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White House e-mail in "true emergency conditions"

Magistrate judge orders search of all White House computers, grants plaintiffs' request for inventories and preservation of evidence

For more information contact:
Meredith Fuchs/Tom Blanton - 202/994-7000
Sheila L. Shadmand [Jones Day] - 202/879-3939

Posted: January 15, 2009


White House E-mail, a National Security Archive documents reader

Chronology of events in the White House e-mail lawsuits

In the news

"Federal court hits Bush White House over e-mail"
By Pete Yost
Associated Press
January 15, 2009

"Court Orders Search of White House Computers"
By Michael Falcone
New York Times
January 14, 2009

"Missing White House E-Mails Traced, Justice Aide Says"
By R. Jeffrey Smith
Washington Post
January 15, 2009

"The Ongoing Saga Of Missing E-mails"
By Adam Hutton
CBS News
January 14, 2009

"Court orders White House to preserve e-mails"
By Bill Mears
CNN
January 14, 2009

"Judge hits White House with preservation order"
By Pete Yost
Associated Press
January 14, 2009

"White House office ordered to search for e-mail messages"
By Ben Bain
Federal Computer Week
January 14, 2009

 

Previous postings

January 14, 2009
White House admits it has not recovered files from computer workstations or collected external computer storage media that may contain missing e-mails

November 10, 2008
Court Rejects White House on Missing E-mails

July 29, 2008
Magistrate Judge Affirms Recommendation that Court Order White House to Preserve E-mails on Workstations and Portable Media

May 6, 2008
White House Backups are Incomplete, May Not Contain Some Missing E-mails

April 24, 2008
Court Sets Deadline for White House Answers on Missing E-mail

April 17, 2008
Ruling on Preservation of White House E-Mails Awaited; New Law Proposed to Address Destruction of Electronic Records

March 18, 2008
Court orders White House to show cause why it should not create forensic copies of all electronic media

February 26, 2008
White House Ignored Repeated Warnings That E-mails Were at Risk

January 16, 2008
White House Admits No Back-Up Tapes for E-mail Before October 2003

January 8, 2008
White House Must Answer Questions About Missing White House E-mails, Magistrate Judge Rules

December 14, 2007
Archive Argues Against Government Attempt to Dismiss White House E-mail Lawsuit

November 13, 2007
Judge Orders Executive Office of the President to Preserve E-mail Back-Up Tape

October 29, 2007
Archive seeks to discover true extent of missing e-mails at White House

September 5, 2007
Archive Sues to Recover 5 Million Missing White House E-mails

 

Washington, D.C., January 15, 2009 - The federal magistrate judge overseeing the White House e-mail litigation today said the issue had reached "true emergency conditions" with only "two business days before the new President takes office" and that "the importance of preserving the e-mails cannot be exaggerated," according to the court's Memorandum Opinion issued this morning along with an Order and posted on the National Security Archive website, www.nsarchive.org.

Magistrate Judge John Facciola formally ordered the White House to search all Executive Office of the President components' workstations and portable media for possibly missing e-mail -- enforcing yesterday's order from U.S. District Judge Henry Kennedy -- after government lawyers at a hearing yesterday represented that they would only search those EOP components that create federal agency records and leave out offices that create presidential records.

Today's order also granted plaintiffs' requests that a full inventory of all backup tapes and portable media containing White House e-mail be delivered to the Archivist of the United States and filed with the court, and that the full administrative record and all other evidence related to the White House e-mail be preserved under the custody of the Archivist.

"From the outset, the White House has fought tooth and nail against having to preserve sources of missing e-mail as well as other evidence relating to this case," said Sheila Shadmand of Jones Day, counsel for the Archive.  "For the umpteenth time, this Court has commanded that they do so.  We expect they will yet again object to the terms of these Orders, when instead they should be busy complying with it.  The clock is running out."

The hearing yesterday before Magistrate Judge Facciola included representations from Justice Department attorney Helen Hong that the White House had spent $10 million on an e-mail restoration project that had located some 14 million e-mail that had not been counted in a 2005 analysis by White House staff.

However, White House Chief Information Officer Theresa Payton told the staff of the House Oversight and Government Reform Committee on February 22 last year that her efforts had uncovered some 23 million e-mail that had not been found in the 2005 analysis.  The government has provided no explanation for this discrepancy, or for the contradiction between White House statements that "I wouldn't rule out that there were a potential 5 million emails lost" (Dana Perino, April 13, 2007) and "no reason to believe that any e-mails are missing" (Tony Fratto, January 18, 2008).

"From the beginning, the White House has changed its story from 'emails are missing' to '23 million emails were found' and back to 'no emails are missing.' The truth is, neither we nor the public knows what was going on, nor can we verify the White House's efforts because they continue to conduct themselves under a veil of secrecy," noted Archive General Counsel Meredith Fuchs.

White House components that are governed by the Federal Records Act include the Office of the Trade Representative, the Office of Management and Budget, the Office of Science and Technology Policy, the Council on Environmental Quality, and the Office of National Drug Control Policy.  White House components governed by the Presidential Records Act include the National Security Council, the Council of Economic Advisers, and the President's Foreign Intelligence Advisory Board.

A chronology of the litigation is available here.

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