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Case 1:18-cv-00967-CKK Document 15 Filed 08/01/18 Page 1 of 6

U N IT E D S T A T E S D IS T R IC T C O U R T
F O R T H E D IS T R IC T O F C O LU M B IA

JUDICIAL WATCH, INC., et al.,


Plaintiffs,
v. Civil Action No. 18-967-CKK
U.S. DEPARTMENT OF JUSITCE,
Defendant.

DEFENDANT’S OPPOSITION TO
PLAINTIFFS’ MOTION FOR A PRESERVATION ORDER

Plaintiffs Judicial Watch, Inc. and the Daily Caller News Foundation (“DCNF”) seek an

order requiring the Federal Bureau of Investigation (“FBI”) to preserve responsive records that

they believe may exist on the personal email account of former FBI Director James Comey. That

motion should be denied. Plaintiffs identify no compelling reason to believe that the records they

seek would be located on Director Comey’s personal email. In fact, the report that Plaintiffs rely

upon indicates that Director Comey would not have any such records on his personal account,

which Director Comey, through a representative, has confirmed. Further, even if they were a

possibility of responsive records in Director Comey’s personal email, Plaintiffs cannot meet their

burden of showing that such records would be lost without a preservation order, because Director

Comey has already agreed to preserve responsive records should he discover any. For these

reasons, Plaintiffs’ motion should be denied.

BACKGROUND

On May 22, 2017, Judicial Watch submitted a Freedom of Information Act (“FOIA”)

request to the FBI seeking any memoranda by former Director James Comey summarizing

conversations with President Barack Obama, Vice President Joe Biden, Secretary of State Hillary

Clinton, Senator Chuck Schumer, Representative Nancy Pelosi, and Senator John McCain, and
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any handwritten notes used to prepare such records. Compl. ¶ 6, ECF No. 1. On February 16, 2018,

DCNF submitted to the FBI a FOIA request for “records that identify and describe all meetings

between former FBI Director James Comey and President Barack Obama.” Id. ¶ 8. As noted in the

parties’ most recent joint status report dated July 26, 2018, the FBI has completed a search of its

hard-copy documents, which revealed no responsive records. Jt. Status Rep. ¶ 2, ECF No. 13. The

FBI has also completed an initial search of former Director Comey’s FBI emails, which narrowed

its search to 321 pages of potentially responsive records. Id. ¶ 3. The FBI expects to review those

potentially responsive records and provide any final release of responsive, nonexempt records to

Plaintiffs on or before September 28, 2018. Id.

In an earlier joint status report dated June 26, 2018, Plaintiffs asked the Court to order the

FBI to request that former Director Comey search his personal email account for records

responsive to their requests. Jt. Status Rep. at 3, ¶ 4, ECF No. 12. In a footnote, Plaintiffs

alternatively requested that, “[a]t a minimum, Defendant should be required to take all steps

necessary to preserve all records potentially responsive to Plaintiffs’ FOIA request located on any

personal email account of former Director Comey.” Id. at 3, ¶ 5 n.2. Defendant opposed Plaintiffs’

requests because the agency’s search was ongoing and not ripe for review and because the request

for a preservation order was not made by motion, nor was it adequately supported by facts or law.

Id. at 4, ¶¶ 2–3. In response to the status report, the Court stated that it would “not make substantive

decisions about the adequacy of Defendant’s search in response to a Joint Status Report,” and

ordered the parties to file another status report by July 26, 2018. Minute Order, June 27, 2018.

On July 27, 2018, Plaintiffs filed their motion for a preservation order. See Pls.’ Mot. for

Preservation Order (“Pls.’ Mot.”). They seek to compel the FBI to somehow “preserve all records

potentially responsive to Plaintiffs’ FOIA requests located on ex-Director Comey’s personal email

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account.” Proposed Order, ECF No. 14-1. Plaintiffs requested expedited briefing on the motion,

and the Court ordered Defendant to respond by August 1, 2018, and for Plaintiffs to reply by

August 3, 2018. Minute Order, July 27, 2018. Defendant now submits its opposition to Plaintiffs’

motion.

ARGUMENT

A preservation order is effectively an injunction and thus “should issue only upon an

adequate showing that equitable relief is warranted.” Madden v. Wyeth, No. 03-0167, 2003 WL

21443404, at *1 (N.D. Tex. Apr. 16, 2003). In deciding motions for preservation orders, courts in

this district have generally applied varying versions of the traditional preliminary injunction

standard. See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-765, slip op. at 4

(D.D.C. Dec. 12, 2016) (“A Motion to Compel Preservation is subject to the same analytical

framework as a motion for injunctive relief.”); United States v. Sum of $70,990,605, 991 F. Supp.

2d 154, 163 (D.D.C. 2013) (analyzing a request for an injunction prohibiting destruction of

evidence under the traditional preliminary injunction framework). Other courts have employed

different tests. See, e.g., Pueblo of Laguna v. United States, 60 Fed. Cl. 133, 138 (2004) (creating

a two-factor test, requiring a party “seeking a preservation order [to] demonstrate that it is

necessary and not unduly burdensome”); Capricorn Power Co., Inc. v. Siemens Westinghouse

Power Corp., 220 F.R.D. 429, 433-34 (W.D. Pa. 2004) (creating a three-factor test, weighing the

degree of concern about continued preservation of evidence, the irreparable harm likely to result

from destruction, and any burdens caused by issuing a preservation order).

Ultimately, the difference between these varying tests “is more apparent than real,” Treppel

v. Biovail Corp., 233 F.R.D. 363, 370 (S.D.N.Y. 2006), because fundamentally each test is designed

to strike an equitable balance between (1) the risk that necessary evidence will be lost in the

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absence of a preservation order, and (2) any harm to the parties or other interested individuals and

entities resulting from issuance of a preservation order. Regardless of which particular legal

standard is used to evaluate the request for a preservation order, the burden clearly rests on the

moving party to establish that such an order is warranted. See, e.g., Pueblo of Laguna, 60 Fed. Cl.

at 137-38; Humble Oil & Ref. Co. v. Harang, 262 F. Supp. 39, 42–43 (E.D. La. 1966). Furthermore,

because the authority to issue a preservation order stems from a court’s inherent authority, a court

must proceed “‘with restraint and discretion.’” Pueblo of Laguna, 60 Fed. Cl. at 137 (quoting

Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)).

For two compelling reasons, Plaintiffs cannot show any risk that responsive records will

be lost without a preservation order. First, Plaintiffs provide no compelling reason to believe that

there are responsive records on former Director Comey’s personal email account. In asserting the

contrary, Plaintiffs rely entirely on a pull-quote from an executive summary of a June 2018 report

by the Department of Justice’s Office of the Inspector General (“OIG”) stating that the OIG

“identified numerous instances in which Comey used a personal email account (a Gmail account)

to conduct FBI business.” Pl.’s Mot. ¶ 2 (quoting U.S. Dep’t of Justice OIG, A Review of Various

Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016

Election (June 2018) (“OIG Report”) 1). A review of the factual details supporting that conclusion,

however, shows that it does not bear the weight that Plaintiffs put on it. The OIG Report noted

only five instances in which Director Comey used a personal email account for FBI business. OIG

Report at 425. In each of those instances, Director Comey either sent an email from his government

account to his personal account, or from his personal account to his government account. Id. He

said that the purpose of these exchanges was to allow him to use Word processing software on his

1
The report is available at http://www.justice.gov/file/1071991/download
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personal laptop to work on unclassified, nonsensitive material at home. Id. Because a government

account was involved in each of these exchanges as either a sender or receiver, any

communications involving Director Comey’s personal account would have been captured in the

FBI’s records. 2 Consequently, even if former Director Comey did have agency records on his

personal account, they would also be part of the FBI’s records, making a preservation order

unnecessary.

Further, Jim Rybicki, Director Comey’s chief of staff, stated that Director Comey’s use of

his personal email in this manner was “rare” and that Director Comey routinely deleted all of the

emails from his personal Gmail account and cleared the deleted folder. Id. at 426. Accordingly, the

OIG Report indicates that former Director Comey does not have any responsive records on his

personal email account. Indeed, in a recent communication, a representative of Director Comey

confirmed that Director Comeny is unaware of any such records. See Seidel Decl. ¶ 11.

Second, even were there any indication that responsive records might exist on Director

Comey’s personal email account (and there is not), Plaintiffs would still be unable to meet their

burden of showing that such records would be lost without a preservation order because former

Director Comey has agreed to preserve responsive materials should he become aware of any. After

counsel for Plaintiffs raised a concern about the preservation of materials that Plaintiffs insisted

may be located on former Director Comey’s personal email account, the FBI, out of an abundance

2
The Federal Records Act permits officers of executive agencies to send records using a non-
official email account so long as she or he “copies an official electronic messaging account” or
“forwards a complete copy of the record to an official electronic messaging account . . . not later
than 20 days after the original creation or transmission of the record.” 44 U.S.C. § 2911(a).
According to the OIG report, Director Comey complied with these requirements. And in the
absence of any “clear evidence” to the contrary, the Court should presume that he consistently did
so under the presumption of regularity. See Nat’l Archives & Records Admin. v. Favish, 541 U.S.
157, 174 (2004). It is also presumed that Director Comey complied with FBI records policies
requiring that personnel ensure that agency records are properly maintained. Seidel Decl. ¶¶ 7–8.
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of caution and in an effort to eliminate unnecessary disputes, sent a letter to former Director Comey

through his representative requesting that he take all necessary and reasonable steps to ensure the

preservation of any responsive agency records. Seidel Decl. ¶ 10. His representative promptly

responded that Director Comey was unaware of any responsive records, but would preserve such

records should he become aware of any. Id. ¶ 11. There is no reason to doubt this assurance; indeed,

courts are “not predisposed to assume that the government would alter or destroy records in its

possession absent a court order.” United States v. Sum of $70,990,605, No. 12-1905, 2015 WL

1021118, at *2 (D.D.C. Mar. 6, 2015). Plaintiffs therefore cannot show that records would be lost

without a court order.

CONCLUSION

For the forgoing reasons, Plaintiffs’ motion for a preservation order should be denied.

Dated: August 1, 2018 Respectfully Submitted,

JESSIE K. LIU, D.C. Bar #472845


United States Attorney
DANIEL F. VAN HORN, D.C. Bar #924092
Chief, Civil Division
By: /s/ Johnny Walker
JOHNNY H. WALKER, D.C. Bar #991325
Assistant United States Attorney
555 4th Street, N.W.
Washington, District of Columbia 20530
Telephone: 202 252 2575
Email: johnny.walker@usdoj.gov
Counsel for Defendant

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