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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiffs,
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v.
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Civil Action No. 15-1979 (RJL)
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DEPARTMENT OF STATE
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Defendant.
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MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR DISCOVERY
THE DAILY CALLER
NEWS FOUNDATION, et al.

NOW COME the Plaintiffs The Daily Caller News Foundation and Richard Pollock
(hereinafter referred to jointly as “Daily Caller”) to respectfully move this Court for an
Order compelling the defendant Department of State (“State”) to comply with five line
items:
1) Pursuant to Federal Rule of Civil Procedure 30(b)(6), designate
appropriate official(s) to be made available for deposition(s) – or,
alternatively, to provide sworn affidavit(s)) – regarding:
(a) the extent to which, between 2009 and 2013, State maintained an
internal practice –informal or formal – of transmitting to State officials
copies of certifications memorializing those officials’ satisfaction of
mandatory security training courses and/or mandatory Information
Technology training courses;
(b) the extent to which, between 2009 and 2013, State maintained an
internal practice – informal or formal – of providing verbal briefings to
senior State officials for the purpose of satisfying those officials’
mandatory security and Information Technology training
requirements;
a. if verbal briefings were provided, address whether
documentation memorializing the fact that a verbal briefing
was provided would be retained by State and where such
documentation would be stored;

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b. if verbal briefings were provided, address whether a courtesy
copy of documentation memorializing that fact would be sent
to the particular senior State official in question.
2) Request that former Secretary of State Hillary Rodham Clinton
(“Secretary Clinton”) produce a sworn affidavit indicating if in the course
of her official duties it was her practice to store (or have her designee
store) copies of documentation on a State computer hard drive or shared
drive;
3) Request that former Chief of Staff Cheryl Mills (“Ms. Mills”) produce a
sworn affidavit indicating if in the course of her official duties it was her
practice to store (or have her designee store) copies of documentation on a
State computer hard drive or shared drive;
4) Request that former Deputy Chief of Staff Huma Abedin (“Ms. Abedin”)
produce a sworn affidavit indicating if in the course of her official duties it
was her practice to store (or have her designee store) copies of
documentation on a State computer hard drive or shared drive; and
5) Request that former Deputy Chief of Staff Jacob “Jake” Sullivan
(“Mr. Sullivan”) produce a sworn affidavit indicating if in the course of
his official duties it was his practice to store (or have his designee store)
copies of documentation on a State computer hard drive or shared drive.
See Rule 56(d) Declaration of Bradley P. Moss, Esq. at ¶¶5-6 (dated July 1, 2016)
(“Moss Decl.”), attached as Exhibit “1”.
We respectfully submit that it would constitute an appropriate exercise of this Court’s
discretion to grant Daily Caller’s Cross-Motion for Discovery (“Motion”).
ARGUMENT
I. DISCOVERY IS PERMISSIBLE AND WARRANTED
In its separate Memorandum in Opposition to Defendant’s Motion for Summary
Judgment (“Memorandum”), which is being filed contemporaneous with the present
Motion, Daily Caller concisely explained why State is not currently entitled to summary
judgment regarding the adequacy of the search it conducted. Daily Caller outlined how
there remained genuine issues of material fact still in dispute concerning whether State
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had searched all of the locations it reasonably should have known were likely to contain
responsive records. Specifically, Daily Caller noted that State had failed to explain
whether responsive records would have been maintained on individual-specific hard
drives or shared drives (or private e-mail accounts), as well as whether the databases
searched by State would have encompassed any documentation stored on individualspecific hard drives or shared drives. See Moss Decl. at ¶¶3-4.
Given the legal deficiencies of State’s pending dispositive motion, this Court not only
should deny summary judgement but also – for the reasons set forth below – should
authorize limited discovery in an effort to address those deficiencies. Discovery is not
unheard of in a FOIA action. See e.g. Renegotiation Bd. v. Grumman Aircraft
Engineering Corp., 421 U.S. 168, 181 (1975)(plaintiff permitted to depose agency official
regarding whether documents at issue were final agency opinions); Tax Analysts v. IRS,
214 F.3d 179, 185 (D.C. Cir. 2000)(discovery necessary to develop factual record);
Schaffer v. Kissinger, 505 F.2d 389, 391 (D.C. Cir. 1974)(reversing and remanding
district court’s summary judgment with instructions that plaintiffs be permitted to
undertake discovery relating to whether records in question had been “properly
classified”); Cooper v. Dep’t of Navy, 558 F.2d 274 (5th Cir. 1977), modified,
594 F.2d 484, 486 (1979), cert. denied, 444 U.S. 926 (1979) (FOIA plaintiff permitted
depositions of Navy personnel to determine extent of distribution of secret Navy);
Sun-Sentinel Co. v. DHS, 431 F. Supp. 2d 1258, 1276 (S.D. Fla. 2006)(evidentiary
hearing needed to determine whether agency’s claim of significant interference relates to
agency’s “inability . . . to search for these records or to produce these records”).

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In FOIA cases, the courts typically will rely upon agency affidavits to resolve factual
disputes. See Hall v. CIA, 881 F. Supp. 2d 38, 73 (D.D.C. 2012). While FOIA cases
generally turn on application of law to undisputed material facts set out in agency
affidavits, courts may occasionally confront contested questions of fact that must be
answered first. See Scudder v. CIA, 25 F. Supp. 3d 19, 31 (D.D.C. 2014). A court has a
wide variety of options to resolve factual disputes, “from expansion of the record by
means of affidavits and other written submission or through discovery [and] fullblown
hearings with live testimony by the movant and other witnesses.” Scudder, 25 F. Supp. 3d
at 51, quoting Pham v. United States, 317 F.3d 178, 185 (2d Cir. 2003)(Sotomayor, J.,
concurring).
The courts have not outlined an exhaustive list of circumstances in which discovery is
permissible in a FOIA case but the most common justification is evidence of bad faith by
the agency. See Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 183-184
(D.D.C. 2013)(authorizing limited discovery to resolve disputed factual circumstances
surrounding use of personal e-mail by Government officials and whether agency failed to
properly search for responsive records retained by certain Government officials). The
courts have also indicated that discovery can be warranted to inquire further into the
nature of the agency’s search, see Ocasio v. Dep’t of Justice, 67 F. Supp. 3d 438, 440
(D.D.C. 2014), and that evidence of bad faith is merely “an exception” to the rule, not the
only exception. See Voinche v. FBI, 412 F. Supp. 2d 60, 72 (D.D.C. 2006).
Even assuming for the sake of argument that Daily Caller has to demonstrate
evidence of bad faith by State, we respectfully submit that it has met that burden. Daily
Caller separately addressed in detail in its Memorandum how State improperly excluded

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from its searches locations reasonably likely to maintain responsive records. These
exclusions included hard drives and shared drives that would have been utilized by senior
State officials to retain documents in the course of their official duties, as well as the
possibility of courtesy copies of responsive records that would have been sent to their
respective personal e-mail addresses on Secretary Clinton’s private server. See Moss
Decl. at ¶¶3-4.
II. THE INFORMATION SOUGHT BY DAILY CALLER IS RELEVANT AND
DISCOVERABLE
Generally speaking, Federal Rules of Civil Procedure (“FRCP”) 26(b) authorizes
discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense. See Fed. R. Civ. P. 26(b)(1). Trial courts exercise considerable discretion in
handling discovery matters, and a district court’s decision to permit or deny discovery is
reviewable only for an abuse of discretion. Food Lion v. United Food & Commer.
Workers Int’l Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997); see also id. (explaining that
“relevance” is broadly construed and that the information sought “need not be admissible
at trial if the information sought appears reasonably calculated to lead to the discovery of
admissible evidence.”).
That discovery can, however, be limited if any of the following apply:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
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Fed. R. Civ. P. 26(b)(2)(C). In deciding either to compel or quash discovery, the court
must balance potentially conflicting goals, avoiding depriving a party of discovery that is
reasonably necessary while bearing mind that discovery has boundaries which come into
existence when the inquiry encroaches upon recognized domains of privilege. See Osage
Tribe of Indians v. United States, 84 Fed. Cl. 495, 497 (Fed. Cl. 2008).
For the reasons outlined below, it would constitute an appropriate exercise of the
Court’s discretion to conclude Daily Caller has sufficiently demonstrated that the
circumstances warrant requiring State to comply with Daily Caller’s requests.
A. Daily Caller’s Request Does Not Seek Information That Is Duplicative Or
That Can Be Obtained From Another Source That Is More Convenient, Less
Burdensome, Or Less Expensive
The information Daily Caller seeks does not – to the best of the undersigned’s
knowledge – exist in written form anywhere else. Outside of this FOIA litigation, and
specifically for the purpose of resolving the disputed material facts, there is no other
likely means by which the issues can be resolved.
More than one of this Court’s brethren has already imposed discovery-like burdens
upon State in similar FOIA proceedings. See Judicial Watch v. Dep’t of State, 2016 U.S.
Dist. LEXIS 62283, *10 - *13 (D.D.C. May 4, 2016)(limited discovery permitted to
clarify circumstances surrounding approval and operation of Secretary Clinton’s private
e-mail server for purposes of resolving if agency had sufficiently searched for responsive
records); http://www.foxnews.com /politics/2015/07/30/judge-scolds-state-departmentofficial-for-slow-response-to-records-request/ (Judge Leon requiring sworn declaration
and in-person testimony from State’s FOIA chief)(last accessed August 17, 2015);
https://www.judicialwatch.org/wp-content/uploads/2015/08/08-10-15-JW-v-State6

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Hillary-Declaration-01363.pdf (copy of sworn declaration filed by Secretary Clinton at
request of Judge Sullivan)(last accessed August 17, 2015).
This Court would be well within its discretion to do the same.
B. Daily Caller Has No Other Viable Opportunities By Which The Information
Contained In The Requested Affidavits Could Be Obtained
Daily Caller does not take lightly the decision to seek this type of discovery,
particularly given the often-routine nature of FOIA litigation. The information sought
from State would not merely provide context regarding the manner in which State
ensured senior level State officials (up to and including the Secretary of State
him/herself) took agency-wide mandatory training each year. It would also – and, for
purposes of FOIA, more importantly – outline how State retained relevant paperwork
concerning that training and the extent to which courtesy copies were provided to the
individual State officials (including whether those courtesy copies would have been sent
to non-U.S. Government e-mail accounts and/or stored on individual-specific hard drives
or shared drives).
The affidavits requested from Secretary Clinton, Ms. Mills, Ms. Abedin and Mr.
Sullivan would clarify the extent to which in the course of their official duties they
typically stored records responsive to Daily Caller’s FOIA request on State hard drives or
shared drives. The scope of the searches conducted by State did not encompass any
specific hard drives or shared drives that had been used by any of those four former State
officials in the course of their official duties while at State.
It bears reminding that these are not ordinary times in FOIA law, particularly with
respect to records memorializing actions taken by Secretary Clinton and/or her senior
aides during their tenure at State. The ongoing saga surrounding the use of private e-mail
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accounts by Secretary Clinton and several of her aides (particularly Ms. Abedin) while
conducting official U.S. Government business is well known and is of considerable
public interest given that Secretary Clinton is now the presumptive Democratic nominee
for President. See e.g., http://www.foxnews.com/politics/2015/11/12/fbi-expands-probeclinton-emails-launches-independent-classification-review/?vgnextrefresh=
1&intcmp=hpbt1 (regarding ongoing FBI probe)(last accessed November 14, 2015);
http://www.politico.com/blogs/under-the-radar/2015/11/judges-orders-production-ofmore-hillary-clinton-records-215701 (regarding judicially-mandated increased
production of e-mails and records implicating Secretary Clinton and her aides)
(last accessed November 14, 2015).
It would be an appropriate exercise of this Court’s discretion to permit limited
discovery in this context.
C. The Benefit Derived From The Information Sought By Daily Caller Far
Outweighs The Burden Or Expense That Will Be Incurred By State Or Its
Former Officials
The FOIA imposes no limits on courts’ equitable powers in enforcing its terms.
Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 19-20 (1974). “Courts have
long recognized that there ‘may very well be circumstances in which prolonged delay in
making information available or unacceptably onerous opportunities for viewing
disclosed information required judicial intervention.’” Payne Enters, Inc. v. United
States, 837 F.2d 486, 491 (D.C. Cir. 1988), quoting Lybarger v. Cardwell, 577 F.2d 764,
767 (1st Cir. 1978). The D.C. Circuit, as well as district courts within this Circuit, have
relied upon FOIA as a basis to exercise their equitable authority to take such significant
steps as striking down agency practices, see e.g. Payne, 837 F.2d at 494 (mandating relief

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for plaintiff whose FOIA requests were repeatedly obstructed by informal, unlawful
policy to deny the requests); Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 148
(D.D.C. 2013)(striking down categorical policy to deny assignments of FOIA requests),
and to determine if responsive records are “readily reproducible” in a specified format,
see Scudder, 25 F. Supp. 3d at 49 (authorizing limited discovery to inquire into CIA’s
ability to produce electronic copies of responsive records).
Daily Caller is not even seeking something as severe as striking down a policy or
authorizing discovery into how State manages its production of electronic copies of
records. Nor is Daily Caller seeking to compel State to search the private e-mail accounts
of current or former senior State officials. This Motion is confined to merely seeking
information through depositions or, alternatively, sworn affidavits clarifying the factual
circumstances in which records potentially responsive to Daily Caller’s FOIA request
were maintained.
The information sought does not simply serve an abstract academic or journalistic
purpose. Absent from the documentation already produced by State in this case was any
record of either Secretary Clinton or Ms. Abedin ever taking any of the mandatory
security and Information Technology training courses throughout their respective tenures
at State. The documentation also failed to indicate that Ms. Mills and Mr. Sullivan had
taken all of the mandatory courses. Moss Decl. at ¶4. This factual deficiency exists
despite the fact that State’s own press spokesperson confirmed that everyone at the
agency, including the Secretary of State, is required to take those training courses.
http://dailycaller.com/2016/ 03/24/exclusive-clinton-got-no-info-security-briefings-afterday-one-at-state/ (last accessed June 7, 2016). Assuming in good faith that Secretary

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Clinton and her aides did comply with those mandatory obligations, while remaining
cognizant of the lack of documentation produced memorializing that fact, the information
sought by Daily Caller in discovery would clarify whether the locations searched by State
were actually the only locations reasonably likely to maintain responsive records.
Resolution of these unanswered questions will not merely inform the public how
State has been handling (or mishandling, as the case may be) compilation of Federal
records from former State officials but could in fact reasonably be calculated to lead to
admissible evidence in the present litigation. The legal sufficiency of State’s search is
directly implicated by whether the agency improperly excluded locations reasonably
likely to maintain responsive records.
The burden that will be imposed upon State and/or its former officials is minimal.
The entirety of the “burden” would amount to depositions or, alternatively, the
production of sworn affidavits. With all due respect, it borders on axiomatic that the
benefit Daily Caller can derive from the information far outweighs the burden State
and/or its former officials will incur in providing it.
CONCLUSION
For the reasons detailed above, this Court, in addition to denying the Defendant’s
Motion for Summary Judgment, should also grant Daily Caller’s Motion.

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Date: July 1, 2016

Respectfully submitted,
/s/
_____________________
Bradley P. Moss, Esq.
D.C. Bar #975905
Mark S. Zaid, Esq.
D.C. Bar #440532
Mark S. Zaid, P.C.
1250 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036
(202) 454-2809
(202) 330-5610 fax
Brad@markzaid.com
Mark@markzaid.com
ATTORNEYS FOR PLAINTIFFS

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