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Alexander v. Federal Bureau of Investigation

April 3, 2008


The opinion of the court was delivered by: Royce C. Lamberth, Judge United States District


This matter comes before the Court on plaintiffs' motions for orders to show cause or other relief regarding discovery disputes as to electronic information requested from the White House.


In the midst of a discovery dispute between the parties about the extent to which the defendant Executive Office of the President ("EOP") should be required to perform electronic searches of White House e-mails, plaintiffs initiated the present proceeding by filing their Emergency Motion to Supplement Plaintiffs' Motion to Compel and Request for Evidentiary Hearing ("Emergency Motion"). In that motion, plaintiffs charged that EOP and its counsel submitted to this Court an "obviously false" declaration from Daniel A. Barry ("Barry") "as part of their effort to stonewall and obstruct plaintiffs' narrowed request for e-mail." (Emergency Motion at 5.) Plaintiffs claimed that Barry, a career employee and computer specialist in the White House Office of Administration ("OA"), falsely declared that, since July 14, 1994, all White House e-mails were stored and archived in the White House Automated Records Management System ("ARMS"). Invoking the Court's "inherent authority and its duty to supervise the integrity of its processes," plaintiffs requested an evidentiary hearing "to ferret out the facts in this apparent obstruction of justice." (Id. at 10.) The Court granted plaintiffs' request for an evidentiary hearing "[b]ecause the facts are clearly in dispute and cannot be resolved without a hearing." (Order of July 20, 2000, at 3.)

The Court heard testimony from numerous witnesses, ranging from working-level contractual employees, to Charles F.C. Ruff, late former Counsel to the President, to White House Chief of Staff John Podesta. It has also reviewed thousands of pages of documents.

Although plaintiffs were given every opportunity to develop their case, if any, to the fullest extent, it is clear that neither EOP nor its counsel obstructed plaintiffs' request for e-mail or engaged in any other obstruction of justice, and neither EOP nor its counsel acted in bad faith to abuse the Court's processes. In addition, there is no evidence that e-mails relevant to this case were lost and not retrieved and produced. In short, plaintiffs have come up with no credible evidence to substantiate the charges they made when they filed their Emergency Motion.

The evidence shows the following: (1) on July 14, 1994, EOP put a system ("ARMS") into operation to store and archive electronic records, including e-mails; (2) after the introduction in 1996 of a new e-mail system called "Lotus Notes," a coding error was made for which a private contractor to EOP was responsible, that caused external e-mail to Lotus Notes accounts handled by a server named "Mail2" not to be received by or stored in ARMS; (3) the existence of what later became known as the "Mail2 problem" was discovered by employees of Northrup- Grumman ("NG"), a successor EOP private contractor, in June 1998, and reported immediately to OA officials, to the White House Counsel, and to the Deputy White House Chief of Staff; (4) the Mail2 problem was fixed prospectively in November 1998, and a process was undertaken at the Court's request to restore e-mails affected by the Mail2 problem and make them searchable for this litigation; (5) OA officials, who had differing degrees of understanding of the technical problem, were neither responsible for nor had a basis to know to what extent the problem affected the integrity of EOP's responses to past or pending e-mail production demands by Congress or the Office of Independent Counsel, or EOP's position with respect to potential e-mail searches in the present case; (6) the White House Counsel's office, which did have the responsibility to ensure full compliance with information requests, did not understand the extent of the technical problem, and those few attorneys in that office who were aware of it erroneously believed that past searches had not been affected, so there was no problem; and therefore (7) neither OA nor the Counsel's office timely alerted Department of Justice ("DOJ") counsel in the present case to the Mail2 problem.

The Court has concluded that the essential errors made by the White House Counsel's Office were caused by a lack of familiarity with computer terminology and language and workings by the lawyers involved. Mr. Barry, the computer expert, simply talked a different language, and the lawyers he dealt with did not fully appreciate the significance of some of the information that he gave them, and the information he didn't give them. All of this occurred long before development of current sophisticated ways that lawyers have had to learn to deal with computer experts. It calls to the Court's mind its own experience in dealing with intelligence officials, i.e., if you don't use the right words in your question, you won't get the right answer.

You have to learn to ask the question in a number of ways, and probe and examine and get into the nitty-gritty to understand what the truth is. None of the White House lawyers involved in this matter did that. But plaintiffs produced no evidence whatsoever that any of those lawyers deliberately obstructed justice, or deliberately provided what turned out to be false information to the Court. Not only is the evidence not "clear and convincing," as would be required for this Court to rule for plaintiffs on their contempt motion, but there is simply no evidence of any deliberate effort to conceal the truth. Plaintiffs would have the Court infer that some grand conspiracy existed to deprive them of necessary information. Plaintiffs simply have no such evidence.



Following the resolution of the Armstrong litigation,*fn1 EOP undertook the task of storing and archiving electronic records, including e-mails. To accomplish this task, Barry, a computer specialist in OA hired during the term of President George H.W. Bush, designed a records management system called ARMS. (Aug. 3 Tr. 33-34.)*fn2 EOP put ARMS into operation on July 14, 1994. (Aug. 31 Tr. 41.)

When ARMS became operational, it received and stored e-mails from an existing e-mail system called the "All-in-One" e-mail system. (Aug. 3 Tr. 35.) Barry worked extensively with this All-in-One system. (Id. at 24-25.) His responsibilities included reconstructing e-mail from All-in-One backup tapes, on which pre-July 1994 e-mail was stored. (Aug. 21 Tr. 39-40.) When a new e-mail system called "Lotus Notes" was added beginning in 1996, a computer software program known as the Notes-ARMS interface was developed so that e-mails from Lotus Notes also would be received by ARMS for storage. (Aug. 3 Tr. 43.)*fn3

Barry did not have responsibility for the Lotus Notes e-mail system or its interface program with ARMS, although he continued to operate and maintain ARMS, and he searched ARMS for documents at the request of the White House Counsel's office. (Id. at 52.) Instead, PRC, Inc., a private contractor for EOP, operated and maintained Lotus Notes from its inception until late 1997, when the operation and maintenance of Lotus Notes and its interface with ARMS were taken over by Northrup-Grumman ("NG"), another private contractor. (Aug. 1 Tr. 229; Aug. 2 Tr. 14-15; Aug. 3 Tr. 43; Aug. 21 Tr. 30-31.)

2. The January 1998 Anomaly and the First Barry Declaration

On January 12, 1998, plaintiffs served on the EOP a Notice of Deposition and Request for Production of Documents pursuant to Federal Rule of Civil Procedure Rule 30(b)(5),(6) ("30(b)(6) Notice"). The 30(b)(6) Notice sought the designation of one or more representatives to testify on a total of nine issues, two of which concerned the storage and retrieval of e-mail at EOP.

Before EOP formally responded to the 30(b)(6) Notice, EOP's counsel, on January 13, 1998, wrote a letter to plaintiffs' counsel explaining EOP's position with regard to searching for and producing archived e-mail. (See Allison Giles Ltr. to Larry Klayman, Ex. 1 to Pl. Opp. to EOP's Mot. to Dismiss ("Giles-Klayman Ltr."), at 5, Jan. 13, 1998.) Counsel for EOP explained in the letter that "EOP e-mail, at least during the time most relevant to this lawsuit, was not archived in a unified, logically formatted database and cannot be word-searched except at enormous time and expense." (Id. at 3.) In addition, "EOP is currently engaged in the process of restoring pre-July 1994 e-mail to tapes in the equivalent word-searchable format as post-July 1994 e-mail." (Id. at 4 n.1) Counsel said EOP would be willing to perform a word search of e-mail that was limited to certain dates and specified users.*fn4 (Id. at 2.)

Meanwhile, on January 30, 1998, while conducting a search of ARMS records in response to a subpoena from the Office of the Independent Counsel, Barry noticed an "anomaly." (Aug. 3 Tr. 72.) It appeared that only the outbound part of an e-mail "conversation" between Ashley Raines ("Raines") of OA and Monica Lewinsky ("Lewinsky") (then employed outside the White House) had been received by ARMS. (Id. at 68-69.) Upon investigation, and in consultation with NG employee John Spriggs ("Spriggs"), Barry determined that some inbound e-mails in this conversation appeared to have successfully entered the Lotus Notes e-mail system but had not been received by or stored in ARMS. (Id. at 69-70; Pl. Ex. 9-49.) Barry did not attempt to determine whether this was an episodic problem, or a systemic one, capable of repetition. (Aug. 3 Tr. 72.) Because there were a substantial number of inbound e-mails from Lewinsky already stored in ARMS, however, Barry suspected that it was not systemic. (Id.) Barry reported his finding to his immediate supervisor, Jim Wright, and at Wright's direction, he prepared an "incident report" documenting what he had found. (Pl. Ex. 9-49.)

In response to the 30(b)(6) Notice, EOP filed a Motion for a Protective Order on March 4, 1998. (See Mot. for Prot. Order, Mar. 4, 1998.) Consistent with the January 13, 1998 letter to plaintiffs' counsel, EOP argued in the motion that, among other things, "[w]holesale restoration and searches of years-old backed-up and archived e-mail" would be "burdensome, costly, and unlikely to lead to responsive documents." (Mem. Supp. Mot. for Prot. Order 10.)

In support of its motion, EOP submitted a declaration from Barry dated March 4, 1998. (See Pl. Ex. 18.) This declaration was the product of consultation between DOJ, White House Counsel's Office, and Barry. (See, e.g., Aug. 3 Tr. 122-26; Aug. 21 Tr. 58-59; Aug. 22 Tr. 45-47; Pl. Ex. 40-2888; Pl. Ex. 46; Pl. Ex. 49.) It "discusses the processes required for the restoration and reconstruction of backed-up EOP e-mail, and the resources required for these tasks." (Pl. Ex. 18 ¶ 3.)

Barry explained in the declaration that, prior to July 14, 1994, there was no system in EOP for archiving e-mail in word-searchable format, although there were backup tapes for this period. (Id. ¶ 4.) For backed-up e-mail to be searched, the data had to be restored (to on-line status) and reconstructed (pieced together in a word-searchable and printable format). (Id. ¶ 5.) Barry described the lengthy process of restoring and reconstructing backup tapes as "time-consuming and resource-intensive." (Id. ¶¶ 6-10.) Barry also explained that, in response to court orders in Armstrong, the Information Systems and Technology ("IS&T") branch of OA was "in the process of restoring and reconstructing pre-July 1994 e-mail to a word-searchable format."

(Id. ¶ 10.) Barry's explanation of the restoration and reconstruction of e-mails was made with reference to the All-in-One e-mail system with which he was familiar. (Aug. 3 Tr. 161.)

In contrast, Barry said, "[s]ince July 14, 1994, e-mail within EOP has been archived weekly in an online format that is susceptible to being word-searched." (Pl. Ex. 18 ¶ 11.) By this statement Barry claims that he intended to describe what ARMS does, which is to archive e-mail. (Aug. 3 Tr. 150.) Barry claims that he did not intend by this statement to declare categorically that "all" post-July 14, 1994, e-mail had been received by and was stored in ARMS, because like other computer experts, he knew that computer systems are subject to glitches, and he testified that he would never say that any system is going to perform a certain task on every single occasion. (Id. at 162; Aug. 22 Tr. 88.)

At the time he worked on his declaration, Barry did not tell counsel about the anomaly he found on January 30, 1998, or the incident report he prepared about it, (Pl. Ex. 9-49), because -- he testified -- they did not seem to him relevant, (Aug. 22 Tr. 92). Barry claims that he saw a clear distinction between what ARMS does and what ARMS contains. (Id. at 91.) In his declaration, Barry testified that he believed he was only describing what ARMS does and not what was in it. (Id. at 91-92.) Therefore, at the time Barry signed the declaration, he believed that his entire declaration, including his description of ARMS, was accurate. (Id. at 107.)

In their Opposition to EOP's motion, plaintiffs argued that the discovery sought by their 30(b)(6) Notice was necessary to obtain information about EOP's e-mail and other computer information systems and to overcome EOP's objections that the search for and production of e-mail and computer-stored documents would be too time-consuming and expensive. (Opp. to Mot. for Prot. Order 9.) Plaintiffs also submitted a declaration from Paul Hill, who they presented as their own computer expert, to counter EOP's contentions concerning burden. (Id.)

In response to Hill's declaration, EOP submitted a supplemental declaration from Barry, dated March 30, 1998. (Pl. Ex. 44.) Barry's supplemental declaration, like his original declaration, refers in part to "the restoration and reconstruction of backed-up EOP email." (Id. ¶ 4.) Barry claims that he intended his reference to e-mail to mean All-in-One email, because that was the subject of his original declaration and that was the e-mail system with which he worked extensively. (Aug. 18 Tr. 20.) Barry addressed All-in-One reconstruction in both declarations because he was responsible for reconstruction of All-in-One email from backup tapes. (Id. at 20, 22.)

3. The Barry Deposition

On April 13, 1998, the Court ruled on EOP's Motion for a Protective Order. 188 F.R.D. 111. As to e-mail, the Court "conclude[d] that the EOP is not required to completely restore all deleted files and e-mail as plaintiffs insist." Id. at 117. Rather, as counsel for EOP had suggested in their January 13, 1998 letter, the Court found that plaintiffs had the option of pursuing discussions with DOJ "regarding targeted and appropriately worded searches of backedup and archived e-mail and deleted hard drives for a limited number of individuals." Id. (citing EOP's 30(b)(6) Reply 8 n.7).

However, the Court did permit plaintiffs to depose "individuals with relevant knowledge of the . . . e-mail systems at the offices relevant to this case in an effort to determine whether any other means exist to restore the deleted . . . e-mail of specific individuals' computers." 188 F.R.D. at 117. The offices identified as relevant were the White House Office and OA, to the extent it supported the White House Office. Id. at 118. Consequently, EOP designated Barry -- the person most knowledgeable about All-in-One e-mail, the Armstrong reconstruction, and ARMS -- for deposition.

Barry testified that he understood that the subject matter of his deposition would be the same technical areas that were covered by his first and supplemental declarations. (Aug. 17 Tr. 108, 112.) In particular, he understood the deposition would focus upon his expertise with the All-in-One e-mail system and with ARMS. (Aug. 3 Tr. 62, 186, 191.) Barry testified that because he was comfortable with these substantive areas, he did not review them with DOJ counsel and White House counsel when they met with him to prepare for his deposition. (Aug. 17 Tr. 108-09, 112-13.) The preparation was limited largely to reviewing the logistics and format of the deposition, because Barry had never been deposed before. (Id.)

Plaintiffs' counsel deposed Barry on June 11, 1998. (Pl. Ex. 50.) Barry was asked about the location of e-mails, and he responded that the e-mail messages from July 14, 1994 onward "currently reside in the ARMS, Automated Records Management System data warehouse." (Id. at 145.) As before, Barry claims that he understood this question to concern All-in-One e-mail messages destined for ARMS. (Aug. 3 Tr. 183.) When asked "[w]hat percentage of the White House Office, OA E-mail users can send E-mail messages using ALL-IN-1," Barry responded that 100% could do so. (Pl. Ex. 50 at 189.) Barry believed that 100% could also use Lotus Notes e-mail, (id. at 189-90), but he observed that he is "not a Lotus [N]otes expert by any means," (id. at 244).

Barry also testified at his deposition that he was not aware of any e-mails after November 1992 being lost or destroyed before they could be backed up properly. (Pl. Ex. 50 at 229.) Barry also testified that e-mail sent to EOP accounts from outside EOP would be received and archived in ARMS just as if it had been sent from inside EOP. (Id. at 274, 283.) Barry claims that he did not perceive any link between the questions he was asked at his deposition concerning what he understood to be the All-in-One e-mail system and the anomaly he discovered in January. (Aug. 3 Tr. 187.)

4. Discovery of "Mail2" Problem

In June 1998, the anomaly Barry had noted in January 1998 was proven to be a systemic problem. NG employees Robert Haas ("Haas") and Yiman Salim ("Salim"), during a June training session to bring the newly-hired Salim up to speed, discovered the existence of e-mail from the Lotus Notes e-mail system which had never been transferred to ARMS. (Id. at 185.) After reporting the discovery to their supervisor, Betty Lambuth ("Lambuth"), the NG group, which also included Spriggs and Sandy Golas ("Golas"), determined that the cause of the problem was a coding error -- specifically, the use of upper case letters rather than mixed case letters to identify the Mail2 server which handled Lotus Notes e-mails of certain users. They discovered that because the Notes-ARMS interface program was case sensitive, this error had caused incoming internet e-mail from systems outside the EOP to affected Lotus Notes accounts on the Mail2 server not to be transferred into the ARMS system. (Id. at 194.)*fn5

At the time NG initially discovered the Mail2 problem, Barry was not informed. (Aug. 3 Tr. 86; Aug. 18 Tr. 115, 121.) When Barry returned from a trip in early July, he was instructed first to report to his supervisor, Kathleen Gallant ("Gallant"), and then to Lambuth. (Aug. 3 Tr. 86; Aug. 18 Tr. 115; Aug. 22 Tr. 94.) It was during his briefings on July 6, 1998 that Barry learned, for the first time, of the systemic Mail2 problem. (Aug. 3 Tr. 86.)

That same week, Barry reviewed his deposition transcript. (Aug. 3 Tr. 194; Aug. 17 Tr. 72-73.) Barry understood that this was his opportunity to make any changes he thought were necessary, substantive or otherwise, to correct his deposition. (Aug. 17 Tr. 74, 77.) Barry availed himself of that opportunity, marking up his copy of the deposition transcript with the requested corrections and faxing the marked-up pages to DOJ counsel Julia Fayngold ("Fayngold") for the preparation of an errata sheet. (Pl. Ex. 47; Aug. 22 Tr. 40-41, 96.) The changes Barry made were all of a clerical nature.*fn6 (Id. at 96-97.)

Although Barry sent deposition corrections to Fayngold the same week he learned of the Mail2 problem, he claims that he did not connect that knowledge with his deposition testimony. (Aug. 22 Tr. 100.) That testimony had focused instead on ARMS and the process of searching ARMS and had touched on the All-in-One e-mail system. The Mail2 problem, in contrast, was not a problem with ARMS itself but with the Notes-ARMS interface; the Mail2 server was separate from the ARMS hardware; and neither the Mail2 problem nor the Mail2 server affected the process by which one searches ARMS. (Id. at 100-01; Aug. 3 Tr. 68, 101.) Similarly, Barry testified that it never crossed his mind to go back and amend his first declaration because there was no connection in his mind between the Mail2 problem and the earlier declaration describing the All-in-One reconstruction effort and the process by which ARMS is searched. (Aug. 22 Tr. 95-96.) Because Barry never made a connection in his own mind between the Mail2 problem and his prior statements in the Alexander case, he never advised the lawyers he had worked with on the case, in either the White House Counsel's Office or DOJ, of the Mail2 problem. (Aug. 22 Tr. 100, 106-07.) This is the type of compartmentalized thinking of a computer expert to which the Court made reference earlier. Plaintiffs would have this Court conclude that Barry is lying and participating in a conspiracy and a deliberate cover-up. The Court concludes to the contrary. Barry has truthfully described his thought process. Flawed as it is, he genuinely believes he told the truth in his declaration and at his deposition. It turned out, unfortunately, that Barry made statements in his declarations and deposition that simply were not true.

5. Reaction to the Mail2 Problem

As soon as NG discovered the Mail2 problem, NG employees notified their government counterparts, who in turn immediately advised the appropriate officials within OA. (Aug. 23 Tr. 5-8; Aug. 2 Tr. 38-39.) Action was taken on two fronts. First, OA and NG were instructed to find a way to fix the problem, or as that process soon became known, to "stop the bleeding." (Aug. 23 Tr. 97.) OA's primary concerns were document preservation and compliance with archival requirements, and it assigned the task of fixing the problem to NG contractual employees and technicians within OA. (Aug. 23 Tr. 9-10, 23.) Second, OA management made sure that government officials outside OA who needed to be advised of the problem because of outside information requests were so advised. Thus, Mark Lindsay ("Lindsay"), then General Counsel of OA, advised the Assistant to the President for Management and Administration, the Deputy Chief of Staff of the White House, and the Counsel to the President about the problem.

(Sept. 22 Tr. 32-35; Aug. 23 Tr. 18, 45-46.) Action on these two fronts proceeded as follows:

(a) Fixing the Problem And Preserving Records

In June 1998, after NG employees learned of the Mail2 problem, they advised their supervisor Lambuth, who in turn, advised Laura Crabtree ("Crabtree"), the IS&T Desktop Branch Supervisor, who in turn, advised Lindsay, (Aug. 23 Tr. 5-8.) Lindsay informed OA Director Ada Posey ("Posey") and Assistant to the President for Management and Administration Virginia Apuzzo ("Apuzzo"), and Posey assigned Lindsay and OA procurement counsel Kate Anderson the task of working with NG to fix the Mail2 problem. (Aug. 16 Tr. 188-89; Aug. 23 Tr. 24.)

The plan for fixing the Mail2 problem involved a two-step process. The first was the prospective fix ("stopping the bleeding"), which would involved recoding "MAIL2" to "Mail2" for the affected e-mail users, thereby allowing external e-mail on the Mail2 server to pass through the Notes-ARMS interface program and enter ARMS. (Aug. 14 Tr. 133-34; Aug. 23 Tr. 97.) The second step was to restore from backup tapes those e-mails which had not entered ARMS and move them into ARMS. (Sept. 22 Tr. 67-68.) But the execution of this plan was slowed by several factors.

First, shortly after the Mail2 problem was discovered, NG underwent a series of changes in both its management and organizational structure at EOP. In particular, NG relocated both Lambuth and her superior, Stephen Hawkins ("Hawkins"), and the employees responsible for working together to resolve the Mail2 problem were reassigned to separate working groups and given new responsibilities. (Aug. 1 Tr. 50; Aug. 15 Tr. 34.) As a result, the NG employees lacked both the mandate and guidance they required from their management to address the Mail2 problem, and it was not until the early fall of 1998, when they reached out to their company counsel, that they received the direction they were seeking. (Aug. 14 Tr. 54-56, 71-74.)

Second, progress on the prospective fix of Mail2 was delayed by a dispute over the scope of NG's contract. NG initially took the position that because the Mail2 problem was caused by a coding error made when the previous contractor, PRC, Inc., was responsible for the Notes-ARMS interface program, the task of fixing the Mail2 problem was outside the scope of NG's contract and therefore, not its responsibility. Thus, shortly after the discovery of the Mail2 problem, NG supervisor Hawkins advised Lindsay that NG would not do any work on the problem. That triggered an extensive period of negotiations between NG and OA.*fn7

Eventually, in December 1998, NG did submit a proposal, not to fix the Mail2 problem, but to study how to do so, at a cost of $600,000. OA officials, including Posey and Lindsay, found this proposal merely to study the problem to be far too expensive. (Aug. 16 Tr. 189-90; Aug. 23 Tr. 191; Pl. Ex. 9-64.) The cost seemed especially high in view of the fact that OA was then struggling with limited resources, including a recent 25% staff cut, and the daunting task of insuring that all OA computer systems were made Y2K compliant. (Aug. 16 Tr. 110; Aug. 17 Tr. 58-59; Sept. 22 Tr. 82-83.)

In the meantime, OA took steps to preserve the e-mails affected by the Mail2 problem by preserving the backup tapes rather than recycling them, as was the ordinary practice.*fn8 (Aug. 23 Tr. 101.) The need to purchase new tapes instead of recycling the old ones created further demands on OA's limited budget.

While OA and NG engaged in unsuccessful negotiations to restore the backup tapes, OA acted to "stop the bleeding" by having NG recode "MAIL2" to "Mail2" for the affected e-mail users, to allow external e-mail to pass through the Notes-ARMS interface program and enter ARMS. (Aug. 14 Tr. 22; Aug. 23 Tr. 191.) Thus, in November 1998, the Mail2 problem was prospectively fixed.*fn9

(b) Alleged Threats to NG Employees

Plaintiffs offered testimony from Lambuth, Haas, and Golas that when the Mail2 problem was first detected, NG employees were threatened with adverse consequences, including termination of employment and possible jail terms, if they revealed its existence.*fn10

Lambuth testified that then-IS&T branch supervisor Crabtree related to her that then-OA General Counsel Lindsay had threatened the NG group, including Lambuth, Spriggs, Salim, Haas, and Golas, with jail terms if they disclosed the Mail2 problem. (Aug. 1 Tr. 18-19.) According to Lambuth, after Crabtree related the alleged threats to her, Lambuth conveyed them to her staff. (Id. at 22.) Lambuth testified that Lindsay made the alleged threat in a separate meeting with the NG group and Crabtree in Crabtree's office, with Lindsay participating via speaker phone. (Aug. 1 Tr. 28-29.) Lambuth also testified that Lindsay threatened her during a meeting she attended in the office of Paulette Cichon, a claim that both Lindsay and Cichon have denied. (Aug. 23 Tr. 37; see Aug. 1 Tr. 92.)

In contrast, neither Haas nor Golas testified to hearing the alleged threats from either Lambuth or Lindsay. Haas testified that is was Crabtree, not Lindsay, who referred to jail in response to a flippant comment by Haas about the consequences of discussing Mail2 with his wife. (Aug. 15 Tr. 32-33.) Golas testified only that she heard the word "jail" without knowing who said it. (Aug. 2 Tr. 164.) Lindsay denied making any threats, (Aug. 23 Tr. 36-37), and Lambuth and Golas testified that both Spriggs and Salim denied ever hearing the alleged threats, (Aug. 1 Tr. 87; Aug. 2 Tr. 165).

In any event, all participants in the initial discussions about the Mail2 problem agreed that it was important and reasonable to keep their discovery of the Mail2 problem confidential until they had a fuller understanding of its nature and scope. (Aug. 1 Tr. 79; Aug. 2 Tr. 167-68; Aug. 15 Tr. 25-29; Aug. 23 Tr. 23.) Indeed, Haas and Golas testified that at the conclusion of a meeting about the subject, Lambuth, turning to the NG employees, gave the request for confidentiality her stamp of approval by asking whether each of the NG employees understood the request. (Aug. 2 Tr. 167-68; Aug. 15 Tr. 30-32.)

The instructions concerning confidentiality were soon countermanded. Gallant, the IS&T supervisor, learned of the Mail2 problem within a few days of its discovery by the NG employees, and she took steps to have her staff address it. (Aug. 1 Tr. 219-21.) For example, she instructed Barry to obtain a full briefing on the problem from Lambuth upon his return on July 6. (Aug. 3 Tr. 86.) Barry communicated freely with NG and IS&T employees on the Mail2 matter, and openly expressed his concerns about it in a series of e-mails. (See, e.g., Pl. Exs. 9-25, 9-40, 9-52.) He was never instructed to remain silent about the problem. (Aug. 22 Tr. 94-95.) Gallant also instructed her staff to stop using the term "Project X"*fn11 when referring to the plans to fix ...

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