Is a party entitled to jurisdictional discovery when its adversary exhausts all possible recovery tactics in locating lost records?

Hillary’s Hidden E-mails and Jurisdictional Discovery: Nowhere to be Found

Author: Luke Lovine
Case Citation: Judicial Watch, Inc. v. Tiillerson, No. 15-785 (D.D.C. Nov. 9, 2017)
Employer/Personnel Implicated: State Department; National Archives and Records Administration (NARA); Rex Tiillerson
eLesson Learned: A court may rely on a third party, governmental agency’s assessments of searches and recovery efforts to recover lost records in determining whether or not to grant jurisdictional discovery.
Tweet This: Hillary’s Hidden Emails

Judicial Watch and Cause of Action (“Plaintiffs”), two non-profit organizations, believed the State Department (“Defendants”) unlawfully removed federal records from the State Department. Specifically, Plaintiffs sought to compel the infamous “Hillary Clinton e-mails” which apparently vanished from her Blackberry mobile device during her first few months in office as Secretary of State. In essence, Plaintiffs claimed that the State Department failed to retain agency records in accordance with the Federal Records Act (FRA) and now believed Rex Tillerson (current Secretary of State) had a duty to initiate action to recover the emails.

This Court dismissed Plaintiffs’ claim as moot, as the National Archives and Records Administration (NARA), partnered with the FBI, recovered and turned over nearly 55,000 pages of Clinton emails. The Court of Appeals reversed, applying a mootness test with “more teeth.” The Court of Appeals remanded because it believed the Defendant and the FBI should have given a better effort in searching for emails stored on one of Hillary Clinton’s nongovernmental e-mail addresses that she used in her work capacity. However, after providing extensive recovery tactics, the Defendants renewed their Motion to Dismiss on mootness grounds once again.

Under the FRA, federal agencies must preserve records containing “adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions.” The Court of Appeals in this matter made clear that a governmental agency may reasonably attempt to recover records before the Attorney General needs to take action. While the State Department concedes that federal records were unlawfully removed from the agency, it contends that its subsequent recovery efforts have “mooted the suit.” This Court believed that the case would still be moot if the Defendants “secured custody of all emails that the Attorney General could have recovered in an enforcement action.”

In determining the actions before the court as moot, this Court had to consider whether the missing emails were fatally lost or whether “further digging” may recover some missing messages. With respect to the FBI’s efforts in its search, this Court held that the efforts were “consistent with what agencies are required to do when records have been destroyed or alienated.” With respect to third party service providers, it was confirmed that they stored “no data” related to the accounts and any content is unavailable.  This Court compared the Plaintiffs’ search request to looking for “specific grains of sand on a beach.” In conclusion, because this Court believed Defendants went “well beyond the mine-run search for missing federal records,” it was sufficient to rely on the agency’s assessment of such searches and render this action moot.

Plaintiffs moved for jurisdictional discovery but to no avail. While courts will typically permit discovery when the record is inadequate and further discovery may be able to present new facts to bolster a party’s theory, the plaintiff must make a “detailed showing of what discovery it wishes to conduct or what results it thinks such discovery would produce.” Here, the Plaintiffs received almost entirely what they requested. This Court determined that the Government extensively documented the subpoenas related to this suit and turned over all but “two months” of missing emails. Interestingly, this Court noted that Plaintiffs’ main questions related largely to the FBI, not the State Department, which whom it actually sought discovery. In concluding its rationale, the court believed the FBI and the Defendants pursued “every imaginable avenue” to recover the missing emails.

Do you agree that the emails truly couldn’t be located? Should we have to take the FBI at its word that such information was undiscoverable from third-party services, such as Blackberry and AT & T? Hmmm.

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