Case 1:15-cv-00363-KBJ Document 24 Filed 11/18/15 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiffs,
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Civil Action No. 15-363 (KBJ)
v.
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DEPARTMENT OF STATE
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Defendant.
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MOTION TO COMPEL
GAWKER MEDIA, LLC, et al.,

NOW COME the Plaintiffs Gawker Media, LLC and John Cook (hereinafter referred
to jointly as “Gawker”) to respectfully move this Court for an Order compelling the
defendant Department of State (“State”) to comply with two line items:
1) Produce a sworn affidavit(s) from the appropriate official(s) providing the
details on whether former Deputy Assistant Secretary of State Philippe
Reines (“Mr. Reines”) signed an Optional Form 109 Separation Statement
prior to departing State, at what point Mr. Reines was asked to turn over
any work-related e-mails still in his possession, and whether Mr. Reines
had sought and/or been authorized in writing to use a non-Government
e-mail address for work-related purposes during his tenure at State; and
2) Request that Mr. Reines voluntarily produce a sworn affidavit identifying
the specific non-U.S. Government e-mail addresses he used for U.S.
Government work-related purposes, detailing the methods he employed
(and individuals with whom he coordinated and/or consulted) to ensure he
appropriately identified all U.S. Government-related e-mails stored under
these private e-mail accounts, and certifying that he has turned over all of
the U.S. Government-related e-mails he located under his private e-mail
accounts.
For the reasons set forth in detail below, we respectfully submit that it would
constitute an appropriate exercise of this Court’s discretion to grant Gawker’s Motion to
Compel (“Motion”).

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BACKGROUND
The need for this Motion is the direct and exclusive result of actions taken by Mr.
Reines (and, to an extent, the lack of action taken by State) with respect to the use of nonU.S. Government e-mail accounts for U.S. Government-related work. This litigation was
filed more than two years after the submission by Gawker of the underlying FOIA
request for Mr. Reines’ records. Dkt. #1 at ¶13. From the date of the submission of the
underlying FOIA request on September 24, 2012, up until the initiation of the litigation
on March 13, 2015, there were no actions by State that put Gawker (or the public writ
large, for that matter) on notice that there were other potentially responsive records being
maintained by Mr. Reines on private e-mail accounts beyond State’s control. After the
initiation of the litigation, State did not provide Gawker with any specific basis to suspect
that Mr. Reines was still maintaining potentially responsive records on a private e-mail
system beyond State’s control.
In light of the absence of that information, Gawker proceeded with negotiating a
production schedule in coordination with State, as set forth in the June 24, 2015, Joint
Proposed Production Schedule. Dkt. #11. On July 28, 2015, however, unbeknownst to
Gawker, Mr. Reines provided State with 20 boxes of records. Dkt. #20 at *2. In the
August 3, 2015, Joint Status Report (“JSR”), the parties notified this Court of Mr. Reines’
actions and Gawker, in its separate statement, specifically requested the production of the
affidavits that are now the subject of this Motion. Dkt. #13 at *2.
On October 23, 2015, the parties appeared before this Court for a status conference.
During the status conference, the undersigned specifically raised to this Court the stillpending matter of the affidavits referenced in the JSR. This Court indicated that it would

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consider the matter if Gawker filed a motion seeking to compel State to comply with
these two requests. State has confirmed to the undersigned that, absent a court order, it
will continue to oppose Gawker’s requests for these affidavits.
ARGUMENT
Generally speaking, Federal Rules of Civil Procedure (“FRCP”) 26(b) authorizes
discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense. See Fed. R. Civ. P. 26(b)(1). Trial courts exercise considerable discretion in
handling discovery matters, and a district court’s decision to permit or deny discovery is
reviewable only for an abuse of discretion. Food Lion v. United Food & Commer.
Workers Int’l Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997); see also id. (explaining that
“relevance” is broadly construed and that the information sought “need not be admissible
at trial if the information sought appears reasonably calculated to lead to the discovery of
admissible evidence.”).
That discovery can, however, be limited if any of the following apply:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C). In deciding either to compel or quash discovery, the court
must balance potentially conflicting goals, avoiding depriving a party of discovery that is
reasonably necessary while bearing mind that discovery has boundaries which come into

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existence when the inquiry encroaches upon recognized domains of privilege. See Osage
Tribe of Indians v. United States, 84 Fed. Cl. 495, 497 (Fed. Cl. 2008).
For the reasons outlined below, it would constitute an appropriate exercise of the
Court’s discretion to conclude Gawker has sufficiently demonstrated that the
circumstances warrant requiring State to comply with Gawker’s requests.
A. Gawker’s Request Does Not Seek Information That Is Duplicative Or That
Can Be Obtained From Another Source That Is More Convenient, Less
Burdensome, Or Less Expensive
The information Gawker seeks through the requested affidavits does not – to the best
of the undersigned’s knowledge – exist in written form anywhere else. Outside of this
FOIA litigation, there is no other likely means by which State can be judicially compelled
or Mr. Reines can be judicially requested to answer the aforementioned-questions.
B. Gawker Has No Other Viable Opportunities By Which The Information
Contained In The Requested Affidavits Could Be Obtained
Gawker does not take lightly the decision to seek this type of discovery at such a
preliminary stage in this proceeding, particularly given the often-routine nature of FOIA
litigation. Discovery, although rare, is not unheard of in a FOIA action. See e.g.
Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 181 (1975)
(plaintiff permitted to depose agency official regarding whether documents at issue were
final agency opinions); Tax Analysts v. IRS, 214 F.3d 179, 185 (D.C. Cir. 2000)
(discovery necessary to develop factual record); Schaffer v. Kissinger, 505 F.2d 389, 391
(D.C. Cir. 1974)(reversing and remanding district court’s summary judgment with
instructions that plaintiffs be permitted to undertake discovery relating to whether records
in question had been “properly classified”); Cooper v. Dep’t of Navy, 558 F.2d 274
(5th Cir. 1977), modified, 594 F.2d 484, 486 (1979), cert. denied, 444 U.S. 926 (1979)
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(FOIA plaintiff permitted depositions of Navy personnel to determine extent of
distribution of secret Navy); Sun-Sentinel Co. v. DHS, 431 F. Supp. 2d 1258, 1276
(S.D. Fla. 2006)(evidentiary hearing needed to determine whether agency’s claim of
significant interference relates to agency’s “inability . . . to search for these records or to
produce these records”).
In FOIA cases, the courts typically will rely upon agency affidavits to resolve factual
disputes. See Hall v. CIA, 881 F. Supp. 2d 38, 73 (D.D.C. 2012). While FOIA cases
generally turn on application of law to undisputed material facts set out in agency
affidavits, courts may occasionally confront contested questions of fact that must be
answered first. See Scudder v. CIA, 25 F. Supp. 3d 19, 31 (D.D.C. 2014). A court has a
wide variety of options to resolve factual disputes, “from expansion of the record by
means of affidavits and other written submission or through discovery [and] fullblown
hearings with live testimony by the movant and other witnesses.” Scudder, 25 F. Supp. 3d
at 51, quoting Pham v. United States, 317 F.3d 178, 185 (2d Cir. 2003)(Sotomayor, J.,
concurring).
Gawker seeks nothing more than affidavits from relevant former and current U.S.
Government officials. The affidavits required of State would provide as-yet-unexplained
details regarding the circumstances in which tens of thousands of pages of work-related
e-mails were maintained by Mr. Reines on private e-mail accounts, unbeknownst to State.
The affidavits would further clarify whether Mr. Reines had secured written authorization
to use those private e-mail accounts for official work purposes, as well as whether he
signed the Optional Form 109 (“OF 109”) Separation Statement attesting to the fact that
he had already turned over all U.S. Government records in his possession. The affidavit

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requested from Mr. Reines – if he chooses to voluntarily comply – would clarify by what
means he designated e-mails as “work related” or “personal”, as well as serve as written
confirmation that he had turned over all U.S. Government-related e-mails that had been
located on his private e-mail accounts.
Absent an order from this Court granting Gawker’s Motion, resolution of these
questions will have to wait at least until processing of the responsive records is
completed and after the parties have completed summary judgment briefing. Even then,
Gawker still will not be able to secure these requested affidavits unless, and only if, this
Court were to deny State’s eventual motion for summary judgment and grant the FRCP
56(h) motion Gawker would have had to file seeking the exact same relief it is currently
requesting through the present Motion. As was explained during the October 23, 2015,
status conference, it could very well take years before processing of the responsive
records is even completed in this case. That would delay summary judgment briefing
itself – to say nothing of this Court’s ultimate ruling on the matter – until well after the
Presidential election set for next November.
In an ordinary FOIA case that might be something this Court would determine is how
the proverbial cookie crumbles. This is not an ordinary FOIA case, however, and these
are not ordinary circumstances regarding the operation of FOIA. The ongoing saga
surrounding the use of private e-mail accounts by former Secretary of State Hillary
Clinton (“Secretary Clinton”) and several of her aides while conducting official U.S.
Government business is well known and is of considerable public interest given the
likelihood Secretary Clinton will be the Democratic nominee for President in next year’s
election. See e.g., http://www.foxnews.com/politics/2015/11/12/fbi-expands-probe-

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clinton-emails-launches-independent-classification-review/?vgnextrefresh=
1&intcmp=hpbt1 (regarding ongoing FBI probe)(last accessed November 14, 2015);
http://www.politico.com/blogs/under-the-radar/2015/11/judges-orders-production-ofmore-hillary-clinton-records-215701 (regarding judicially-mandated increased
production of e-mails and records implicating Secretary Clinton and her aides)
(last accessed November 14, 2015).
More than one of this Court’s brethren has already imposed discovery-like burdens
upon State at preliminary stages of similar FOIA proceedings implicated this continuing
saga. http://www.foxnews.com /politics/2015/07/30/judge-scolds-state-departmentofficial-for-slow-response-to-records-request/ (Judge Leon requiring sworn declaration
and in-person testimony from State’s FOIA chief)(last accessed August 17, 2015);
https://www.judicialwatch.org/wp-content/uploads/2015/08/08-10-15-JW-v-StateHillary-Declaration-01363.pdf (copy of sworn declaration filed by Secretary Clinton at
request of Judge Sullivan)(last accessed August 17, 2015); http://www.northwestgeorgia
news.com/associated_press%20/news/national/clinton-aides-agree-to-preserve-emailsafter-judge-s-order/article_713b5222-41f2-11e5-b14d-33929c02f0d4.html (noting that
two of Secretary Clinton’s former senior aides had declined Judge Sullivan’s request for
sworn affidavits) (last accessed August 17, 2015).
This Court would be well within its discretion to do the same.
C. The Benefit Derived From The Information In The Requested Affidavits Far
Outweighs The Burden Or Expense That Will Be Incurred By State Or Mr.
Reines
The FOIA imposes no limits on courts’ equitable powers in enforcing its terms.
Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 19-20 (1974). “Courts have

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long recognized that there ‘may very well be circumstances in which prolonged delay in
making information available or unacceptably onerous opportunities for viewing
disclosed information required judicial intervention.’” Payne Enters, Inc. v. United
States, 837 F.2d 486, 491 (D.C. Cir. 1988), quoting Lybarger v. Cardwell, 577 F.2d 764,
767 (1st Cir. 1978). The D.C. Circuit, as well as district courts within this Circuit, have
relied upon FOIA as a basis to exercise their equitable authority to take such significant
steps as striking down agency practices, see e.g. Payne, 837 F.2d at 494 (mandating relief
for plaintiff whose FOIA requests were repeatedly obstructed by informal, unlawful
policy to deny the requests); Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 148
(D.D.C. 2013)(striking down categorical policy to deny assignments of FOIA requests),
and to determine if responsive records are “readily reproducible” in a specified format,
see Scudder, 25 F. Supp. 3d at 49 (authorizing limited discovery to inquire into CIA’s
ability to produce electronic copies of responsive records).
Gawker is not even seeking something as drastic or severe as striking down a policy
or authorizing discovery into how State manages its production of records. The extent of
this Motion is confined to merely requesting the production of affidavits clarifying the
factual circumstances in which Mr. Reines and State, respectively, complied with their
obligations under FOIA.
The information provided by these affidavits does not simply serve an abstract
academic or journalistic purpose. For more than two years after Mr. Reines left State, he
apparently failed to take any steps to notify State regarding the private e-mail accounts he
had used for official work purposes, to say nothing of turning any of those records over to
State. It was not until 2015 that State first asked Mr. Reines to turn over the records, long

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after Gawker’s original FOIA request had already been pending for more than two years.
State did not provide Gawker or even this Court with any advance notice regarding the
anticipated influx of additional records from Mr. Reines’ private e-mail accounts until
Mr. Reines had already handed over twenty boxes of records for State to process.
Even if Mr. Reines did not sign the OF 109 – and therefore did not violate the OF 109
criminal provisions – it is difficult to view the timeline of events surrounding the
compilation of records responsive to Gawker’s FOIA request as anything short of a
bureaucratic and managerial catastrophe. For more than two years State was issuing
responses to FOIA requests for records implicating Mr. Reines despite the fact that it was
apparently missing tens of thousands of pages of potentially responsive records. State has
provided scant information regarding why it was not until 2015 that it finally sought to
gather the records from Mr. Reines, to say nothing of why this was not required
contemporaneous with his departure from his position at State.
Resolution of these unanswered questions not only will inform the public regarding
how State has been handling (or mishandling, as the case may be) compilation of Federal
records from former State officials but could reasonably be calculated to lead to
admissible evidence in the present litigation. The legal sufficiency of State’s search for
responsive records is directly implicated by the questions of how many private e-mail
accounts existed, for how long those private e-mail accounts were being used, the
circumstances in which the private e-mail accounts were authorized, and how the twenty
boxes Mr. Reines produced were compiled. To allow for those questions to go
unanswered and permit State to eventually proceed to summary judgment like nothing
unusual had ever happened would in effect destroy any incentive for other Federal

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officials to voluntarily turn over Federal records they maintain on private e-mail
accounts. See http://www.politico.com/story%20/2015/08/judge-says-hillary-clintonsprivate-emails-violated-policy-121568.html?hp=t2_r (Judge Sullivan rejecting State’s
argument that FOIA does not permit searches of officials’ private accounts, noting he
viewed the situation as unusual because “there was a violation of government
policy”)(last accessed August 20, 2015).
The burden that will be imposed by State and/or Mr. Reines is negligible. The entirety
of the “burden” would amount to the production of written affidavits. With all due
respect, it borders on axiomatic that the benefit Gawker can derive from the requested
affidavits far outweighs the burden State and/or Mr. Reines will incur in producing them.
CONCLUSION
For the reasons detailed above, this Court should grant Gawker’s Motion.
Date: November 18, 2015

Respectfully submitted,
/s/
_____________________
Bradley P. Moss, Esq.
D.C. Bar #975905
Mark S. Zaid, Esq.
D.C. Bar #440532
Mark S. Zaid, P.C.
1250 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036
(202) 454-2809
(202) 330-5610 fax
Brad@markzaid.com
Mark@markzaid.com
ATTORNEYS FOR PLAINTIFFS

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