Professional Documents
Culture Documents
By Order dated November 14, 2008, the Court directed the parties to submit a
Joint Status Report no later than November 18, 2008, “indicating how the parties want to
proceed, including a proposed briefing schedule.” Pursuant to that Order the parties
Plaintiffs’ Position
For the reasons outlined in plaintiffs’ motion for leave to depose David Addington
and re-depose Nancy Smith, filed on this date (Dkt. 35), plaintiffs seek leave to depose
David Addington in light of the complete inability of Claire O’Donnell to address and
resolve the questions raised by the Court that form the rationale for the authorized
discovery. Alternatively, plaintiffs respectfully request that the Court hold a hearing at
which Mr. Addington would testify to the areas identified in the Court’s discovery order.
As the D.C. Circuit noted in denying in large part defendant Cheney’s mandamus
1
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prepared by White House Counsel Fred Fielding that the Court has ruled is both within
the scope of discovery and not subject to any privilege. Ms. O’Donnell had no
familiarity whatsoever with this memorandum leaving Ms. Smith as the only witness
competent to speak to its contents. As a less costly and burdensome alternative, plaintiffs
have requested that the Court order defendants to produce the memorandum to plaintiffs.
earlier deadline unrealistic. The short delay in briefing the merits is amply justified by
the expectation that at long last the Court will receive answers to the critical and
Plaintiffs note that defendants set forth herein their objection to this discovery.
Relying on sentences plucked from various briefs plaintiffs have filed here and before the
D.C. Circuit, defendants argue that all of plaintiffs’ questions have now been answered.
Not only is this false, but it fails to take into account the fundamental purpose of the
discovery -- to answer the Court’s factual, legal, and hybrid factual/legal questions.
for using the process contemplated by Rule 26 of the Federal Rules of Civil Procedure to
not conclude until November 13, 2008, and less than 24 hours later, after reviewing the
transcript of her deposition, plaintiffs contacted defendants requesting that they identify
an additional, competent witness. Defendants did not respond to this request until
Monday, November 17, notifying plaintiffs that they disputed any need for additional
2
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possible. Moreover, the Court issued its ruling on the discoverability of the Fielding
cannot be faulted for waiting until today to seek leave to conduct additional discovery.1
threshold legal grounds that defendants assert deprive this Court of subject-matter
jurisdiction. This motion was filed with no advance notice to plaintiffs and without leave
of the Court. While plaintiffs have not had an opportunity to read this motion
First, during the Status Hearing this Court conducted on September 23, 2008, the
Court made it clear that the Court – and not the parties – would set out a briefing
schedule for any further briefing. Transcript, p. 22 (attached as Exhibit 5). Defendants’
unilateral decision to file a motion to dismiss without such a briefing schedule in place is
a blatant end-run around the Court’s processes that should not be permitted.
Second, and equally troubling, the Court also made clear during the September
23, 2008 Status Hearing that there would be only one round of briefing that included
briefing on any threshold defenses as well as merits briefing. See Transcript, p. 27 (Court
stated: “Let me just make this clear. I am not doing another round on a Motion to
Dismiss in terms of separating it out from the rest,” and shortly thereafter “So, we’re
going to do it all together.”). Yet defendants have now filed a motion to dismiss that
1
Plaintiffs willingly accommodated defendants’ proposed dates for the depositions of Ms. Smith and Ms.
O’Donnell, even though that brought them to the edge of the discovery cut-off, leaving virtually no time for
follow-up such as that authorized by the Court’s Minute Order of November 12, 2008.
3
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attempt to unilaterally set the pace of this litigation, doling out facts as they see fit and
attempting to dictate to the Court how the case will proceed. Given that defendants’
motion to dismiss was filed in flagrant disregard for the process this Court had set in
deemed to have waived any merits defense by their filing of a premature and
In light of the need to conduct discovery and defendants’ newly filed motion to
pending the completion of discovery. Thereafter, plaintiffs respectfully request that the
Defendants’ Position
propose that the Court issue a briefing schedule that accommodates the Court’s schedule
in resolving the matter on defendants’ motion to dismiss. Although the Local Civil Rules
dictate that plaintiffs file their opposition by December 1, defendants are amenable to any
reasonable schedule that plaintiffs request or that the Court requires. Defendants request
4
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ten days from the date of plaintiffs’ opposition briefing to file their reply. Accordingly,
Defendants object. The motion to dismiss is dispositive of the case and establishes that
this Court lacks subject matter jurisdiction over plaintiffs’ claims. Nonetheless, as
justification for the additional discovery, plaintiffs’ counsel has asserted that
See Ex. 1 (Nov. 14, 2008 Letter from A. Weismann to H. Hong); see also Ex. 2 (Nov. 17,
2008 Email from A. Weismann to H. Hong); Ex. 3 (Nov. 17, 2008 Letter Response from
no further discovery is warranted as Ms. O’Donnell testified that she had personal
2
Plaintiffs’ counsel has also suggested that she would like to re-open the deposition of Ms. Nancy
Smith, or, in the alternative, to seek document discovery of a 2008 memorandum written by
White House Counsel. Defendants object. First, discovery closed on November 14, and
plaintiffs’ counsel did not request to re-open Ms. Smith’s deposition or seek documents before
then. See Minute Order of Oct. 31, 2008 (“The parties shall complete their discovery no later
than November 14, 2008.”). The deadline for discovery has passed. Second, for the reasons set
forth below and in defendants’ motion to dismiss, further discovery is simply not warranted.
5
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knowledge of the guidance provided to OVP personnel in complying with the terms of
the Presidential Records Act. See Ex. 4, O’Donnell Dep. Tr. at 19:18-20 (“Q: Do you
have responsibility for records management within the Office of the Vice President? A:
Yes.”); 21:13-16 (“Q: Have you received any training specifically on records
management since coming to the OVP? A: Yes. Q: And describe for me what that
training has been. A: It was a memo that we received when when we came on board
and we have been reminded on regular basis verbally and in ethics briefings.”); 25:19-
27:14 (describing guidance at staff meetings and ethics briefings about the PRA); 37:2-19
(explaining familiarity with the Presidential Records Act because “it was part of the
orientation when we came on and it’s just been a practice that I have been told to make
sure the Vice President’s Office practices”); 54:1-3 (“I have general knowledge of the
practices that we have all been told to adhere to.”); 54:15-16 (“I just go ahead and make
sure everybody understands the rules.”); 87:21-88:6 (explaining understanding that Vice
President would transfer “all of the papers, records, notes, recordings, memos that the
Vice President has created since January 20th, 2001 . . . as vice presidential material
turned over to NARA under the Presidential Records Act”); 95:19-96:4 (explaining
understanding of the OVP’s guidance and practices); 96:11-97:6 (explaining that her
responsibilities include making “people . . . aware of the guidance and the practices they
should be adher[ed] to”); 99:19-100:22 (explaining understanding that the OVP complies
with PRA through “interpretation that I have always taken from the guidance and that I
know the meaning, the guidance that we have been given because it’s given on a regular
basis”); 130:1-5 (“The general guidance of any document that is created or received in
our capacities to support the Vice President and in his capacity and his executive
6
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responsibilities, would be covered under the PRA.”); 139:16-140:2 (“Q: And do you
know whether in fact those records are being preserved under the Presidential Records
Act? A: If they have been created by the Vice President’s staff, I believe they are being
preserved. Q: What is the basis for your belief? A: The guidance that the staff that we
trust has been given.”). Moreover, this Court’s Order [30] of October 31, 2008
specifically substituted Ms. O’Donnell for the Chief of Staff to the Vice President based
on the D.C. Circuit’s conclusion that a deposition of Mr. Addington would “constitute an
‘unwarranted impairment’ of the functioning of OVP.” In re Cheney, Civ. App. No. 08-
guidance provided to OVP staff, based on a line of questions seeking responses about
Ms. O’Donnell’s specific, personal knowledge on the location and treatment of specific
alleged records by specific employees. See, e.g., Ex. 4, O’Donnell Dep. Tr. at 126:10-
157:20. But as Ms. O’Donnell testified, she has knowledge about the guidance provided
within OVP to “the staff that we trust” and that staff are “expected to adhere to.” Id. at
139:16-140:2, 54:1-3 (“I have general knowledge of the practices that we have all been
told to adhere to.”); 79:22-80:5 (stating that Vice President “supports the guidance that I
have been asked to give out and the processes, processes that we follow”). Under
plaintiffs’ theory, discovery could not be complete unless all 84 staff members of the
OVP, including the Vice President himself, testified about PRA compliance with respect
to each particular, specific record. That is not what even plaintiffs represented would be
the purpose of this discovery and is improper, even under the Federal Records Act. See,
e.g., Pls.’ Resp. to Emerg. Pet. for Writ of Mandamus, Civ. App. No. 08-5412 at 21
7
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(“Ascertaining the guidelines that the vice president and OVP use to decide ‘what is,
and what is not, a presidential record,’ does not in any way intrude on the constitutional
prerogatives of the president.”); Armstrong v. Bush, 924 F.2d 282, 293-94 (D.C. Cir.
1991) (“[E]ven if a court may review the adequacy of an agency’s guidelines [under the
FRA], agency personnel will implement the guidelines on a daily basis. Thus agency
personnel, not the court, will actually decide whether specific documents . . . constitute
“records” under the guidelines. [M]ost importantly, the only issue the court would be
in their motion to dismiss, the PRA (as opposed to the FRA) does not permit even
judicial review of the Vice President’s recordkeeping guidelines and directives and
afforded plaintiffs’ counsel to ask questions of her, it is nevertheless clear that no further
deposition testimony is necessary to answer those questions about the guidelines and
directives regarding vice presidential records. For illustrative purposes, the following
chart identifies specific questions for which plaintiffs sought clarification. Each was
8
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129:1
“The six delineated areas of inquiry were See Ex. 2, Dep. Tr. of Claire M. O’Donnell,
crafted to resolve factual issues concerning 37:15-38:1 (“Q: And what is your
‘core classification issue,’ specifically, whether understanding of the documents that the Vice
the defendants’ guidelines defining ‘which President is required to transfer to NARA at the
existing materials will be treated as presidential end of his administration? A: All of his
records in the first place,’ . . . square with the executive and legislative files. Q: Okay. Do
PRA’s definition of vice presidential records.” you have any more specific understanding than
Pls.’ Resp. to Emerg. Pet. for Writ of that? A: Any documents that he has either
Mandamus, Civ. App. No. 08-5412, at 18. created or received in his official functions.”);
55:16-20 (“Again, every document that we
receive or create in our capacities, meaning the
staff of the Vice President, to assist him in his
duties are to be kept for the Presidential
Records Act.”); 54:6-9 (same); 99:19-100:22
(explaining that OVP’s guidance is to transfer
all vice presidential records as defined under
the PRA that have been created or generated
during the vice presidency of Richard B.
Cheney); 102:7-103:14 (explaining that “for all
practical purposes, everything is considered
official” and maintained under the PRA, except
“something really personal in your personal life
outside of anything official,” like “a bank
statement or a thank you note for a wedding
reception); 119:11-12 (“[I]t’s the general policy
everything is a presidential record.”); 128:17-
129:1 (Q: “If a document is covered by the
PRA, and by that I mean if a document is vice
presidential, if it meets the definition of vice
presidential, of a vice presidential record within
the meaning of the PRA, is it your
understanding that that document has to be
preserved? A: Yes.”); 136:12-16 (“I know
that, again in general, everything that is
prepared by any staff member for the Vice
President or by the Vice President is considered
a [vice] presidential record.”); 139:5-140:2
(explaining that “guidance that the staff that we
trust” has been given is to preserve records that
have been created by the Vice President’s
staff); 140:8-12 (“I believe all documents, all
documents in the Vice President’s office,
created or received by the Vice President or the
Vice President’s staff are being kept under the
Presidential Records Act.”); 141:4-7 (“To the
best of my knowledge, like all other records, if
records have been prepared for the Vice
President, they are being kept under the
Presidential Records Act”); 141:17-19 (same);
142:6-14 (same); 142:18-143:6 (same); 144:22-
9
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10
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11
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For the reasons set forth above and in Defendants’ Motion to Dismiss, defendants
respectfully request that the Court issue a briefing schedule on the motion to dismiss and
Respectfully submitted,
/s/____________________________
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Phone: (202) 408-5565
Fax: (202) 588-5020
Attorneys for Plaintiffs
GREGORY G. KATSAS
Assistant Attorney General
JEFFREY A. TAYLOR
United States Attorney
12
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EXHIBIT 1
JOINT STATUS REPORT
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Case 1:08-cv-01548-CKK Document 37-3 Filed 11/18/2008 Page 1 of 3
EXHIBIT 2
JOINT STATUS REPORT
Case 1:08-cv-01548-CKK Document 37-3 Filed 11/18/2008 Page 2 of 3
Helen, I write pursuant to the Court's minute order of November 14, 2008,
directing the parties to file a joint status report no later than November 18
"indicating how the parties want to proceed." As set forth in my letter to you of
November 14, plaintiffs believe an additional deposition is warranted in light of
Claire O'Donnell's lack of knowledge on the issues outlined by the Court's
Discovery Order and Ms. O'Donnell's inability to shed any light on the questions
posed by the Court. We have requested that you identify for us an appropriate
deponent and, absent such an identification, will seek to depose David
Addington. In addition, we will seek to either re-depose Nancy Smith on the
contents of the Fielding Memorandum or seek the memorandum itself, which is
both within the scope of discovery and not privileged. We believe production of
the document is the most expeditious way to proceed, particularly as it avoids the
time, expense and burden of bringing Ms. Smith back for another deposition.
Accordingly, please let me know if defendants are willing to produce the Fielding
Memorandum without requiring us to move the Court for its production.
As for the Joint Status Report, we propose telling the Court that additional
discovery in the form of a deposition is necessary, seeking a short window of
time in which to complete this discovery (two weeks), and proposing a briefing
schedule that is tied to the close of discovery.
In light of the need to file a joint status report, please let me know as soon as
possible -- but no later than 5:00 p.m. today -- your position on what the Joint
Status Report should say.
Anne
Anne Weismann
Chief Counsel
Citizens for Responsibility and Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
202-408-5565
This email and any attachments are for the sole use of the intended recipients
and may be privileged or confidential. Any distribution, printing or other use by
anyone else is prohibited. If you are not the intended recipient, please contact
Case 1:08-cv-01548-CKK Document 37-3 Filed 11/18/2008 Page 3 of 3
the sender immediately and permanently delete this email and attachments.
Thank you.
Case 1:08-cv-01548-CKK Document 37-4 Filed 11/18/2008 Page 1 of 3
EXHIBIT 3
JOINT STATUS REPORT
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Case 1:08-cv-01548-CKK Document 37-4 Filed 11/18/2008 Page 3 of 3
Case 1:08-cv-01548-CKK Document 37-6 Filed 11/18/2008 Page 1 of 36
APPEARANCES:
For the Plaintiffs: ANNE L. WEISMANN, ESQUIRE
Citizens for Responsibility
and Ethics in Washington
1400 Eye Street, NW
Suite 450
Washington, DC 20005
(202) 408-5565
P R O C E E D I N G S
THE COURT: Good afternoon, everybody. Let me call
the case. This is CREW, et al, versus the Honorable Richard
Cheney, et al. Civil Action Number 08-1548. We are on the
record with a court reporter. Would the Plaintiff counsel
identify herself?
MS. WEISMANN: This is Anne Weismann for the
Plaintiffs, Your Honor.
THE COURT: Defense counsel, who is on?
MS. HONG: Good afternoon, Your Honor, it's Helen
Hong with the Department of Justice, along with Arthur
Goldberg.
THE COURT: All right. What I'm going to ask is,
I'm going to set out certain things and then I will call on
you at the end. So, I would ask that you not speak until I
call on you so we make sure we have the record. And when you
do, if I'm calling on you or if you're answering in other
ways, please make sure that you identify yourself so we
ascribe the comments to the correct individuals.
I now have the Defendant's Motion to Reconsider and
Clarification. And I also have the Court ordered joint status
report, which addresses the Plaintiff's request for discovery,
the Defendant's objections, and the two proposed briefing
schedules. Let me note at the outset that we're now at round
four of the Defendant's explaining their position, and the
Case 1:08-cv-01548-CKK Document 37-6 Filed 11/18/2008 Page 4 of436
1 are not, and that's where we are. That's the reason I gave
2 the PI in order to resolve that. Your Motion to Reconsider
3 indicates that this is -- that these definitions are
4 coextensive. The Plaintiffs have raised questions, not
5 necessarily about the accuracy or even the good faith of Ms.
6 O'Donnell, as to what she knows and has stated. But they have
7 pointed out the problem in terms of the factual questions
8 whether the VP maintains records separate from the OVP that
9 are not personal and are not in Ms. O'Donnell's custody and
10 control.
11 The Plaintiff also questions what Ms. O'Donnell
12 does not address. What the Plaintiff has described as the VP
13 acting in his, quote, self-proclaimed non-executive capacity,
14 unquote. So, as far as I'm concerned, you're going back to --
15 you argued that it was an APA. Is there any administrative
16 record?
17 MS. HONG: Your Honor, that is -- I mean, to the
18 extent that the Defendants here have been responding to the
19 Plaintiff's Motion for Preliminary Injunction, our Motion to
20 Dismiss and our jurisdictional defenses, once raised, with
21 appropriate declarations when the Defendants have an
22 opportunity to do so, would properly layout whatever is
23 required for Defendants to dismiss this case because we do
24 believe that this case should be dismissed on jurisdictional
25 grounds.
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1 records --
2 THE COURT: Let me interrupt for a second. What
3 about the statutory functions in terms of the statute,
4 Congress requires the VP be involved with the National
5 Security Agency. It doesn't seem to fit naturally, although
6 you've tried to shoehorn them in the specially designated by
7 the President category.
8 MS. HONG: And what the Office of Vice-President
9 attempted to do -- basically the Office of Vice-President
10 could have said Category A and Category B, is all that the
11 Vice-President does. So, because the complaint initially
12 focused on legislative records, some of this confusion may
13 have been created by this bifurcation created as being
14 executive related functions.
15 THE COURT: Well, you provided it. We've now had
16 several rounds. Ms. Hong, let me just say this. We keep
17 going around in circles with the same thing. You keep saying
18 all of this is covered and they're doing the right thing. I
19 don't know whether they are or not. And it seems to me that
20 the way to move the ball forward at this point is to allow,
21 you know, not another declaration for Ms. O'Donnell, but to
22 allow the two depositions. Get whatever information there is.
23 You know, if there's -- they're not going to go into content,
24 but if there's some issue about privilege, et cetera, it will
25 be decided on the spot. You can do it at the courthouse.
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1 the discovery?
2 MS. HONG: Yes, Your Honor.
3 THE COURT: Okay.
4 MS. HONG: The second supplemental declaration of
5 Ms. O'Donnell, Paragraph 6 specifically shows that all of the
6 documentary material that is created or received by the Office
7 of Vice-President, which includes the Vice-President, falls
8 within one of the two categories that has been enumerated.
9 There is no other mountain of documents. There's no
10 documentary materials aside from those of a purely private or
11 nonpublic character that is specifically accepted by the PRA,
12 and Ms. O'Donnell attested to that. There is nothing more
13 that Plaintiffs could get in discovery than what Ms. O'Donnell
14 has provided in Paragraph 6 of her second supplemental
15 declaration.
16 THE COURT: Yes, but it's all the Office of the
17 Vice-President. And the question -- one of the questions, and
18 I don't know the answer to it, that the Plaintiffs raised is
19 whether the -- Ms. O'Donnell can talk about the Office of the
20 Vice-President, and clearly the Vice-President is in that
21 office, but there may be records that the Vice-President has
22 that are not in the Office of the Vice-President. I don't
23 know the answer to that. The Plaintiffs have at least raised
24 an issue. And, frankly, based on the way this is -- the
25 arguments that have been set out, it's still not clear why
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1 you -- why the arguments are made about defining the records
2 in these two definitions as opposed to discussing it in the
3 context of the full definition that's in the PRA. I still
4 don't have an answer for it, and you keep shifting around in
5 terms of the reasons.
6 And I'm not going to, at this point, my feeling is
7 you're not giving me -- what you quoted last time was from the
8 budget, okay, that's the reason for doing it. Now you seem to
9 be saying an argument that, well, maybe they don't have those
10 definitions, and this was just a way of describing what the
11 records are. You know, because each iteration keeps changing,
12 my feeling is that I'm not willing to go through another round
13 of something that's basically not the final round. Okay.
14 And to have the final round, I think that the
15 Plaintiffs are allowed to have two depositions that they set
16 out, and give it their best shot at coming up as to whether to
17 test factually. Whether, as you have stated in various
18 different ways, although, frankly, there's always a little
19 nuance issue that I pointed out that each pleading sort of
20 moves along and answers, but I still don't feel, frankly, that
21 I have the full answer. And once they have that, they'll
22 either have information or they won't have information, and
23 then we'll move to the final round. But I'm not willing to do
24 this -- keep going through it over and over again.
25 Tell me a reason not to do -- give me a new reason
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of 36
1 that you've not put already in the papers why the -- I've read
2 all the papers with a fine tooth comb, and I've read what the
3 material -- give me another reason, if you have one, for the
4 discovery. If there isn't, I'll hear from Plaintiffs briefly
5 and then I'll move on.
6 MS. HONG: Your Honor, there is two points that I
7 just want to address. The first point is, you had asked
8 whether -- or you suggested that Ms. O'Donnell spoke on behalf
9 of the Office of the Vice-President as opposed to the
10 Vice-President. In Paragraph 7 of her second supplemental
11 declaration she provides an outline of the universe of
12 functions that the Vice-President has. But in terms of --
13 THE COURT: The Office of the Vice-President,
14 that's correct. The Vice-President operates in the Office of
15 the Vice-President, I'm not questioning that.
16 MS. HONG: Paragraph 7 identifies the functions
17 that the Vice-President himself has.
18 THE COURT: Okay.
19 MS. HONG: And in conjunction with Paragraph 6, we
20 believe that there is no discovery that is required or merited
21 here because there is a sworn declaration under penalty of
22 perjury that all of the documentary material created or
23 received by the Office of Vice-President, which includes the
24 Vice-President, covers all of those documentary materials
25 relating to or having an effect upon the Vice-President's
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1 universe of functions.
2 THE COURT: All right. Ms. Weismann, would you
3 like to weigh in at this point.
4 MS. WEISMANN: I'm not sure I have anything more to
5 add beyond the papers and how the Court has summarized the
6 issues. We agree. I just don't think it would be very
7 fruitful to have a back and forth on the, you know, exact
8 meaning of each paragraph. I mean, we've said we see it
9 differently and we see holes. I think this whole exercise, in
10 our view, has highlighted why we need to move forward with
11 depositions. And as we put in our papers, in our section of
12 the joint report, we're prepared to move as quickly as we can
13 as soon as we know the deponents' availability.
14 THE COURT: If you can hold on just one second for
15 a minute.
16 OFF THE RECORD.
17 THE COURT: Let me ask one thing. I'm looking at
18 Paragraph 7. Are you indicating that if he has no -- if he
19 acts, not in his personal capacity, but in some official
20 capacity, not in those two categories, that he's not acting as
21 the Vice-President, Ms. Hong?
22 MS. HONG: No, Your Honor, absolutely not. It's
23 like if we called the categories cats and dogs, it's just that
24 the Vice-President is articulating all of his functions all
25 within those two descriptions. This may be a result of the
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1 for the discovery. I'll put something out more specific, but
2 at least I've given you my rulings now. So, I'm not doing the
3 Motion to Dismiss as a separate round and then the rest,
4 you're going to do it all together. And I will make the
5 decision based on, clearly, the order in which -- when the
6 Court needs to make these decisions. Now --
7 MS. HONG: Your Honor, in terms of the expedited
8 schedule, given that the preliminary injunction is in place,
9 is there still a need to go at this accelerated rate if all
10 the documents at issue in this litigation are subject to the
11 preservation order?
12 THE COURT: Well, I'm assuming that some
13 decision -- you want it to be made before January 20th when
14 there is a transition or before. And I want to leave enough
15 time, frankly, for me to make a decision beforehand. It
16 doesn't do any good to have a decision after the January 20th
17 time, it needs to be done before that. So, these are not
18 going to be simple issues, as far as I can tell. And, so,
19 under those circumstances, I want to make sure that it gets --
20 the discovery's done, the briefing is done, and that I have
21 enough time to get it done.
22 MS. HONG: But if the documents are being preserved
23 come January 20th, there's nothing magical about that January
24 20th transition date that would --
25 THE COURT: As I recall, Ms. Hong, you did not
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1 to two, I think these are the two people that have -- that are
2 most likely, and certainly Mr. Addington has made statements
3 relating to how he sees -- reflective presumably of the
4 Vice-President, Mr. Cheney, of how he sees that office
5 operating. So, I think it's, frankly, a perfectly natural
6 selection to have made.
7 MS. HONG: But, Your Honor, Ms. O'Donnell is the
8 Assistant to the Vice-President, the Deputy Chief of Staff.
9 I'm not saying that she would necessarily be the appropriate
10 deponent, but at a minimum, providing if we have notice of
11 exactly what the contours of this deposition is, then we
12 should be provided an opportunity to the extent possible to
13 select who we believe would best answer the questions.
14 THE COURT: I don't think that this is -- if you
15 were doing a full discovery across the board and they were
16 asking for a 30(b)(6), that's one thing, clearly, you make the
17 selection. They're not asking for a 30(b)(6) witness.
18 They've limited it to two individuals. We have Ms.
19 O'Donnell's declarations, I think we now have four. And so it
20 seems to me that if they have chosen two other people, and I
21 think one connected to NARA and one connected to the
22 Vice-President, then it makes sense to do these.
23 And I think under the circumstances that based on
24 statements that have been made that it's a natural choice to
25 have made the two, and their positions in terms of doing them.
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1 So, at this point I'm going to leave it with the two that they
2 have identified at this point. Obviously, you'll have to
3 determine their availability. I don't see these as being
4 long. The scope is fairly narrow, based on the way this case
5 has been presented, and the issues that have been identified.
6 So, at this point I'm going to leave it the way it
7 is. I will be doing an order that sets out the briefing
8 schedule. I will also do an order that sets out the discovery
9 and discusses how I'm handling the Motion to Reconsider, et
10 cetera, so that there is something that is on the record
11 besides what comments I've made today, since I made them in
12 the context of what I received -- since I wasn't here at
13 midnight last night when you filed it, what I saw this morning
14 and the joint report that was filed.
15 MS. HONG: And, Your Honor, is the discovery in
16 connection only with the Motion for Reconsideration, so that
17 if that were withdrawn, the discovery order would be withdrawn
18 or is the --
19 THE COURT: No, the Motion to Reconsider to --
20 withdrawing it isn't going to get rid of the discovery. As I
21 mentioned, I'm certainly doing it in that context at this
22 point, because I think -- that's why I would roll them into
23 the -- I would roll a decision on the merits into it because I
24 think they are one and the same in terms of your Motion to
25 Reconsider, goes to the merits. And we're going to be doing
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