Electronic Discovery Law

Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Nov. 12, 2007)

On Monday, November 12, 2007, Judge Henry H. Kennedy, Jr. adopted the Report and Recommendation of Magistrate Judge John M. Facciola and ordered the White House to:  “preserve media, no matter how described, presently in their possess[ion] or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction.”  Judge Kennedy further ordered:  “Defendants shall preserve the media under conditions that will permit their eventual use, if necessary, and shall not transfer said media out of their custody or control without leave of this court.” 

In this consolidated action, Citizens for Responsibility & Ethics in Washington ("CREW") and The National Security Archive are seeking to preserve for history the records of the Bush presidency.  The organizations challenge as contrary to law "the knowing failure of the defendants to recover, restore and preserve certain electronic communications created and/or received within the White House."  The plaintiffs further allege:

The e-mails at issue were improperly deleted from servers maintained by the Executive Office of the President and currently exist only on back-up tapes, if at all.  Unless relief is granted and the e-mail expeditiously restored from the back-up tapes, these federal and presidential records may be lost forever.  This action also challenges the failure of the Archivist and the head of the Office of Administration to take enforcement action to ensure adequate preservation of all federal records.

[] In addition, this lawsuit seeks an order requiring the defendants to implement an adequate electronic records management system in compliance with federal law.  The current administration abandoned the previous electronic records management system in 2002 and has failed to implement another system, creating a situation in which emails that should have been preserved as either federal or presidential records were instead improperly deleted.  Moreover, in the absence of an adequate electronic records management system, e-mails continue to be deleted improperly from the servers. . . .

Complaint, at pp. 2-3.  Defendants have stated they intend to file a motion to dismiss for lack of subject matter jurisdiction.

A copy of today’s order is available here, and a copy of Magistrate Judge Facciola’s October 19, 2007 Report and Recommendation is available here.

An article about the ruling is available here.

CREW has also moved for expedited discovery and has asked the court to compel a Rule 26(f) conference.  A copy of the memorandum in support of that motion is available here.