CITIZENS F OR RESPONSIBILIT Y

AND ETHICS IN WASHI NG TON,

P laintif f, v. EXECUTIVE OFF ICE OF THE P RESIDENT, et al.,

Defendan ts.

_______________________________________ NATIONAL SECURITY ARCHIVE,

P laintif f, v. EXECUTIVE OFF ICE OF THE P RESIDENT, et al.,

Defendan ts. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action Nos. 07-1707; 07-1577

(HHK /J MF)

MEMORAN DUM OP INION The history

of this case is set forth in prior opinions by me and by

J udg e Ke nnedy
. 1 See Citiz ens for

Responsibili ty

and Ethics in Washington v. Exec. Of fice of the 1 President, CA Nos. 07-1701, 07-1577, 2008 WL 2932173 (D.D.C. Jul y

29, 2008), Report a

nd Recommendation, Oct. 19, 2007 [#11] (re commendingthat defe ndants be orde red to pre serve exis ting ba ck-up ta

pes); Or der, N ov. 12, 2007 [#18] (orde ring defe ndants to prese rve e x isting back- up tapes); Me morandum Orde r, Jan. 8, 2008 [ #46] (seekingadditional information about the bac k-up tape s beingprese rved) ; Memorandum Or der, Ma r. 13, 2008 [#62] (see king additional information about for ensic imag ing) ; Memorandum Or der a nd First Report a

nd Recommendation, Apr. 24, 2008 [#67] (“F irst Rep.” or “ First Report” ) (se ekingadditional information about bac k-up tape s and the univer se of r eleva nt employ ees a

nd hard dr ives,The issues that have now ar isen are now conf ronted in true e merg ency

conditions. As this is being written, there are two business day s befor e the ne w President take s office and this case 2 deals with the re cords c reated by the administration that is leavingoffice . To furthe r complicate the matter, the rec ords at issue ar e not pape r re cords that c an be store d but electr onically stored information that ca

n be dele ted with a key stroke. Additionally , I have no w ay

of knowingwhat happens to c omputers and to har d drives in them when one administration replac es anothe r. In April, 2008, Irec ommended to J udg e Ke nnedy that he issue an or der that the Ex ecutive O ffice of the Preside nt “sea rch the workstations, and a ny .PST files located there in, of any individuals who were employ ed betwe en Mar ch 2003 and O ctober 2005, and to collec t and prese rve a ll e-mails sent or re ceive d betwee n Marc h 2003 and Oc tober 2005;” a nd to (2) “issue a prese rvation notice to its employ ees dire cting them to surrende r any media in their possession – irrespe ctive of the intent with which it was cre ated – that may contain e- mails sent or rec eived betwee n Marc h 2003 and Oc tober 2005, a nd for EO P to collect and pre serve all such media.” First Report a

nd Recommendation [ #67] at 4-7. The de fenda

nts sought re view of my

rec ommendation but J udg e Ke nnedy has now
acc epted it and issued a

n order consistent with it. Order of J anuar y 14, 2009 [#102]
. I t now appea

rs from r epre sentations made to me dur ing a hear ing he ld on J anuar

y 14, 2009 that the def

endants c onstrue that re commendation to impose the oblig ations it specified

rec ommending that defe ndants be orde red to c ollect and pr eser ve data from wor kstations and portable me dia, and r ecommendingthat the Arc hive’s re quest to take de positions be denied). The fe dera l gove rnment, to include this Court, is closed on Monday , the Martin L uther 2 King birthday

and Tue sday

is I nauguration Da

y . 2only

upon those divisions whose rec ords ar e subjec t to the Fede ral Rec ords Act ( “F RA”) and not 3 to those subject to the Presidential Rec ords Act ( “PRA”). As a re sult, they have not a

nd will not 4 fulfill the obligations now imposed by J udg e Ke nnedy ’s orde r as to the latter
. Acc ordingto the defe ndants, the shar p distinction between the PRA and F RA exi sts in prac tice re nderingit impos sible that an e- mail cre ated in a PRA division was transmitted to an FRA division. There is at this point , howeve r, no fa ctual re cord whatsoeve r upon which I could predic ate the c onclusion that it is i mpossible for there to have be en such a transmittal. Moreover , Ihave be en advise d that the bac kup tapes be ing r estored c ontain e-ma ils from both PR A and FRA divisions. In this case, I

have a ttempted to balance cost and burde n ag ainst benef it. See First Report and Rec ommendation at 2-4. I have a lway s begun with the premise that, a s just indi cate d, the emails that are sa id to be missing ar e the ve ry hear t of this lawsuit and there is a profound soc ietal interest in their pre servation. They are , afte r all, the most fundame ntal and usef ul contempora

ry
rec ords of the r ece nt history of the Preside nt’s office . I f Na poleon was r ight whe n he said that he did not care who wrote Fr ance ’s laws if he could write its history , then the importanc e of prese rvingthe e- mails cannot be e x ag g erated. On the other

hand, I appre ciate the costs involved, particula rly now that this may

all have to be done unde r eme rg ency conditions. But, as I

pointed out at the re cent he aring , my
rec ommendation was issued in April 2008 and a t no point thereaf

ter did the de fenda

nts ask me to
44 U.S.C. §§ 2101 et seq., 2501 et seq., 2701 e t seq., 2901 et seq. a nd 3101 et seq. All 3 ref ere nces to the U nited States Code are to the elec tronic ver sions in W estlaw a nd L exis
. 44 U.S.C. § 2201. 4 3clar ify

its meaning . Their only

briefingof the issue wa s to assert in a f ootnote that plaintiffs had rig htfully limit ed their c laims to the Ex ecutive O ffice of the Preside nt and that this Court lacked jurisdiction over any

claim base d upon non-complianc e with the PRA. EOP Defe ndants’ Reply in Support of Request for Rec onsideration by the Mag istrate Judge of

His First Report a

nd Recommendation [ #76] at 17, n.15. W hile that raises a point about jurisdiction, defenda nts never specific ally

argued to me or to Judge K ennedy that I could not make PRA ag encie s subject to my order . Ican a ssure the de fenda nts I fully intended my

rec ommended orde r to perta in to the entire Whit e House ; the defe ndants neve r ar g ued that I could not. Moreove r, at this point Iam betwe en a r ock and a hard pla ce. I f, despite the de fenda nts’ repr esentations, e-mails were transmitted from PRA to FRA ag encie s and bac k but Iprec lude a
sear ch for them in the PRA ag encie s, Iwill be honoring a re prese ntation without having a ny opportunity

to test its correc tness. Imay there fore fail misera

bly to preser ve the r es of this lawsuit based on a

n untested asse rtion. I f, on the other

hand, I do not honor the re prese ntation and orde r all computer s to be
sear ched, I

am at lea st doing a ll Ican to pr eser ve the r es in the only

way possible. The importance of doingso easily

trumps the costs involved. There fore , defe ndants must apprec iate that the Or der I am issuing r equire s them to searc h for e -mails in the specifie d period in both PRA and FRA a g encie s. An Orde r ac companies this Memora ndum Opinion.
Dated: January

15, 2009 /S/ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE 4