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Alexander v. Federal Bureau of Investigation

July 10, 2000



This matter comes before the court on Plaintiffs' Supplement to their Motion to Compel the Production of Documents Regarding their Second Request to the Executive Office of the President ("EOP") Regarding Non-ARMS E-mail, Archived Computer Drives, and Other Computer Documents. On May 17, 2000, this court ruled on the Plaintiffs' Motion to Compel the Production of Documents, but deferred on the plaintiffs' requests as to e-mail and hard drives. On June 5, 2000, this court issued a ruling regarding the discovery of e-mail that had been properly transferred to the Automated Records Management system (ARMS). In that ruling, however, the court still deferred on the plaintiffs' requests for hard drives and e-mail that was not archived on ARMS. A hearing was held on this matter before the court on June 30, 2000. Upon consideration of the parties' oral representations at that hearing and their written submissions, the court will GRANT IN PART AND DENY IN PART the plaintiffs' request for non-ARMS e-mail and other computer documents, as discussed below. A separate order shall be issued this date.

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 certain e-mail, computer drives and other computer documents, which the plaintiffs assert have never been searched for relevant documents throughout discovery in this case. Plaintiffs request that these items be searched for specific search terms and that all relevant information be turned over to them.

Plaintiffs initially sought to have the EOP search its archived e-mail and hard drives in their first request for the production of documents, served on October 9, 1997. They subsequently filed a motion to compel regarding this request, which this court then ordered to be stricken from the record due to the plaintiffs' failure to confer with the EOP before filing it, as required by Local Rule 108(m). Alexander v. F.B.I., 1997 WL 1106579, at *1 (D.D.C. 1997).

On January 12, 1998, plaintiffs served on the EOP a Notice of Deposition and Request for Production of Documents ("Notice") pursuant to Rule 30(b)(6) and (b)(5) of the Federal Rules of Civil Procedure. The Notice requested that the EOP designate "one or more" representatives to testify on a number of topics, including the scope of the EOP's prior search of e-mail and hard drives for responsive documents.

In response, the EOP moved for a protective order, arguing that it should not be required to search through its entire system of e-mail and deleted hard drives. In support of its objection, the EOP provided the court with two declarations addressing the feasibility and burdensomeness of restoring and searching through all e-mail and hard drives. These declarations were prepared by Laura Crabtree, the Desktop Systems Branch Chief of the Information Systems and Technology Division ("IS & T") at EOP's Office of Administration, and Daniel Barry, a Computer Specialist at IS & T. The declaration of Crabtree discussed the feasibility of restoring files deleted from EOP hard drives and of restoring and searching the archived hard drives of departed employees. The declaration of Daniel Barry addressed the White House e-mail system. *fn1 The EOP argued that these declarations demonstrated that the burden and cost of performing a search of all e-mail and hard drives, as the plaintiffs requested, outweighed the remote likelihood that the search would lead to any relevant information. The EOP agreed alternatively "to conduct targeted and appropriately worded searches of backed-up and archived e-mail and deleted hard-drives for a limited number of individuals." EOP's Reply in Supp. of EOP's Mot. for Protective Order Quashing Rule 30(b)(6) Dep. Notice ("EOP's Reply to Dep. Notice") at 8 n.7.

On April 13, 1998, this court held that the EOP was "not required to completely restore all deleted files and e-mail as plaintiffs insist." Alexander v. FBI, 188 F.R.D. 111, 117 (D.D.C.1998). In reaching that decision, the court relied on the fact that the EOP had agreed to perform targeted searches of e-mail and archived hard drives for specific individuals, and had invited the plaintiffs to engage in discussions with them regarding the specific searches to be performed. See id. (citing the EOP's Reply).

Plaintiffs then served their second set of requests for the production of documents on October 27, 1998. Request number 19 of this set of requests sought disk mirroring copies of all computer hard disk drives for each computer used by persons in the Office of Personnel Security ("OPS") during Craig Livingstone's tenure there. The EOP objected to this request, stating that all documents located on these hard drives had already been downloaded and searched in connection with this litigation. See EOP's Resp. to Second Set of Interrogs. at 17.

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 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.

The plaintiffs filed a motion to compel as to their second request for the production of documents on June 14, 1999. *fn2 Prior to the court's ruling on this motion, however, there were several new developments regarding the discovery of e-mail, hard drives, and other computer documents. These developments are discussed in great detail in this court's prior opinion of June 5, 2000. See Alexander v. FBI, 2000 WL 739231 (D.D.C. 2000). The court will now summarize those developments pertinent to the issues at bar - the discovery of non-ARMS e-mail, C:drives, F:drives and Robert Haas' computer files.

Regarding the e-mail, the plaintiffs discovered on February 19, 2000, that, from August 1996 to November 1998, incoming e-mails to nearly 500 people in the EOP, including top-level employees, were not transferred to ARMS and, therefore, were never and can not now be word searched on-line. See Third Decl. of Sheryl Hall at 2 (Feb. 19, 2000)(attached as Exhibit A to Pls.' Emergency Mot. to Supplement Pls.' Mot. to Compel and Req. for an Evidentiary Hr'g). These e-mails do still exist, however, on back-up tapes. Furthermore, Sheryl Hall, a computer specialist at the White House, also attested that White House officials learned of this problem in May of 1998, and that several employees who knew about the problem were threatened with jail or the loss of their jobs if they told anyone else about it. Id. at 4-5.

Regarding the archived hard drives, the plaintiffs filed on March 7, 2000, as an exhibit to their motion for an expedited ex parte conference, the Fourth Declaration of Sheryl Hall, in which she 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.

At a hearing before this court on March 10, 2000, the EOP assured 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." *fn3 EOP's Resp. to Mem. and Order of March 15, 2000 at 1. The EOP also advised the court that as to the hard drives, their current policy is to make back-up, archival tapes of the hard drive files of departed employees, often referred to as "reallocated tapes," and not to destroy these tapes. *fn4

On March 23, 2000, the EOP moved 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 regarding a possible White House cover-up of the e-mail problem. 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-mail messages. This disk 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 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 had no plan to alter or destroy the reallocated tapes of the hard-drive files of departed employees. He further stated that he had assigned the task of safeguarding these tapes to Mr. Easley, the EOP Security Officer. Easley provided a second declaration attesting that he was preserving the 600 reallocated tapes, in addition to the Haas "zip" disk and the 3,400 system back-up tapes containing e-mail, and describing the manner in which they were being preserved.

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" disk. 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. The court then stated that it would first rule on the issue of the search to be performed regarding e-mail that had been successfully transferred to ARMS, and then later issue a separate order regarding the search of non-ARMS e-mail, hard drives, F:drives, and other computer documents.

On May 17, 2000, the court issued an order regarding the plaintiffs' second request for the production of documents, but deferring on those requests concerning hard drives and e-mails. The court then issued, on June 5, 2000, an order regarding the search to be performed on all e-mail that was properly transferred to ARMS. Having so ruled, the court now turns to the search to be performed on non-ARMS e-mail and other computer storage devices, such as hard drives, F:drives, and zip disks. *fn5

The plaintiffs filed their supplemental brief regarding the search of non-ARMS e-mail, hard drives, and other computer documents on May 5, 2000. The EOP filed their response on June 5, 2000. The plaintiffs then filed their reply on June 14, 2000. On June 30, 2000, the court held a hearing on these issues. At that hearing, the EOP represented that it had not yet started restoring the back-up tapes containing the non-ARMS e-mail. The plaintiffs, in response, requested that the court hold an evidentiary hearing regarding the EOP's efforts to restore non-ARMS e-mail so that it may be searched for relevant information, and renewed their request that the court appoint a special master to oversee a search of the non-ARMS e-mail, the archived C: drives, the F: drives, and Robert Haas' computer files.

II. Analysis

A. Non-ARMS E-mail

1. The Parameters of the Search

Plaintiffs originally requested that the EOP be required to search all e-mail that was not transferred to the ARMS system. The EOP responded that the search of the non-ARMS e-mails should be limited to the same parameters established for the ARMS e-mail. This court issued its ruling on the ARMS search on June 5, 2000. Subsequently, the plaintiffs, in their reply, modified their request and now seek that the non-ARMS e-mail be searched in accordance with those parameters set by the court for the ARMS e-mail, with the addition of a few search terms.

The plaintiffs seek to add the search terms "FBI data," "FBI raw data," "FBI reports," "FBI summaries," and "FBI background" to the list of search terms used regarding Filegate. Plaintiffs originally requested, in their ARMS e-mail brief, that both "FBI" and "FBI files" be used as search terms. The court rejected the use of "FBI" as a search term, however, as overly broad, allowing only the more narrow term "FBI files" to be used. Alexander v. FBI, 2000 WL 739231, *11 (D.D.C. June 5, 2000). The plaintiffs now argue that the term "FBI files" alone may inadvertently exclude relevant e-mail, and, therefore, request that these additional terms be used. At the June 30, 2000, hearing, the EOP stated that it did not object to these additional terms. Therefore, as both parties agree, the search of the non-ARMS e-mails shall be conducted in the same manner as set out by this court's June 5, 2000 order, with the addition of "FBI data," "FBI raw data," "FBI reports," "FBI summaries," and "FBI background" to the list of search terms used regarding Filegate.

2. The Timetable for Performing the Search

The plaintiffs seek to have responsive non-ARMS e-mail, as well as other requested computer documents, produced to them within 30 days. They contend that, despite the EOP's statements to the contrary, production within this timeframe is, in fact, possible. The plaintiffs allege that the EOP is "purposefully acting in a way so as to make the [non-ARMS e-mail] 'fix' expensive and time-consuming . . . ." Pls.' Reply to EOP's Response to Pls.' Supplement to Pls.' Mot. to Compel Produc. of Docs. at 4. Accordingly, they request that the court hold an evidentiary hearing to determine the most expeditious manner to perform the search and produce any results. They further request that, in order to avoid any inordinate delay, the court appoint a special master to oversee the restoration and search of the non-ARMS e-mail. *fn6

The EOP argues, however, that it is proceeding with the reconstruction process as quickly as possible, while still ensuring complete and accurate data recovery and preservation of original data. They argue that the reconstruction effort is a complex undertaking, involving a number of technical variables, that necessarily requires a significant amount of time to undertake.

In support of this argument, the EOP provided the court with the declaration of Gregory Ekberg. Ekberg is a project manager with Vistronix, Inc., an information technology company that was retained by the EOP to provide independent validation and verification ("IV&V") of the e-mail restoration process. See Eckberg Declaration at ¶4 (June 2, 2000). In his declaration, Ekberg states that the back-up tapes containing non-ARMS e-mail are not formatted in a manner that allows access to individual user files or searches of the text therein. Id. at ¶10. Therefore, according to Ekberg, the data on the tapes must first be extracted and restored to a readable and searchable format before any search is ...

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