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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., )


)
and )
) Civil Action No. 18-00967 (CKK)
THE DAILY CALLER NEWS FOUNDATION, )
) .
Plaintiffs, )
)
v. )
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
)

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR


MOTION FOR PRESERVATION ORDER

Plaintiff Judicial Watch, Inc. and the Daily News Caller Foundation, by counsel,

respectfully submit this reply in support of its motion for an order requiring Defendant U.S.

Department of Justice to preserve the records at issue in this Freedom of Information Act case.1

1. Defendant asserts a preservation order is unnecessary because it has already taken

the necessary steps to preserve records responsive to Plaintiffs’ FOIA requests. This is incorrect.

The evidence submitted by Defendant itself shows that it has failed to take any steps at all to

preserve records responsive to DCNF’s FOIA request.

2. This case concerns two FOIA requests sent by two separate plaintiffs. Judicial

Watch submitted a request for memoranda by 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 any handwritten notes

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Defendant failed to file a proposed order accompanying its opposition and therefore
failed to comply with Local Rule 7(c).
used to prepare such memoranda. DCNF submitted a request for records that identify and

describe all meetings between former FBI Director James Comey and President Barack Obama. 2

3. However, in the declaration submitted in support of Defendant’s opposition brief,

Mr. Seidel testifies about the steps the FBI has taken to ensure preservation of records responsive

to Judicial Watch’s FOIA request only. See Declaration of Michael G. Seidel at ¶¶ 4 and 10.

4. Mr. Seidel does not testify about DCNF’s FOIA request whatsoever. He does not

state that the FBI formally requested Comey preserve any agency records or potential agency

records responsive to DCNF’s FOIA request. Nor does he state that the FBI asked Comey to

return any such records to the FBI.

5. In addition, neither Mr. Seidel’s declaration nor Defendant’s opposition brief

explain this discrepancy. There is nothing but complete silence about why the FBI has failed to

take steps to preserve records responsive to DCNF’s request.

6. Considering this glaring omission, Plaintiffs respectfully request the Court, at a

minimum, order the FBI to take all necessary steps to ensure Comey preserves records

responsive to DCNF’s FOIA request.

7. With respect to Judicial Watch’s request, the above-mentioned omission raises

questions about what exactly the FBI instructed Comey to do and how Comey responded.

Therefore, Plaintiffs respectfully request the Court also order the FBI to disclose the

communications between the FBI and Comey. Because Mr. Seidel provides substantial

2
Although there may be overlap between the two requests, they are not identical. DCNF’s
FOIA request would include records other than memoranda or notes, such as emails.
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testimony about what transpired and what is contained in the letters and emails, there is no

reason why such communications cannot be provided to the Court and Plaintiff at this time.3

8. Finally, Comey should not get the benefit of the doubt. He is currently under

investigation by the Justice Department Inspector General for the mishandling of records after he

was fired. See Brooke Singman, IG confirms Comey under investigation over memo handling,

Fox News (June 19, 2018, available at http://www.foxnews.com/politics/2018/06/19/ig-

confirms-comey-under-investigation-over-memo-handling.print.html).

9. For the reasons set forth in Plaintiffs’ opening memorandum and the additional

reasons set forth above, Plaintiffs respectfully request the Court order Defendant to take all

necessary steps to preserve all records at issue in this Freedom of Information Act case.

Dated: August 2, 2018 Respectfully submitted,

/s/ Michael Bekesha


Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, DC 20024
Phone: (202) 646-5172

Counsel for Plaintiffs

3
It is entirely possible that after reviewing the communications, Plaintiffs may be satisfied
with the steps Defendant has taken and would be able to withdraw this motion with respect to
Judicial Watch’s request.
3