Defendants.
DISCOVERY ORDER
(September 24, 2008)
Plaintiffs, Citizens for Responsibility and Ethics in Washington (“CREW”) and a number
of individual historians, archivists, and organizations of archivists and historians, bring the
above-captioned action seeking declaratory, injunctive, and mandamus relief against Defendants,
Vice President Richard B. Cheney in his official capacity, the Executive Office of the President
(“EOP”), the Office of the Vice President (“OVP”), the National Archives and Records
Administration (“NARA”), and Dr. Allen Weinstein, Archivist of the United States, in his
official capacity. Plaintiffs allege that Vice President Cheney, the OVP, and the EOP have
improperly excluded records from the Presidential Records Act, 44 U.S.C. § 2201 et seq.
(“PRA”), and seek a declaratory judgment or alternatively a writ of mandamus based on those
allegations. Plaintiffs also allege that NARA and the Archivist have improperly excluded
records from the PRA and failed to comply with the Administrative Procedure Act, 5 U.S.C. §
701 et seq., and seek a declaratory judgment or alternatively a writ of mandamus based on those
Case 1:08-cv-01548-CKK Document 20 Filed 09/24/2008 Page 2 of 20
allegations. On September 20, 2008, the Court issued a Preliminary Injunction that required
Defendants to preserve
Order, which identified factual disputes between the parties, and given Plaintiffs’ earlier
argument that the existence of factual disputes would affect the parties’ briefing schedule, see
9/10/08 Conf. Call Tr. at 8:1 - 8:3, the Court ordered the parties to confer to discuss an
appropriate briefing schedule and to consider whether it was appropriate for one or both parties
to take narrow and expedited discovery related to their factual disputes. See Min. Order dated
Sept. 22, 2008. The parties filed a Status Report on September 23, 2008, explaining that they
were unable to agree on a briefing schedule. See Status Report at 1-10 (Sept. 23, 2008), Docket
No. [18]. In addition, Plaintiffs requested permission to take two depositions while Defendants
opposed discovery altogether.2 Id. The Court thereafter held a conference call on the record with
counsel for both parties on September 23, 2008. The Court granted Plaintiffs’ request to take
1
The Court issued an Amended Order on September 23, 2008, adding certain clarifying
provisions to the Order at Defendants’ request and with Plaintiffs’ consent, but leaving intact the
portion of the text quoted above. See Amended Order at 1-2 (Sept. 23, 2008), Docket No. [19].
2
Defendants also filed a Motion for Reconsideration of the Preliminary Injunction Order
in which they expressed opposition to discovery in this case. See Def.’s Mot. for Recons. at 6-7,
Docket No. [17].
2
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depositions of the two individuals identified in the parties’ Status Report and, by subsequent
Order, entered an expedited briefing schedule. See Min. Order dated September 23, 2008. This
Discovery Order incorporates and supplements the discussion on the record, explaining the basis
I. BACKGROUND
The Presidential Records Act defines the term “Presidential records” as:
44 U.S.C. § 2201(2). Pursuant to the PRA, “[t]he United States shall reserve and retain
complete ownership, possession, and control of Presidential records,” 44 U.S.C. § 2202, and the
President is directed to “take all such steps as may be necessary to assure that the activities,
deliberations, decisions, and policies that reflect the performance of his constitutional, statutory,
or other official or ceremonial duties are adequately documented and that such records are
“personal records” as “all documentary materials, or any reasonably segregable portion thereof,
of a purely private or nonpublic character which do not relate to or have an effect upon the
carrying out of the constitutional, statutory, or other official or ceremonial duties of the
President.” Id. § 2201(3). Further, the PRA provides that documentary materials produced or
3
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received by the President, his staff, or units or individuals in the EOP whose function is to advise
and assist the President “shall, to the extent practicable, be categorized as Presidential records or
personal records upon their creation or receipt and be filed separately.” Id. § 2203(b).
The PRA specifically directs that Vice-Presidential records are subject to the provisions
of the PRA “in the same manner as Presidential records,” and provides that “[t]he duties and
responsibilities of the Vice President, with respect to Vice-Presidential records, shall be the same
as the duties and responsibilities of the President under [the PRA] with respect to Presidential
records.” Id. § 2207. During the President and Vice President’s term in office, they may dispose
information, or evidentiary value,” but only after complying with particular requirements for
notifying both the Archivist and the appropriate congressional committee of the planned disposal.
Id. § 2203(c)-(d). Significantly, the PRA provides that upon conclusion of the President and
Vice President’s last term in office, “the Archivist of the United States shall assume
responsibility for the custody, control, and preservation of, and access to,” Presidential and Vice-
Presidential Records. Id. § 2203(f)(1). The PRA further imposes a duty on the Archivist to
“make such records available to the public as rapidly and completely as possible consistent with
B. Plaintiffs’ Allegations
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Id. §§ 2201(2), 2207. Significantly, the PRA does not contain any further definitions of the
terms “constitutional, statutory, or other official or ceremonial duties of the [Vice] President.”
See generally 44 U.S.C. § 2201, et seq. Plaintiffs’ Amended Complaint alleges that Defendants
have improperly and unlawfully placed limitations on the scope of Vice-Presidential records
subject to the PRA. Am. Compl. ¶ 1. In particular, Plaintiffs allege that Vice President Cheney,
the OVP, and the EOP have or will “improperly and unlawfully exclude from the PRA records
created and received by the vice president in the course of conducting activities related to, or
having an effect upon, the carrying out of his constitutional, statutory, or other official [or]
ceremonial duties.” Id. Plaintiffs also challenge the alleged “policies and practices” of the
Archivist and NARA “to exclude from the reach of the PRA those records that a vice president
creates and receives in the performance of his legislative functions and duties.” Id.
C. Procedural History
The Court’s consideration of Plaintiffs’ request for discovery is best understood in the
context of Defendants’ continuously shifting factual and legal positions that have served only to
create or highlight factual, legal, or hybrid factual/legal disputes between the parties. The Court
shall therefore review the chronology of this case with a particular focus on Defendants’
Plaintiffs filed their initial Complaint in this action on September 8, 2008, along with a
Motion for Preliminary Injunction. On September 9, 2008, the Court contacted counsel for
Plaintiffs and Defendants by telephone to schedule a conference call on the record regarding
5
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Plaintiffs’ Motion for Preliminary Injunction. During that phone call, the Court noted the
significant overlap between the issues raised in Plaintiffs’ Complaint and their Motion for
Preliminary Injunction. The Court therefore requested that counsel for each side discuss with
their clients the possibility of addressing Plaintiffs’ Motion for Preliminary Injunction through a
decision on the merits of Plaintiffs’ Complaint, with the benefit that all parties would be afforded
the opportunity to provide more fulsome briefing on the merits than would be possible under the
truncated preliminary injunction schedule set forth in Local Civil Rule 65.1. The Court noted a
decision on the merits: Defendants would have to agree to preserve all documents potentially at
issue in this litigation so that Plaintiffs could receive full relief in the event they ultimately
On September 10, 2008, the Court held a conference call on the record with counsel for
all parties participating, during which the parties agreed to the Court’s proposal to proceed via a
thorough briefing on the merits of Plaintiffs’ Complaint. Defendants indicated during the call
that they were “willing to preserve all records that are related to this suit or that are at issue in
this suit,” and identified a “subset” of legislative records that they believed were at issue.
9/10/08 Conf. Call Tr. at 5:14 - 5:18; 13:12- 13:15. Defendants also indicated that, if the Court
were to rule in favor of CREW and find that these legislative documents were covered under the
PRA, the records would be transferred to the custody of NARA on January 20, 2009, the date of
the Vice Presidential transition. Id. at 13:9 - 13:12. Based on the representations of counsel, the
Court set an expedited schedule for merits briefing to resolve the case prior to the Vice
Presidential transition on January 20, 2009. The Court also explained to the parties that, given
6
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the Court’s November and December trial schedule, and given that the Amended Complaint
appeared to potentially involve complex issues of first impression, the parties would have to
complete their briefing no later than November 17, 2008, to provide the Court with sufficient
time to reach its decision prior to January 20, 2009. The parties agreed to an expedited briefing
schedule consistent with the November 17, 2008 end date. The Court thereafter issued an Order
Defendants agreed that they will preserve–and will not transfer out of their
custody and control–any and all records potentially at issue in this litigation
during its pendency, as well as during any ensuing appeal. The parties agreed to
memorialize this agreement through a memorandum of understanding, stipulation,
or proposed consent order for the Court’s approval, and to file such a document
no later than 5:00 p.m. on Friday, September 12, 2008.
At approximately 3:00 p.m. on Friday, September 12, 2008, the Court was advised by the
parties that they had been unable to reach the type of agreement contemplated by the Court’s
September 10, 2008 Order. See Minute Order dated Sept. 10, 2008. The parties then faxed to
the Court copies of their competing agreement proposals, which the Court reviewed. Plaintiffs
proposed a Consent Order that would have required all Defendants to retain records at issue in
the litigation using language reflective of the PRA, i.e., “all documentary materials, or any
reasonably segregable portion thereof, created or received by the [V]ice [P]resident or the Office
of the Vice President in the course of conducting activities that relate to or have an effect upon
the carrying out of their constitutional, statutory, or other official or ceremonial duties.” In
contrast, Defendants proposed a stipulation that would bind only the OVP to retain documentary
materials relating to the Vice President’s “constitutional, statutory, or other official or ceremonial
7
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duties,” but further defining the broad PRA language as “the functions of the Vice President as
President of the Senate and the functions of the Vice President specially assigned to the Vice
After reviewing the parties’ competing proposals, the Court held a conference call with
the parties, during which the Court identified two principal discrepancies between the parties’
proposed agreements: (1) Defendants’ proposal did not bind all Defendants, but only covered the
OVP, and (2) while both parties’ proposals provided that documents at issue in this litigation
could be transferred to NARA, Defendants’ proposal did not bind NARA or the Archivist, and
contained no specifications as to how NARA or the Archivist would treat any transferred
documents. Significantly, Defendants maintained their position that there was a subset of
documents that existed that were not being treated as PRA records. See 9/12/08 Conf. Call Tr. at
3:17 - 3:22 (explaining that the “vast majority” of documents have been treated as covered by the
PRA and repeating that the litigation involved a subset of legislative records); id. at 9:11 - 9:13
(indicating that the OVP would agree to preserve all records relevant to the lawsuit, but not
indicating that the records were already being preserved as records covered by the PRA).
Because Defendants would not agree to bind any Defendant other than OVP to a proposed order
or stipulation, and Plaintiffs would not agree to Defendants’ proposal, “the Court reimposed the
briefing schedule required by Plaintiffs’ Motion for Preliminary Injunction, which had previously
been mooted by the parties’ agreement to have the case resolved on the merits, contingent on the
8
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As required by the Court and Local Civil Rule 65.1, Defendants filed their Opposition to
Plaintiffs’ Motion for Preliminary Injunction on September 16, 2008. That Opposition asserted
that
The Vice President and the Office of Vice President (“OVP”) have been carrying
out since January 20, 2001–and intend to continue to carry out–their obligations
under the Presidential Records Act with respect to documentary materials that
relate to or have an effect upon the Vice President’s constitutional, statutory or
other official and ceremonial duties, both executive-related and legislative-related
duties.
Defs.’ Opp’n at 1. Defendants’ Opposition was supported by two Declarations, declared under
penalty of perjury, filed by Claire M. O’Donnell, Assistant to the Vice President and Deputy
Chief of Staff, and Nancy Kegan Smith, Director of the Presidential Materials Staff in the Office
of Presidential Libraries at the National Archives and Records Administration (“NARA”). See
id., Exs. 1 and 2. The Opposition reflected a new position advanced by the Government: it
omitted any mention of legislative records that may not have been previously treated by
Defendants as documentary material covered by the PRA, and instead indicated that the Vice
President and OVP were complying with their obligations to retain documentary materials related
to the Vice President’s constitutional, statutory or other official and ceremonial duties.
Based on Defendants’ Opposition and their new representations, on September 16, 2008,
the Court issued an Order requiring Plaintiffs to “respond to the issue of whether, in light of
Defendants’ sworn Declarations, a basis exists for the Court to issue the preliminary injunction
Plaintiff[s] request[] in connection with Defendants’ compliance with the PRA.” Order at 2
(Sept. 16, 2008), Docket No. [10]. Plaintiffs filed their Reply, as required, on September 17,
2008, and asserted that “[f]ar from supplying the requisite assurances that defendants are
9
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complying fully with the [PRA], the defendants’ declarations offer carefully parsed language
establishing only that defendants are preserving two subsets of vice presidential records.” Pls.’
Declaration: Ms. O’Donnell defined the term “vice presidential records” to include the definition
of the term set forth in the PRA and discussed above. See O’Donnell Decl. ¶ 5. Importantly,
however, Ms. O’Donnell further stated that “[t]he constitutional, statutory, or other official or
ceremonial duties of the Vice President include both the functions of the Vice President as
President of the Senate and the functions of the Vice President specially assigned to the Vice
President by the President in the discharge of executive duties and responsibilities.”3 Id. To
Does this statement indicate that Defendants interpret the phrase “the
constitutional, statutory, or other official or ceremonial duties of the Vice
President” as exclusively encompassing “the functions of the Vice President as
President of the Senate” and “the functions of the Vice President specially
assigned to the Vice President by the President in the discharge of executive
duties and responsibilities?
Defendants’ Response to the Court’s question, filed at noon on September 18, 2008,
stated that “the short answer to the Court’s question is yes.” See Defs.’ Resp. at 1. Defendants’
Response is supported by a second declaration by Ms. O’Donnell, in which she avers that
all the constitutional, statutory, or other official or ceremonial duties of the Vice
President fall within either (a) the category of functions of the Vice President
specially assigned to the Vice President by the President in the discharge of
3
These two narrow definitions were the same as those included in the stipulation
submitted by Defendants in response to the Court’s proposal to proceed via a briefing on the
merits.
10
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executive duties and responsibilities or (b) the category of the functions of the
Vice President as President of the Senate.
Suppl. O’Donnell Decl. ¶ 5. She further avers that “[a] Vice President has no functions unless
they are specially assigned to the Vice President by the President in the discharge of executive
After considering all of the above, including the changing factual and legal positions
advanced by Defendants through representations by counsel and the declarants, the Court issued
an Order for a Preliminary Injunction on September 20, 2008. See Order at 1-2 (Sept. 20, 2008),
Docket No. [15]. The Court explained that “Defendants’ Response to the Court’s latest question
makes unmistakably clear that Defendants apply a narrowing interpretation to [the language of
the PRA].” Mem. Op. at 11 (Sept. 20, 2008), Docket No. [16]. This conclusion was apparent
because
Defendants [] define the terms used in the PRA– the ‘constitutional, statutory, or
other official or ceremonial duties of the [Vice] President’ – to include only those
‘functions of the Vice President specially assigned to the Vice President by the
President in the discharge of executive duties and responsibilities’ and ‘functions
of the Vice President as President of the Senate.’
Id. at 11 (citing Suppl. O’Donnell Decl. ¶ 5; Defs.’ Resp. at 1). The Court further explained that
Ms. O’Donnell’s declarations stated the apparent legal conclusion that the PRA’s definition of
documentary materials were properly limited to the documentary materials falling under one of
these two narrowing definitions, but that the declarations and Defendants’ pleadings were “bereft
of any legal analysis demonstrating that Defendants’ interpretation [was] correct as a matter of
law or any identification of legal authority that would allow Defendants to place limitations on
the PRA’s statutory language.” Id. at 12. In addition to this legal question, Ms. O’Donnell’s
11
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declarations and Defendants’ pleadings gave rise to numerous factual questions, such as whether
“Vice President Cheney only engages in activities that fall within the two narrow categories that
Defendants assert comprise all of his ‘constitutional, statutory, or other official or ceremonial
duties,’” id. at 12 (emphasis in original), and whether various examples of Vice Presidential
activities that were proffered by Plaintiffs (including those based on the Vice President’s
statutory duties imposed by Congress) were considered by Defendants to fall within these narrow
definitions. Id. at 14. Having identified these and related issues and having further noted the
undeveloped factual record, the Court applied the four-factored legal standard applicable to
motions for preliminary injunction4 and found that Plaintiffs had carried their burden of
demonstrating that a preliminary injunction was necessary and appropriate. Id. at 9-21.
Order, which identified factual disputes between the parties, and given Plaintiffs’ earlier
argument that the existence of factual disputes would affect the parties’ briefing schedule, see
9/10/08 Conf. Call Tr. at 8:1 - 8:3, the Court ordered the parties to confer to discuss an
appropriate briefing schedule and to consider whether it was appropriate for one or both parties
to take narrow and expedited discovery related to their factual disputes. See Min. Order dated
Sept. 22, 2008. Recognizing the time sensitive nature of any potential schedule that might be
4
The four-factored legal standard requires a court to balance four factors: (1) whether the
movant is substantially likely to succeed on the merits; (2) whether the movant would suffer
irreparable injury if the injunction were not granted; (3) whether an injunction would
substantially injure other interested parties; and (4) whether the public interest would be
furthered by the injunction. See Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir.
1998) (citing CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir.
1995)). District courts apply this four-factored standard using a sliding scale, pursuant to which
a particularly strong showing in one area can compensate for weakness in another. See CityFed
Fin., 58 F.3d at 747.
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imposed, the Court ordered the parties to file a Status Report no later than 1:00 P.M. the
following day, and to participate in a conference call with the Court at 3:00 P.M. later that day
for purposes of discussing the same. The parties filed a Status Report as directed on September
23, 2008, wherein Plaintiffs requested that they be allowed to take the depositions of two
identified individuals prior to the next and final round of briefing in this case. See Status Report
at 2-8 (Sept. 23, 2008), Docket No. [18]. Defendants opposed Plaintiffs’ discovery request, and
instead proposed that the Court allow the parties to engage in another round of briefing, either as
to the propriety of discovery or as to a Motion to Dismiss, before any discovery was permitted.
Id. at 9-10.
also filed a Motion for Reconsideration of the Preliminary Injunction Order on September 23,
2008. In that Motion, Defendants reassert their conclusion that the Vice President, “in
performing his duties engages in the two categories of functions identified in the declarations and
only in those categories,” and that OVP has applied the PRA “to the vice presidential records
created or received in the course of engaging in those two functions.” Def.’s Mot. for Recons. at
3 (citing Second Suppl. Decl. of Ms. O’Donnell) (emphasis in original omitted). Defendants
argued that these representations were based on the declarations of Ms. O’Donnell, declared
under the penalty of perjury, and consequently no case or controversy exists. Id. Defendants’
Motion, however, notably failed to provide any legal analysis supporting their position that these
two narrow definitions are legally appropriate interpretations of the PRA’s broad language,
despite the Court’s previous focus on the lack of such authority in its Memorandum Opinion
accompanying the Preliminary Injunction Order. See Mem. Op. at 12 (Sept. 20, 2008), Docket
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No. [16] (“both Ms. O’Donnell’s Declarations and Defendants’ pleadings are bereft of any legal
identification of legal authority that would allow Defendants to place limitations on the PRA’s
statutory language”). Defendants also failed to explain why these “sub-definitions” were
necessary or appropriate if Defendants believed that they were co-extensive with the broad
language of the PRA. Although Defendants’ Motion explained that Defendants were using the
phrase “specially assigned by the President” based on the language found in 3 U.S.C. § 106, see
Def.’s Mot. for Recons. at 5, that statute appears to be a budgetary provision related to the Vice
President’s hiring and payment of staff, and Defendants failed to offer any explanation as to why
or how that provision relates to the definition or identification of documentary materials under
the PRA. Defendants’ Motion also failed to explain why–if, as they now assert, their limiting
definitions are co-extensive with the broad language of the PRA–it is necessary to shoe-horn the
Vice President’s “statutory” duties, which are assigned by Congress, into the rubric of those
On September 23, 2008, the Court held a conference call on the record with counsel for
all parties participating. During the call, Defendants adopted what is at least their third position
taken in this litigation. Defendants stated (for the first time) that the narrow definitions they had
offered in their filings were created for purposes of this litigation in response to Plaintiffs’
Amended Complaint, and to explain that OVP was retaining both legislative and executive
records.5 See 9/23/08 Conf. Call Tr. at 19:10 - 19:14. Defendants’ newest position raises yet
5
Despite this position, Defendants’ counsel would not concede that these definitions did
not exist prior to this litigation. See Tr. 19:15 - 19:17 (“THE COURT: So, [the definitions]
didn’t exist [before the litigation]? DEFENDANTS’ COUNSEL: Well I can’t say that they
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another set of questions. First, as noted above, the Court’s Memorandum Opinion accompanying
its Preliminary Injunction Order described the Court’s observation that Defendants had not
offered any legal analysis supporting these narrow definitions. See Mem. Op. at 12 (Sept. 20,
2008), Docket No. [16]. Instead of filing a Motion for Reconsideration indicating that the
definitions were created only for purposes of this litigation and that Defendants were complying
with the broad definition in the PRA, Defendants’ Motion for Reconsideration reaffirms
Defendants’ reliance on, and application of, these two narrow definitions. See Def.’s Mot. for
Recons. at 3 (“the Office of the Vice President has applied section 2207 to the vice presidential
records created or received in the course of engaging in those [two categories of] functions”).
Second, Defendants initially began using these two narrow definitions in their proposed
stipulation submitted in response to the Court’s proposal to proceed via a briefing on the merits.
Defendants’ newest position does not explain why they would have created these new
definitions, which they assert are allegedly co-extensive with the broad language of the PRA, for
During the September 23, 2008 call, Defendants also raised the argument that the
statutory duties imposed on the Vice President by Congress are appropriately shoe-horned into
those executive functions specially assigned by the President because the “Vice President cannot
act under the Constitution absent the direction of the President.” 9/23/08 Conf. Call Tr. at 20:2 -
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20:4. The Court notes that in the parties’ Status Report, Plaintiffs posited that Defendants may
be relying on these legal definitions based on a particular legal theory. See Status Report at 6
(Sept. 23, 2008), Docket No. [18]. If that is correct (and it may be correct given Defendants’
representations in the last conference call with the Court), it remains a legal theory that has not
been briefed before the Court. This absence of a full legal explanation is consistent with
Defendants’ course of conduct and their apparent belief that they need to explain their positions
only on a “need to know” basis. At each stage in this case, the Court has had to seek out specific
information regarding Defendants’ positions, and in response Defendants have either changed
their positions or clarified them only to the extent they deemed necessary. As a result, the Court
is unable to resolve the parties’ disputes one way or the other on the present record and has
reached no conclusions regarding the merits. It may be the case that Defendants are, as they
assert, complying with the broad language of the PRA. It may also be the case that Defendants’
shifting positions reflect narrow definitions that exclude certain documentary materials from the
broad language of the PRA. Defendants’ approach has denied the Court the ability–and the
factual record necessary–to decide one way or the other, and by requiring several rounds of time-
consuming piecemeal briefing, it has created an even greater urgency to complete the parties’
III. DISCUSSION
The events described above have resulted in the following consequences. First,
Defendants’ shifting positions and the declarations submitted in support of the same have not
clarified existing factual, legal, and hybrid factual/legal issues remaining in this case. To the
contrary, each iteration of Defendants’ positions has given rise to new questions or highlighted
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ambiguities in the record. Second, Defendants’ shifting positions have resulted in the passage of
time that now requires the parties to act with even greater expedition in order to comply with the
November 17, 2008 deadline set at the beginning of this case with the consent of the parties, and
in recognition of the need to provide the Court with sufficient time to decide any issues prior to
the January 20, 2009 transition date. Third, because time is of the essence, the Court rejects
Defendants’ newest proposal to engage in yet another round of briefing through a Motion to
Dismiss because resolution of the Motion would leave insufficient time for merits briefing
should Defendants not prevail. Fourth, given the foregoing, the Court shall require the parties to
submit one complete and final round of briefing, where the parties may make their best and final
arguments. Consistent with this approach, the Court shall hold Defendants’ Motion for
Reconsideration of the Preliminary Injunction Order in abeyance, and shall roll briefing related to
that Motion into the parties’ briefing on the merits of Plaintiffs’ Amended Complaint.7
The final consequence of the foregoing background relates to discovery. The Court finds
that discovery is appropriate in the context of Defendants’ Motion for Reconsideration of the
Preliminary Injunction Order, which requires resolution of the factual and legal predicates for
Defendants’ narrow definitions associated with application of the PRA. As it relates to the
Preliminary Injunction, such discovery must obviously occur expeditiously. Even setting aside
the preliminary injunction, however, the Court finds that discovery is appropriate in the context
of the parties’ briefing on the merits. The Court rejects Defendants’ suggestion that the parties
7
During the September 23, 2008 conference call, Defendants indicated that they may
raise jurisdictional arguments in subsequent briefing. The Court noted that if Defendants raise
jurisdictional arguments in the parties’ final round of briefing, the Court would consider those
arguments prior to considering arguments on the merits.
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should engage in another round of briefing concerning the propriety of taking discovery. The
parties have briefed their positions with respect to discovery in the parties’ Status Report and in
given the results of the parties’ piecemeal briefing to this point, and because there would be
ample grounds in the record, as described above and in the parties’ Status Report, for Plaintiffs to
file a motion under Federal Rule of Civil Procedure 56(f) to take discovery before responding to
Defendants’ briefing – the resolution of which would also delay completion of the parties’ merits
briefing that must be submitted no later than November 17, 2008. Accordingly, the Court shall
grant Plaintiffs’ request to take narrow and expedited discovery by deposing the two individuals
identified in the parties’ Status Report prior to the parties’ final round of briefing. This approach
allows all parties to put their best arguments forward, and removes further delays in the briefing
schedule.
One final issue remains. During the September 23, 2008 conference call with the parties,
Defendant requested guidance on the scope of the permitted discovery. The Court therefore sets
forth the following guidance for the parties with respect to the scope of discovery. Plaintiffs may
inquire into the factual, legal, or hybrid factual/legal aspects within each of the following areas of
inquiry:
1. The interpretation and application of the PRA by any Defendant, and any
policies or record keeping practices related thereto or derived therefrom.
2. The existence, and any Defendant’s custody or control of, individual records or
categories of records that are or are not covered by the PRA, including but not
limited to documentary material in the possession, custody or control of the Vice
President, including records in his Senate office.
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3. The functions of the Vice President that have generated, or that could generate,
documentary materials covered or not covered by the PRA, including but not
limited to any functions that are not “specially assigned” by the President.
4. The documentary materials that NARA has received or has not received from
Defendants.
The Court has proposed that the parties conduct the two depositions in the Courthouse
with a Magistrate Judge on call to address any privilege issues that may arise. Should the parties
agree with this proposal, they should contact Chambers as soon as possible so that the Court may
ORDERED that Plaintiffs’ request to take narrow and expedited discovery is granted; it
is further
ORDERED that Plaintiffs may inquire into the factual, legal, or hybrid factual/legal
1. The interpretation and application of the PRA by any Defendant, and any
policies or record keeping practices related thereto or derived therefrom.
2. The existence, and any Defendant’s custody or control of, individual records or
categories of records that are or are not covered by the PRA, including but not
limited to documentary material in the possession, custody or control of the Vice
President, including records in his Senate office.
3. The functions of the Vice President that have generated, or that could generate,
documentary materials covered or not covered by the PRA, including but not
limited to any functions that are not “specially assigned” by the President.
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4. The documentary materials that NARA has received or has not received from
Defendants.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
20