Opinion
Civil No. 96-2123 97-1288 (RCL).
May 17, 2000.
MEMORANDUM OPINION
This matter comes before the court on Plaintiffs' Supplemental Brief to their Motion to Compel the Production of Documents Regarding their Second Request to the Executive Office of the President ("EOP") Regarding ARMS E-mail. This court issued a prior ruling, on May 17, 2000, on the Plaintiffs' Motion to Compel the Production of Documents. In that order, however, the court deferred on the plaintiffs' requests as to e-mails and hard drives. The parties then filed supplemental memoranda regarding the plaintiffs' request for an ARMS search of e-mail. Upon consideration of these memoranda, and the reply and surreply thereto, the court will GRANT IN PART AND DENY IN PART the plaintiffs' request for an ARMS e-mail search, as discussed and ordered below. The court will continue to DEFER on the plaintiffs' requests for hard drives and those e-mails that are not archived on the ARMS system.
I. Background
The underlying allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that their privacy interests were violated when the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees from the Reagan and Bush Administrations.
The instant dispute revolves around the discovery of e-mails relevant to the pending action. In their first request for the production of documents, served on October 9, 1997, the plaintiffs made several document requests, including e-mails, of various individuals. The EOP responded to these requests by stating that responsive documents "will be produced as they are located."Alexander v. F.B.I., 1997 WL 1106579, at *1 (D.D.C. 1997). Plaintiffs then filed a motion to compel regarding their first request on December 5, 1997. In response, the EOP filed a motion to strike the plaintiffs' motion due to the fact that the plaintiffs had not conferred with the EOP before filing it, as required by Local Rule 108(m). On December 22, 1997, the court granted the EOP's motion to strike the plaintiffs' motion to compel and stated that it would not entertain any motions to compel filed by the plaintiffs until after a further status conference scheduled for January 13, 1998. Id.
The court also stated in its December 22, 1997 order that the EOP's responses indicating that they will produce documents "as they are located" are "unacceptable." Alexander v. F.B.I., 1997 WL 1106579, at *1-2 (D.D.C. 1997) (quoting Association of American Physicians and Surgeons, Inc. et. al. v. Hillary Rodham Clinton, et. al., 837 F. Supp. 454 (D.D.C. 1993)). The court reasoned that "[i]n effect, defendants have sought to arrogate to themselves an indefinite extension of time in which they may respond to plaintiffs' discovery requests." Id. The instant dispute illustrates that point.
Negotiations between the parties regarding the plaintiffs' motion to compel ensued, and most of the issues were resolved. With regard to the e-mails, the EOP admitted that it had not performed any search of the e-mail systems and computer hard drives in response to the plaintiffs' first request for the production of documents. The EOP suggested that, rather than perform several piecemeal searches in response to the plaintiffs' requests for documents, the parties meet and agree on a reasonable number of relevant individuals' e-mail to be searched and a reasonable set of search terms. See Opp'n by Def. EOP to Pls.' Mot. to Compel Docs. Regarding Second Request to the EOP at 30, n. 31. See Tr. of March 10, 2000 Hearing at 30 (statement of James Gilligan that since January of 1998 the EOP has asserted that the proper way to handle the discovery of e-mails is to conduct one, global search of all e-mail, rather than piecemeal searches, performed as the case progressed, which "cumulatively would impose an undue burden.") The EOP further stated that it was currently engaging in a process of restoring and reconstructing pre-July 14, 1994 e-mail, and, once that process was complete, a global e-mail search could be conducted on-line. See id. at 29; Decl. of Daniel Barry at ¶ 10 (March 4, 1998) (describing e-mail restoration process and estimating completion dates).
According to the Barry declaration, starting on July 14, 1994, the EOP began archiving its e-mail in an on-line format susceptible to being word searched. See EOP Opp. To Plaintiffs' Motion to Compel at 28.
Plaintiffs then served their second set of requests for the production of documents on October 27, 1998. Request number 28 of this set of requests sought all e-mail correspondence to or from five individuals that was recovered in previous e-mail searches performed by the EOP as described by Daniel Barry, a computer specialist employed by the EOP Office of Administration, Information Systems and Technology Division (IST), in his June 11, 1998 deposition. The EOP objected to this request as overbroad and irrelevant. The EOP further responded that it "stands ready, as previously offered, to perform searches of archived White House e-mail within parameters as to date, users, and search terms reasonably calculated to lead to the discovery of relevant information without imposing an undue burden on the EOP." EOP Resp. to Pls.' Second Req. for Produc. of Docs. At 26.
On April 8, 1999, the parties conducted a Rule 108 conference prior to the plaintiffs' filing of their motion to compel for their second set of requests for documents. At this conference, the plaintiffs were informed that the e-mail restoration process was almost complete and that certain e-mail was available for searching. Accordingly, the plaintiffs then submitted in their motion to compel a "preliminary list" of approximately 40 persons whose e-mail should be searched and 36 relevant search terms. The EOP objected to this request as so markedly different in scope as to constitute an entirely new request. They further rejected the plaintiffs' request on the grounds that it is overly broad, seeks irrelevant information, and would impose an undue burden on the EOP. To support its claim of undue burden, the EOP provided another affidavit by Daniel Barry, which stated that the proposed search would cost approximately $687,180. See Decl. of Daniel Barry at ¶ 12 (July 9, 1999).
The plaintiffs replied that the change in their request for e-mails was a result of the fact that, at the parties' Local Rule 108 conference, in addition to informing the plaintiffs for the first time that all but two months of the e-mails were prepared to be searched, the EOP specifically and repeatedly invited the plaintiffs to submit a list of individuals whose e-mail should be searched and a list of search terms. Therefore, they argued, the parties were simply disagreeing about the number of terms and individuals for the initial search. They then proposed a narrower "initial" search of eleven individuals' e-mail for thirteen search terms.
There have been numerous recent developments, however, regarding the EOP's capability to perform on-line searches of all e-mail. A description of these recent developments is necessary to understand the particular issue at bar in this opinion.
In February of 2000, the plaintiffs discovered evidence that, contrary to Daniel Barry's July 9, 1999 affidavit, not all e-mail from November 1992 to July 14, 1994 had been archived in an on-line format, and, as such, certain e-mail would not be searched by performing a global on-line inquiry. The plaintiffs filed a motion on February 19, 2000, to supplement their motion to compel with a declaration by Sheryl Hall, a computer specialist at the White House. In this declaration, Hall attests that, beginning in August 1996, incoming e-mails to nearly 500 people in the EOP, including top-level employees, were not transferred to the computer system in the White House, which is known as the Automated Records Management System ("ARMS"). Third Decl. of Sheryl Hall at 2 (Feb. 19, 2000). As a result, Hall stated, these e-mails, which number approximately 100,000, were not and can not now be word searched on-line. Id. Hall stated that most of these e-mails do still exist, however, on back-up tapes, and, therefore, can still be printed and the hard copies searched. Id. at 5. Hall also attested in her declaration that several employees who were aware of the e-mail problem were threatened with jail or the loss of their jobs if they told anyone else. Id. at 4-5.
Barry attested in his declaration that, as of that date, all e-mail, with the exception of e-mail from February and March of 1993 had been archived and, therefore, could be searched on-line. Barry Decl. at ¶ 5 (July 9, 1999). He further stated that the two remaining months would be completed by mid-August 1999, thereby making all e-mail susceptible to being word-searched. Id.
In light of this declaration, the plaintiffs requested that the court hold an evidentiary hearing to determine why material evidence was not produced to them. Plaintiffs argued that such a hearing was particularly necessary due to the fact that Daniel Barry had filed a declaration in this court attesting incorrectly that all EOP e-mail would be susceptible to a global on-line word search.
Then, on February 25, 2000, plaintiffs filed a motion for leave to file a second supplement. This supplement included a declaration from another computer specialist at the White House, Betty Lambuth, who corroborated Hall's earlier declaration. On March 7, 2000, the plaintiffs filed a motion for an expedited ex parte conference concerning the possible destruction of hard drives in the White House. Plaintiffs attached to this motion the Fourth Declaration of Sheryl Hall. In this declaration, Hall stated that she had received information from a White House Office of Administration ("OA") employee that the White House was planning to destroy archival cartridge tapes of the computer hard drives of departed White House staff members.
On March 9, 2000, the plaintiffs filed a motion to file a third supplement to their motion to compel and a further request for an evidentiary hearing. Plaintiffs' third supplement consisted of two letters written by Congressman Dan Burton, Chairman of the House Committee on Government Reform, and two newspaper articles concerning the approximately 100,000 e-mails that appear to have been excluded from searches made in response to prior Congressional subpoenas.
A hearing was held on these motions on March 10, 2000. At that hearing, the court ordered that the EOP provide assurances that the material at issue will be preserved and protected until the court has an opportunity to rule on the plaintiffs' motion for an evidentiary hearing and motion to compel as to their request for e-mails and hard drives. The EOP responded by assuring the court that "the e-mail in question, to the extent it exists is being preserved, and is not being, and will not be overwritten." EOP's Resp. to Mem. and Order of March 15, 2000 at 1. The EOP further provided the court with the name of the deputy to the associate director of IST, Terry Misich, who had been given the responsibility for preserving the integrity of the back-up tapes that are the subject of the controversy. In response to Hall's Fourth Declaration, the EOP advised the court their current policy is to make back-up tapes of the hard drive files of departed employees, and not to destroy those back-up tapes. The EOP then reiterated their position that the best way to deal with discovery of e-mails is to perform one, global search for the entire case under reasonable parameters as to search terms and persons whose files are to be searched.
The hearing on this matter began at 11:30 a.m. The court, then ordered that the hearing be continued at 5:00 p.m. that same day, so that the EOP would have a chance to meet with the appropriate White House officials in order to be able to provide the court with the requested assurances.
The EOP later provided this Court, in response to a letter from Congressman Burton requesting that the court take steps to ensure the e-mails are preserved, with a declaration from Charles C. Easley, the EOP Security Officer, which stated that the approximately 3,400 back-up tapes that may contain copies of the e-mail at issue are being preserved. See Declaration of Charles C. Easley at 1 (March 16, 2000). The court then issued an order on March 20, 2000, finding that no further action was necessary to preserve the e-mail based on the government's additional assurances.
At the conclusion of the hearing, the court declined to take custody of the material at issue, stating that it would accept the representations made by the White House that they will not tamper with either the e-mails or the hard drives, but rather they would preserve the integrity of these materials. The court then granted the EOP two weeks to respond to the plaintiffs' motions to file their supplements to their motion to compel.
On March 21, 2000, the EOP filed their opposition to the plaintiffs' motion for leave to file their third supplement. As to the plaintiffs' first and second supplements, the EOP moved on March 23, 2000 to have the court indefinitely stay its consideration of the e-mail issue due to the overlapping investigations of the Department of Justice's Criminal Division and the Office of Independent Counsel. As to the question of hard drives raised in Sheryl Hall's fourth declaration, the EOP moved for an additional week to respond. The court held a hearing on the EOP's motion on March 24, 2000. At that hearing, the court took the EOP's motion to stay under consideration. At the EOP's suggestion, the court further ordered that the Criminal Division of the Department of Justice provide the court with periodic ex parte, in camera status reports in chambers on the progress of its investigation, beginning on March 30, 2000.
Also at the March 24, 2000 hearing, the plaintiffs first raised the issue of the possible existence of a "zip" disk containing several e-mails, which was made from the F: drive file of Robert Haas, a White House computer specialist. Counsel for the EOP, James Gilligan, responded that he had recently become aware that such a "zip" disk did exist. He further represented that he would later provide additional assurance to the court that the disk was being preserved. On March 27, 2000, Mr. Gilligan provided this assurance in the form of a letter to the court stating that the zip disk was being stored in the custody of Charles Easley, EOP Security Officer, under the same conditions of security as the 3,400 e-mail back-up tapes, as described in Mr. Easley's earlier affidavit.
On March 31, 2000, the plaintiffs filed a motion for an order to show cause concerning the "zip" drive and related matters and a request for an evidentiary hearing. The plaintiffs' motion was based on the March 30, 2000, testimony of White House Counsel, Beth Nolan, before the House Government Reform Committee, stating that the EOP had tried to read some of the zip disk material but were unable to do so, and, therefore, they had to go back to Mr. Haas' F: drive to make another zip disk. Plaintiffs argued that the court should hold an evidentiary hearing because the EOP had tampered with the "zip" disk. The plaintiffs further argued that a hearing was required due to the fact that the White House had indicated that it believed that this court's prior order to preserve material applied only to the e-mails and hard drives, and not the "zip" disk. A hearing was held on this motion on March 31, 2000, at which the court took the plaintiffs' motion for an order to show cause under advisement. The court clarified that its prior orders to preserve the material at issue encompassed the "zip" disk as well. The court further stated, however, that its orders were only that the information be preserved, and did not bar the White House from accessing the information.
On April 3, 2000, the EOP filed its response to the plaintiffs' motion for an evidentiary hearing on the preservation of hard drives. The EOP provided the declaration of Michael Lyle, Director of the Office of Administration, who stated that the EOP has no plan to alter or destroy the back-up tapes of the hard-drive files of departed EOP employees, and that he had assigned the task of safeguarding these tapes to Charles Easley, EOP Security Officer. Easley also provided a second declaration attesting that he was preserving the back-up tapes containing the hard-drive files (approximately 600 of them), and describing the manner in which they were being preserved.
On April 6, 2000, plaintiffs filed a fourth supplement to their motion to compel, renewing their request that the court take custody of the subject evidence. In this motion, the plaintiffs argued that such a measure is necessary based on evidence that the contractors hired by the White House to search and preserve the e-mails consists of former White House employees who worked closely with individuals who are the subject of the Department of Justice's criminal investigation.
On April 27, 2000, the court held another hearing regarding this dispute. At that hearing, the court again denied the plaintiffs' request that the court take custody of the e-mail back-up tapes, hard drives and zip disks. The court held the plaintiffs' motion for an evidentiary hearing and the plaintiffs' motion for an order to show cause concerning the zip disk in abeyance so as not to interfere with the Department of Justice's criminal investigation into the matter. Regarding the discovery of relevant e-mails, the court ordered the plaintiffs to file a supplemental memorandum regarding the parameters for the search of those e-mails that have been successfully transferred to the ARMS. The court further ordered that the EOP file a response to the plaintiffs' supplemental briefing. In addition, the court ordered the plaintiffs to file a separate supplemental memorandum concerning the search of non-ARMS e-mail, hard drives and other material, to which the EOP should then file its response. Then, on May 17, 2000, the court issued an order regarding the plaintiffs' second request for the production of documents, deferring on those requests concerning hard drives and e-mails.
In summary, there are three basic issues raised by the parties in the motions and hearings described above. The initial issue is the actual search for relevant material as part of discovery in the pending case. This search can be broken down into two further components: the search of all e-mails now archived on ARMS and capable of being word-searched, and the search of the approximately 100,000 e-mails not archived on ARMS but possibly contained within the 3,400 back-up tapes. The second issue is the preservation of the material, including the back-up tapes, the hard drives of departing employees and the Haas "zip" disk, until such time that they can be searched. The third issue, which is primarily the focus of the DOJ criminal investigation, is the allegations that the White House "covered-up" the missing e-mails once they were discovered, by threatening employees and withholding information from this court and Congress.
The EOP has asked for a stay of the court's consideration of this matter only as to the e-mails, which would entail only the back-up tapes and Haas "zip" disk, but not the hard drives.
As discussed above, the court has temporarily held the third issue in abeyance so as not to interfere with the DOJ investigation. As to the second issue, the court is satisfied at this time that the material is being preserved. Therefore, the court now turns only to the initial issue, raised in the plaintiff's original motion to compel — the search for relevant, discoverable material. In this order, the court will address only the search of that e-mail which is now archived on ARMS and capable of being word-searched. The remaining issues, including when and how an identical search can be performed on the approximately 100,000 e-mails available only on back-up tapes and what search should be performed regarding the hard drives, will be addressed in a later order.
Thus turning to the issue at bar, the plaintiffs filed their supplemental memorandum regarding the search of ARMS e-mails on May 2, 2000. In their brief, the plaintiffs requested that the search be conducted using 36 search terms and for 47 individuals. The plaintiffs also requested that the court order a general search of all e-mail for Craig Livingstone, Anthony Marceca, Bernard Nussbaum, Hillary Rodham Clinton, and William Kennedy for any documents responsive to the plaintiffs' prior document requests. On May 8, 2000, they filed their brief as to the parameters for the search of non-ARMS e-mails, in which they sought to add another individual and search term to their ARMS search request. Then, on May 11, 2000, the plaintiffs filed a motion for leave to supplement their May 2nd brief in order to add another 9 individuals who had been recently named by the EOP in a supplement to their responses to the plaintiffs' third set of interrogatories.
The EOP filed their response to the plaintiffs' May 2nd brief on May 12, 2000. They further sought leave to file an in camera, ex parte supplement to their response on May 17, 2000. The plaintiffs then filed a reply to the EOP's response on May 19, 2000. The EOP then, on May 26, 2000, moved to strike the plaintiffs' reply, or, in the alternative, to file a surreply. In a separate order, the court granted the EOP leave to file their surreply, which the court has considered in its ruling today.
In their reply, the plaintiffs attempt to add yet another four individuals to their request.
Analysis
As discussed above, plaintiffs first requested in their motion to compel that an "initial" search for relevant e-mail be conducted of approximately 40 individuals utilizing 36 search terms. The EOP objected to this request as overbroad and overly burdensome. The plaintiffs then, in their reply, narrowed their "initial" request to only eleven individuals and thirteen search terms. In the plaintiffs' supplemental briefing regarding the parameters for a global search for all relevant e-mails, the plaintiffs again expand the number of persons whose e-mail should be searched to 47 individuals and the number of search terms to 37. They then supplement this request with an additional nine individuals.
In support of their argument, the EOP provided the declaration of Daniel Barry, whose veracity has since been called into question. In that declaration, Mr. Barry attests that such a search would cost approximately $687,180. See Decl. of Daniel Barry at ¶ 12 (July 9, 1999).
The EOP objects to the plaintiffs' requested parameters as overbroad and unduly burdensome. To support its argument, the EOP provides a declaration by Leanna Terrell, Associate Director of IST in the Office of Administration. In her declaration, Ms. Terrell estimates that performing the search according to the parameters proposed by plaintiffs in their supplemental briefing (not including the fourteen individuals the plaintiffs seek to add to their request) would take over ten weeks to complete and would cost approximately $1,051,482. See Amended Terrell Decl. at ¶ 11 (May 23, 2000).
As Ms. Terrell explains in her declaration, however, this cost does not represent "hard cost" to the EOP, but rather it is an estimate of the search cost if it were to be performed on a reimbursable basis. See Amended Terrell Decl. at ¶ 11.
Rule 34 of the Federal Rules of Civil Procedure, which governs the production of documents, states that any party may serve on any other party a request for documents or "any tangible things which constitute or contain matters within the scope of Rule 26(b). . . ." Fed.R.Civ.P. 34(a). Rule 26(b) states that "[p]arties may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action." Fed.R.Civ.P. 26(b)(1). Pursuant to Rule 26(b)(2), the court may limit this discovery, either on its own initiative or pursuant to a motion for a protective order, if it determines that
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in this action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issue at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
The court notes that the EOP cannot be objecting to the plaintiffs' request for e-mails in general as unreasonably cumulative or duplicative, given the fact that there has not yet been any search for e-mails throughout the course of discovery in this action. Instead, the EOP has repeatedly responded to the plaintiffs' requests by stating that it would perform only one, global search for relevant e-mails in order to avoid any cumulative discovery. Given these repeated assurances, there is also no issue regarding whether the plaintiffs have had ample opportunity by discovery in this action to obtain the information sought. A global search of the e-mails, by the EOP's own admission, could not be performed until the e-mails had been transferred to the ARMS system, a process that was not completed until shortly after August of 1999, when the plaintiffs filed their motion to compel. Therefore, the EOP's objections to the plaintiffs' request for e-mails must be based on either relevance or undue burden.
Because Rule 26 only allows discovery of material "relevant to the subject matter involved in the pending action", once a relevancy objection has been raised, the party seeking discovery must demonstrate that the information sought to be compelled is discoverable. Fed.R.Civ.P. 26(b)(1); see also Alexander v FBI, 186 F.R.D. 185, 187 (D.D.C. 1999) (stating that the party seeking to compel information must first demonstrate its relevance);Alexander v. FBI, 186 F.R.D. 21, 45 (D.D.C. 1998) (same); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 631 (M.D.Pa. 1997) ("Once a relevancy objection has been raised, the party seeking discovery must demonstrate that the request is within the scope of discovery.") For the purposes of discovery, relevancy is broadly construed and encompasses any material that bears on, or that reasonably leads to other matters that could bear on, any issue that is or may be in the case. See Alexander v. FBI, 186 F.R.D. 12, 18 (D.D.C. 1998); In re Aircrash Disaster Near Roselawn, Ind., 172 F.R.D. 295, 303 (N.D.Ill. 1997); see also 8 Charles Alan Wright et al., Federal Practice and Procedure § 2008 (2d ed. 1994) (stating that relevance is to be construed liberally and that "it is not too strong to say that a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.")
Once the relevance of the material sought has been established, the party objecting to that discovery then bears the burden of "show[ing] why discovery should not be permitted."Corrigan v. Methodist Hosp., 158 F.R.D. 54, 56 (E.D.Pa. 1994) (citing Amcast Indus. Corp. v. Detrex Corp., 138 F.R.D. 115, 118 (N.D.Ind. 1991)); see also Ellsworth Assocs., Inc. v. United States, 917 F. Supp. 841, 844 (D.D.C. 1996) ("A party opposing discovery bears the burden of showing why discovery should be denied.") In order to sustain an objection based on undue burden, the objecting party must make a specific, detailed showing of how the discovery request is burdensome. See Lohrenz v. Donnelly, 187 F.R.D. 1, 4 (D.D.C. 1999) (compelling the objecting party to fully answer the interrogatory at issue because there was no showing that the research required was unduly burdensome); Chubb Integrated Systems Ltd. v. Nat'l Bank of Washington, 103 F.R.D. 52, 60-61 (D.D.C. 1984) ("An objection must show specifically how an interrogatory is overly broad, burdensome or oppressive, by submitting affidavits or offering evidence which reveals the nature of the burden.") With this in mind, the court now turns to the parties' proposals regarding the search of ARMS e-mails.
A. Plaintiffs' July 1999 Proposal
The EOP argues that the starting point for the court's analysis should be the parameters proposed by the plaintiffs in their reply to their motion to compel ("July 1999 proposal"). This proposal is as follows:
Individuals: Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Vincent Foster, Bill Kennedy, Marsha Scott, Betsy Pond, Deborah Gorham, Linda Tripp, and Mari Anderson.
Search Terms: background report, summary report, FBI, OPS, Dale, travel office, Craig or Livingstone, Anthony or Marceca, update project, Bill or William and Kennedy, Nussbaum, HRC or Hillary.
Pls.' Reply to Opp'n to Pls.' Mot. To Compel Docs. at 19. They further argue, however, that the court should narrow even this proposal in order to shorten the time needed to complete the project.
In support of its argument, the EOP provides the court with Ms. Terrell's declaration, in which she attests that the plaintiffs' July 1999 proposal, without any adjustments, would cost approximately $298,250 and would take an estimated sixteen hours to set up and 500 hours to run and print, producing about ten boxes of e-mails. Amended Terrell Decl. at ¶ 14. The EOP argues that applying certain limitations to the search would shorten the period of time before the e-mails would be produced while still capturing all relevant e-mails. The court will now address each of these limitations recommended by the EOP.
The court notes that it rejects any argument by the EOP that a search in accordance with the plaintiffs' July 1999 proposal is prohibitively expensive or time-consuming in light of the fact that the alternative search proposed by the EOP would cost roughly the same amount and would take the same time to complete. See Amended Terrell Decl. at ¶ 18.
1. Marsha Scott
The EOP argues that Marsha Scott is irrelevant to the pending action, and, therefore, her e-mail should not be searched. The court, however, has already addressed the issue of the relevancy of matters regarding Ms. Scott and found such matters to be relevant and discoverable. See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 11 (May 17, 2000) ("[I]nformation regarding Marsha Scott's computer is relevant to the pending action as it may bear on the possible misuse of the plaintiffs' files.") Furthermore, the EOP argues that the evidence on which the plaintiffs rely to establish Ms. Scott's relevance — the deposition testimony of Linda Tripp — is insufficient. However, "[d]iscovery is not to be denied because it relates to a claim or defense that is being challenged as insufficient. 8 Charles Alan Wright et al., Federal Practice and Procedure § 2008 (2d ed. 1994). Accordingly, the court rejects the EOP's argument, and Marsha Scott shall be included in the list of individuals whose e-mail should be searched. However, as discussed below, given that the plaintiffs have established the relevance of Ms. Scott only as she relates to the possible misuse of FBI files, her e-mail shall be searched only for those search terms relating to that issue.
2. The "travel office"
The term "travel office" is included in the plaintiffs' July 1999 proposal as one of the search terms. As the EOP correctly notes, however, this court has previously ruled on many occasions that matters regarding the travel office, with the exception of the possible misuse of the government file of Billy Dale, a former Travel Office employee, are not relevant to the instant case. See Alexander v. FBI, 186 F.R.D. 123, 125-26 (D.D.C. 1998) (re: Linda Tripp); Alexander v. FBI, 192 F.R.D. 42, 44 (D.D.C. 2000) (Re: Thomas McLarty); Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 17 (D.D.C. May 17, 2000). Therefore, plaintiffs are entitled to "travel office" e-mails only as they may relate to the misuse of Billy Dale's file. Given that "Dale" is a requested search term, to which the EOP has no objection, there is no basis for including "travel office" as a search term as well. Therefore, "travel office" shall be excluded from the list of search terms.
3. Searches beyond the White House Office
As explained in the Terrell Declaration, the ARMS database is divided into nineteen discrete segments known as "buckets." These buckets represent agencies or EOP components, such as the White House Office ("WHO"), the Office of Management and Budget, and the Council on Environmental Quality. See Amended Terrell Decl. at ¶ 5(listing the nineteen buckets). Each bucket contains e-mails of users employed by the corresponding EOP component, including all e-mails sent to or received from individuals outside that component(including persons completely outside of the White House). Amended Terrell Decl. at ¶ 5.
The EOP argues that, given the fact that all of the persons named in the plaintiffs' July 1999 proposal were e-mail account-holders whose e-mails were stored in the "WHO" bucket, only this bucket needs to be searched. Plaintiffs have no objection to limiting the search to certain buckets on the ARMS system. See Pls.' Reply to the EOP's Resp. to Pls.' Supplement at 5. The plaintiffs, however, argue that, along with the "WHO" bucket, the President of the United States ("POTUS"), the Office of the Vice-President ("VPO"), the National Security Council ("NSC") and the DEFAULT buckets should be searched as well.
According to EOP records, however, one of the individuals listed in the July 1999 proposal, Anthony Marceca, never had any e-mail account at all during his White House tenure. As such, there is still no need to search other buckets outside the White House Office for e-mails that were sent to or received from him. The court further notes that the term "Marceca" is included in the list of search terms. See Amended Terrell Decl. at ¶ 19.
According to Terrell's declaration, however, the POTUS bucket contains only blank schedules, and does not contain any e-mail.See Terrell Decl. at ¶ 5. Thus, a search of this bucket would not produce any relevant e-mails, and need not be performed.
The DEFAULT bucket, according to Ms. Terrell, contains only unidentifiable external e-mail. See id. The plaintiffs do not explain why such e-mail would be relevant to the pending action. Accordingly, they have not met their burden of establishing the relevance of the discovery sought, and the DEFAULT bucket need not be searched.
As to the VPO and NSC buckets, the plaintiffs argue that these buckets should be searched based on their expanded request, which includes Vice-President Al Gore, and NSC employees Robert Manzanares, Marcia Dimel, and Deborah Perroy. Thus, these buckets will be addressed later in this opinion in conjunction with the court's analysis of the plaintiffs' most recent proposal as to search parameters. The court, agrees however, that with these two possible exceptions, all buckets other than the White House Office should be excluded from the search.
4. Designating the names of EOP e-mail users as search terms
Plaintiffs identify several EOP e-mail users both as persons whose e-mails are to be searched, and as names to be used as search terms. These include Craig Livingstone, Bernard Nussbaum, and William Kennedy. The EOP states that, because of the manner in which ARMS goes about searching for e-mails, using the name of the person with an e-mail account as one of the terms to be searched for within that individual's e-mails will retrieve all of that person's e-mails, without regard to subject matter or the terms in the search. See Terrell Decl. at ¶ 12. Thus, such a request would only serve to generate a significant output of e-mails that are irrelevant to this case.
Anthony Marceca is also listed as both an individual whose e-mail should be searched and a search term. However, as there is no record that Marceca has an e-mail account, then it would not be repetitive or overly burdensome to use his name as a search term.
The court agrees that the e-mails of these individuals are only relevant as they relate to certain subjects, such as the improper acquisition and misuse of the FBI files of former White House employees, which are covered by such search terms as "background report," "FBI files" or "Dale." E-mails concerning other, unrelated matters as to these individuals, however, which this request seems designed to obtain, are not relevant.
The plaintiffs, in their reply, do not even address the EOP's argument regarding the use of these individuals as search terms. Accordingly, they do not establish in any way how this request is "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Therefore, while the court finds that these individuals are properly included in the list of those persons whose e-mail should be searched, their inclusion as search terms is not likely to lead to the discovery of evidence, other than that already discovered by using other, more appropriate terms. Thus, the terms Craig Livingstone, Bill Kennedy and Nussbaum are excluded from the list of search terms.
5. "HRC," "Hillary," and "FBI"
The EOP also argues that the terms "HRC," "Hillary," and "FBI" are overbroad and not reasonably calculated to lead to the discovery of admissible evidence. The EOP states that, in effect, the plaintiffs are asking the EOP to conduct a search for all e-mails that make any reference to the First Lady or the FBI, without regard to context. The EOP argues that such a request would clearly yield a large number of irrelevant e-mails concerning such topics as White House social events, the First Lady's public appearances, Ruby Ridge and Louis Freeh's confirmation. The EOP proposes that the search be performed using more specific terms such as "FBI files" rather than just "FBI."
The plaintiffs reply that, as Mrs. Clinton and the FBI are defendants in this case, it "goes without saying" that the search terms referring to them are appropriate. However, as above, the plaintiffs fail to explain how e-mails discussing Mrs. Clinton and the FBI would be relevant, outside of the subject areas already captured by the use of other, more appropriate terms such as "OPS," "background report," "summary report," and "FBI files." Thus, the terms "HRC" and "Hillary" shall be excluded from the search terms used, and the term "FBI files," rather than simply "FBI" shall be used as a search term for the ARMS search.
6. "And/or" searches — first or last names alone
The EOP argues that the plaintiffs' inclusion of a number of "and/or" searches such as "Tony and/or Marceca" is overbroad. The EOP argues that a search for all e-mails mentioning common names like "Tony" or "Kennedy" will retrieve a large number of e-mail messages, many of which do not even refer to the particular individuals at issue. Rather, the EOP proposes to perform the search for only the first and last names together. Similarly, the EOP argues that the plaintiffs' proposed search term "Dale," is also overbroad, and should be changed to "Billy Dale" or "Billy Ray Dale."
In light of the court's ruling above that the names of e-mail account-holders listed as individuals whose e-mail should be searched should not also be included as search terms, the only remaining "and/or search" in the July 1999 proposal is "Anthony or Marceca." The court agrees that the term "Anthony," a common first name, is likely to generate a large number of irrelevant e-mails. The last name Marceca, however, is much more narrowly tailored and is reasonably calculated to lead to the discovery of admissible evidence. Similarly the court finds that the term "Dale", without reference to "Billy" is not overbroad and is likely to lead to discoverable evidence, which may not be discovered by incorporating the term "Billy." Accordingly, the search shall be performed using the terms "Dale" and "Marceca."
7. Exclusion of public documents
The EOP points out that, on a daily basis, EOP employees receive untold numbers of e-mail messages attaching a variety of public documents, such as press briefings, talk-show transcripts, and media reports, which are publicly available and largely irrelevant. Amended Terrell Decl. at ¶ 12(d). Ms. Terrell states in her declaration that IST has experienced in the past a substantial increase in the output of ARMS searches that do not use "exclusions" to prevent the capture of those e-mails attaching public documents. Id. Thus, the EOP argues that they should be allowed to use a number of these "exclusions" that it has developed for past ARMS searches.
Such exclusions, however, not only exclude any attached public documents from the search, but also exclude the text of the e-mail to which the documents are attached. In their reply, the plaintiffs argue that, while they do not wish to obtain public news articles or Monica Lewinsky jokes sent to hundreds of people within the White House, they are entitled to any relevant commentary within the e-mails themselves.
The court agrees with this argument. Because using the public documents exclusions would also exclude the text of those e-mails attaching any documents, the court rejects the EOP's request that these exclusions be used in the search. The court does note, however, that to the extent that the search results in the production of any public documents, these documents can be discarded and only the attaching e-mails need be reviewed for relevance.
8. Citizen "bulk" e-mail
The EOP also states that within the WHO bucket is so-called "bulk" e-mail for the receipt of e-mails sent to the President and First Lady, via the Internet, by members of the general public.See Amended Terrell Decl. at ¶ 12(e). This bulk e-mail is not used by the President or the First Lady themselves, but rather it is routed directly to the White House Office of Correspondence, where it is reviewed and handled by staff in the same fashion as ordinary citizen mail. Id. This mail is quite voluminous (the President receives approximately 3,000-5,000 e-mails per day, and the First Lady about 200-500 per day), and is likely to have no bearing on establishing the facts of the case. Id. The EOP proposes, therefore, that these e-mails be excluded from the search. As the plaintiffs agree with this proposal in their reply, the court need not address the issue further. Bulk e-mails shall be excluded from the ARMS e-mail search.
B. The Plaintiffs' Latest, Expanded Search Proposal
In their revised request, the plaintiffs increase the number of individuals whose e-mail should be searched to a total of 57 individuals. They also increase the number of search terms to 37. The EOP argues that the court should not consider the plaintiffs' expanded request because nothing has changed in the underlying facts of the case since the July 1999 proposal to justify the additional parameters.
Plaintiffs included 47 individuals in their supplemental briefing. They then added 1 more person in their motion regarding the non-ARMS search and 9 more individuals in their motion to amend their supplemental briefing. In addition, the plaintiffs state in their reply to the EOP's supplemental briefing that they are adding four more individuals, which they had "inadvertently omitted," to their request. Pls' Reply to EOP's Response to Pls. Supp. at 4, n. 4 13, n. 10. The plaintiffs do not seek leave to add these four individuals — Robert Manzanares, Marsha Dimel, Deborah Perroy, and Lloyd Cutler — to their request, however; nor do they explain why the late addition is justified. Therefore, the court will not consider the plaintiffs' request as to these four individuals. Given that the reason the plaintiffs wanted to search the National Security Council bucket was the addition of three of these persons, who were NSC employees, the plaintiffs' request to search the NSC bucket is also denied.
In their supplemental briefing, plaintiffs originally proposed 36 search terms. In a footnote to their brief regarding the search of non-ARMS e-mail, however, plaintiffs seek leave to add another search term, "privacy," to their request for the ARMS e-mail search.
As the EOP itself pointed out at the April 27, 2000 hearing on this matter, however, the plaintiffs' request was only for an "initial" search. Tr. of April 27, 2000 hearing at 18-19.; Pls.' Reply to EOP's Opp. to Pls' Mot. to Compel at 19. At that hearing, in response to the EOP's suggestion that the best way to proceed with the discovery of e-mail was to perform only one, global search, the court ordered the parties to submit supplemental briefing as to their proposed parameters for such a final search, as opposed to an initial, piecemeal search. Accordingly, having been authorized by this court to submit a revised search, the plaintiffs need not justify the reasons behind their revisions. The court also notes, however, that in accordance with the normal rules of discovery, plaintiffs do need to establish the relevance of their requests.
Alternatively, the EOP argues that the expanded request, if it is to be considered by the court, must be limited because, as written by the plaintiffs, the burden or expense of the proposal outweighs its likely benefit. See Fed.R.Civ.P. 26(b)(2). To support its argument, the EOP relies on the declaration of Ms. Terrell, in which she estimates that the cost of the plaintiffs' expanded proposal (not including the fourteen individuals and one search term the plaintiffs sought to add after their initial supplement) would cost approximately $1,051,482 and would take in excess of ten weeks to complete. Amended Terrell Decl. at ¶ 11. The EOP argues that in light of this estimate, the plaintiffs' request as to those individuals who have no personal involvement or first-hand knowledge of any matters relevant to the action should be denied as the burden of conducting such a search outweighs the likely benefit. The EOP further argues that several of the additional search terms proposed by the plaintiffs are similarly overly broad and should therefore be denied. With this in mind, the court will now address each of the additional individuals and search terms proposed by the plaintiffs.
1. Additional Individuals
a. Maggie Williams, Capricia Marshall, Marsha Berry and Lisa Caputo
Each of these individuals was at one time, or remains, employed within the Office of the First Lady. Ms. Williams was formerly the First Lady's Chief of Staff. Ms. Marshall is the White House Social Secretary. Both Ms. Berry and Ms. Caputo were at one time the First Lady's Director of Communications.
The EOP argues that these individuals should not be added as there is no factual basis for the plaintiffs' claim that Mrs. Clinton was involved in "Filegate." However, as noted above, "[d]iscovery is not to be denied because it relates to a claim or defense that is being challenged as insufficient. 8 Charles Alan Wright et al., Federal Practice and Procedure § 2008 (2d ed. 1994).
The EOP further argues, however, that there is no reason to believe that these particular individuals were related in any way to the pending case. The plaintiffs respond only with a statement that "the evidence shows that Mrs. Clinton acted through her staff." They fail to establish, however, just how the evidence shows this fact or how these particular individuals, with the exception of Ms. Williams, are related to this case. Therefore, the court finds that the plaintiffs have failed to meet their burden of establishing the relevance of Ms. Marshall, Ms. Berry and Ms. Caputo, and their e-mails need not be searched.
Regarding Ms. Williams, the plaintiffs point to the fact that Craig Livingstone, a key figure in the case at hand, testified at his deposition that he consulted with Ms. Williams in his effort to obtain his job at the White House. See Tr. of Livinstone Depo. at 391-392. Thus, the court finds that the plaintiffs have met their burden of establishing that their request as to Ms. Williams is reasonably calculated to lead to the discovery of admissible evidence. Ms. Williams shall be included in the list of those persons whose e-mail should be searched. However, as discussed below, her e-mail shall be searched only for those terms relating to OPS, where Livingstone was employed, and the acquisition and misuse of files.
b. Vice President Albert Gore
The EOP points out that, in the preceding three and one-half years of this litigation, the plaintiffs have never alleged any involvement by the Vice President in this matter. Plaintiffs argue that they are entitled to search the Vice President's e-mail based on a "smoking gun" document, which they claim implicates the Vice President in this case. This document is a June 19, 1993 Memorandum from William Kennedy to Joanne Hilty in the Office of the Vice President. Mr. Kennedy states in the memorandum that the FBI had informed him that Ms. Hilty had requested copies of background summaries "prepared for this Administration." Mem. to Joanne Hilty of June 19, 1993 at 1 (attached as Ex.5 to Pls.' Reply to EOP's Resp. to Pls.' Supplement to Mot. to Compel).
As the EOP points out, however, this memorandum, which was first produced to the plaintiffs almost two and one-half years ago, does not demonstrate that these background summaries were concerning former Bush and Reagan Administration officials, as opposed to just then-current White House employees. This court has already ruled that the obtaining of files of then-current employees is not relevant to the pending action. See Alexander v. FBI, 150 F.R.D. 50, 56 (D.D.C. 2000). Thus, as the plaintiffs have not met their burden of establishing the relevance of their request for the Vice President's e-mail, their request is denied. Furthermore, given the fact that this request is denied, there is no need to search the Office of the Vice President bucket when performing the ARMS e-mail search.
In fact, the phrase "prepared for this Administration" seems to indicate that this memorandum is referring only to those individuals employed by the Clinton Administration.
c. George Stephanopoulos and Harold Ickes
The EOP objects to these requests as irrelevant and overbroad. Harold Ickes was Deputy Chief of Staff and Assistant to the President from January 1994 to January 1997. George Stephanopoulos is the former Director of Communications for the White House and former Senior Advisor to the President for Policy and Strategy. Stephanopoulos held the latter position during the period of time that serves as the basis of plaintiffs' complaint. Both of these individuals were deposed on more than one occasion in this litigation and each expressed personal knowledge relevant to the plaintiffs' case. Thus, the court finds that the plaintiffs' request as to Mr. Stephanopoulos and Mr. Ickes is reasonably calculated to lead to the discovery of admissible evidence, and their e-mails shall be searched.
d. Jack Quinn and Abner Mikva
Both of these individuals are former Counsels to the President. The EOP argues that there is no evidence, or even an allegation, that either of these individuals ever had any involvement in the acquisition of the FBI files of former Reagan and Bush Administration employees, an event that pre-dated their tenures at the White House. Nor is there any evidence that these individuals were involved in any misuse of these files. Therefore, the EOP argues, the burden of searching the e-mails of these individuals with no direct knowledge would outweigh any likely benefit.
The plaintiffs argue that Jack Quinn was the White House Counsel at the time the Filegate scandal broke and participated in the White House investigation of the underlying facts. Plaintiffs further point to Harold Ickes' deposition testimony that he had discussed Filegate with Jack Quinn. Ickes Depo. at 282-84. The court finds that these facts, however, fail to demonstrate that a search of Quinn's e-mail would produce any additional relevant e-mail, particularly in light of the fact that Harold Ickes' e-mail is being searched so any e-mails between Mr. Quinn and Mr. Ickes will already be captured. Thus, the plaintiffs' request to search Mr. Quinn's e-mail is denied.
Regarding Abner Mikva, the plaintiffs offer only that he was at one time "another nominal supervisor of Defendant Livingstone" and that he was in a "position" to have accessed the plaintiffs' FBI files. Pls' Reply to EOP's Resp. to the Pls.' Supplement at 12-13. As the EOP points out, however, there has never been any allegation nor any evidence that Mr. Mikva ever actually accessed the files. Accordingly, the court finds that, given the marginal relevance Abner Mikva has to this case, the burden of searching his e-mail outweighs any small benefit that may result. Thus, the plaintiffs' request as to Abner Mikva is also denied.
e. Evelyn Lieberman
The EOP also argues that there is no evidence or allegation that Evelyn Lieberman, former White House Deputy Chief of Staff for Operations, was in any way involved with, or had any personal knowledge of the events underlying the pending action. The EOP states that Ms. Lieberman is best known as the White House official who arranged to have Monica Lewinsky transferred from the White House to the Pentagon. It further notes (correctly) that this court has ruled that the Lewinsky matter is not relevant to this case. As such, the EOP argues, Ms. Lieberman's e-mail is also irrelevant and should not be included in the search.
The plaintiffs respond by stating that they have repeatedly established the relevance of Ms. Lieberman in this litigation. They further reject the EOP's implication that they are seeking information regarding Monica Lewinsky. They fail to indicate, however, what information they are seeking, or how their request is reasonably calculated to lead to the discovery of admissible evidence. Rather, they simply assert that Ms. Lieberman was the "eyes and ears" of Hillary Clinton, and that she was "in practice" a supervisor of Craig Livingstone. The court thus finds that the plaintiffs have failed to meet their burden of establishing the relevance of the information sought in their request. Evelyn Lieberman shall be excluded from the list of individuals whose e-mail should be searched.
f. Thomas McLarty
The EOP objects to the inclusion of Mr. McLarty in the plaintiffs' proposed parameters. They argue that, as he was not involved in either the FBI files matter or the White House investigation of the matter, any benefit of a search of his e-mail is outweighed by the burden.
The court agrees with the EOP's argument. In their reply, the plaintiffs rely on this court's order of March 6, 2000 requiring McLarty to produce some documents previously withheld due to privilege to support their request. See Alexander v. FBI, 192 F.R.D. 42, 46 (D.D.C. 2000). As the EOP correctly notes, however, these documents consisted almost entirely of annotated media clippings and did not demonstrate that Mr. McLarty had any involvement or first-hand knowledge of relevant matters. Thus, the court rejects the plaintiffs' request as to Mr. McLarty's e-mail.
g. Joel Klein
The EOP also objects to the plaintiffs' request that Joel Klein's e-mail be searched. The EOP argues that Mr. Klein is unrelated to the current litigation.
To establish the relevance of Mr. Klein, the plaintiffs rely on Linda Tripp's testimony that Mr. Klein kept "information on people who were perceived to be enemies of the White House." Tripp Depo. at 375-77. Even assuming this testimony is true, however, there is no evidence that this information was received improperly from government files, and could thus be used as circumstantial evidence of the file misuse alleged in the pending case. The only other reasons plaintiffs give that this request is relevant is that Mr. Klein knew Livingstone enough to support his efforts to get a raise, and that Mr. Klein was in a position to access the plaintiffs' FBI files. The court finds that this is insufficient to establish the relevance of the request. Therefore, Joel Klein shall be excluded from the list of those whose e-mails shall be searched.
In fact, when questioned further on her statement regarding Mr. Klein, Ms. Tripp cited only Mr. Nussbaum and the Office of Independent Counsel as subjects of Mr. Klein's alleged information gathering. Tripp Depo. at 487-490.
h. Rahm Emanuel and Ann Lewis
The EOP objects to the plaintiffs' request as to these two individuals as irrelevant and overbroad, because they have stated that they have little or no knowledge of any of the matters relevant to this case. The plaintiffs reply, citing Mr. Emanuel's and Ms. Lewis's responses to plaintiffs' first set of interrogatories, that both of these individuals have admitted to having participated in discussions about the release of the Willey letters. These discussions, however, were only general discussions with other members of the senior staff and were unrelated to the decision of the Counsel's Office to release the letters. See EOP's Resps. to Pls.' First Set of Interrogs. at 21-24 (statement of Mr. Emanuel that he generally recalls expressing his view to other senior staff that the letters should be released and that he subsequently learned of the decision of the Counsel's Office to release them, and of Ms. Lewis that she had no knowledge of the letters until after their release).
As these individuals have no knowledge pertaining to the decision to release the Willey letters, the court finds that any benefit resulting from a search of their e-mails would be marginal at best, and, therefore, the burden of conducting such a search would outweigh its benefit. Accordingly, the plaintiffs' request to search Ms. Lewis' and Mr. Emanuel's e-mail is denied.
i. Sidney Blumenthal
The EOP objects to a search of Mr. Blumenthal's e-mail because they state that there is no evidence or allegation that he had any involvement with, or any first-hand knowledge concerning, the acquisition of FBI files or the release of information about Linda Tripp. The EOP admits, however, that Mr. Blumenthal did have a conversation with Mrs. Clinton, a defendant in this case, regarding the release of the Willey letters. Id. at 56. He further stated that, on the day the letters were released, he called a reporter at The New York Times and left a message stating that Ms. Willey had written letters to the President that were inconsistent with her statements on "60 Minutes."Id.
Mr. Blumenthal further states that the reporter later told him that she did not receive his message until after the White House release of the letters. Regardless of this fact, however, Mr. Blumenthal's attempted release could also be used as circumstantial evidence of misuse of the plaintiffs' files in this case.
In light of this testimony, the court finds that the plaintiffs' request as to Mr. Blumenthal's e-mail is reasonably calculated to lead to the discovery of admissible evidence. Thus, his name shall be added to the list of those individuals whose e-mail will be searched. However, as the plaintiffs have established only Mr. Blumenthal's relevance only as to the Kathleen Willey letters, the search of his e-mail may be limited accordingly, as discussed below.
j. James Carville
The EOP objects to a search of James Carville's e-mail on the grounds that there is no evidence that he was involved with any of the relevant matters, with the exception of the fact that he was consulted by the President concerning the release of the Willey letters. Notwithstanding this fact, however, Ms. Terrell states in her declaration that James Carville never had an e-mail account within the EOP. Thus, as the plaintiffs' request would not lead to the discovery of any evidence, it is denied.
k. Beth Nolan and John Podesta
The EOP objects to these individuals as irrelevant, arguing that the only possible basis for their inclusion is the recent developments regarding e-mail that was not transferred to the ARMS system. As the EOP correctly notes, these developments are not proper subject matters for discovery at this time, given the current DOJ criminal investigation into the matter.
Plaintiffs argue that besides being implicated in these recent developments, these individuals are relevant basically because they were key officials in the White House and were in a position to access the plaintiffs' files. As discussed above, this is not a sufficient basis for including an individual on the list of persons whose e-mail shall be searched. Thus, the plaintiffs' request as to Beth Nolan and John Podesta is denied.
l. Leon Panetta
As the EOP points out, Leon Panetta was not included in the search parameters proposed by the plaintiffs in their supplemental briefing on the search of ARMS e-mails. Rather, the plaintiffs seek leave, in a footnote in their memorandum regarding the search of non-ARMS e-mail, to modify their prior request as to the ARMS e-mail to include Leon Panetta and the search term "privacy."
The court notes that it does not condone the several, piecemeal additions plaintiffs attempt to make to their proposed parameters. If plaintiffs wished to add these terms to the list of parameters, the proper course would have been to file a motion for leave to amend their prior request, as they did with nine other individuals they wished to include in their request. See Pls.' Mot. to Amend their Supplements Dated May 2 and May 5.
Irrespective of this fact, however, the court finds that the plaintiffs have failed to meet their burden of establishing the relevance of Mr. Panetta. As the EOP points out, Mr. Panetta's tenure as Chief of Staff did not begin until June 1994, many months after the plaintiffs' FBI files were improperly obtained. Furthermore, he left the White House prior to the Department of Defense's disclosure of information about Linda Tripp and the White House's release of the Kathleen Willey letters. In response, plaintiffs state that Mr. Panetta had "enough information to apologize to the [p]laintiffs that their FBI files were `reviewed by an Army security officer.'" Pls.' Reply to the EOP's Resp. to the Pls.' Supplement at 17. The court finds that this is insufficient to establish that the plaintiffs' request is reasonably calculated to lead to the discovery of admissible evidence.
The plaintiffs also state that Mr. Panetta, as Chief of Staff when "Filegate" became public, participated in White House meetings about the scandal. The court notes, however, any e-mails Mr. Panetta sent to or received from the other individuals whose e-mail is to be searched will be captured. As the plaintiffs have not established how Mr. Panetta has any particularized or independent involvement in the Filegate matter, the court finds that including his name in the search would be unreasonably duplicative. Thus, their request as to Mr. Panetta is denied.
m. Lisa Wetzl, Jonathan Denbo, Edward Hughes, Jane Dannenhauer, Nancy Gemmell, Jane Sherburne, Terry Good, Christine Varney, John Libonati, Jeff Undercoffer, Arnie Cole, Cheryl Mills, Bruce Lindsey, Charles Ruff, Stephen Waudby, Michael McCurry, Joseph Lockhart, and President Clinton
The plaintiffs do not address the relevance of these individuals in either their supplemental brief or their reply. The EOP, however, does not object to a search of these individuals. They argue, though, that this search should be limited to only certain terms for which these persons are deemed to have relevant knowledge. As the plaintiffs fail to establish any other relevance of these individuals outside of what the EOP advances, the court accepts the EOP's argument. Thus, the e-mail of the following individuals, whom the EOP states "have, or are at least are alleged to have, some information relevant to the FBI files matter" shall be searched only as to those search terms referring to this matter: Lisa Wetzl, Jonathan Denbo, Edward Hughes, Jane Dannenhauer, Nancy Gemmell, Jane Sherburne, Stephen Waudby, Christine Varney, John Libonati, Jeff Undercoffer, and Arnie Cole. EOP Resp. to Pls.' Supplement at 37.
The EOP does object to the court even considering the plaintiffs' latest proposal, arguing that only the July 1999 proposal should be considered. In the event that the court were to consider the expanded proposal, however, as it has, the EOP provides an alternative argument regarding this proposal, in which it does not object to these terms.
The court will address which search items pertain to the FBI files matter, as well as other relevant subject matters, later in this opinion.
The EOP also argues that the search of some of the individuals listed in the July 1999 proposal should similarly be limited to certain, relevant search terms. With the exception of Marsha Scott, however, the EOP makes no objection to the relevance of these individuals; nor do they make any showing that the burden of a search of their e-mails using all search terms would outweigh the benefit. Therefore, the EOP's argument is rejected as to these individuals. As to Marsha Scott, because her relevance was based only on her alleged participation in the possible misuse of FBI files, the search of her e-mail shall be limited to only those terms pertaining to "Filegate". The search of Maggie Williams' e-mail, to which the EOP also objected, should be similarly limited as her relevance was based only on her connection to Mr. Livingstone. As to Mr. Ickes and Mr. Stephanopoulos, however, the plaintiffs established that they had general, relevant information, and thus the search of their e-mail shall be for all search terms.
The EOP also states that three of these individuals — Charles Ruff, Bruce Lindsey and the President-have information only on the release of the Willey letters. Therefore, the search of these individuals e-mails shall be limited only to those search terms pertaining to Kathleen Willey. The search shall further be limited to only the period from January 1998 to the present.
Similarly, the e-mail of Sidney Blumenthal, whose relevance was based only on his discussions regarding the Willey letters and their release, need only be searched for terms regarding Kathleen Willey.
The Willey letters were released on March 17, 1998. E-mail should be searched beginning in January of 1998, as suggested by the EOP, in order to capture any relevant e-mails regarding the events leading up to this release.
Two individuals, Terry Good and Cheryl Mills, have information regarding both the FBI files matter and the release of the Willey letters. Accordingly, their e-mail will be searched for all terms relating to both of these subject matters.
Finally, the EOP states that two of the individuals — Michael McCurry and Joseph Lockhart — are alleged to have information regarding only the release of information from Linda Tripp's file. As such, the search of these individuals' e-mails should be limited to those terms that relate to the release of Tripp's information and should also be performed only on those e-mails from the relevant time period — January 1998 to the present.
In their surreply, the EOP belatedly objects to the relevance of these two individuals based on the court's recent denial of the plaintiffs' request for documents showing the EOP's filing system for the released Tripp information. See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 6-7 (D.D.C. May 17, 2000). Plaintiffs had argued that such information was relevant to establish whether there was a Privacy Act violation.See id. The court found, however, that since the information was released from the Department of Defense's ("DoD's") records, and not the EOP's, such information was irrelevant. See id. This finding is inapposite to the issue here, however, as the plaintiffs are still entitled to obtain discovery regarding whether the White House played a role in the DoD's decision to release that information.
Again, the release of Ms. Tripp's information took place in March of 1998, but the search shall begin in January in order to capture all e-mails pertaining to the events leading up to the release.
n. Sally Paxton, Kathleen Wallman, Miriam Nemetz, David Fein, Jonathan Yarowsky, Christopher Lehane, Mark Fabiani, Natalie Williams, and Rochester Johnson
In their motion to amend their supplement regarding the ARMS e-mail search, the plaintiffs seek to add these nine individuals to the list of those whose e-mail should be searched. These individuals were listed in the EOP's Supplemental Responses to the Third Set of Interrogatories as individuals that may have second, third, or fourth-hand knowledge about how Livingstone was hired at the White House, the efforts of the Counsel's Office to respond to investigative inquiries, or the White House use of Chris Emery's and Billy Dale's FBI files.
The EOP responds, however, that the burden of searching the e-mails of those individuals with such attenuated knowledge to any relevant issues far outweighs any likely benefit that would be obtained by adding these persons to the list. The court agrees with the EOP's argument. The court further notes, as discussed above, that to the extent that any of these persons sent or received e-mails to or from those persons already included in the search who are alleged to be directly involved in the matters at issue, those e-mails will already be captured by the more limited search. Thus, the plaintiffs' request to add these individuals is denied.
2. Additional Search Terms
The EOP does not object to several of the plaintiffs' additional search terms. These terms can be roughly divided into three subject areas, which this court has held to be relevant to the pending action: the acquisition and alleged misuse of the FBI files of former Reagan and Bush Administration employees ("Filegate"), the Department of Defense's release of information about Ms. Tripp, and the release of the Willey letters.
These search terms are included in the order proposed alternatively by the EOP in the event the court was to consider, as it has, the plaintiffs' expanded proposal.
As to the remainder of the terms, however, the EOP argues that they are general terms that are only relevant when used in conjunction with the other, more narrow terms upon which the parties agree. Thus, a search for these terms would be duplicative and cumulative to the extent that it would produce relevant e-mails, and irrelevant otherwise. As such, they argue, the burden of searching for these additional terms clearly outweighs any small benefit that might be obtained.
The court agrees with this argument. To the extent that the additional terms are only relevant in conjunction with other terms already included in the search, the plaintiffs' request will be denied. In order to demonstrate that the addition of these terms is reasonably calculated to lead to the discovery of admissible evidence, the plaintiffs must demonstrate that these terms have particular relevance to the pending action outside of the matters already addressed by other terms. With this is mind, the court will now turn its analysis to the three subject area that it has deemed relevant to the pending case, and the additional terms within each category to which the EOP objects.
a. Filegate — reinvestigation, DNC or Democratic National Committee, Marsha Scott, Aldrich, FLOTUS, Mrs. Clinton, Maggie, database, Emery, Clinger, and privacy
The parties have agreed on the following search terms regarding the "Filegate" matter: background report, summary report, FBI files, OPS, Dale, Marceca, update project, personnel security, Sculimbrene, James Baker, Marlin Fitzwater, BI, and Brasseux. The EOP objects to other requests regarding the FBI files as overbroad, duplicative, and unduly burdensome.
1. Those terms that have already been rejected in conjunction with the court's discussion of the July 1999 proposal — Marsha Scott, FLOTUS, Mrs. Clinton and Maggie
Regarding Ms. Scott, the court has already found Ms. Scott's documents to be discoverable and, thus, held that she be included in the list of those individuals whose e-mail will be searched. However, the court has also agreed with the EOP's argument that the names of those individuals whose e-mails are to be searched should not also be included in the list of search terms. As discussed above, the plaintiffs do not establish why Ms. Scott herself, outside of her relation to the particular subject matters already addressed by other search terms, is relevant to the pending action. Therefore, the plaintiffs' request to include Marsha Scott as a search term is denied.
Plaintiffs' request to include "FLOTUS" and "Mrs. Clinton" as search terms is also denied for the reasons given above in conjunction with the court's rejection of "HRC" and "Hillary" as search terms. Similarly, the plaintiffs' request to include "Maggie" as a search term is rejected based on the court's rejection of those requests using common first names standing alone as search terms.
2. "Aldrich," "Emery," and "reinvestigation."
The EOP argues that these terms are completely irrelevant to the pending action because the bear only on the obtaining of FBI files of then-current Clinton Administration employees, which this court has already held to be irrelevant and undiscoverable.Alexander v. FBI, 192 F.R.D. 50, 56 (D.D.C. 2000). "Aldrich" refers to former Special Agent Gary Aldrich, and "Emery" the former White House Usher Chris Emery, both of whom, as plaintiffs have acknowledged, had their FBI summary reports requested while they were still employed at the White House. Similarly, the term "re-investigations" is used to refer to periodic FBI re-investigations, which are conducted only on current White House employees.
The court agrees that these requests seek irrelevant information, and therefore, should be denied. The court further notes that regardless of this court's prior ruling that such matters were irrelevant, the only relevance these terms could arguably have to this case would be captured by using the other, already agreed-upon search terms. Thus, the court rejects the plaintiffs' request that these terms be included in the search.
3. "DNC or Democratic National Committee," "database," and "Clinger"
The court finds that the plaintiffs have failed to establish any particular relevance regarding these terms. As to "DNC or Democratic National Committee," the plaintiffs argue that their request is due to Tripp's testimony that she overheard Ms. Scott and Mr. Kennedy discussing uploading what she took to be FBI files into a computer database to be shared with the DNC. By their own explanation, however, this term is relevant only in relation to FBI files, which is already included as a search term.
Regarding the term "Clinger," the plaintiffs state that Representative William Clinger may be among those whose FBI files were improperly obtained. Additionally, they state that he led the Congressional investigation handling into the handling of Billy Dale's file and the ensuing "Filegate" scandal. Once again, however, as "Dale" and "FBI files"," as well as other related terms, are already included in the list of search terms, the plaintiffs fail to establish what additional, relevant material the term "Clinger" would produce. As to the term "database," plaintiffs make no attempt whatsoever to establish its relevance. Having failed to do so, their request to add "database" to the list of search terms is denied.
4. "Privacy"
Finally, in their supplemental briefing regarding non-ARMS e-mail, plaintiffs seek to add the term "privacy" to its previous list of search terms proposed for the ARMS search. The plaintiffs argue that this term is clearly relevant as this case is about the Privacy Act and the White House has maintained that the Privacy Act does not apply to it. The EOP objects to this request, however, as overbroad, arguing that this term, without limitation as to context, will generate messages having to do with such matters as the privacy of the First Family, or other irrelevant matters. The court agrees that the term "privacy," while relevant, is overbroad. Thus, this search term will be modified to "Privacy Act" and will be included in the search.
b. Release of Tripp information — "The New Yorker"
The EOP objects to using "The New Yorker" as a search term based on the fact that innumerable articles have appeared in this magazine, which although they may be of interest to White House personnel, and thus the subject of e-mails, are completely unrelated to the release of Ms. Tripp's information. As the EOP points out, the parties have agreed to the related terms "Tripp," "Jane Mayer," "arrest record," "Bacon," and "Bernath." Accordingly, any e-mails relevant to the release of Ms. Tripp's information should already be captured using these terms.
The court notes that, although Linda Tripp is also listed as an individual whose e-mail should be searched, the EOP does not object to the addition of her name as a search term as well.
The court agrees with the EOP's argument. The New Yorker is relevant only as it relates to Jane Mayer's article regarding Ms. Tripp's arrest record. As this subject matter is already covered by other, more properly-tailored search terms, the plaintiffs' request to search for all e-mails including the term "The New Yorker" is denied. As discussed above, the court further notes that any search performed as to these terms need only be performed for the period of January 1998 to present.
c. The release of the Willey letters
The only term proposed by the plaintiffs regarding this subject area is "Kathleen and/or Willey." The EOP argues that this terms should be modified to "Kathleen Willey," based on its argument that requests using first and last names standing alone as search terms are overly broad. As discussed above, the court agrees with the EOP's argument as to first names, but not as to last names standing alone. Thus, the EOP shall include the term "Willey" in its search. Once again, the court notes that any search as to this term need only be performed for the period of January 1998 to the present.
3. General search of all e-mails of Craig Livingstone, Anthony Marceca, Bernard Nussbaum, William Kennedy, and the First Lady.
In their expanded request, plaintiffs also request a general search of all e-mails to and from Livingstone, Marceca, Nussbaum, Kennedy, and the First Lady. The EOP objects to this request, arguing that, in light of the search already required to be performed of all e-mail to and from these individuals regarding all relevant subject matters, the burden of this search would outweigh any benefit that might be obtained. The court agrees with this analysis. Thus, the plaintiffs' request for a general search of e-mails is denied.
Conclusion
In summary, the parameters for the ARMS search have been narrowed down to the following 33 individuals and 20 search terms:
Individuals: Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Vincent Foster, Bill Kennedy, Marsha Scott, Betsy Pond, Deborah Gorham, Linda Tripp, Mari Anderson, George Stephanopoulos, Harold Ickes, Margaret Williams, Lisa Wetzl, Jonathan Denbo, Edward Hughes, Jane Dannenhauer, Nancy Gemmell, Jane Sherburne, Terry Good, Stephen Waudby, Christine Varney, John Libonati, Jeff Undercoffer, Arnie Cole, Cheryl Mills, Michael McCurry, Joseph Lockhart, President William Clinton, Sidney Blumenthal, Bruce Lindsey, and Charles Ruff.
Search Terms: background report, summary report, OPS, Dale, Marceca, update project, personnel security, FBI files, Sculimbrene, James Baker, Marlin Fitzwater, BI, Privacy Act, Tripp, Jane Mayer, arrest record, Bacon, Bernath, Willey, and Brasseux.
Regarding the search terms "background report", "summary report", "OPS", "Dale", "Marceca", "update project", "personnel security", "FBI files", "Sculimbrene", "James Baker", "Marlin Fitzwater", "BI", "Privacy Act" and "Brasseux", the following individuals' e-mails should be searched for the period of January 1993 to the present: Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Vincent Foster, Bill Kennedy, Marsha Scott, Betsy Pond, Deborah Gorham, Linda Tripp, Mari Anderson, George Stephanopoulos, Harold Ickes, Margaret Williams, Lisa Wetzl, Jonathan Denbo, Edward Hughes, Jane Dannenhauer, Nancy Gemmell, Jane Sherburne, Terry Good, Christine Varney, John Libonati, Jeff Undercoffer, Arnie Cole, Cheryl Mills, and Stephen Waudby.
Regarding the search terms "Tripp", "Jane Mayer", "arrest record", "Bacon", and "Bernath", the following individuals' e-mails should be searched for the period of January 1998 to the present: Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Bill Kennedy, Betsy Pond, Deborah Gorham, Linda Tripp, Mari Anderson, George Stephanopoulos, Harold Ickes, Michael McCurry, and Joseph Lockhart.
Vince Foster, to whom the EOP did not object, died in 1994. Accordingly, the EOP need not search his e-mail for those terms pertaining to the release of Ms. Tripp's information or the Kathleen Willey letters.
Regarding the search term "Willey," the following individuals' e-mails should be searched for the period of January 1998 to the present: Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Bill Kennedy, Betsy Pond, Deborah Gorham, Linda Tripp, Mari Anderson, George Stephanopoulos, Harold Ickes, Terry Good, Cheryl Mills, President William Clinton, Sidney Blumenthal, Bruce Lindsey, and Charles Ruff.
The EOP may limit the scope of these searches to the White House Office ("WHO") bucket. It may not apply the standard ARMS "exclusions" for transcripts of public documents. To the extent any of these documents are produced, however, they need not be reviewed for relevance. The EOP is not required to search accounts established for the receipt of "citizen" e-mails sent to the President and the First Lady, via the Internet, by members of the general public.
The court notes that this request adds only five individuals and one new search term to the EOP's alternative proposal, which the EOP estimates would take approximately 20 days to complete. The court also adds that it found the EOP's alternative proposal to be a very constructive approach to handling the discovery of e-mail, and it was very helpful to the court in its analysis.
For the reasons given above, the court will issue a separate order this date that the EOP conduct a search of all ARMS e-mail in accordance with the terms set out above. All relevant e-mails shall be produced to the plaintiffs within 20 days of this date.
The court notes that its order today generally adheres to the EOP's proposed search, which the EOP estimates would take 20 days to complete, with only a few changes. The court finds that these changes do not engender a need for additional time to complete the search as ordered. If the EOP finds that additional time is necessary, it may at that time move for an extension.
ORDER
This matter comes before the court on Plaintiffs' Supplemental Brief to their Motion to Compel the Production of Documents Regarding Second Request to the Executive Office of the President ("EOP,"). For the reasons given in the corresponding Memorandum Opinion issued this date, it is HEREBY ORDERED that
EOP shall conduct a search within ARMS for e-mail from the period of January 1993 to the present containing the following terms:
"background report", "summary report", "OPS", "Dale", "Marceca", "update project", "personnel security", "FBI files", "Sculimbrene", "James Baker", "Marlin Fitzwater", "BI", "Privacy Act" and "Brasseux",
for the following individuals' e-mail:
Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Vincent Foster, Bill Kennedy, Marsha Scott, Betsy Pond, Deborah Gorham, Linda Tripp, Mari Anderson, George Stephanopoulos, Harold Ickes, Margaret Williams, Lisa Wetzl, Jonathan Denbo, Edward Hughes, Jane Dannenhauer, Nancy Gemmell, Jane Sherburne, Terry Good, Christine Varney, John Libonati, Jeff Undercoffer, Arnie Cole, Cheryl Mills, and Stephen Waudby.
The EOP shall also conduct a search within ARMS for the period January 1998 to the present for e-mails containing the following terms:
"Tripp", "Jane Mayer", "arrest record", "Bacon", and "Bernath",
for the following individuals' e-mail:
Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Bill Kennedy, Betsy Pond, Deborah Gorham, Linda Tripp, Mari Anderson, George Stephanopoulos, Harold Ickes, Michael McCurry, and Joseph Lockhart.
The EOP shall also conduct a search within ARMS for the period January 1998 to the present for e-mails containing the search term "Willey"
for following individuals' e-mail:
Bernard Nussbaum, Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Bill Kennedy, Betsy Pond, Deborah Gorham, Linda Tripp, Mari Anderson, George Stephanopoulos, Harold Ickes, Terry Good, Cheryl Mills, President William Clinton, Sidney Blumenthal, Bruce Lindsey, and Charles Ruff.
The EOP may limit the scope of these searches to the White House Office ("WHO") bucket.
In conducting the search, the EOP may not apply the standard ARMS "exclusions" for transcripts of public documents. To the extent any of these documents are produced, however, they need not be reviewed for relevance.
The EOP is not required to search accounts established for the receipt of "citizen" e-mails sent to the President and the First Lady, via the Internet, by members of the general public.
The EOP shall produce all relevant e-mails to the plaintiffs within 20 days of this date.
SO ORDERED
MEMORANDUM AND ORDER
This matter comes before the court on Plaintiffs' Motion [944] to Compel Production of Documents Regarding Second Request to the Executive Office of the President and for Further Relief the Court Deems Just and Proper. Upon consideration of this motion, and the opposition and reply thereto, the court will GRANT IN PART, DENY IN PART, AND DEFER IN PART plaintiffs' motion, as discussed and ordered below.
I. Background
The underlying allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that their privacy interests were violated when the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees from the Reagan and Bush Administrations.
This particular dispute revolves around requests for the production of documents served on the Executive Office of the President ("EOP") on October 27, 1998. The EOP served its responses and produced documents on January 14, 1999. These responses, however, included several objections to the requests as irrelevant, unduly burdensome, or beyond the scope of this court's orders. Plaintiffs initially filed their motion to compel documents regarding their second request for documents on March 26, 1999. Plaintiffs then withdrew that motion, and the parties engaged in negotiations regarding the plaintiffs' motion. The EOP provided plaintiffs with supplemental information and documentation on April 22, and April 29, 1999.
On June 14, 1999, plaintiffs filed a revised motion to compel documents. After this motion was filed, the parties engaged in further discussions and several more of the plaintiffs' arguments were rendered moot. Plaintiffs, however, still seek to compel documents relating to several of their requests. These remaining requests include requests for documents relating to Linda Tripp and Kathleen Willey, a list of those individuals whose FBI files were requested by the White House during Craig Livingstone's tenure there, certain e-mails and hard drives of relevant individuals, documents relating to Mrs. Clinton's and EOP computers and the information contained therein, certain documents regarding "Travelgate" and "Filegate", documents relating to a 1975 Memorandum to Counsel for the President on FOIA, and telephone logs and related billing records for nine individuals. In light of recent developments regarding the records management of White House e-mails, the plaintiffs' requests for e-mails and hard drives will be addressed later in a separate opinion. The remaining requests, however, are addressed below.
Analysis
Documents regarding Kathleen Willey and Linda Tripp (Request Nos. 1-3, 79)
Documents related to requests for and uses of Willey's and Tripp's FBI information, including such information received or given to James Carville or the EIP (Request Nos. 1-2, 79).
In their first and second requests, plaintiffs seek all documents related to any requests for or use of information in FBI files or government records pertaining to Kathleen Willey and Linda Tripp. Plaintiffs further seek all documents referring or related to Willey and Tripp obtained from or provided to James Carville or the Education and Information Project, Inc. ("EIP"). "Parties may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action." Fed.R.Civ.P. 26(b). As the EOP points out, this court has already ruled on the relevance of issues concerning Willey and Tripp to this case.
With regards to Kathleen Willey, the court has allowed discovery into the letters sent from her to President Clinton, which were publicly released by the White House after Willey's appearance on "60 Minutes". See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 3 (D.D.C. Dec. 7, 1998). This court found such discovery to be relevant to the pending case because if, as this court has since found, those letters were "maintained in a way that implicated the Privacy Act, then [their] misuse could prove to be circumstantial evidence of file misuse aimed at the plaintiffs in the case at bar." Id.; see also Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 17 (D.D.C. March 29, 2000) (finding that the Willey letters were maintained in a way that implicated the Privacy Act). Regarding Linda Tripp, this court has held that documents relating to the Department of Defense's release of information from Ms. Tripp's security clearance form, or other alleged misuse of Ms. Tripp's government files, are relevant to the case at bar. See Alexander v. FBI, Civ. No. 96-2123, Order at 6-7 (D.D.C. April 12, 1998);Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 3 (D.D.C. December 7, 1998).
The EOP states in its opposition that, consistent with the court's prior ruling, it searched and produced all documents relating to "the maintenance and release" and "requests from the White House Counsel's Office" of those "documents concerning Ms. Willey that have been publicly released." Opposition by Defendant EOP to Plaintiffs' Motion to Compel Documents Regarding Second Request to EOP at 5,8. The EOP further states that it has searched for and provided documents relating to the Department of Defense's release of Tripp's security clearance form, and any other alleged misuse, as set out by this court. See id. at 7. In response to Request 79, the EOP states that it searched for and produced all documents obtained from or provided to James Carville or the Education and Information Project "relating to the maintenance and release of documents concerning Ms. Willey that have been publicly released, and documents relating to [the Department of Defense's] release of information from Ms. Tripp's security clearance form." Id. at 9. Therefore, the EOP has already provided all relevant material responsive to the plaintiffs' request.
Plaintiffs are not entitled to documents concerning proper requests and uses of Willey's and Tripp's FBI information, as this information clearly has no relevance to the pending action. Plaintiffs' request is also denied to the extent that it seeks information relating to any misuse of Willey's and Tripp's FBI information other than those particular instances already addressed. As this court has previously stated, it will not "allow plaintiffs to discover information on all of the White House's alleged adversaries without any proper factual grounds to support such discovery." Alexander v FBI, Civil No. 96-2123, Memorandum and Opinion at 11 (D.D.C. December 7, 1998) (denying discovery into matters concerning Monica Lewinsky). This court has allowed discovery into matters concerning Willey and Tripp due to the fact that the plaintiffs presented the court with "discrete factual bas[es]" to support their theory of file misuse, and "the type of misuse paralleled the allegations of plaintiffs in the case at bar." Id.
The plaintiffs have presented no evidence of any misuse of Willey's and Tripp's FBI information other than the release of Willey's letters and Tripp's security clearance form. As the EOP has already produced all documents concerning these instances of misuse, the plaintiffs' requests for any other documents pertaining to Willey's and Tripp's FBI information are denied.
Documents showing the EOP's filing system for documents relating to Linda Tripp (Request No. 3).
In their third request, plaintiffs seek all documents sufficient to show the filing system in the EOP for documents relating to Linda Tripp. The EOP also objected to this request, arguing that the information the plaintiffs seek is irrelevant. The party seeking to compel information bears the burden of first demonstrating its relevance. See Alexander v. FBI, Civil No. 96-2123, Memorandum and Order at 3 (D.D.C. March 6, 2000); Alexander v FBI, 186 F.R.D. 185, 187 (D.D.C. 1999);Alexander v. FBI, 186 F.R.D. 21, 45 (D.D.C. 1998). The plaintiffs correctly state that information regarding the filing system from which records that were publicly released were obtained is relevant because the Privacy Act protects records depending on how they were stored. The EOP responds, however, that with regards to publicly released Tripp records, information regarding their filing system is irrelevant because "it was the Department of Defense that released the information concerning Ms. Tripp." EOP Opposition at 9.
The plaintiffs also requested this information as to Monica Lewinsky and Kathleen Willey. The plaintiffs withdrew their request as to Monica Lewinsky, however, and the EOP has provided all documents pertaining to the filing system for the Willey documents. Therefore, the only issue that remains concerns the documents relating to Tripp.
Plaintiffs allege that they have evidence of a "direct link" between the White House and the release of this information. This evidence, however, consists only of the fact that, shortly before Tripp's information was published in an article in The New Yorker, Jane Mayer, the author of that article called a deputy of then-current White House Press Secretary Mike McCurry, at which time the deputy referred her to the Department of Defense. The court finds that such evidence is insufficient to establish the relevance of the EOP's filing system in this case. The evidence before this court indicates only that the Department of Defense released Tripp's security form from their files. Plaintiffs' additional evidence of a brief contact between Jane Mayer and a deputy at the White House fails to establish that the EOP also participated in the release of Tripp's form, or any other FBI information, in violation of the Privacy Act. Therefore, the plaintiffs' request is denied.
Plaintiffs' request for a list of persons whose FBI reports were requested by the White House during Craig Livingstone's tenure (Request No. 5).
In their fifth request, plaintiffs seek to acquire a list of persons whose FBI reports were requested by the White House during Craig Livingstone's tenure. The EOP responded that it does not have any such list, and therefore, it has produced no documents. Rule 34 of the Federal Rules of Civil Procedure governs discovery requests for the production of documents and things. It allows a party to serve on another party a request to produce any designated documents that "are in the possession, custody or control of the party upon whom the request is served." Fed.R.Civ.P. 34(a). Therefore, Rule 34 only requires a party to produce documents that are already in existence. See Rockwell Int'l Corp. v. H. Wolfe Iron and Metal Co., 576 F. Supp. 511, 511 (W.D.Pa. 1983); see also 8A Charles Alan Wright et al., Federal Practice and Procedure § 2210 (2d ed. 1994) ("[A] party can not be required to permit inspection of documents or things that it does not have and does not control.") A party is not required "to prepare, or cause to be prepared," new documents solely for their production.See Rockwell, 576 F. Supp. at 511. Therefore, as there is no evidence that the EOP does in fact possess any list of individuals whose background summaries or FBI reports were requested by the White House from the FBI, the plaintiffs' request to compel such a list is denied.
All documents relating to any desktop or laptop computer and any floppy disks used by or assigned to Mrs. Clinton, which contain information relating to Travelgate, Filegate, the White House Office Database computer system, or the obtaining or use of FBI files or government records (Request 21-22).
As evidence that the EOP does have the desired list, the plaintiffs cite the EOP's statement at a status conference that "there were approximately 10,000 background summary reports of Clinton White House employees [and political employees] in the Clinton White House." Plaintiffs' Reply at 14. The fact that the EOP had such information, however, has no bearing on the issue at hand — whether the EOP also compiled a list of which particular summary reports were requested by the White House over a specific period of time.
This court further notes that the plaintiffs would not be entitled to receive a list of any persons whose files were requested at a time when they were employed by the Clinton Administration, as such information is irrelevant to the pending action. See Alexander v. FBI, Civil No. 96-2123, Memorandum and Opinion at 14 (D.D.C. March 29, 2000) (denying discovery into matters regarding the files of then-current Clinton Administration employees based on the fact that such information is irrelevant to the pending action); Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 8 (D.D.C. May 17, 1999) (same); Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 8 (D.D.C. Apr. 16, 1999) (same).
Plaintiffs also seek to compel the information contained in all laptop and desktop computers and removable storage devices used or assigned to Mrs. Clinton relating to Travelgate, Filegate, the WhoDB computer system, or the obtaining or use of FBI files or government records. The EOP responded that, according to its records, no laptop or desktop computers have ever been assigned to Mrs. Clinton. See EOP Opposition at 11. The EOP further stated that it has inquired, but is unaware of Mrs. Clinton using White House computers for any purpose relating to the plaintiffs' request. See id. Therefore, the EOP states, it has nothing to produce.
Plaintiffs argue that the EOP's response is "suspicious," given Thomas McLarty's testimony that he thinks (but is not certain) that he has seen Mrs. Clinton typing on a laptop. Plaintiffs' Motion to Compel at 22. As the EOP correctly notes, however, such suspicion is insufficient to support their motion to compel. Plaintiffs must demonstrate that the documents they seek to compel do, in fact, exist and are being unlawfully withheld.See Ayala v. Tapia, 1991 WL 241873 at *2 (D.D.C. Nov. 1, 1991) (denying motion to compel because that party seeking production could not identify any specific information that was being withheld). Thus, having failed to demonstrate that any documents have been withheld, the plaintiffs' request is denied.
Documents pertaining to EOP Computers and Computer Service Records (Request Nos. 37-41, and 43-44).
Plaintiffs initially requested several documents relating to the computers and hard drives of several different White House employees. The White House objected to the plaintiffs' request as irrelevant and overbroad, arguing that many of these employees were unconnected to this litigation. In their motion to compel, the plaintiffs eliminated their request as to all those employees objected to, with the exception of Marsha Scott. Plaintiffs argue that Scott, a long-time aide to the President, is relevant to the pending case. In support of their claim, plaintiffs point to Tripp's testimony at her deposition that she saw Bill Kennedy talking with Scott about entering data from what appeared to be FBI files into a White House database that could be shared with the Democratic National Committee. See Tripp Deposition at 141-148; 163-167. Based on this evidence, the court finds that information regarding Marsha Scott's computer is relevant to the pending action as it may bear on the possible misuse of the plaintiffs' files. The court will now address the relevance of the particular documents requested by the plaintiffs.
Marsha Scott's computer service records (Request Nos. 37, 40-41, and 43).
Plaintiffs first request several computer service records pertaining to Marsha Scott, including all documents related to the archiving, wiping and/or restoration of Scott's computers and hard disk drives, and all of her OA62, OA65 and CSAR forms. The EOP objected to these requests as irrelevant.
Notwithstanding their objections that the information sought was irrelevant, the EOP did produce requests for the archiving of hard disk drives and CSAR forms OA62 and OA65 for several individuals.
Form OA65, as described by former White House Branch Chief of Customer Service Computer Support Laura Crabtree at her deposition, is a handwritten form by which users request service for their computer. Plaintiffs argue that they are entitled to any OA65 forms and all other documents requests for the archiving, wiping or restoration of Scott's computers and hard drives to establish whether her hard drive had been erased or archived and to determine the current location of any computers or hard drives used by her in the past.
The court notes that the prior testimony of Ms. Crabtree, as well as affidavits filed by Daniel Barry, have been called into question by recent revelations regarding the White House's prior searches of e-mails, and are the subject of a pending motion filed by the plaintiffs for an evidentiary hearing. However, as the court is granting the plaintiffs' requests for these forms described by Ms. Crabtree in her deposition, the plaintiffs suffer no detriment by the court's reliance on this particular testimony for this limited purpose.
Plaintiffs also request all documents "relating" to the requests for archiving and CSAR forms. The plaintiffs explain in their motion that this request seeks documents to or from Scott regarding whether or not she should archive or erase her hard drive. They argue that such information is relevant, given the evidence that information from the plaintiffs' files could have been entered on Scott's hard drive and misused.
The plaintiffs also explain the relevance of their request for Scott's OA62 forms. Crabtree testified that the OA62 form is the standard employee agreement regarding computer security, signed by EOP employees, which describes the policy regarding unauthorized disclosure or use of information and establishes a user ID for access to the computer network. Plaintiffs argue that they are entitled to any OA62 forms pertaining to Scott so that they can show that she was obligated to handle information properly, not only by applicable law and regulations, but also by signed agreement. Plaintiffs further argue that the document would show any user ID assigned to Scott, which would be helpful to determine if she accessed data as described by Tripp.
In light of the court's finding above with respect to Scott's relevance to this case, the court finds that the plaintiffs have met their burden of establishing the relevance of the information sought. The court finds that the plaintiffs' request is "reasonably calculated to lead to the discovery of admissible evidence." Fed R. Civ. P. 26(b)(1). Accordingly, the court will order the EOP to produce Marsha Scott's computer service records, as well as all other documents pertaining to the archiving, erasing, and servicing of her computer and hard drives.
Documents from the "archival database" relating to Marsha Scott (Request 38).
Plaintiffs next request all documents from the "archival database" relating to Marsha Scott. The EOP has produced all such documents pertaining to several other individuals. The EOP argues, however, that this information is irrelevant because it only shows that data from a particular individual was archived; it does not show what information was archived. The court disagrees with the EOP's argument. Given the possibly relevant material on Scott's computer, the plaintiffs are entitled to know if any of that material has been archived, as such information may lead to the discovery of admissible evidence. Therefore, the EOP must produce all documents from the "archival database" pertaining to Marsha Scott.
Documents relating to the reassignment or return to excess inventory pool of computers or hard disk drives for several individuals(Request No. 39).
The plaintiffs next request all documents relating to the reassignment or return to excess inventory pool of computers or hard disk drives for several individuals, and for Marsha Scott in particular. In its opposition, the EOP stated that the only documents that the EOP maintains are the CSAR forms it already produced and forms known as reports of excess personal property. The EOP objected to undertaking a search for excess property reports as unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. In support of its argument, the EOP attaches a copy of an excess property report, and notes that, although the report reflects that equipment came generally from offices such as the Office of Administration, or the White House, it does not identify the equipment by individual or even by more specific offices such as OPS or the White House Counsel's Office. Therefore, the EOP argues, the reports have no probative value.
The plaintiffs respond by pointing out that the reports at issue do include the serial numbers of the computers. They argue that the reports are relevant because they could be combined with other documents showing the serial numbers of computers assigned to individuals. Once combined, these reports would establish whether certain individuals ever had their computers returned to the excess property inventory pool, and, thus, had their hard drives eliminated in the process. Plaintiffs, however, fail to request any documents indicating the serial numbers of the computers assigned to the individuals at issue; nor do they establish that they already have this information. Furthermore, it is not self-evident, and the plaintiffs do not explain, how information that an individual's old computer has been put in excess inventory, and therefore the hard drive eliminated, is likely to lead to the discovery of admissible evidence. Therefore, the plaintiffs' request is denied.
Documents in the inventory tracking database (Request No. 44).
Finally, plaintiffs request all documents in the inventory tracking database with regards to Marsha Scott in order to show the computer currently assigned to Scott. The EOP objects to this request as irrelevant. The plaintiffs, however, argue that they have established the relevance of information regarding Marsha Scott's computer to this case, and that, at least presumably, the computer most recently assigned to Scott may have been the one used by her when Tripp first testified publicly about Scott. The court finds that the plaintiffs' request is reasonably calculated to lead to the discovery of admissible evidence. Therefore, the EOP must produce all documents in the inventory tracking database regarding Marsha Scott.
The EOP states in its opposition that this database reflects only the most recent assignment of computers and related equipment.
Documents relating to Filegate and Travelgate (Requests 59 and 78).
A. All documents given to ORM by Harold Ickes that relate to Filegate or Travelgate (Request 59).
Plaintiffs request all documents pertaining to Filegate and Travelgate contained within approximately 60 boxes of documents sent to the ORM by Harold Ickes, the Deputy Chief of Staff during the 1993-94 primary Filegate period. The EOP objects to the plaintiffs' blanket request for all "Travelgate" documents as overbroad, unduly burdensome, and irrelevant. The court agrees with the EOP's argument. This court has previously ruled that matters regarding Travelgate, with the exception of the possible misuse of the government file of Billy Dale, a former Travel Office employee, are not relevant to the instant case. See Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 5 (D.D.C. Dec. 7, 1998); Alexander v. FBI, Civ. No. 96-2123, Memorandum and Order at 5 (D.D.C. March 6, 2000) (Re: Thomas McLarty). Therefore, plaintiffs are entitled only to any documents that may relate to the misuse of Billy Dale's file. They are not entitled to any other documents pertaining to Travelgate.
As to the plaintiffs' request for documents regarding Filegate, the EOP states that it has already searched Mr. Ickes' boxes and produced all relevant documents in its response to the plaintiffs' first request for the production of documents. Plaintiffs, however, take issue with this search because, as the EOP admits, the Ickes boxes were not searched individually, but rather, only the indices of the boxes were searched. In response, the EOP cites a prior opinion of the court in this case, in which the EOP claims the court upheld the scope of their search as proper. See Alexander v. FBI, 188 F.R.D. 111, 115 (D.D.C. 1998). The court's ruling, however, was only that the plaintiffs were not entitled to pursue discovery into the scope of that search as they had not set forth any information suggesting that the search was deficient in any way. See id. This court did not rule on the sufficiency of the search itself, but rather only on the sufficiency of the plaintiffs' evidence regarding the search. See id. In the instant dispute, the plaintiffs have presented the court with specific evidence regarding the EOP's search.
The EOP argues that the plaintiffs' demand that every document contained in each of the Ickes boxes be searched is unreasonable. In order to support its objection, however, the EOP must make a specific, detailed showing of the burden such a search would require. See Alexander v. FBI, Civil No. 96-2123, Memorandum and Order at 6 (D.D.C. March 29, 2000); see also Chubb Integrated Systems Ltd. v. Nat'l Bank of Washington, 103 F.R.D. 52, 60-61 (D.D.C. 1984) ("An objection must show specifically how an interrogatory is overly broad, burdensome or oppressive, by submitting affidavits or offering evidence which reveals the nature of the burden.")
The EOP makes no such showing in this instance. Instead, to support its claim that its search was reasonable, the EOP relies on a FOIA case, Manna v. United States Dep't of Justice, 832 F. Supp. 866, 875 (D.N.J. 1993), in which the court stated that district courts have sanctioned the use of general indices as a reasonable search technique. This court has already stated, however, that "it does not agree with the analogy drawn by the EOP to discovery in FOIA cases, [because] discovery in a FOIA action is extremely limited, especially when compared to discovery conducted in a traditional civil action." Alexander, 188 F.R.D. at 116, n. 2 (citation omitted). Accordingly, the EOP's argument is rejected, and the court will require the EOP to conduct a search of all individual documents contained in the Ickes boxes and to produce any relevant documents, as defined in this order, that were not previously produced.
B. Documents Relating to George Stephanopoulos Regarding Travelgate, Filegate, or the Obtaining or Use of FBI files (Request 78).
As discussed above, plaintiffs' request for documents regarding Travelgate, with the exception of any documents relating to the misuse of Billy Dale's FBI file, are irrelevant, and, therefore, denied. As to those documents concerning Filegate, the EOP has stated that it has searched for and produced all such documents. As the plaintiffs have not presented the court with any evidence that the search, as related to these documents, was insufficient or that there exists any responsive documents other than those already produced, the plaintiffs' request to compel further documents regarding Filegate is also denied. Thus, if the EOP has any documents relating to Stephanopoulos regarding the misuse of Billy Dale's file, it must produce them. Plaintiffs' request is denied, however, as to all other documents.
7. All documents related to a February 1975 Memorandum to Counsel for the President regarding FOIA (Request 77).
Plaintiffs request all documents relating to a February 28, 1975 Memorandum to Philip Buchen, Counsel to the President, on the applicability of FOIA to the EOP ("Buchen memo"). This memorandum was cited in a 1975 opinion letter from then-Assistant Attorney General Antonin Scalia regarding the Privacy Act, which the EOP submitted as Exhibit 2 to their Motion for Judgment on the Pleadings in this case. The EOP has produced the requested memorandum to the plaintiffs. They object, however, to the plaintiffs' request for all related documents, which the plaintiffs explain includes all memoranda generated "in response to the primary document," as vague and overbroad. Plaintiffs' Motion at 50.
The court notes that the Buchen memo is clearly relevant, given that it is cited in an opinion letter filed and relied on by the EOP in support of one of their main arguments in this case — that the Privacy Act does not apply to the EOP. In fact, the EOP does not contest the relevance of the Buchen memo itself. Rather, it argues that the plaintiffs have not established the relevance of those documents "related to" it.
Given the obvious relevance of the Buchen memo, however, it is clear to this court that documents interpreting and discussing it are also relevant to the pending action. It is reasonable to assume that lawyers discussing the applicability of the Privacy Act to the EOP would analogize to and discuss FOIA's applicability, which the Buchen memo clearly addresses. In fact, this is what then-Assistant Attorney General Antonin Scalia did in the opinion letter submitted by the EOP as an exhibit to their Motion for Judgement on the Pleadings. Given that the Privacy Act and its applicability to the EOP is a major issue in this case, the court finds that the plaintiffs' request for documents discussing the Buchen memo is "reasonably calculated to lead to the discovery of admissible evidence." Fed R. Civ P. 26(b)(1).
Indeed, the EOP's primary objection to the plaintiffs' request for "related" documents seems to be to the plaintiffs' definition of what constitutes "related" documents. The plaintiffs include in their definition all documents that "refer" to the memorandum in any way and those that "were created in response to it." The court agrees that such a definition is vague and overbroad, as it would include documents that do not in any way discuss the memorandum or its subject matter. Therefore, the EOP need only produce all documents which in some way discuss, interpret or analyze the Buchen memo regarding FIOA's applicability.
Telephone logs and related billing records for nine individuals (Request No. 89).
Finally, the plaintiffs request the telephone logs and billing records for telephones used by or assigned to nine individuals — Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Bernard Nussbaum, William Kennedy, Deborah Gorham, Betsy Pond, Maggie Williams, and Marsha Scott.
Telephone Logs
The EOP objects to the plaintiffs' request for certain individuals' telephone logs as irrelevant, unduly burdensome, and overbroad, on the grounds that it is not limited by any subject matter. Plaintiffs respond, however, that they are seeking telephone records to determine who these key individuals contacted and worked with so they can discover all the facts. Because the phone records will give this information, but will not necessarily show any other information such as the subject of the phone call, their request cannot be limited to a particular subject matter. The court agrees with the plaintiffs' argument and finds that such information, by providing a list of persons certain key individuals contacted, is relevant to the pending action.
The EOP's primary objection to this request, in fact, appears to be that it is overly burdensome. As discussed above, however, in order to support its objection, the EOP must make a specific, detailed showing of the burden such a search would require. To this end, the EOP provided the declaration of Michelle Peterson, Associate Counsel to the President in the Office of the White House Counsel. In this declaration, Ms. Peterson states that, in order to respond to the plaintiffs' request, the EOP would have to search through 52 boxes of telephone logs — 37 boxes from the White House Counsel's office and 15 boxes from the First Lady's Office. See Declaration of Michelle Peterson at 2 (July 2, 1999). Ms. Peterson further stated that all of these boxes "would have to be retrieved and at least cursorily reviewed to ascertain whether they might contain any messages for the time period in which [the individuals] worked in the White House. . . ." Id. Then, if the box did contain messages from that time period, the EOP would then have to conduct a page-by-page review of the messages in that box to determine if any of the messages were for the requested individuals. Id.
This includes 2 boxes marked "First Lady's Office — Maggie Williams."
Ms. Peterson and the EOP, however, fail to establish, by way of estimated required staff hours, estimated cost, or some other specific showing, just how this search would be overly burdensome. It may be that the EOP's cursory search of these boxes demonstrates that there are in fact only a few boxes from the relevant time period that would, therefore, need a more detailed search. Thus, the court finds that the EOP has not sufficiently established that the plaintiffs' request is overly burdensome, and the EOP must produce the requested telephone logs.
Billing Records
The EOP also argues that plaintiffs' request for the nine individuals' billing records is irrelevant and overbroad as the billing records do not contain "call detail" — i.e., the numbers to and from which the call was placed. The EOP again relies on the Peterson Declaration to support its argument.
Ms. Peterson states in her declaration that the only billing records that provide the originating and the destination phone numbers are those pertaining to cellular phones. All other White House billing records, she attests, do not give the originating phone number. Peterson Declaration at 3. Based on this information, the court finds that, as there would be no way of ascertaining from these billing records which calls were made by the requested individuals and, thus, which contacts were made by them, the plaintiffs' request for such records is not "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Accordingly, the plaintiffs' request for billing records, other than those pertaining to cellular phones, is denied.
Peterson explains that, with the exception of the cellular telephone billing records discussed above, there is no call detail for local telephone calls. See Peterson Declaration at 3. For domestic long distance calls, the vast majority are placed via an FTS number, for which there is also no call detail, and those few that are not, while reflecting the full destination number, reflect as the originating number just one of several trunk lines of origin. See id.; Second Declaration of Michelle Peterson at 1-2 (April 11, 2000) International calls, while also reflecting the destination number, similarly do not reflect the originating number. See Peterson Declaration at 3.
Regarding the cellular phone records, which contain specific call detail, Ms. Peterson stated that, of the requested individuals, only Mr. Kennedy and Ms. Williams were assigned EOP cellular phones. The EOP still objects to producing these billing records, however, arguing that the plaintiffs are not entitled to a record of these individuals' calls on all topics and from any callers.
As noted above, however, these records are merely lists of the contacts made by these individuals, which the court finds to be relevant to the pending action; they do not provide any information regarding the subject matter of the call. Therefore, the plaintiffs are unable to limit their request by subject matter. As these particular records do provide telephone numbers identifying the persons contacted by the requested individuals, the court finds that the plaintiffs' request as to these records is "reasonably calculated to lead to the discovery of admissible evidence." FED.R.CIV.P. 26(b)(1). Thus, the EOP shall produce the billing records pertaining to Kennedy's and Williams' cellular phones. It need not produce, however, any other billing records.
The court notes that the EOP did not assert any privilege in response to the plaintiffs' request. Rather, they objected only on the grounds that the request was "irrelevant, unduly burdensome, and overbroad." EOP Responses at 52. Thus, any possible privilege claim based on William Kennedy's position as former Associate White House Counsel is waived.
III. Conclusion
For the reasons stated above, the court HEREBY ORDERS that Plaintiffs' Motion [944] to Compel Production of Documents Regarding Second Request to the EOP and for Further Relief the Court Deems Just and Proper is GRANTED IN PART, DENIED IN PART and DEFERRED IN PART. The EOP shall, within 20 days of this date, provide documents to the plaintiffs as discussed in this opinion. The court will defer on plaintiffs' requests numbers 19-20 and 28, regarding hard drives and e-mails, and will issue a separate opinion regarding those requests at a later date.
SO ORDERED.