UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
JUDICIAL WATCH, INC, )
PlaintiB` )
)
v. ) Civil Action N0. 14-1242 (RCL)
)
DEPARTMENT OF STATE )
Defendant )
)
MEMORANDUM AND ORDER

This matter comes before the Court on plaintiffs motion for limited discovery regarding
the adequacy of the State Department’s search for responsive documents in this Freedom of
Information Aet case.

The Court set forth the proper legal standards for such discovery in a prior case in which
the Environme:ital Protection Agency had excluded its Administrator from a search of "senior
official" files in response to a FOIA request, did not search personal e-mail accounts where
official govemment business was being conducted, and ultimately disclosed that the
Administrator was sending and receiving e-mails in her dog’s name-which was not subject to
the FOIA search. See Landmark Legal Found. v. Envtl. Pr0t. Agency, 959 F. Supp. 2d 175
(D.D.C. 20l3). Where there is evidence of government wrong-doing and bad faith, as here,
limited discovery is appropriate, even though it is exceedingly rare in FOIA cases.

An understanding of the facts and circumstances surrounding Secretary Clinton’s
extraordinary and exclusive use of her "clintonemail.com" account to conduct official
govemment business, as well as other officials’ use of this account and their own personal e-mail
accounts to conduct official govemment business is required before the Court can determine

whether the search conducted here reasonably produced all responsive documents. Plaintii¥ is

l

certainly entitled to dispute the State Department’s position that it has no obligation to produce
these documents because it did not "possess" or "control" them at the time the FOIA request was
made. The State Department’s willingness to now search documents voluntarily turned over to
the Department by Secretary Clinton and other officials hardly transforms such a search into an
"adequate" or "reasonable" one. Plaintiff is not relying on "speculation" or "surmise" as the
State Department claims. Plaintiff is relying on constantly shifting admissions by the
Govemment and the former government officials Whether the State Department’s actions will
ultimately be determined by the Court to not be "acting in good faith" remains to be seen at this
time, but plaintiff is clearly entitled to discovery and a record before this Court rules on that
issue.

The Court must observe that the Govemment argues in its opposition memorandum (page
9) that "the fact that State did not note that it had not searched Secretary Clinton’s e-mails when
it responded tc- Plaintiff’ s FOIA request . . . was neither a misrepresentation nor material
omission, because these documents were not in its possession and control when the original
search was completed." The Govemment argues that this does not show a lack of good faith, but
that is what remains to be seen, and the factual record must be developed appropriately in order
for this Court to make that deterrnination.

The Court does understand the Government’s argument that the sheer volume of pending
cases involving these issues is a burden and the Court is aware that Judge Sullivan has already
ruled in another case brought by this plaintiff against this defendant-regarding other requested
documents-that he will authorize limited disc0very. See Judicial Watch v. Dept. of State, Civil
Action No. 13-1363-EGS (frled Sept. lO, 2013). Brieflng is ongoing before Judge Sullivan.

When Judge Sullivan issues a discovery order, the plaintiff shall--within ten days thereafter-

tile its specific proposed order detailing what additional proposed discovery, tailored to this case,
it seeks to have this Court order. Defendant shall respond ten days after plaintiff s submission.

Plaintiff’ s motion for limited discovery is GRANTED.

Defendant’s motion for summary judgment is DENIED, without prejudice to filing a
new motion aher authorized discovery is concluded.

lt is so ORDERED.

§yce  Lamberth

United States District Judge
DATE: 7/=.7 fm

