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Plaintiff Judicial Watch, Inc. and the Daily News Caller Foundation, by counsel,
respectfully submit this reply in support of their 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
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
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
1
Defendant failed to file a proposed order accompanying its opposition and therefore
failed to comply with Local Rule 7(c).
Case 1:18-cv-00967-CKK Document 16 Filed 08/03/18 Page 2 of 3
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
Mr. Seidel testifies about the steps the FBI purportedly has taken to ensure preservation of
records responsive to only Judicial Watch’s FOIA request. See Declaration of Michael G. Seidel
at ¶¶ 4 and 10.
4. Mr. Seidel does not testify about DCNF’s FOIA request. 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
explain this discrepancy. There is nothing but complete silence about why the FBI has failed to
minimum, order the FBI to take all necessary steps to ensure Comey preserves records
responsive to DCNF’s FOIA request. See Preservation Order, Judicial Watch, Inc. v. U.S.
Department of Homeland Security, Case No. 16-00967-RDM (D.D.C. Jan. 18, 2017).
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.
2
Case 1:18-cv-00967-CKK Document 16 Filed 08/03/18 Page 3 of 3
testimony about what transpired and what is contained in the letters and emails, there is no
reason why the 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 agency records
after he was fired. See Brooke Singman, IG confirms Comey under investigation over memo
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.
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