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