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A U.S. District Court for Washington, D.C., today ordered the White House to provide by May 5 information on whether backup tapes created between March 2003 and October 2005 have been preserved, including any specific dates for which no backup tapes exist.
Judge John Facciola has also ordered the Executive Office of the President (EOP) to provide costs for using forensic technology to preserve e-mail, as well hand over data on how many of today’s employees were onboard during the stipulated timeframe, and how many hard drives in use today were used in that period.
In its ruling the court also recommends that the EOP search current and older workstations and .PST files for e-mails tied to individuals employed in the given time frame and preserve any found e-mails.
It also recommends that EOP employees relinquish backup media that contain e-mails sent or received during the 19-month time frame. The media would include hard drives, CDs, DVDs, flash, zip, or floppy disks.
Today’s court ruling is the latest action in a lawsuit filed a year ago by both the National Security Archive and Citizens For Responsibility And Ethics in Washington (CREW) against the Executive Office of The President (EOP) regarding e-mail preservation and backup tape procedures.
The Archive called today’s court action “a major victory” and said it indicates that the court is reacting to inconsistencies in previous White House statements.
“What worries us is that time is passing and there are only eight and half more months until this administration leaves office,” Meredith Fuchs, the Archive’s general counsel, said in a statement.
“If nothing is done soon, not only could the e-mails disappear for good but the federal records that are commingled with the presidential records could get swept away and become inaccessible for the next 12 years,” she added.
The Archive is an independent nongovernmental research institute at George Washington University and a repository of government records. Its $2.5 million annual budget is derived from publication revenues, contributions and grants from foundations. It does not receive U.S. government funding.
Calls to the White House legal team on today’s ruling were not returned by press time. The Department of Justice (DOJ) has stated previously it would not comment on ongoing litigation.
The White House Office of Administration has steadily fought to dismiss the legal action by the Archive, indicating missing e-mails may be recoverable.
The Archive, along with the left-leaning advocacy group CREW, contends that White House e-mail has gone missing between March 2003 and October 2005 and that current backup tape processes are not consistent with federal law requiring While House document archiving and preservation.
The groups had requested a temporary restraining order (TRO) in early March to stop destruction or deletion of computing media within the EOP’s domain. A similar TRO is in effect for White House backup tapes.
In testimony earlier this year before a congressional committee, White House technical leaders admitted in court depositions that potentially millions of e-mails from the past eight years have been erased.
The Archive, in its TRO request, had requested new court-supervised depositions of current White House CIO Teresa Payton regarding e-mail preservation and backup of current e-mail.
Although today’s court response did not include a decision on the TRO request, the court stated it couldn’t recommend a new disposition but that another judge involved in hearing the lawsuit could direct expedited discovery regarding Payton’s past testimony.
Today’s court action is the second time the EOP has been asked to provide costs in using forensic software to preserve current e-mails.
The DOJ had initially claimed that forensic copying of current and older workstations would prove costly, labor-intensive and futile. The EOP had also told the court that if older workstations were still in use, finding and copying hard drives would create an “awfully expensive needle to justify searching a haystack.”
In addition to the legal action related to White House e-mails, CREW asked the FBI in March to investigate whether White House officials obstructed justice by allegedly destroying documents related to the leak of CIA agent Valerie Plame Wilson’s identity.
An FBI spokesperson said in late March the agency had reviewed the letter. At the time DOJ spokesperson Peter Carr stated that the letter “is under review.” Carr did not respond to inquiries on the status of the note by press time.
