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

December 5, 2000

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



MEMORANDUM AND ORDER

Now before the Court are two motions by the plaintiff. First, the plaintiff moves for leave to depose 25 persons in relation to a FOIA action. Second, the plaintiff moves for an immediate conference to address alleged retaliation against one of its clients. The defendant opposes both motions. For the following reasons, the Court GRANTS in part and DENIES in part plaintiff's motion for leave to depose. Further, the Court DENIES the plaintiff's motion for an immediate conference.

BACKGROUND

As the Court and parties are well aware, this is not your average FOIA case. It is a case that implicates high ranking officials in both the Department of Commerce and the White House.

Indeed, as the plaintiff readily admits, this case is part of a larger plan to expose the alleged malfeasances of the Clinton-Gore Administration. The Court notes this political element not to dramatize the issue, but to demonstrate its awareness of the context. Cases filled with political overtures, more than other cases, force courts to hold fast to their constitutional roots, and simply decide "cases" and "controversies" by applying the relevant law to the relevant facts. The Court, starting with the following facts, seeks to do just that.

Judicial Watch first sought information from the Department of Commerce ("DOC") on September 12, 1994. The DOC produced nothing until May 17, 1995, the day after this Court ordered the costs of production waived and the relevant documents to be produced. Judicial Watch was not satisfied with that production, however, and still pressed this Court to order the release of further documents. The DOC sought to dispose of the matter with a motion for summary judgment. On February 1, 1996, the Court not only denied the DOC's motion for summary judgment, but also ordered discovery on the issue of the adequacy of the DOC's search for documents.

As discovery on the adequacy of the search continued, it became clear that the DOC had illegally destroyed and removed many responsive documents from its custody. This revelation caused the DOC to move for summary judgment against itself. In an opinion issued on December 22, 1998, the Court denied the DOC's motion, ordered the DOC to begin a second search for the requested documents, and permitted Judicial Watch further discovery of "any . . . information related to the destruction or removal of documents after . . . [the] FOIA request was filed." Judicial Watch v. United States Dep't of Commerce, 34 F. Supp. 2d 28, 46 (D.D.C. 1998).

In accordance with the Court's opinion, Judicial Watch continued its discovery into the DOC's possible frustration of its FOIA request. Its latest find, which is at issue in the instant matter, is the declaration of Sonya Stewart, the former chief of FOIA operations at the DOC. Ms. Stewart asserts that the DOC and other government officials participated in a scheme to avoid the production of documents in both the first and second FOIA searches. In an effort to uncover such misconduct, Judicial Watch now comes before the Court seeking to depose several of the people cited in Ms. Stewart's declaration. *fn1

Related to Ms. Stewart's declaration, Judicial Watch also seeks an immediate hearing to address alleged retaliation by government officials against Ms. Stewart. According to the affidavit of someone whose desk is "a few feet away" from the secretary of Ms. Stewart's former boss, the former boss intends to "get her" (meaning Ms. Stewart). See Declaration of Cheryl Ambrose at 1.

The Court now addresses each of the plaintiff's motions in turn.

ANALYSIS

A. The Plaintiff's Motion for Leave to Depose

This Court has already held that, based on the extensive evidence of misconduct during the DOC's first FOIA search, the plaintiff may take discovery to further investigate that misconduct. See Judicial Watch, 34 F. Supp. 2d at 46. See also Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (permitting discovery where evidence demonstrated bad faith by the government). Such discovery, of course, must be limited to documents or persons reasonably thought to possess information of the alleged misconduct. The precise question before the Court, therefore, is whether there is sufficient evidence to conclude that each of the plaintiff's 25 putative deponents possesses information relevant to the alleged misconduct during the first FOIA search. *fn2

After a careful reading of the plaintiff's attached affidavits, the Court finds that the plaintiff may depose some, but not all, of the 25 individuals named in its motions. Sufficient evidence has been presented to suggest that 12 of the 25 individuals possess information relevant to the alleged misconduct. Thus, the Court permits the plaintiff to depose (1) Cheryl Mills, (2) Melissa Moss, (3) George Grafeld, (4) Brenda Dolan, (5) Bobbie Parsons, (6) Barbara Fredericks, (7) Judith Means, *fn3 (8) Sue Esserman, (9) Frank DeGeorge, (10) John Ost, (11) Bruce Lindsey, and (12) Doris Matsui.

The final two individuals on this list, Burce Lindsey and Doris Matsui, merit a special explanation. Although Ms. Stewart does not allege that these individuals were involved in the evading the FOIA request, she does allege that they were involved with the underlying subject of the FOIA search: the sale of trade mission seats for political support. In the Court's view, an individual involved in a pattern of malfeasance would be quite likely to be involved in covering up the activity once an investigation ensues. Thus, ...


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