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    In The United States District Court For The District of Columbia

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    Julian Hattem
    This document is a surreply filed by counsel for Hillary Clinton opposing a motion by Judicial Watch to depose Clinton in a FOIA case against the State Department. The surreply argues that the requested deposition is now moot because the FBI has agreed to provide Clinton's emails to the State Department to search for responsive records, fulfilling Judicial Watch's requested relief. It also argues that Judicial Watch has provided no evidence to substantiate its claim that Clinton intended to deliberately thwart FOIA by using a private email server.

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    In The United States District Court For The District of Columbia

    Uploaded by

    Julian Hattem
    225 views7 pages
    This document is a surreply filed by counsel for Hillary Clinton opposing a motion by Judicial Watch to depose Clinton in a FOIA case against the State Department. The surreply argues that the requested deposition is now moot because the FBI has agreed to provide Clinton's emails to the State Department to search for responsive records, fulfilling Judicial Watch's requested relief. It also argues that Judicial Watch has provided no evidence to substantiate its claim that Clinton intended to deliberately thwart FOIA by using a private email server.

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    This document is a surreply filed by counsel for Hillary Clinton opposing a motion by Judicial Watch to depose Clinton in a FOIA case against the State Department. The surreply argues that the requested deposition is now moot because the FBI has agreed to provide Clinton's emails to the State Department to search for responsive records, fulfilling Judicial Watch's requested relief. It also argues that Judicial Watch has provided no evidence to substantiate its claim that Clinton intended to deliberately thwart FOIA by using a private email server.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    225 views7 pages

    In The United States District Court For The District of Columbia

    Uploaded by

    Julian Hattem
    This document is a surreply filed by counsel for Hillary Clinton opposing a motion by Judicial Watch to depose Clinton in a FOIA case against the State Department. The surreply argues that the requested deposition is now moot because the FBI has agreed to provide Clinton's emails to the State Department to search for responsive records, fulfilling Judicial Watch's requested relief. It also argues that Judicial Watch has provided no evidence to substantiate its claim that Clinton intended to deliberately thwart FOIA by using a private email server.

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    of 7

    Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page 1 of 7

    IN THE UNITED STATES DISTRICT COURT


    FOR THE DISTRICT OF COLUMBIA

    JUDICIAL WATCH, INC.,


    Plaintiff,
    v.
    No. 1:13-cv-01363-EGS
    U.S. DEPARTMENT OF STATE,
    Defendant.

    NON-PARTY HILLARY RODHAM CLINTONS SURREPLY


    IN FURTHER OPPOSITION TO PLAINTIFFS MOTION TO DEPOSE
    HILLARY RODHAM CLINTON, CLARENCE FINNEY, AND JOHN BENTEL

    David E. Kendall (D.C. Bar No. 252890)


    Katherine M. Turner (D.C. Bar No. 495528)
    Amy Mason Saharia (D.C. Bar No. 981644)
    WILLIAMS & CONNOLLY LLP
    725 Twelfth Street, N.W.
    Washington, DC 20005
    Telephone: (202) 434-5000
    Facsimile: (202) 434-5029
    Counsel for Non-Party Hillary Rodham
    Clinton

    Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page 2 of 7

    INTRODUCTION
    As this Court has recognized, discovery in a FOIA action is the exception, not the rule.
    Feb. 23, 2016 Hrg Tr. at 8:2021. And, as Judicial Watch concedes, a deposition of a former
    Cabinet Secretary is even rarer, requiring a showing of extraordinary circumstances. Dkt. 106
    at 1213. Judicial Watch has not made that showing. Judicial Watchs reply confirms that there
    is nothing more than speculation behind its allegation that the State Department and Secretary
    Clinton deliberately thwarted FOIA. Feb. 23, 2016 Hrg Tr. at 10:37. In any event, the requested discovery is now moot. Judicial Watch has argued that the Departments search was inadequate because it did not acquire and search certain sources of Secretary Clintons e-mail. The
    FBI will provide to the Department e-mail it has retrieved from those sources, and the Department
    intends to search it for records responsive to Judicial Watchs request. See Dkt. 103 at 24; Dkt.
    105-1. Judicial Watch thus will be obtaining its requested relief. In this circumstance, there is no
    need for discovery, and permitting Judicial Watch to depose a former Cabinet Secretary would be
    futile and inappropriate.
    ARGUMENT
    I.

    THE FBIS JULY 12, 2016 LETTER TO THE STATE DEPARTMENT DEMONSTRATES THAT THE REQUESTED DISCOVERY IS MOOT.
    Judicial Watch has repeatedly stated that the relief it seeks is to have Secretary Clintons

    e-mail turned over to the Department for searching. See, e.g., Feb. 23, 2016 Hrg Tr. at 10:23
    11:10, 15:1816:1, 18:824, 27:115, 45:622. It is now evident that Judicial Watch will be obtaining that very relief. On July 12, 2016, the FBI informed the Department that it will provide
    the Department with materials obtained during its investigation that may contain agency records.
    Dkt. 105-1. This includes materials retrieved from any server equipment and related devices
    obtained from Secretary Clinton. See Leopold v. Dept of Justice, No. 15-cv-2117, Dkt. 18 (D.D.C.
    1

    Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page 3 of 7

    July 13, 2016). To the extent the FBI retrieved additional work-related e-mails of Secretary Clinton, the Department will have them and has pledged to produce any responsive records. (Contrary
    to Judicial Watchs assertion, Secretary Clinton recognizes that the Department has a right to federal record e-mails within her clintonemail.com account. See Dkt. 106 at 89.)
    The FBIs forthcoming provision of Secretary Clintons e-mails to the Department moots
    any need for additional discovery. [A] discussion about remedies is not premature, as Judicial
    Watch claims. Dkt. 106 at 14. The ultimate issue of fact in this casewhether the Department
    has conducted an adequate search, Dkt. 106 at 3 (quotation marks omitted)is inherently intertwined with the remedy Judicial Watch seeks: to have Secretary Clintons e-mails provided to the
    Department for searching. If the FBI will provide those materials to the Department, there is no
    need to engage in additional discovery to determine whether FOIA requires the Department to
    acquire Secretary Clintons e-mail account on an intent to thwart FOIA theory.
    Faced with the fact that it will be obtaining its requested relief, Judicial Watch does an
    about-facesuggesting, implausibly, that it might want different relief. See Dkt. 106 at 14. It
    first argues that this Court could order the Department to search e-mail accounts of employees who
    might have communicated with Secretary Clinton about the subject matter of the FOIA request at
    issue. The Department, however, has already done that, see Dkt. 47-2, 9, 20which is undoubtedly why Judicial Watch has not made that argument before.
    Judicial Watch next argues that the Court could order the Department to issue subpoenas
    to other government agencies or other pertinent entities. Dkt. 106 at 14. The agency in possession of Secretary Clintons clintonemail.com e-mails, however, is the FBI, which has already
    stated that it will provide materials obtained during its investigation that may contain agency records to the Department. Neither Secretary Clinton nor her counsel are aware of any other entity

    Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page 4 of 7

    possessing her clintonemail.com e-mails; as part of its investigation, the FBI endeavored to collect
    all available sources of Secretary Clintons clintonemail.com e-mails. It would be inappropriate
    for this Court to permit Judicial Watch to depose a former Cabinet Secretary for the purpose of
    determining whether this Court should order relief that is now moot.
    II.

    JUDICIAL WATCHS ALLEGATION THAT THE DEPARTMENT SOUGHT TO


    THWART FOIA IS SPECULATIVE.
    Even if the requested discovery were not moot, Judicial Watch is not entitled to probe in

    discovery the circumstances surrounding the creation, use and purpose of the clintonemail.com
    system merely to satisfy its curiosity about that subject. Dkt. 107 at 1. This Court granted limited discovery to determine whether there is evidence substantiating Judicial Watchs allegation
    that the State Department and Mrs. Clinton sought to deliberately thwart FOIA through the creation and use of clintonemail.com. Dkt. 73 at 1, 11 (quotation marks omitted). No evidence has
    emerged from discovery or the multiple public inquiries that substantiates that allegation, and Judicial Watch simply ignores the ample evidence to the contrary that is now in the record. Accordingly, there is no basis for further discovery, let alone discovery for which extraordinary circumstances must be demonstrated.
    Judicial Watchs principal argument is that it needs to depose Secretary Clinton because
    her prior statements about why she used a private e-mail account are unsworn. See Dkt. 106 at 4
    7. As Judicial Watch concedes, Secretary Clinton has publicly stated that she used a private email account for the sake of convenience. Director Comey has testified that she said the same
    thing to the FBI. See Dkt. 102-3 at 74. Judicial Watch identifies no evidence suggesting that, if
    deposed, Secretary Clinton would identify an improper purpose, contrary to her many statements.
    Because it has no actual evidence of an intent to thwart FOIA, Judicial Watch flatly misrepresents the record and manufactures inconsistencies where none exist. For example:
    3

    Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page 5 of 7

    Judicial Watch claims that it is striking that Clarence Finney did not know of Secretary Clintons private e-mail address because, as Ms. Mills testified, Secretary Clinton
    was in contact with Mr. Finney every day. Dkt. 106 at 67. Ms. Mills said no such
    thing in her deposition. Judicial Watch provides no reason to believe that Secretary
    Clintons e-mail account was concealed from Mr. Finney. That assertion is implausible
    given that she openly e-mailed with more senior officials responsible for records management.

    Judicial Watch inaccurately represents the substance of Director Comeys testimony.


    When asked, [W]as the reason she set up her own private server in your judgment
    because she wanted to shield communications from Congress and the public?, he did
    not simply state that the FBI was unable to determine the answer to that question. See
    Dkt. 106 at 23. Instead, he responded, I cant say that. Our best information is that
    she set it up as a matter of convenience. Dkt. 102-3 at 20.

    There is no discrepancy between the FBIs findings and the evidence in this case.
    Dkt. 106 at 45. Director Comey explained that Secretary Clinton decided to have a
    domaini.e., clintonemail.comadded to former President Clintons server. That
    is completely consistent with the testimony of Ms. Mills.

    Judicial Watch also ignores the fundamental issue before this Court by insisting that it
    needs Secretary Clintons testimony about arcane details of her e-mail systemfor example, what
    precise services Bryan Pagliano performed or why e-mail was not archived. But, again, it offers
    no reason to suspect that Secretary Clintons answers to those questions (which would undoubtedly
    be I dont know) would support its allegation that the Department intended to thwart FOIA.
    Judicial Watch requested and obtained discovery on the premise that there was a reasonable suspicion that the Department and Secretary Clinton intended to thwart FOIA. Dkt. 51 at 1. The
    record now disproves that suspicion. Judicial Watchs speculation is insufficient reason to permit
    the extraordinary measure of deposing a former Cabinet Secretary, especially when further discovery could not, in any event, yield any additional relief.
    CONCLUSION
    Counsel to Secretary Clinton respectfully request that this Court deny Judicial Watchs
    motion for permission to depose Secretary Clinton.

    Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page 6 of 7

    Respectfully submitted,

    /s/ David E. Kendall


    David E. Kendall (D.C. Bar No. 252890)
    Katherine M. Turner (D.C. Bar No. 495528)
    Amy Mason Saharia (D.C. Bar No. 981644)
    WILLIAMS & CONNOLLY LLP
    725 Twelfth Street, N.W.
    Washington, DC 20005
    Telephone: (202) 434-5000
    Facsimile: (202) 434-5029
    [email protected]
    [email protected]
    [email protected]
    Counsel for Non-Party Hillary Rodham
    Clinton
    July 15, 2016

    Case 1:13-cv-01363-EGS Document 109 Filed 07/15/16 Page 7 of 7

    CERTIFICATE OF SERVICE
    I, David E. Kendall, counsel for Non-Party Hillary Rodham Clinton, certify that, on July
    15, 2016, a copy of this Surreply in Further Opposition to Plaintiffs Motion to Depose Hillary
    Rodham Clinton, Clarence Finney, and John Bentel was filed via the Courts electronic filing system, and served via that system upon all parties required to be served.
    /s/ David E. Kendall
    David E. Kendall

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