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Citizens for Responsibility and Ethics in Washington v. Executive Office of the President

July 29, 2008

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL., DEFENDANTS.
NATIONAL SECURITY ARCHIVE, PLAINTIFF,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION and SECOND REPORT AND RECOMMENDATION

I. Background

This dispute involves claims by the National Security Archive ("the Archive" or "NSA") and Citizens for Responsibility and Ethics in Washington ("CREW") that several million e-mail messages have been improperly deleted from White House computer servers. Complaint for Declaratory, Injunctive, and Mandamus Relief ("NSA Complaint") at 13-14; Complaint for Declaratory, Injunctive, and Mandamus Relief ("CREW Complaint") at 13-14.*fn1

One of the remedies sought by the plaintiffs is "an order requiring the defendants to recover and restore certain electronic communications created and/or received within the White House." NSA Complaint at 1. Whether they are entitled to this relief is the subject of a dispositive motion pending before Judge Kennedy.*fn2 The plaintiffs argue that certain actions must now be taken by the defendants to ensure that the relief, if ultimately granted by Judge Kennedy, does not become illusory. In other words, the plaintiffs believe that there exists a universe of restorable e-mails, but that this universe will shrink with time unless affirmative steps are taken. They argue that preserving the status-quo, i.e. keeping steady the universe of recoverable e-mails, requires that those affirmative steps be taken immediately.*fn3

The question of what can and should be done in this regard has been the subject of numerous orders and recommendations. See, e.g., Report and Recommendation, Oct. 19, 2007 [#11] (recommending that defendants be ordered to preserve existing back-up tapes); Order, Nov. 12, 2007 [#18] (ordering defendants to preserve existing back-up tapes); Memorandum Order, Jan. 8, 2008 [#46] (seeking additional information about the back-up tapes being preserved); Memorandum Order, Mar. 13, 2008 [#62] (seeking additional information about forensic imaging); Memorandum Order and First Report and Recommendation, Apr. 24, 2008 [#67] ("First Rep." or "First Report") (seeking additional information about back-up tapes and the universe of relevant employees and hard drives, recommending that defendants be ordered to collect and preserve data from workstations and portable media, and recommending that the Archive's request to take depositions be denied). Several issues remain in need of resolution and will be addressed in turn below.

II. The Motion to Reconsider

In its First Report, this Court recommended that Judge Kennedy order the Executive Office of the President ("EOP") to: (1) "search the workstations, and any .PST files located therein, of any individuals who were employed between March 2003 and October 2005, and to collect and preserve all e-mails sent or received between March 2003 and October 2005;" and to (2) issue a preservation notice to its employees directing them to surrender any media in their possession -- irrespective of the intent with which it was created -- that may contain e-mails sent or received between March 2003 and October 2005, and for EOP to collect and preserve all such media." Id. at 4-7. The defendants have moved for reconsideration of both of these recommendations. Defendants' Responses to and Request for Reconsideration of the First Report and Recommendation on Plaintiff NSA's Motion to Extend TRO/Preservation Order [#69] ("Motion").

The defendants argue that the two recommendations are unnecessary, and thus impermissible as injunctive relief, because all e-mails sent or received between March 2003 and October 2005 "should [be] contain[ed]" within the back-up tapes currently being preserved.*fn4

Motion at 11. Based on new information*fn5 provided by the defendants, it now appears to be the case that no back-up tapes are being preserved that were created between the relevant time period of March 1, 2003, and May 22, 2003. Third Decl. at ¶ 11. It is the defendants' position, however, that "substantially all" e-mails sent or received during that time period are present on existing back-up tapes because all e-mails present on the EOP network are captured when a back-up tape is created -- not only those e-mails sent or received in the preceding 24 hours. Motion at 11-12, 14. This, argues the defendants, should "allay any concerns about 'missing' emails being unavailable on the disaster recovery back-up tapes." Id. at 12.

This argument is fundamentally flawed because it presumes that all e-mails sent or received between March 1, 2003, and May 22, 2003, remained on the EOP network on May 23, 2003, when the earliest existing back-up tape was created. Consider the following scenario: on April 2, 2003, an employee receives an e-mail; one week later, the employee moves that e-mail to a personal folder. That e-mail would not be present on any back-up tape currently being preserved, though it may still be present on that employee's workstation. As discussed in the First Report, this scenario is not far-fetched; to the contrary, it is common practice for employees to move e-mails to personal folders. First Rep. at 4. It may be literally true that the existing back-up tapes contain e-mails sent or received prior to May 23, 2003, but the defendants' assertion that "substantially all" of those e-mails are on the back-up tapes is pure speculation. Motion at 14. The defendants provide no evidence, such as sampling or other statistical data, to support that assertion. See McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 2001).

It is the defendants' position that the Court's recommendations cannot be supported by the possibility that some e-mails that were not captured on existing back-up tapes might be recovered by a search of individual workstations and portable media, or that too few e-mails would be recovered to justify the expense. Motion at 12-14. It remains the Court's position, however, that every reasonable effort must be made to preserve the res of this lawsuit, i.e. the historical records that the plaintiffs may establish were required by law to have been preserved. See Report and Recommendation, Oct. 19, 2007 [#11] ("[T]he threat of such obliteration is a text book example of irreparable harm."). As explained in the First Report, the minimal burdens*fn6 imposed on the defendants by the recommendations are vastly outweighed by the likelihood that e-mails*fn7 will be preserved, the public interest*fn8 that would be furthered by preserving those e-mails, and the likelihood of the plaintiff's success on the merits. First Rep. at 4-7. See also Serono Labs, Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998). The defendants' motion for reconsideration will be denied.

III. Forensic Imaging

Upon initial consideration of the Archive's Motion for TRO, this Court raised the possibility of ordering the forensic imaging of data on certain workstations. Memorandum Order, Mar. 18, 2008 [#62] at 2. Forensic imagining would have the same effect (preservation of data on slack space) as the remedy sought by the Archive in the Motion for TRO, but it would not require workstations to be quarantined. Id. It was acknowledged that this approach was "not without its costs," and that those costs needed to be balanced against other factors. Id. at 2-3 (citing Serono Labs, 158 F.3d at 1317-18). To assist the Court in conducting this balancing test, EOP was ordered to "describ[e] the costs that would be incurred and any other facts that would bear on the burden of such an obligation. Id. at 3. The response was inadequate, however, so EOP was ordered to provide "more precise information concerning the costs of the proposed preservation order," and to indicate: (1) the number of current EOP employees who were employed at any time between March 2003 and October 2005; and (2) the number of hard drives in the possession or custody of EOP that were in use between March 2003 and October 2005. First Rep. at 3.

Though the defendants have once again failed to describe the potential costs in precise terms*fn9 , they have proffered that there are "583 individuals currently working at an EOP FRA agency who worked at an EOP FRA agency at some time" during the relevant time period, and that there are "545 ...


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