good morning please the court this is this is david kendall i represent petitioner former secretary of state clinton i will also be presenting arguments this morning on behalf of competition  clinton provided all of her then existing e mails that were either work related or potentially work related and ms mills produced all her records in two thousand and fifteen secretary clinton declared under oath numerous there's there may be more out there three responses that st of all it's true that the department of justice in december said it couldn't identify where some of the e mails the department came from still working but the department of justice has now determined these are not all these are not new e mails in a recently filed memo in another judicial watch case this one before  accurate that the petitioner for the counsel for the state department just because he said that they were still working on the origin of those e mails so i think it's furthermore state has not represented the court that the private e mails state former employees who corresponded with secretary clinton have been cheering for additional clinton e mails that  the f b i has searched many and interviewed many of the people with whom secretary e mail so they haven't they haven't i can't say that they've interviewed every last one but certainly e mails have been collected from a variety of sources which typically duplicated the e mails we turned over from secretaries server in december of two thousand  to clarify who may have corresponded with either of them more in general about the talking points because that's what the foyer request is is that the issue is document production an agency does not have to explain why has no documents it doesn't have to do further work except that it does have to conduct a reasonable but just with respect to the petitioners here mills and clinton that's correct just as we we we simply don't know we intervened in the case the judge said that clinton issue that was those papers were present the judge the judge issued an order rejecting arguments on march the nd so what what the question here the court had jurisdiction over her because she voluntarily wanted and that you're basically saying that moot and and she wants out so i understand substantively making a claim of macduff but i'm trying to get as i said i'm trying to understand the sort that that can legitimately be pursued through these depositions then it really looks more like a case where the question is a district court's management of discovery i know you cite the apex doctrine the district judge was careful to say we're not allowing in korea into the substance of the decisions that were made we're talking about finding documents he's a former not current official so i gather the inference that applies here is the the rd interest which is you know would people be deterred from serving so i'm not sure how callously the apex factor just you know for sake of argument if we were to put that aside we have a situation here where the district court arguably harassment it's the creation of video footage that can be used for political partisan attack ads and social media fundraising not authorized by the for the it's in the movie case the supreme can be categorized into different categories one is new clinton e mails and the nd issue is limitations with respect to the f b i s investigation that are relevant in this case to quickly address the new clinton e mails  it is not in this record that in the record before the district court that these e mails the state department had before and the information that the mr kendall had referred to earlier  assuming those e mails were within the state department's position at some point that doesn't answer the question why is it the four years after the f b i closed its investigation that there are still additional clinton e mails that are being produced why were you are saying that these thirty e mails prove something but they are not even emails that are related to the talking points that your request is recorded so what exist that is the purpose for why the district court has ordered this additional discovery so we can be able to develop the record that it needs to reach the determination of what is a reasonable search in this case and i would just point sure where they come from you know standing up there but the them state them to determine that they are not new at all but they were in the state department's possession and therefore they were searched so i understand what you're saying that the the body of documents that they did so and if that is accurate then that i don't not sure i follow the implication and if it's not them you know why you think it's  for i don't believe that the i believe that the record is that the state department did not search those e mails until the f b i identified them and november of two thousand and nineteen  i identified them in november of two thousand and nineteen and that is why the district court in its order pointed to the fact that why are there additional subset of clinton e mails that are being looked at four years after the f b i closed its investigation and part of the reason that the district court permitted the additional discovery is because it was troubled by the fact that the state department could not provide an explanation from where these e mails came from and to address your question with respect to the fact that the state has come to say that these e mails were in his possession all along however begs the question here and the question with respect to the leaky vessel because clinton used a private e mail in a private e mail server to communicate while she was a state her records even within the state department are not known where they exist because they can be dispersed all over the state department so perhaps they were on the state of the mail system but state department didn't even know when it searched this case to look in those places for clinton related e mails or benghazi talking points related e mails and that's the question here i'm a little confused by that i haven't heard that line of argument before you're saying that you can't be confident in the state department search because it's unclear where the recovered e mails that's been brought back into the state department pursuant to the federal records a e within the state department so the state department does not say actually where these e mails are how it was that it was in possession of these twenty eight e mails it could have it does not say that it was among the thirty thousand e mails that secretary clinton provided to state and two thousand and fourteen and it does not state that it was among the e mails that were recovered by the f b i investigation it just says that state department was in possession of the e mails the question is was it in possession of the e mails because it's on the no address because the recipient of an e mail with secretary clinton was somebody else outside the secretary's office which is the office disclosed that the i r s had lost years of lois lerner's e mails what the i r s did in that case to be able to fund a comprehensive effort to recover or locate all  of a department here the state department has searched for custodians well outside of secretary of the e mails that secretary clinton provided to the state department they include petitioner sharon mill philip we know that there are more individuals within state department even that secretary clinton communicated with and the reason that we need to get to the question of under these circumstances and on the issue of and to circumvent for yeah we get to that because the footnote nine and the kissinger case that the supreme court held in a case where be done to locate all of the missing records that the wait so so the question i have i understand that under the federal records act the government has a duty to make sure that official agency records are in custody and officials have an obligation to comply with policy to ensure the same which is why we ask you about the pump aoe decision because if that creates an obligation and authority to reach outside an agency to bring back documents if the federal jurisdiction i mean this was a circumstance that was not before the supreme court but the supreme court didn't video it wasn't like happening no it does it so so they talk about what's in what's in the control of  that might be a side of the of the agency's possession well the most recent decision is this course decision in the cia case there the official was using a different e mail account the law has said this is this is done and i'll court more importantly have said this is done so it's really it's really hard i think to follow an argument that says important to look at this court's holding in pump ale as well and the record before it as well as the record in the tellers and case to the facts of what the f b i did not the characterization of its effort i was limited in what it did and the fact that the twenty eight e mails have appeared shows that in addition the district court and you can see this on page four and five of the district court's march order it was not convinced that all avenues for clinton e mails have been looked at and that is the reason one of the reasons why the district court permitted traditional was to serve are two hundred and sixty dollars clinton e mails that appear to be work related and appear to not have been previously identified either in the e mails that secretary clinton provided to state in two thousand and the this is from two thousand and ten now these e mails are not responsive in this case because they predate the benghazi attack however it shows that it is another subset of clinton e mails that have not  possibly relevant to your point requests to show that there's some sort of a problem with the search because we don't the reason that we look at that and the reason that is significant is because it shows that there's of plantains e mails from the state department that is the significant issue here and i just want to point out very quickly the two hundred and sixty dollars e mails are actually from only a four month period from october a three month period from october to december of two thousand and ten and if the court would like judicial watch can supplement the record to include the subpoena and the response america right but that's not before and in this case there's no there's not a federal records claim in this case so i'm again i'm curious where you find in a in a four year case we were stuck to one set of talking points and documents related to it the you know saying that there is some secular chain of inference based on a different year and different set of e mails but you know i just don't follow how safeguard which actually says mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for i think the what this shows is that the f b i was limited in its effort and what it did in palm pale and that's why it's important to look at the record to see what it did and how those and those limitations as to what the f b i did are rel t in this case because it i'm not i mean we can pump a were found by our circuit precedent and you can disagree with it and you can say if you had run the f b i you would have done a different search but that's  that's an extraordinary position to say that well you know five federal records act cases you know closed because there are no remaining documents for state to recover referring to them as if they weren't so it's hard to see that have been you to question the thoroughness of the search and a lot of these the additional discovery here including the petitioners deposition is because after each round of discovery there are more questions raised with respect to secretary clinton and in her e mail you for example the question with respect to what was her state of mind when she left the state department with thirty thousand records and when she filled out a form and provided it to the state archivist and identifying the document do under the federal rect records act is not the same as what an agency is required to do here under these circumstances which are still being developed to ensure that about a ten cent recovery efforts of records under for the characteristic of the federal record is not lost just because it is taken outside the agency and the same for example with the google e mails those e mails just because they are set outside the state department's possession at this time does not mean that they've lost their characteristic to be a federal record so that is why you need to  it is responses position that the court needs to look at what the circumstances are to be able to reach of what the state department needs to do in this case show ensure that all responsive federal records e mail practices and state of mind and everything is so that we can determine whether a search about some subset of documents related to be able to certainly have multi step process runs like it's been about you know the several and the information it's a been a feel of all it up even with these new twenty eight e mails it appears that the state department does not even know where all of clinton's e mails are and that is part of the was not i mean we can ask them but i don't believe there's a question whether they know what's in their possession and that they've searched every possible place within their possession you're talking about that they might not know where things are they're out of the department's possession is that what you're referring to no even even e mails that are within the state department's possession the state department does not know where all of clinton secretary clinton's e mails are the twenty eight e mails it was revealed by actually the director of the foyer department at the state department and its opposition in the discovery below that the state department upon receiving those e mails from the f b i searched those e mails because they were potentially response of in this case in november of two thousand and nineteen and then realized when they those e mails were produced in another litigate for a lawsuit that has requested all of secretary clinton's e mails and that has stated that those e mails were not previously produced or searched for clinton e mails i'm not aware of the state department to date taking the position that those e mails were searched in this case because they are records and they are potentially and responses that those were searched at any point prior to november two thousand nine produced a couple of months later they were produced in january i believe the st half and then the nd half was produced in february i'm sorry january of what year of this year exemption justified or not production and i take it here that the only aspect of the relief that you're just using this case is the adequacy of state departments or is that right  well the adequate there are additional issues that are still pending before the district court including the adequacy of the search as well as litigation misconduct in this case and the district court actually believes in  have to say on that neither of them was working at the state department at that time in two thousand and fourteen at the time that the state department was attempting to settle this case and represented that it produced all records the state department was in communication with miss mills with respect to the search and the production or the return of clinton's e mails to the state department the reason that we require  deposition on this issue is to be able to determine what discussions there were with respect to the parameters of secretary of the search of secretary clinton's e mails which is parameters of research is always relevant  but also with respect to what state department employees knew and when those discussions were being held because if so the idea is that they would have to talk to her about their litigation decisions about timing of summary judgment and just not following what those state department people have been deposed directly asked about th to settle the case which is the issue you pointed to just walk me through more deliberately sure state department search in this case depends on the adequacy of all the different searches that have been provided so we can ignore i mean at this point and actually it was the state department's foyer director who raised in his deposition that the state department has to know what the parameters of secretary clinton's e mail search was and he said that he requested that to date based on the record we don't have we do not know yet whether that conversation took place and according to him mr hackett stuff position in the discovery below as of the time that he left the state department he did not know whether that discussion occurred between patrick kennedy and miss mills which discussion i took a mishap mr hackett  had had a discussion with undersecretary patrick kennedy when the e mails were provided by secretary clinton seemed to the state department that the state department must know what the parameters of the search was that clint that secretary clinton's team had used in searching her e mails to be able to determine what e mails are federal records and what should be returned to state according to hack and when he was asked do you know what the parameters was that ever provided to you he was the director of for you and his response was no i had a discussion with patrick sent kennedy and his understanding was that that was going to be asked or discussed with  there and the desert the documents that are not in the state department the personal e mails and i gather what you're saying is that there's some some suspicion whether the people who sorted the official from the person al in the normal course when an official leaves the state department takes with them a source of federal records with them it would actually be that official who would be conducting the search should be current state department employees to conduct the search that was the testimony of the state department archivist who was the archivist actually during secretary clinton's tenure and that and the and the link between that  i'm sorry can you repeat the question what is the link so so you say problem somehow secretary clinton unlike other officials who left government and took with documents that should have left in the custody of the government as as agency records somehow she was able with her key to do the sorting that's irregular should've happened raises the question was it done in a way that was rigorous and actually resulted in return to the agency of documents that should be considered to be agency records right that's the gist of what you're saying correct call and my question to you is what under for y case that we have here is the fact that before the district court the fact where a serious question has been raised with this with respect to an agency said intent to circumvent for you when she use a private e mail in private e mail server it's certainly within the also already of the district court to want to hear from the individual herself with respect to whether that was in time but also with respect to how that search was conducted because that search is the reason that the issues that  adjudicated by the district court hinges and part on how the search was conducted and what if somebody testified what if either mills or clint testified well things that had to do with you know what time i would leave work and you know meet my family for dinner were not included and if the district judge says well actually those should have been official records because they have to do with you know the end of the work or you know something what if that what if the word documents that someone else that you if you were the one doing the search would have put in for the agency record but what if there were now they're gone and unattainable what results in terms of the forecast tower in the district judge what what what should happen in your wildest dreams that you succeed in to make that determination so it's not that the case where ok there may be some e mails and then those e mails are property for the district court and the district court will decide is this a federal record or not it is the issue is identifying all of clint all sources where clinton e mails reside and for the state department to do an adequate search now there are additional departments now has every incentive to that in the sense of what do you think what i gather you're saying is that there's some kind of cover up and so i'm just trying to understand i'm trying to understand why you think this is relevant under the claim you brought and is just w position is not here that there's some sort of a cover up but response position is that to date based on the record it is there hasn't been an adequate search that has been done take the i r s case have done it and any other fashion the state department has not done that here at the state department has searched for custodians or response of records and i guess my point is the petitioner is attempt here is to short circuit the process by using the most potent weapon in the judicial arsenal to prevent the district court from ever being able to reach determination of whether there was and adequate search and part of that process has to be to identify all of the file cabinets let's say that contains secretary clinton's e mails and those file cabinets or file cabinets within the state department and also file cabinets with rd parties outside the state department please the court mark freeman for the state department as the court knows this is one of dozens of oil lawsuits about former secretary clinton's e mails that have been filed over the years the state department's approach to all of these cases from the beginning has just been to get through them to respond to the for ever quest to push through any district court litigation and bring all of these cases and indeed the entire chapter to a close in this case therefore although we objected to the discovery in district court you know for the case of course we did we have not asked this court to issue the extraordinary remedy of mandamus and we've not supported the petition at issue here i'd be glad to address any questions from the court general arguments about how discovery is not needed in this for a case and that the next step that should happen here is that we should file a nd motion for summary judgment follow another declaration in which we explain all of the searches we've done and why they're adequate and why we're entitled to s judgment now in the course of making that argument we made general arguments about how for their discovery was not relevant we did not address the specific depositions that issue here in fact we defer to private counsel on that question and that's that's right here and i mean one way to look at it is from the perspective of the secretary and from petitioners here the march nd order was you know a st order in which they were required to be subject to discovery from the government's perspective this case and many records in the intervening years we've identified group more i believe the current total is something like nineteen the additional documents came from additional searches voluntarily conducted by the state department of for that they were necessarily searched in the initial search was conducted by the state department in this case and that's because of the scope of this particular foyer request before a request is not to the state department as a whole it's to the office of the secretary and as  declarations in july two thousand and fifteen made clear we searched the relevant electronic databases in the office of the secretary and identifying to those documents custodians or e mail custodians most likely to have records responsive to  request search them and we we we are going to the district court that that was a and adequate search now we're we're past that but the fact that e mails may be in the state department somewhere doesn't mean that they would have been normally sourced in response to r investigating so that we can provide the detailed affidavit that is required to move for summary judgment in for the case and our intent would be if it is if if when it comes time for a summary judgment motion in district court if these thirty i think it's actually something like twenty four dollars e mails remain relevant even though as noted they're not responsive that at that at that point we would provide a detailed declaration in which we explain where they come from where they came from and how how it came to be that they were searched finally and your state department believes that it has a sufficient record on which to determine whether search was adequate yes we believe we're entitled to summary judgment but again we're not asking this court consideration of the totality of the circumstances in this unique case and what were the circumstances to it you're referring there sure i mean i obviously can't get into privilege matters but there are few things i can say i mean from as i started to earlier from secretary clinton's perspective the march nd order you know was the st time that she was required to appear and give testimony in this case from the government's perspective this had been going on for a long time there's a lot of water under the bridge there's a lot of discovery already but that discovery is is done the burdens fell on us and we shouldered them and in our judgment the best way forward is just to move to summary judgment the other point is that look there's been a lot of discussion of the so called apex doctrine i've never thought of it in terms of that that name is to the set of cases that establish that it is an appropriate use of mandamus to vindicate the principles described by the supreme court in the morgan case now the government very protective of that line of cases we are all aware that we have built up over time this circuit and others a substantial body of case law that in years to the benefit of the executive branch by a stablish ing the appropriateness of mandamus in those circumstances now we've got we've built that body of case fall by picking our fights by choosing the fights that we we take carefully and without again representing anything that about specific deliberations in this case we take very seriously the decision about when to come to this court and ask the court to issue the extraordinary writ of mandamus and we've we chose in the interest of the executive branch balancing the pros and cons not to do so here said i wasn't sure what i meant was i'm i'm confident that the state department has conducted an adequate indeed more than adequate search in this case and has identified all of the records that we believe are responsive the four requests the uncertainty and my answer was only whether we have actually given those documents to judicial watch already or whether we have identified them for redaction and told them that they will receive nonexempt portions of them when we get to the motion for summary judgment best just a detail in terms of staging that i'm not i'm not moment sure of the answer to but but the the department's view is that we've conducted an adequate search just charged our responsibilities under foil we've identified the response of records in that search and that we believe we should through searches voluntarily conducted by the state department i believe we're up to a total of about one thousand dollars now and and it sort of depends on how you count because you know it's an email thread with an additional thanks on top of the new document to me that that's the sort of that's the ambiguity in the numbers but we've identified every document through additional searches such as e mails returned by ms mills to the department of state we've through additional searches of those records in an abundance of caution just in  interest of putting this all behind us we identified additional responsive documents and we've we've identified those and we would if we haven't already we will provide them to judicial watch as part of a part of our our production in this case but but that's that's it secretary i don't apologize or and i don't know the answer that question one thing that we have done in this case is we have rather than contesting questions that we could contest we've just tried to search everything that has come up we didn't all of the fifty five thousand dollars pages of documents that were returned by secretary clinton to the state department rather than litigate over whether those belonged properly within the scope of the four request or not we just search them the same with the rd the thirty or twenty four  that came back rather than litigate about that question we just searched them so it may be if there are documents outside of the office of the secretary and i'm sorry i don't have the answer to that specific question in front of me but if there are such documents that are responsive it's secretary so it could be and we would we may well argue this in a motion for summary judgment that an adequate search in the context of this for a case was one to the to the available and likely custodians in the office of adequacy of the search that we do perform as described in our affidavits and if that searches this court has said is conducted in good faith and is reasonably calculated to identify the response of records then it ought to be sufficient as a matter of  and i'm just trying to i mean as you know i i was trying to understand where and you know the district court is coming from and thinking that the intent of the secretary clinton is relevant in just district court you would see that we've we've not contested that question in this case and just as a strategic matter our our view has been you know when when those documents came back to the state department we could have this  before the c i case in in this court we could have contested that the ball they were not in the agency's possession of the time the for the request came in and therefore we have no obligation to search them but we've not taken that position in fact we just searched them i voluntarily searched them with all entirely searched every set of e mails that has come back to us to do with judicial watch is identified in an effort just to find whatever his response to this were questioned or even the broadest definition and turn it over and so so we've although we could there is reason to believe and maybe the district court also thinks that there is reason to believe that there may be other individuals in the office of secretary who also use private e mail and i so that the district court needs to know about that and that it has grounds under for us to authorize every into that and i think if that's not the state department rolling production of e mails from ms mills and i believe two others who had been in the state department the time and it turned out may have used private e mail we asked for those records back and some of the difference between  by ms mills and others to the state department so to the extent our understanding of the to the extent there was a dispute about whether there were additional people in the state the office of the secretary who had private e mails that would be agency records and would be and that's correct you know we've we've just tried as i said at the outset our approach to all of these cases from the beginning has just been to get through them and if and i am and all of a nd all of secretary clinton's e mails that were returned in in december th are now posted on the the web site they're valid for anyone to search we've just tried to put it all behind us and in service of that there are a lot of questions that we could have litigated or fought over that we just haven't fought over district court compelling the state department to take quote further action close quote but it never specifies what that further action might be indeed it can't because as the pompei of litigation establishes there is nothing more the state department can do now the short answer is that both titian's left the state department february two thousand and thirteen you know nothing whatsoever about the searches conducted or about the attempts to settle the case but again i point out that judicial watch is deposed a number of individuals about the searches including to thirty six depositions of people at the state department with knowledge of the search so they've got that information