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An Invitation to a Deposition: DC Court Judge Approves Extraordinary Procedure in FOIA Case

Posted: 10:18 am PT

 

On May 4, U.S. District Court Judge Emmet G. Sullivan granted Judicial Watch to take testimony of former and current State Department employees in relation to an FOIA lawsuit related to the clintonemail. The Court notes that “discovery is rare in FOIA cases. Thomas v. FDA, 587 F. Supp. 2d 114, 115 (D.D.C. 2008) (Huvelle, J.) (noting that discovery is an extraordinary procedure in a FOIA action”). Discovery should be permitted, however, when a plaintiff raises a sufficient question as to the agency’s good faith in processing documents in response to a FOIA request.”

The Court writes:

[T]he circumstances surrounding approval of Mrs. Clinton’s use of clintonemail.com for official government business, as well as the manner in which it was operated, are issues that need to be explored in discovery to enable the Court to resolve, as a matter of law, the adequacy of the State Department’s search of relevant records in response to Judicial W atch’s FOIA request.
[…]
Having considered Plaintiff’s proposed plan, State’s response, Plaintiff’s reply, and the parties’ jointly proposed order, and recognizing that Defendant has not waived its objection to discovery, it is hereby ordered that:

The scope of permissible discovery shall be as follows: the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action. Plaintiff is not entitled to discovery on matters unrelated to whether State conducted an adequate search in response to Plaintiff’s FOIA request, including without limitation: the substantive information sought by Plaintiff in its FOIA request in this case, which involves the employment status of a single employee; the storage, handling, transmission, or protection of classified information, including cybersecurity issues; and any pending FBI or law enforcement investigations.

The court authorized Judicial Watch to seek the testimony of the following witnesses per court filing:

Stephen D. Mull Executive Secretary of the State Department from June 2009 to October 2012 and suggested that Mrs. Clinton be issued a State Department BlackBerry, which would protect her identity and would also be subject to FOIA requests. (Note that Ambassador Mull is a former U.S. Ambassador to Poland and the current Lead Coordinator for Iran Nuclear Implementation at the State Department).

Lewis A. Lukens Executive Director of the Executive Secretariat from 2008 to 2011 and emailed with Patrick Kennedy and Cheryl Mills about setting up a computer for Mrs. Clinton to check her clintonemail.com email account. (Note that Ambassador Lukens is a former U.S. Ambassador to Senegal and Guinea-Bissau and currently Diplomat in Residence responsible for recruitment and outreach for the State Department in Montana, Alaska, Washington, Oregon, and northern California).

Patrick F. Kennedy Under Secretary for Management since 2007 and the Secretary of State’s principal advisor on management issues, including technology and information services. (Note that Ambassador Kennedy is now the longest serving Under Secretary of State for Management in the history of the State Department.  Besides Ronald Ian Spiers who served as “M” from 1983–1989, Kennedy would be the only other  Foreign Service Officer appointed to this position).

430(b)(6) deposition(s) of Defendant regarding the processing of FOIA requests, including Plaintiff’s FOIA request, for emails of Mrs. Clinton and Ms. Abedin both during Mrs. Clinton’s tenure as Secretary of State and after;

Cheryl D. Mills Mrs. Clinton’s Chief of Staff throughout her four years as Secretary of State

Huma Abedin Mrs. Clinton’s Deputy Chief of Staff and a senior advisor to Mrs. Clinton throughout her four years as Secretary of State and also had an email account on clintonemail.com

Bryan Pagliano State Department Schedule C employee who has been reported to have serviced and maintained the server that hosted the “clintonemail.com” system during Mrs. Clinton’s tenure as Secretary of State);

 

The court filing says that Judicial Watch reserves the right to seek the Court’s permission to take the deposition of Donald R. Reid at a later time, and State reserves the right to object. Reid is Senior Coordinator for Security infrastructure, Bureau of Diplomatic Security since 2003 and was involved in early discussions about Mrs. Clinton using her BlackBerry and other devices to conduct official State Department business. (Note that Mr. Reid’s Information Security responsibilities include the management of classified information programs, oversight of the Department’s Special Security Office, the operation of the Industrial Security program, and the investigation/resolution of security violations). 

Judicial Watch is granted 8 weeks to conduct its discovery plus a possible July surprise:  “Based on information learned during discovery, the deposition of Mrs. Clinton may be necessary. If Plaintiff believes Mrs. Clinton’s testimony is required, it will request permission from the Court at the appropriate time.”

Read the court ruling below; use the side scroll or maximize arrow at the lower right handside of the Cloudup box below. You may also read it here.

 

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