terms: background report, summary report, FBI, OPS, Dale, travel office, Craig or Livingstone, Anthony or Marceca, update project, Bill or William and Kennedy, Nussbaum, HRC or Hillary. Pls.' Reply to Opp'n to Pls.' Mot. To Compel Docs. at 19. They further argue, however, that the court should narrow even this proposal in order to shorten the time needed to complete the project.

In support of its argument, the EOP provides the court with Ms. Terrell's declaration, in which she attests that the plaintiffs' July 1999 proposal, without any adjustments, would cost approximately $298,250 and would take an estimated sixteen hours to set up and 500 hours to run and print, producing about ten boxes of e-mails. *fn10 Amended Terrell Decl. at ¶14. The EOP argues that applying certain limitations to the search would shorten the period of time before the e-mails would be produced while still capturing all relevant e-mails. The court will now address each of these limitations recommended by the EOP.

1. Marsha Scott

The EOP argues that Marsha Scott is irrelevant to the pending action, and, therefore, her e-mail should not be searched. The court, however, has already addressed the issue of the relevancy of matters regarding Ms. Scott and found such matters to be relevant and discoverable. See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 11 (May 17, 2000)("[I]nformation regarding Marsha Scott's computer is relevant to the pending action as it may bear on the possible misuse of the plaintiffs' files.") Furthermore, the EOP argues that the evidence on which the plaintiffs rely to establish Ms. Scott's relevance - the deposition testimony of Linda Tripp - is insufficient. However, "[d]iscovery is not to be denied because it relates to a claim or defense that is being challenged as insufficient. 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §2008 (2d ed. 1994). Accordingly, the court rejects the EOP's argument, and Marsha Scott shall be included in the list of individuals whose e-mail should be searched. However, as discussed below, given that the plaintiffs have established the relevance of Ms. Scott only as she relates to the possible misuse of FBI files, her e-mail shall be searched only for those search terms relating to that issue.

2. The "travel office"

The term "travel office" is included in the plaintiffs' July 1999 proposal as one of the search terms. As the EOP correctly notes, however, this court has previously ruled on many occasions that matters regarding the travel office, with the exception of the possible misuse of the government file of Billy Dale, a former Travel Office employee, are not relevant to the instant case. See Alexander v. FBI, 186 F.R.D. 123, 125-26 (D.D.C. 1998) (re: Linda Tripp); Alexander v. FBI, 192 F.R.D. 42, 44 (D.D.C. 2000) (Re: Thomas McLarty); Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 17 (D.D.C. May 17, 2000). Therefore, plaintiffs are entitled to "travel office" e-mails only as they may relate to the misuse of Billy Dale's file. Given that "Dale" is a requested search term, to which the EOP has no objection, there is no basis for including "travel office" as a search term as well. Therefore, "travel office" shall be excluded from the list of search terms.

3. Searches beyond the White House Office

As explained in the Terrell Declaration, the ARMS database is divided into nineteen discrete segments known as "buckets." These buckets represent agencies or EOP components, such as the White House Office ("WHO"), the Office of Management and Budget, and the Council on Environmental Quality. See Amended Terrell Decl. at ¶5(listing the nineteen buckets). Each bucket contains e-mails of users employed by the corresponding EOP component, including all e-mails sent to or received from individuals outside that component(including persons completely outside of the White House). Amended Terrell Decl. at ¶5.

The EOP argues that, given the fact that all of the persons named in the plaintiffs' July 1999 proposal were e-mail account- holders whose e-mails were stored in the "WHO" bucket *fn11 , only this bucket needs to be searched. Plaintiffs have no objection to limiting the search to certain buckets on the ARMS system. See Pls.' Reply to the EOP's Resp. to Pls.' Supplement at 5. The plaintiffs, however, argue that, along with the "WHO" bucket, the President of the United States ("POTUS"), the Office of the Vice-President ("VPO"), the National Security Council ("NSC") and the DEFAULT buckets should be searched as well.

According to Terrell's declaration, however, the POTUS bucket contains only blank schedules, and does not contain any e-mail. See Terrell Decl. at ¶5. Thus, a search of this bucket would not produce any relevant e-mails, and need not be performed.

The DEFAULT bucket, according to Ms. Terrell, contains only unidentifiable external e-mail. See id. The plaintiffs do not explain why such e-mail would be relevant to the pending action. Accordingly, they have not met their burden of establishing the relevance of the discovery sought, and the DEFAULT bucket need not be searched.

As to the VPO and NSC buckets, the plaintiffs argue that these buckets should be searched based on their expanded request, which includes Vice-President Al Gore, and NSC employees Robert Manzanares, Marcia Dimel, and Deborah Perroy. Thus, these buckets will be addressed later in this opinion in conjunction with the court's analysis of the plaintiffs' most recent proposal as to search parameters. The court, agrees however, that with these two possible exceptions, all buckets other than the White House Office should be excluded from the search.

4. Designating the names of EOP e-mail users as search terms

Plaintiffs identify several EOP e-mail users both as persons whose e-mails are to be searched, and as names to be used as search terms. These include Craig Livingstone, Bernard Nussbaum, and William Kennedy. The EOP states that, because of the manner in which ARMS goes about searching for e-mails, using the name of the person with an e-mail account as one of the terms to be searched for within that individual's e-mails will retrieve all of that person's e-mails, without regard to subject matter or the terms in the search. See Terrell Decl. at ¶12. *fn12 Thus, such a request would only serve to generate a significant output of e-mails that are irrelevant to this case.

The court agrees that the e-mails of these individuals are only relevant as they relate to certain subjects, such as the improper acquisition and misuse of the FBI files of former White House employees, which are covered by such search terms as "background report," "FBI files" or "Dale." E-mails concerning other, unrelated matters as to ...


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