Court Orders White House to Provide Additional Information About Backup Media Being Preserved

Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 8, 2008)

This case involves a claim by the National Security Archive (“the Archive”) and Citizens for Responsibility & Ethics in Washington that several million email messages were improperly deleted from White House computer servers.  Plaintiffs have requested that the court compel expedited discovery and a Rule 26(f) conference, and defendants have moved to dismiss the case.  On Tuesday, January 8, 2008, Magistrate Judge John M. Facciola ordered the White House to provide additional information about the backup media it is preserving in the litigation pursuant to an earlier court order.  The court explained the relevance of the information to its decision on plaintiffs’ pending discovery motion:

To the extent that the missing emails are contained on the back-ups preserved pursuant to Judge Kennedy’s order, there is simply no convincing reason to expedite discovery – particularly where, as here, there is a pending motion to dismiss.  If the missing emails are not on those back-ups, however, the relief likely to be requested by the Archive will be beyond the scope of the present Motion – and, indeed, beyond the scope of this referral.  The request for that relief will also be time-sensitive:  emails that might now be retrievable from email account folders or “slack space” on individual workstations are increasingly likely to be deleted or overwritten with the passage of time.

(Footnote omitted.)  Thus, the court ordered the White House to provide answers “within the next five business days” to the following questions:

1.   Are the back-ups catalogued, labeled or otherwise identified to indicate the period of time they cover?
2.   Are the back-ups catalogued, labeled or otherwise identified to indicate the data contained therein?
3.   Do the back-ups contain emails written and received between 2003-2005?
4.   Do the back-ups contain the emails said to be missing that are the subject of this lawsuit?

The court indicated that, once it has the requested information, it will rule on plaintiffs’ motion for expedited discovery.

A copy of the order is available here.

For more background on the dispute, see our November 12, 2007 post.

An article by the Associated Press on this most recent order, and the underlying dispute, is available here.