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Case 1:15-cv-00123-RC Document 50 Filed 01/25/16 Page 1 of 13

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD,
Plaintiff,
v.

Civil Action No. 15-cv-123 (RC)

U.S. DEPARTMENT OF STATE,


Defendant.

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR


AN EXTENSION OF TIME TO COMPLETE PRODUCTION OF CLINTON EMAILS
On January 22, 2016, Defendant U.S. Department of State (State) filed a motion
seeking a one-month extension of time, until February 29, 2016, to complete production of the
non-exempt portions of records subject to FOIA contained in approximately 55,000 pages of
emails provided to State by former Secretary of State Clinton (the Clinton emails), Def.s
Mot. at 1 (ECF No. 49). State has failed to show good cause for the requested extension, that it
is necessary, or that the interests of justice will be served by granting it. Even were State able to
show a legitimate need for the extension, the interests of justice weigh heavily against granting
States requested relief, as Plaintiff Jason Leopold and the voting public at large will be
irreversibly harmed.
ARGUMENT
I.

Movant bears the burden of proving good cause justifies modification of the
production schedule.
State seeks a one-month extension of time, until February 29, 2016, to complete

production, Def.s Mot. at 1 (ECF No. 49), of the Clinton emails which the Court has ordered
be produced in full by January 29, 2016. See Courts Order of May 27, 2015 (ECF. No. 17).
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The Federal Rules of Civil Procedure provide, When an act may or must be done within
a specified time, the court may, for good cause, extend the time: with or without motion or notice
if the court acts, or if a request is made, before the original time or its extension expires. Fed. R.
Civ. P. 6(b)(1)(A). Additionally, a schedule may be modified only for good cause and with the
judge's consent. Fed. R. Civ. P. 16(b)(4); LcvR 16.4. Under [Rule 16(b)(4)], the court must
make a finding of "good cause," which includes evidence of due diligence by the movant. Beale
v. District of Columbia, 545 F. Supp.2d 8, 12 (D.D.C. 2008).
Similarly, movant bears the burden of demonstrating the relief sought is needed, and that
Plaintiff will not be harmed. See, e.g., Clinton v. Jones 520 U.S. 682, 706 (1997) (The
proponent of the stay bears the burden of establishing its need.) (citing Landis v. N. Am. Co.,
299 U.S. 248, 255 (1936)). The Jones Court held, in the context of a motion for a stay, that the
requested delay was not warranted in that case because the District Court had no way to assess
whether the stay was warranted, and there was nothing in the record to enable a judge to assess
the potential harm that may ensue if the stay was not granted. Id.
Because State offers no evidence that good cause exists to grant the requested delay, and
because Plaintiff and the public will be irreparably harmed, and the purpose of the Freedom of
Information Act (FOIA) perverted, the Court should deny States motion for an extension of
time to complete the production of the Clinton emails.
II.

State has failed to offer sufficient evidence to demonstrate that it exercised due
diligence or that the requested relief is necessary.
State seeks a one-month extension explaining, During the week of January 11, 2016,

States FOIA office discovered that a number of pages of the Clinton emails that had been
identified during the period June through October 2015 as requiring interagency consultation had
not in fact been sent to all the agencies for which consultation was required. Def.s Mot. 4
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(ECF No. 49). State further asserts that 7,254 pages are affected, Id. 5, and that the
unexpected task of sending these documents for consultation has cut into the time available for
the other processing tasks that must be completed before documents can be posted. Id. 6.
However, this information is woefully vague and insufficient to allow the Court to make
an informed determination about the actual need for an extension. The Court should therefore
deny States motion for failure to provide critical information sufficient to justify the requested
one-month or any other extension as necessary.
First, State fails to address the number of pages each agency being consulted needs to
review. State alleges only that all the agencies for which consultation was required have not
yet been consulted. Id. 4. This provides no information regarding the number of agencies
involved, or how many pages are awaiting review by each such agency. While a total of 7,254
pages await interagency review, it may be that any one agency need only review a fraction of
that number of pages.
Similarly, State fails to identify the date each agency was or is being sent these records.
This information is necessary for the Court to calculate how many days these records have or
will be available to these other agencies. The number of pages each agency must review and the
number of days available to them to do so, when taken together, is necessary for the Court to
determine the number of pages each agency is being asked to review per day.
Third, State is asking the Court to grant an extension without providing any context
demonstrating the speed with which each affected agency can review and return records referred
by State. Each agencys rate of review of previously referred records is relevant to determining
the additional number of days beyond January 29, 2016, if any, each agency may need to review
the outstanding pages.

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The above information is usually provided in the form of one or more affidavits from a
person or persons with knowledge and responsibility for processing FOIA requests. No such
affidavit from State, or any other agency has been provided to the Court. Instead, State asks for
an additional month based on mere speculation.
Because the Court cannot make a reasonable judgment whether any extension, let alone a
whole month, is necessary without knowing (1) how many page each agency needs to review, (2)
the date each agency received the documents, and (3) the pages per day each agency has the
ability to review, the Court should deny States motion for an extension of time as unnecessary
on the facts presented.
III.

The relief sought is highly prejudicial to Plaintiff and incurable and is otherwise
contrary to the interests of justice.
In addition to the reasons stated above, the Court should deny Defendants motion for an

extension of time until February 29, 2016 to complete the production of the Clinton emails
because doing so cause grave, incurable harm to Plaintiff and to the public, and would hinder,
not promote, the interests of justice. Granting an extension would add even more time beyond
the two weeks already provided for unexpected delays, the reason for States request is anything
but unexpected, the delay may have been caused by States own negligence, and the extension
would irreversibly harm Plaintiff and the public in general.
a. The Courts January 29, 2016 deadline for completing the Clinton email
review already incorporated an additional two weeks for unexpected events.
On May 18, 2015, State proposed a plan by which it would release all of the Clinton
emails at once by January 15, 2016. First Hackett Decl. 10-20 (ECF No. 12-1). After the
Court rejected this arrangement, State proposed making four rolling productions, one every 60
days beginning June 30, 2015, and finishing on January 15, 2016. Def.s Notice in Response to
Courts Order of May 19, 2015 at 2 (ECF No. 13).
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On May 27, 2015, Plaintiff responded by requesting productions every two weeks to be
completed by January 31, 2016, allowing an extra 16 days beyond January 15 to allow one extra
day beyond what was requested by State for each of the 16 productions Plaintiffs proposal
required. Pl.s Response to Defendants Notice in Response to Courts Order of May 19, 2015 at
1-2 (ECF No. 14-2).
On May 27, the Court ordered eight monthly productions, the last of which was
scheduled for January 29, 2016, fourteen days beyond States own proposed completion date.
ECF No. 17. The Courts order requiring four more productions than State proposed, also gave
State 14 days beyond States own proposed deadline of January 15, 2016 to complete them.
Undoubtedly, the Court, like Plaintiff, anticipated this extra time would be used to buffer against
unexpected delays. However, despite the gift of 14 additional days to complete the review of the
Clinton emails, State now requests even more time a whole month to address its vaguely
articulated oversight. Accordingly, the Court should deny States motion for an extension
because State has failed to demonstrate its request is reasonable and just, particularly in light of
the extra time already allocated by the Court.
b. States request for an extension is based on a delay that was anything but
unexpected.
The Court should deny States request for an extension because the delay prompting the
request was anything but unexpected. States motion for an extension is premised on the notion
that it ran into an unexpected event: The unexpected task of sending these documents for
consultation has cut into the time available for the other processing tasks that must be completed
before documents can be posted. Def.s Mot. 6 (ECF No. 49).
However, interagency referrals are not new or unique to the Clinton email review.
Additionally, State has known for many months that each page of the Clinton emails, like many
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other records subject to FOIA, needed to be reviewed by outside agencies. State admits as much
in its motion:
State reviews records responsive to FOIA requests for U.S. Government
interagency interests. Hackett Decl. at 7, n.3. In some instances, a document that
originated with State may include information that originated with another U.S.
Government agency. When this happens, in accordance with State FOIA
regulations, State consults with the applicable agency by sending the document
for the agencys review. The relevant agency then conveys its release
recommendation or determination to State for response to the requester. Id.
(citing 22 C.F.R. 171.11(k)(3)).
Def.s Mot. 2 (ECF No. 49). In fact, the need for interagency review of each page of
the Clinton emails was well understood and accounted for in States review plan as early as June
15, 2015, the date the Inspector General of the Intelligence Community Charles McCullough
sent a letter to State Inspector General Steve Linick attaching a Memorandum For the Record
stating, Evaluation of other agencies equities is not optimal, and recommending that the
State Department FOIA Office request staff support from IC FOIA offices to assist in the
identification of intelligence community equities in the Clinton emails. Ex. 1 at 2. Unless and
until State explains how over 7,000 pages that were already reviewed and identified as needing
review by at least one other agency were lost for up to six months, and then suddenly found
again just weeks before the deadline to produce them, the Court should view skeptically States
assertion that this constitutes a legitimate unexpected event.
c. State has failed to show it is not responsible for the delay for which an
extension is being sought.

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Additionally, State has failed to show that the delay at issue was not caused by its own
negligence or malfeasance. State vaguely asserts that the overlooked pages were discovered
[d]uring the week of January 11, 2016. Id. 4. However, State offers no explanation for how
already reviewed pages that existed in both paper and electronic format were lost for up to six
months. State also makes no mention of the nature of the oversight such as whether it was due
to a computer malfunction, employee error, a review protocol problem or other reason. Without
this information, it is unclear how the Court can determine whether the oversight was
reasonable, or the result of agency negligence or malfeasance.
Similarly, State provides no details about how the lost pages were found, which is
relevant to determining whether State has taken reasonable and sufficient steps to correct the
problem, prevent future errors of a similar nature, and hold any responsible persons accountable
as warranted.
Furthermore, State offers no explanation why, as of the filing of its motion on January 22,
2016, the overlooked pages have been sent to only some of the agencies. See, Id. This means
State discovered the problem as many as eleven days before it filed its motion for an extension,
but failed in those eleven days to get the pages to all of the necessary agencies. State offers no
explanation for this delay or why it could not send these already reviewed pages out for all
necessary interagency reviews over such a prolonged period of time.
Finally, questions remain unanswered by States filing which are relevant to the relief
State is seeking regarding the nature of the overlooked pages themselves. It is highly relevant
whether the pages at issue were withheld by State until the last scheduled production based in
any way on their substance, such that it is reasonable to infer that these pages will be particularly

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important to the electorate. It is not unreasonable to question whether State held the most
controversial records for last so that it could ensure they received the most review time.
d. An extension will irrevocably harm Plaintiff and the public, and frustrate the
purpose of FOIA.
The extension sought by State will cause irrevocable harm to Plaintiff and the public, and
frustrate the purpose of FOIA. Plaintiff Jason Leopold is an investigative reporter for VICE
News. Compl. 2 (ECF No. 1). Mr. Leopolds success as a reporter depends on his ability to
provide relevant, newsworthy information in a form consumable by the public in a timely
manner.
The contents of the Clinton emails will be much less relevant to a significant amount of
people on February 29 than it will be on January 29, 2016. Americans in early voting states are
less likely to consume information from media outlets like VICE News about a Democratic Party
presidential candidate after their opportunity to register their approval or disapproval of that
candidate through the democratic process has expired. In fact, because of the momentum a
candidate can garner by winning in early voting states, many other Americans outside these
states may disengage from the Democratic primary process if a single candidate wins most or all
of the early voting states, believing that candidate to be the inevitable nominee. The importance
of winning early voting states is well understood by campaigns, the media, and the voting public
writ large. Allowing State to delay the release of thousands of pages of a presidential
candidates work emails, especially when they have already garnered so much media and public
attention, until after four states have voted and until just hours before another 11 states and
American Samoa will vote, would deny Mr. Leopold of the opportunity to realize the fruits of his
year-long pursuit of these records which he and the public have a legal right under FOIA to
obtain.
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State has long recognized the acute public interest in the Clinton emails as evidenced by
its May 26, 2015 filing with this Court: The Department is keenly aware of the intense public
interest in the [Clinton emails]. Def.s Notice in Response to Courts Order of May 19, 2015
at 2 (ECF No. 13). As Plaintiff has previously noted, the information being made public as a
result of Plaintiffs lawsuit is being weighed and considered by the voting public. See Pl.s Opp.
To Defs Mot. to Stay at 4 n.4-5 (ECF No. 35). This remains as true as ever today.1 But the
information sought by Plaintiff becomes less relevant each day that passes after Americans begin
voting because the ability of the public to act on the information is reduced by the percent who
are forced to vote without the benefit of it. Consequently, the fewer the number of people who
have yet to vote, the fewer the number of people likely to be interested in consuming news
articles analyzing information about any given candidate, including those written by Plaintiff
Jason Leopold and published by VICE News.
Similarly, if the Court allows State to delay release of thousands of pages of Democratic
presidential candidate Hillary Clintons official work emails, a substantial portion of the
electorate will be forced to vote without the benefit of important information to which it is
entitled about the performance of one of the candidates for U.S. President while serving as
Secretary of State.
The delay until February 29, 2016, that State is requesting will deprive the voters of
Iowa, New Hampshire, Nevada, and South Carolina, of the ability to participate in the
democratic process as fully informed as they would otherwise be under the current January 29,
2016 deadline for the production of the Clinton emails. These states voters must decide which

See, e.g., http://www.wsj.com/articles/state-department-asks-for-more-time-to-release-hillary-clinton-emails1453497218 (last visited on January 25, 2016).

Case 1:15-cv-00123-RC Document 50 Filed 01/25/16 Page 10 of 13

presidential candidate to support on or before February 1, February 9, February 20, and February
27, 2016, respectively.2 This has the potential to impact the presidential choice of 6,237,652
estimated registered voters, or approximately 3.5 percent of the 177,199,652 registered voters in
the United States based on data for the last presidential election in 2012.3 That number includes
an estimated 2,135,939 Iowans; 767,383 New Hampshirites; 612,050 Nevadans; and 2,722,280
South Carolinians.4
Additionally, another 38,820,039 people, 5 or 22 percent of the 177,199,652 registered
voters in eleven states and American Samoa,6 who must vote by March 1, 2016, are likely to be
deprived of the information contained in the last 7,254 pages of candidate Clintons emails. This
is because such a large amount of information cannot be reviewed, analyzed and synthesized into
consumable news articles in less than a day. This is especially true givens States practice of
releasing Clintons emails very late at night on some release dates. For example, the Clinton
email production due December 31, 2015 was not completed until after 1:00 a.m. EST on
January 8, 2016.
Voters in eleven states and American Samoa must vote for a presidential nominee on or
before March 1, 2016, only hours after State proposes to release the last, and potentially most
provocative, of candidate Clintons work emails documenting her tenure as the United States

See http://www.uspresidentialelectionnews.com/2016-presidential-primary-schedule-calendar/ (last visited on


January 24, 2016).
3

The numbers presented herein are meant only as an estimate of the electorate which will be impacted based on
2012 U.S. voter registration data by state up to October 2012 as reported by The Guardian:
http://www.theguardian.com/news/datablog/2012/oct/15/voter-registrations-us-election#data (last visited on January
24, 2016).
4

Id.

Id. No data for American Samoa was readily available for inclusion in this analysis.

See, Infra, n.2.

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top diplomat. States requested delay until February 29, 2016 could impact an estimated
38,820,039 registered voters, including approximately 3,035,690 Alabamans; 1,539,619
Arkansans; 806,876 Coloradans; 5,804,812 Georgians; 1,559,464 Massachusettsians,7 3,059,234
Minnesotans, 943,283 Oklahomans, 3,447,163 Tennesseeans, 13,065,425 Texans, 342,221
Vermontians, and 5,216,252 Virginians who are eligible to vote for former Secretary Hillary
Clinton or one of her Democratic primary opponents such as Vermont Senator Bernie Sanders or
former Maryland Governor Martin OMalley.8 This represents 22% of all registered voters
nationwide.
Because it is unlikely that the voting public in states that must vote on or before Super
Tuesday on March 1, 2016, granting States motion may result in the deprivation of information
critical to informed democratic participation of up to 45,057,691 registered voters or 25.5% of all
U.S. registered voters based on registration data from the last presidential election in 2012.9
As Thomas Jefferson argued, The diffusion of information and the arraignment of all
abuses at the bar of public reason, I deem [one of] the essential principles of our government,
and consequently [one of] those which ought to shape its administration. 1st Inaugural Address,
1801.10 This sentiment was echoed by James Madisons pronouncement that, A popular
Government without popular information or the means of acquiring it, is but a Prologue to a

According to MassLive.com, In Massachusetts, unenrolled voters can vote in the primary of either party.
Those enrolled in a party can vote only in their party's primary.
http://www.masslive.com/politics/index.ssf/2015/08/massachusetts_presidential_pri.html (last visited on
January 24, 2016). Accordingly, the number reported here for registered Democrats is potentially substantially
below the actual number of persons eligible to participate in the Democratic primary.
8
This estimate excludes the following states which hold closed primaries or caucuses only for the Republican Party:
Alaska North Dakota, and Wyoming.
9

See, Infra, n.2.

10

As collected by Reid Cornwell, The Center for Internet Research, available online at
http://tcfir.org/opinion/Thomas%20Jefferson%20on%20Educating%20the%20People.pdf (last viewed on January
25, 2016).

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Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who
mean to be their own Governors, must arm themselves with the power knowledge gives.
August 4, 1822 Writings 9:103-9.11
Similarly, the Supreme Court has stated that the, basic purpose of FOIA is to ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed. NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). FOIA is often explained as a means for citizens to know
what their Government is up to. DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 773 (1989). The Supreme Court stressed that "[t]his phrase should not be dismissed as a
convenient formalism. It defines a structural necessity in a real democracy." National Archives
and Records Admin. v. Favish, 541 U.S. 171-172 (2004).12
Accordingly, the extension sought is likely to be extremely prejudicial to Plaintiff and the
public in general, and contrary to the primary purpose of FOIA.
CONCLUSION
WHEREFORE, Mr. Leopold respectfully requests that the Court deny States motion for
an extension of time to complete producing the Clinton emails. Alternatively, Mr. Leopold
respectfully requests that the Court schedule a hearing to determine how much additional time, if
any, is necessary and just to complete its FOIA obligations with respect to the Clinton emails,
including: (1) how many page each agency needs to review; (2) the date each agency received
the documents, and; (3) the pages per day each agency has the capacity to review; (4) what

11

As printed in The Founders Constitution, Vol. 1, Ch. 18, Doc. 35, The University of Chicago Press (2000),
viewable at http://press-pubs.uchicago.edu/founders/documents/v1ch18s35.html (last visited on January 25, 2016).
12

The Supreme Court quotes are available on the Department of Justices own website, without citations:
http://www.justice.gov/open/foia (last visited on January 25, 2016).

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documentation Defendant is relying on from the consulting agencies or otherwise to support its
request for the amount of additional time being requested; (5) whether the pages at issue were
withheld by State until the last scheduled production based on their substance, such that it is
reasonable to infer that these pages will be particularly important to the electorate; (6) whether
States oversight, was due to employee error or a systemic review oversight failure which may
impact ongoing reviews of other records in this case, and; (7) whether the circumstances
surrounding States oversight were due to agency negligence or malfeasance, and what
corrective action has been taken such that the Court may determine whether the relief requested
is in the interest of justice.

Dated: January 25, 2016

Respectfully Submitted,

/s/ Ryan S. James_______________


Ryan S. James
D.C. Bar #496272
5208 Capricorn Loop
Killeen, TX 76542
(254)289-7459
RSJameslaw@gmail.com
Jeffrey L. Light
D.C. Bar #485360
1712 Eye St., NW
Suite 915
Washington, DC 20006
(202)277-6213
Jeffrey@lawofficeofjeffreylight.com
Counsel for Plaintiff

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