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Judicial Watch, Inc. v. United States Department of Commerce

August 15, 2000

JUDICIAL WATCH, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF COMMERCE, DEFENDANT.



MEMORANDUM AND ORDER

This matter comes before the court on Non-party Democratic National Committee's ("DNC") Motion to Reconsideration of the Court's April 27, 2000 Order. Upon consideration of the DNC's motion, the opposition thereto, the applicable law, and for the reasons set forth below, the court DENIES DNC's motion for reconsideration.

I. BACKGROUND

This court has already chronicled the factual and procedural history underlying this particular Freedom of Information Act ("FOIA") case. See Judicial Watch, Inc. v. United States Dep't of Commerce, Civ. No. 95-133, Memorandum and Order, December 22, 1999; see also Judicial Watch v. United States Dep't of Commerce, 34 F. Supp.2d 28, 29-41 (D.D.C. 1998) (providing detailed history of litigation). Nonetheless, in light of the especially cumbersome posture of the present motion for reconsideration, the court finds it necessary to reiterate the procedural history.

In September 1998, plaintiff Judicial Watch served Non-party Democratic National Committee ("DNC") with a subpoena requiring the production of

[a]ny and all documents and things, from January 20,1993 to the present, which refer or relate in any way to the U.S. Department of Commerce (Commerce) and/or its secretarial trade missions, including but not limited to: (a) lists provided to and from Commerce, its employees and agents; (b) names of persons and/or companies who are DNC donors; and (c) the chronology and other files of or documents and things concerning Rick Boylan, Alice Travis, Eric Selden, Terry McAuliffe and Marvin Rosen.

By subsequent order, the court substantially refined the scope of plaintiff's subpoena to cover the following documents:

1. Any lists of one name or more provided by the DNC to the U.S. Department of Commerce or provided by the Department of Commerce to the DNC, in connection with the selection of participants for any Department of Commerce secretarial trade missions conducted between January 20, 1993 and January 31, 1995, and

2. Any documents referencing the DNC's delivery of any such lists to the Department of Commerce, or the Department of Commerce's delivery of any such lists to the DNC. Judicial Watch, Civ. No. 95-133, Order of October 14, 1998. In addition, the court's order provided that the revised subpoena would only be directed at the files of those individuals named in the original subpoena, and that after the DNC completed this production, the court would consider whether further document searches or a deposition of the DNC's custodian of records were warranted. Id.

The DNC search pursuant to the revised subpoena yielded only two responsive documents, both of which Judicial Watch indicates that it had already obtained from a confidential source. *fn1 Judicial Watch then requested that the Magistrate restore the scope of the subpoena to its initial scope and order DNC to conduct a broader search. The Magistrate denied plaintiff's request, finding that the likelihood that a further search would produce admissible evidence was outweighed by the burden and expense of requiring the DNC to conduct further searches.

Consequently, Judicial Watch appealed to this court the Magistrate's denial of its motion to expand the DNC subpoena, asserting that documents obtained from a confidential source suggested that other DNC files may contain responsive documents, and therefore, a broader search may be warranted. *fn2 Because the Magistrate could not have considered these additional documents before denying plaintiff's motion to expand the search, this court remanded the matter to the Magistrate for reconsideration in light of these documents. In so ruling, this court specifically directed the Magistrate to consider why these additional documents were not uncovered in the revised search, whose files at the DNC they came from and whether additional searches of DNC files would be appropriate. Judicial Watch, Civ. No. 95-133, Memorandum and Order, December 22, 1999. The court further noted that DNC had provided no evidence to support the conclusion that plaintiff had obtained these documents through improper means. Id. at 3 n.2.

Shortly after this court remanded the matter to the Magistrate, on January 5, 2000, counsel for the DNC submitted to the Magistrate's chambers a letter and declaration that suggested that the documents proffered by plaintiff in support of its request for a broader search *fn3 may have been obtained in contravention of Congressional confidentiality protocols, as the documents bore markings consistent with documents produced pursuant to Congressional committee subpoenas. Plaintiff moved to strike the DNC filing, contending that it was submitted in violation of Local Civil Rule 5.1(b). The Magistrate granted plaintiff's motion to strike, but granted DNC leave to refile the information in accordance with the Local Rules. Judicial Watch, Civ. No. 95-133, Order of January 7, 2000. The DNC subsequently refiled the declaration as a Notice of Filing on January 13, 2000. Judicial Watch, Civ. No. 95-133, Non-Party Democratic National Committee's Notice of Filing, Declaration of Joseph M. Birkenstock, January 13, 2000.

One week later, without allowing plaintiff the opportunity to respond to the substance of the matters raised in the DNC declaration, the Magistrate determined, sua sponte, *fn4 that he had "an independent obligation to ascertain whether documents filed with this Court and upon which a party relies for a particular assertion were improperly obtained." Judicial Watch, Civ. No. 95-133, Memorandum Order, January 21, 2000. To that end, the Magistrate ordered plaintiff to file within 10 days of this order an affidavit by the person most familiar with the topic attesting to the access it had to the documents produced by DNC in accordance with the subpoenas issued by Congressional committees and whether such access included the right to copy or have copies made of the documents to which it had access.

Memorandum Order, January 21, 2000. The order also advised plaintiff to file an affidavit explaining "why, in light of the access it already had, expanding the scope of the DNC subpoena . . . is appropriate." Id. Plaintiff again moved to strike DNC's Notice of Filing, maintaining that the filing should have been in motion form because it addressed substantive issues. Plaintiff also moved this court to set aside the Magistrate's January 21, 2000 Order.

This court sustained plaintiff's objections to the Magistrate's January 21, 2000 Order, vacated that order and again remanded the matter to the Magistrate. Memorandum and Order, at 8-9. In addition, the court granted plaintiff's motion to strike the DNC's January 13, 2000 Notice of Filing. The court also denied as moot and struck from the record DNC's Motion for Leave to Produce Subpoena and ...


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