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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON, et al.,

Plaintiffs, Civil Action No. 08-1548 (CKK)

v.

RICHARD B. CHENEY, et al.,

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
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allegations. On September 20, 2008, the Court issued a Preliminary Injunction that required

Defendants to preserve

throughout the pendency of this litigation all documentary material, or any

reasonably segregable portion thereof created or received by the Vice President,
his staff, or a unit or individual of the Office of the Vice President whose function
is to advise and assist the Vice President, in the course of conducting activities
which relate to or have an effect upon the carrying out of the constitutional,
statutory, or other official or ceremonial duties of the Vice President, without
regard to any limiting definitions that Defendants may believe are appropriate.

Order at 1 (Sept. 20, 2008), Docket No. [15].1

In light of the Court’s Memorandum Opinion accompanying its Preliminary Injunction

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].

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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

for, and scope of, the discovery in this case.

I. BACKGROUND

A. The Presidential Records Act

The Presidential Records Act defines the term “Presidential records” as:

documentary materials, or any reasonably segregable portion thereof, created or

received by the President, his immediate staff, or a unit or individual of the
Executive Office of the President whose function is to advise and assist the
President, in the course of conducting activities which relate to or have an effect
upon the carrying out of the constitutional, statutory, or other official or
ceremonial duties of the President.

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

maintained as Presidential records . . . .,” id. § 2203.

The PRA differentiates “Presidential records” from “personal records,” defining

“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

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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

of Presidential or Vice-Presidential records “that no longer have administrative, historical,

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

the provisions of the [PRA].” Id.

B. Plaintiffs’ Allegations

As noted above, the PRA broadly defines Vice-Presidential records as

documentary materials, or any reasonably segregable portion thereof, created or

received by the [Vice] President, his immediate staff, or a unit or individual of the
[Office of the Vice President] whose function is to advise and assist the [Vice]
President, in the course of conducting activities which relate to or have an effect

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upon the carrying out of the constitutional, statutory, or other official or

ceremonial duties of the [Vice] President.

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’

representations in their filings and in conference calls with the Court.

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

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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

necessary precondition to addressing Plaintiffs’ Motion for Preliminary Injunction through 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

prevailed on the merits of their Complaint.

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

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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

documenting the call:

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.

Order at 1 (Sept. 10, 2008), Docket No. [4].

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

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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

President by the President in the discharge of executive duties and responsibilities.”

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

agreement described above.” Min. Order dated Sept. 12, 2008.

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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

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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.’

Reply at 1. Plaintiffs’ Reply thus highlighted a potential ambiguity in Ms. O’Donnell’s

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

clarify this ambiguity, the Court inquired of Defendants:

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?

See 9/17/08 Order, Docket No. [12].

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.

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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

duties and responsibilities.” Id. ¶ 6.

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

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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.

In light of the Court’s Memorandum Opinion accompanying its Preliminary Injunction

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.

In addition to participating in the submission of the parties’ Status Report, Defendants

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

analysis demonstrating that Defendants’ interpretation is 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”). 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

executive functions “specially assigned by the President.”

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

purposes of crafting a stipulation that required no clarification beyond an agreement to comply

with the PRA.6

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 -

didn’t exist beforehand”).

6
Defendants’ argument that they created these definitions for purposes of this litigation
also appears to be inconsistent with their previous reliance on a budgetary provision to justify the
application of these definitions. See Def.’s Mot. for Recons. at 5 (citing 3 U.S.C. § 106)

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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’

briefing on the merits by November 17, 2008.

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

Defendants’ Motion for Reconsideration. Further, additional briefing is unlikely to be helpful

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.

5. The interactions between any Defendant and NARA, which includes

communications to or from employees working within the office of any named
non-individual Defendant, concerning documentary materials covered or not
covered by the PRA.

6. The basis for the knowledge of any deponent or Claire M. O’Donnell.

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

ascertain the schedules of the Magistrate Judges.

Accordingly, it is, this 24th day of September, 2008, hereby

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

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.

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.

5. The interactions between any Defendant and NARA, which includes

communications to or from employees working within the office of any named
non-individual Defendant, concerning documentary materials covered or not
covered by the PRA.

6. The basis for the knowledge of any deponent or Claire M. O’Donnell.

SO ORDERED.

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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