CREW v. DOJ on McCallum, Documents, FOIA Delay

July 27, 2006 2:23 pm by Gene Borio

With apparently very little of their allotted time (5 hours) for Depositions left, Citizens for Responsibility and Ethics in Washington today filed a reply motion in its quest to further depose Associate AG Robert D. McCallum.

Some of the issues here involve

–The DOJ’s seemingly tardy delay (7 months) in responding to CREW’s June 28, 2005 Freedom of Information Act request (FOIA)

–The DOJ’s claim of privilege for all the documents–according to CREW, a “large universe of responsive documents – a universe DOJ has suggested constitutes many millions of pages, all of which are privileged.” The CREW filing claims, “The veracity of DOJ’s assertions in this regard are very much at issue, especially because DOJ has never given either CREW or the Court any kind of precise count or accounting of what those documents are.”

–McCallum’s potential influence, as 3rd-highest DOJ official, over the Office of Professional Responsibility, which on June 1 determined that McCallum “did not engage in professional misconduct or exercise poor judgment.”

The motion reads,

“The unduly stringent parameters Judge Kay placed on the scope of CREW’s inquiry of Mr. McCallum deprived CREW and this Court of a full record on the issue of Mr. McCallum’s veracity and the veracity of the government’s claims in defending its seven-month delay [in responding to CREW’s FOIA]. CREW accordingly seeks targeted and limited additional discovery to address these issues. . . .

“[T]he Department of Justice (“DOJ”) waited seven months and then told CREW that because every document was privileged, CREW was not entitled to a fee waiver. DOJ repeated this claim in response to queries from the Court about the necessity for discovery. Discovery would be fruitless, DOJ claimed, because every responsive document is exempt and not producible to CREW . . .

“In short, we are engaged in side issues on discovery precisely because DOJ has refused to produce any documents to CREW and has taken the sweeping and unsubstantiated position that the entire universe of responsive documents is exempt. The breadth of the government’s position coupled with its failure to explain its seven months of inaction appropriately led the Court to authorize discovery on the issue of the government’s bad faith.

Also of note:

“DOJ also contests the significance of sealed McCallum Exhibit 3, arguing that the declaration of Marshall Jarrett “corroborate[s] Mr. McCallum’s testimony that the two did not speak.” Mr. Jarrett did not attest that the two never spoke. Rather, he said “[t]he Associate Attorney General, Robert McCallum, has taken no part in supervising or directing OPR’s investigation in this matter.” McCallum, however, went further in response to a question from Senator Biden, by stating “I had no contact with Marshall Jarrett regarding the OPR investigation.” At a minimum, CREW should be entitled to explore the discrepancies raised by the contents of McCallum Exhibit 3 and Mr. McCallum’s response to the Senate Foreign Relations Committee. Even if Mr. McCallum did not follow-up on his promise to call Mr. Jarrett, the fact that the third-highest ranking official at the Department of Justice held himself out to a subordinate as having the authority to direct any aspect of the OPR investigation is relevant on the issue of Mr. McCallum’s truthfulness in the proceedings before this Court.”

Also of note is AP item, from Pete Yost’s story of July 20:

“Internal Justice Department e-mails obtained by The Associated Press show that the White House OK’d an op-ed piece by McCallum in USA Today defending the department’s drastic cut in the amount it was demanding the tobacco companies pay.

“‘Please hold up. The White House wanted some changes,’ one Justice Department employee wrote regarding McCallum’s op-ed piece.

“‘WH says it’s good to go,’ said an e-mail an hour later by another department employee.

“In his testimony about the Justice Department suit against the tobacco companies, McCallum refused to say whether he had notes of contacts with industry representatives.”

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Some of the people and organizations involved in the documents below:

-Citizens for Responsibility and Ethics in Government (CREW). You can read this watchdog group’s precis of their legal action against the DOJ here: ” title=”http://www.citizensforethics.org/activities/campaign.php?view=98\”>”>www.citizensforethics.org…
http://www.usdoj.gov/dojorg.htm

–OPR (Office of Professional Responsibility) On June 1, this DOJ office has cleared Mr. McCallum of undue political influence in reducing the cessation award.

–United States District Court Judge Emmet G. Sullivan is hearing the CREW v DOJ case.

–United States Magistrate Judge Alan Kay was put in charge of the depositions that Judge Sullivan granted June 1.

–Associate AG Robert D. McCallum is the #3 man at the DOJ, and supervisor of the Tobacco Litigation Team. A former Yale classmate of President Bush, he has been confirmed by the Senate as Ambassador to Australia. CREW questions whether outside influence was brought to bear on him to lower the DOJ’s cessation remedy request.

Daniel Metcalfe, Director of the Office of Information and Privacy (”OIP”), which responds to FOIA requests.

Steve Brody, individual on the tobacco team responsible for assembling documents responsive to CREWs FOIA requests

H. Marshall Jarrett, an attorney at the DOJ’s Office of Professional Responsibility. It was his June 1, 2006 letter to McCallum that stated, “Based on the results of our investigation, we found that your actions in seeking and directing changes in the remedies sought were not influenced by any political considerations, but rather were based on good faith efforts to obtain remedies from the district court that would be sustainable on appeal. Accordingly, we concluded that you did not engage in professional misconduct or exercise poor judgment.” (See http://www.tobacco-on-trial.com/archives/2006/06/08/doj-clears-mccallum-of-misconduct-charges

James Kovakas, the attorney in charge of the Civil Division’s FOIA processing (he is not mentioned in the two documents posted here.)

–Lisa A. Olson, DOJ attorney.

–Anne L. Weismann, CREW attorney.

–Although ex-tobacco Team Director Sharon Eubanks hasn’t been dragged into the case, DOJ has charged that CREW is relying on her “beliefs.” Eubanks quit the DOJ Dec. 1, 2005, at least partly because, according to news reports, her supervisors failed to support her work on the tobacco case.

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Text follows of:

Judge Sullivan’s MEMORANDUM OPINION AND ORDER granting CREW Deposition time. June 1, 2006

CREW motion on McCallum, documents, July 27, 2006

CREW Exhibits, July 27, 2006

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CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON V. U.S. DEPARTMENT OF JUSTICE (PDF)
Subtitle: MEMORANDUM OPINION AND ORDER

Source: Citizens for Ethics
Date: 2006-06-01
URL: www.citizensforethics.org…
ID: 225168

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____________________________

Civ. No. 052078 (EGS)

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

_____________________________

MEMORANDUM OPINION AND ORDER

Plaintiff, Citizens for Responsibility and Ethics in Washington (”CREW”), commenced this action against the United States Department of Justice pursuant to the Freedom of Information Act (”FOIA”), 5 U.S.C. 552. CREW seeks information concerning the governments recent decision to reduce its monetary penalty request in its ongoing litigation against the tobacco industry.

Pending before the Court is plaintiffs Motion for Discovery. A motions hearing was held on April 6, 2006. Upon consideration of the motion, the response and reply thereto, the oral arguments, and the entire record herein, plaintiffs motion for discovery is GRANTED. Accordingly, plaintiff shall be permitted to depose the following individuals: (1) Associate Attorney General Robert McCallum; (2) Daniel Metcalfe, Director

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of the Office of Information and Privacy (”OIP”); (3) Steve Brody, individual on the tobacco team responsible for assembling documents responsive to CREWs FOIA requests; and (4) James Kovakas, attorney in charge of the Civil Divisions FOIA processing. The depositions of these individuals shall be limited to 5 hours total. Further, United States Magistrate Judge Alan Kay will supervise the depositions and resolve any issues that may arise therein. The parties are directed to communicate promptly with Magistrate Judge Kays chambers to schedule the depositions.

I. Background1

Plaintiff CREW is a non-profit organization that strives to inform the public about the activities of government officials.

Compl. 4. By letters dated June 28, 2005, CREW made two separate FOIA requests, one to the Department of Justices (”DOJ”) Office of Information and Privacy (”OIP”) and the other to DOJs Civil Division. Id. at 28, 36. CREW specifically requested that OIP and the Civil Division produce all records in the Offices of the Attorney General (”OAG”), the Deputy Attorney General (”ODAG”), and the Associate Attorney General (”OAAG”) relating in any way to the governments proposed penalty in the

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The DOJ has been litigating a racketeering case on behalf 2 of the United States against the tobacco industry, including Philip Morris, R.J. Reynolds, Brown & Williamson Tobacco Co., and British American Tobacco. Compl. 15. See also United States v. Philip Morris, Inc., et al., Civil Action No. 99-2496 (D.D.C.).

On June 7, 2005, DOJ attorneys requested that as a penalty for the tobacco industrys violations, the court order the industry to fund a $10 billion smoking cessation program, at a rate of $2 billion per year for five years. Compl. 16. As reported by the newspapers closely following the tobacco litigation, this proposed penalty represented a significant departure from the governments position in the case up to that point, which was a $130 billion smoking cessation program, at a rate of $5.2 billion per year for 25 years. Id. at 16-18. DOJs proposed penalty also sparked concerns from several Congressmen, which prompted a request of DOJs Inspector General to investigate whether improper political interference led to the governments change in the penalty it was seeking from the court. Id. at 19, 20.

1 The facts cited herein are undisputed by the parties. 1

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tobacco litigation. Id. 2

In its FOIA request to the OIP, CREW sought expedited processing, pursuant to 5 U.S.C. 552(a)(6)(E)(i), and a fee waiver associated with processing the request, pursuant to 5 U.S.C. 552(a)(4)(A)(iii). Id. at 29. By letter dated July 11, 2005, OIP acknowledged receipt of CREWs request, denied CREWs request for expedited processing, and informed CREW that it had yet to make a decision on CREWs request for a fee waiver.

Id. at 31, 32. On July 18, 2005, CREW appealed OIPs denial of expedited processing to the Co-Director of OIP and, at that time, also requested the Office of Public Affairs, pursuant to 28 C.F.R. 16.5(d)(1)(iv), to consider CREWs request for expedited processing. Id. at 33, 34. On August 9, 2005, the Office of Public Affairs granted CREWs request for expedited processing.

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Id. at 35. Finally, on January 19, 2006, OIP informed CREW that its fee waiver request was denied. Pl.s Mot. for Disc. at 11.

In its FOIA request to the Civil Division, CREW also sought expedited processing, pursuant to 5 U.S.C. 552(a)(6)(E)(i), and a fee waiver associated with processing the request, pursuant to 5 U.S.C. 552(a)(4)(A)(iii). Id. at 36. By letter dated July 7, 2005, the Civil Division acknowledged receipt of CREWs FOIA request, granted CREWs request for expedited processing, but denied its request for a fee waiver. Id. at 37. On July 11, 2005, CREW filed an administrative appeal of the Civil Divisions denial of its fee waiver request to the OIP. Id. at 38. On January 23, 2006, CREW was informed by OIP that it was affirming the Civil Divisions decision to deny CREWs fee waiver request.

Pl.s Mot. for Disc. at 7.

II. Plaintiffs Discovery Request

CREW argues that this case presents facts that raise a sufficient question of bad faith on the part of the government in responding to CREWs two FOIA requests to warrant further exploration through discovery. Specifically, CREW makes the following claims: (i) OIP took seven months to resolve CREWs fee waiver request and appeal, despite its claim that it was processing the request on an expedited basis; (ii) the government has failed to adequately explain why it took almost five months

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It would cost just over $300 to complete the search of OIP 3 and over $90,000 to complete the search of the Civil Division.

See Transcript of the Motions Hearing, April 6, 2006 (”TR 4/6/06″), 44:21-45:2.

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to exhaust the statutorily allotted two hours of free search time; (iii) not a single responsive document to CREWs FOIA requests has been produced; and (iv) the governments own statistics show that the amount of time OIP has taken to respond to CREWs expedited FOIA requests is substantially longer than the average processing time for other expedited requests.

The government, in turn, contends that it has processed CREWs FOIA requests in a timely, normal manner, and that any delay that has resulted is due to CREWs failure to narrow the scope of its broad requests as suggested by the government.

Next, the government was not able to conduct any search beyond the statutorily provided two free hours of search because CREW did not pay any portion of the required fees to continue processing its request. Third, although the government did 3 locate responsive documents during the two hours of free search, all of these documents were determined to be privileged.

Finally, the government argues that CREW is not interested in litigating its entitlement to a fee waiver, but is seeking discovery for an improper purpose, and is “going on a frolicking detour to do discovery into [the] tobacco litigation.” Transcript of the Motions Hearing, Apr. 6, 2006 (”TR 4/6/06″), 36:13-15.

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III. Discussion

The Freedom of Information Act (”FOIA”) was enacted to provide a statutory right to public access to documents and records held by agencies of the federal government. Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). “As such, FOIA embodies a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Id. See also Dept of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Assn., 532 U.S. 1, 7-8 (2001) (noting that the basic objective of FOIA is disclosure, not secrecy).

Typically, FOIA actions are resolved without discovery. Voinche v. FBI, 412 F. Supp. 2d 60, 71 (D.D.C. 2006). See also Pub. Citizen Health Research Group v. FDA, 997 F. Supp. 56, 72 (D.D.C. 1998) (”Discovery is to be sparingly granted in FOIA actions.”). However, discovery may be granted when plaintiff has made a sufficient showing that the agency acted in bad faith, Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994), has raised a sufficient question as to the agencys good faith, Judicial Watch Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 25 (D.D.C. 2000), or when a factual dispute exists and the plaintiff has called the affidavits submitted by the government into question, Pub. Case 1:05-cv-02078-EGS Document 16 Filed 06/01/2006 Page 6 of 19

See e.g. Judicial Watch v. U.S. Dept of Commerce, 34 F. 4 Supp. 2d 28, 33 (D.D.C. 1998) (the court ordered discovery on the issue of the adequacy of the agencys search for documents and permitted further discovery when evidence was uncovered that the government illegally destroyed and removed from its custody responsive documents in an attempt to circumvent FOIA disclosure requirements); Gilmore v. U.S. Dept of Energy, 33 F. Supp. 2d 1184, 1190 (N.D. Ca. 1998) (holding that an agencys failure to comply with the FOIAs time limits is, by itself, a violation of the FOIA, thus, the court permitted plaintiff to conduct discovery of the agencys policies and practices for responding to FOIA requests); Long v. U.S. Dept of Justice, 10 F. Supp. 2d 205, 210 (N.D. N.Y. 1998) (granting discovery in a FOIA case finding that the governments affidavits raise questions as to the adequacy of the search performed by the government).

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Citizen Health Research Group, 997 F. Supp. at 72-73. On the 4 other hand, discovery is not to be granted when discovery is sought for the “bare hope of falling upon something that might impugn the affidavits” submitted by the government. Founding Church of Scientology v. NSA, 610 F.2d 824, 836-37 n. 101 (D.C. Cir. 1979). Moreover, affidavits submitted by an agency are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims.” Safecard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). See Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (agency affidavits must be “relatively detailed and non-conclusory, and . . . submitted in good faith.”).

With these principles in mind, the Court turns to the discovery dispute at issue, and determines that discovery is warranted in this case. Plaintiff has sufficiently raised a question as to whether the government has processed its FOIA

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requests in a reasonable and expeditious manner, thereby complying with the governments FOIA obligations. Further, plaintiff is not simply “fishing” for information that may impugn the affidavits submitted by the government. Rather, even after a full round of briefing and a motions hearing, there still remain unanswered questions regarding the governments position that what occurred here is an ordinary and normal processing of a voluminous FOIA request. Indeed, the Court is troubled by the length of time the government took to exhaust the two free hours of search, by the governments responses to the statistical data presented by the plaintiff, and by the governments obvious delay in adjudicating CREWs fee waiver request and appeal. The Court addresses each of these concerns more fully below.

A. Two Hours of Free Search

The Court is troubled by the fact that the statutorily provided two hours of free search spanned several months to complete, and why plaintiff was not informed about the results of these searches soon after their completion. Because CREW is a non-media, non-commercial requester, see 5 U.S.C. 552(a)(4)(A)(ii)(III), it is entitled to two free hours of search time and 100 pages of records without incurring search or duplication charges, see 28 C.F.R. 16.11(d). According to the government, the two free hours of search for the FOIA request to

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The court also notes a curious discrepancy in the 5 governments affidavit. The government states that the record searches were “initiated” in the OAG, ODAG, and OAAG on July 22, 2005, see Pustay Decl. 10, then one line later, it states that the record searches were “commenced” in these three offices in July and August of 2005, id. at 11. The Court is unclear as to the difference between “initiating” a search and “commencing” a search, and the government fails to explain the distinction in either the affidavit or at the motions hearing.

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the OIP occurred in three different offices , the OAG, the ODAG, 5 and the OAAG. See Pustay Decl. 10. On September 16, 2005, OAG completed its two free hours of record search, id. at 14, 19, and the government informed plaintiffs attorney by telephone of its completion, id. at 20. At the same time, the government also informed plaintiffs counsel that further review of the responsive documents was necessary. Id. On November 1, 2005, OAAG completed its two free hours of record search, but plaintiff was not informed of this completion. Id. at 25. On December 22, 2005, ODAG completed its two free hours of record search and did not find any records responsive to plaintiffs request. Id. at 32. Plaintiff was not advised of this completion either. Id. By a letter dated January 19, 2006, the government informed plaintiff as to the status of the two free hours of search in all three offices.

The Court is troubled by the fact that a mere two hour search that started in August took several months to complete, and why the government waited until mid-January, 2006, to advise plaintiff of the results of the search, especially since CREWs

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Court: I am still confused about this two hour search that 6 started in August and concluded after Christmas. I just dont understand that. Can you shed any light?

Government: I did want to point out to you to show that there is no bad faith here, the deputy attorney generals office, and I dont know how many other what other different priorities they have, how many other expedited requests, FOIA requests, they may even be facing. They took until December to decide that they had no documents. They took the longest of any office. And their conclusion was they had nothing responsive to plaintiffs FOIA request. So how can there be bad faith in their delay when they had nothing to hide? It just doesnt make logical sense to say there was any bad faith here because of what was the ordinary process.

Court: I missed that one. How could there be bad faith because they had nothing to hide because they have nothing to produce?

Government: Theyre alleging that our delay is an indication of bad faith. Bad faith suggests were trying to hide documents from them, were trying thwart them.

Court: And you tell me that that office took the longest period of time to determine that there are no documents producible?

Government: Exactly.

Court: Which shows that they have nothing to hide?

Government: Theres no evidence of any other, theres no evidence of bad faith. Its just the length of time these things take to work their way through the Justice Department.

Tr. 4/6/06, 40:7-41:11.

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FOIA requests were granted expedited processing. When the Court asked the government to explain how a two hour search can be conducted over a span of several months, the government did not have an answer. Also, when the Court asked why plaintiff was 6

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Paragraph 19 of the Pustay Declaration provides, “On 7 September 16, 2005, subsequent to the OIP FOIA Specialistss conversation with plaintiffs counsel on that same day, the Office of the Attorney General advised OIP that it has completed its records search and had not located any additional records that appeared responsive to the request beyond those which had already been obtained by OIP.”

Paragraph 20 provides, “On September 26, 2005, plaintiffs counsel, Anne Weismann, again called FOIA Specialist assigned to plaintiffs request. The FOIA Specialist informed Ms. Weismann that OIP had completed its records search in the Office of the Attorney General, but that the records located in that Office required further review, including consultation with other Department components, before an interim response could be provided. Such consultations are required by Department of Justice regulation 28 C.F.R. 16.4(c)(1) (2005), and are appropriate in determining whether to disclose records when other components within the Department have an interest in the documents. The consultations envisioned at that time were with FOIA personnel in the Offices of the Inspector General, Solicitor General, Professional Responsibility, and Legislative Affairs, and in the Justice management, Civil, and Criminal Divisions.

The FOIA Specialist also advised Ms. Weismann that records searches were continuing in the Offices of the Deputy Attorney General and Associate Attorney General.”

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not advised earlier as to the results of the search, again, the government did not provide a sufficient answer. It directed the Court to paragraphs 19 and 20 of the Pustay Declaration , 7 however, those two paragraphs do not address the Courts concerns. See Tr. 54:13-55:14. Moreover, the government contends that an interim response advising plaintiff of the status of its FOIA requests would have been provided earlier, but for the fact that plaintiff filed this instant action and resources had to be reallocated to defend the lawsuit. See Pustay Decl. 39 (”[i]ronically, the filing of this lawsuit itself resulted in a

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The statistics are as follows: in 2004, 136 days was the 8 median number of days the Office of the Attorney General (”OAG”) took to process expedited FOIA requests, and 47 days was the median number of days the Office of the Associate Attorney General (”OAAG”) took to process expedited FOIA requests; in 2003, 80 days for OAG and the Deputy Attorney Generals Office (”ODAG”), and 42 days for OAAG; in 2002, 134 days for OAG, 128 days for ODAG, and 148 days for OAAG; in 2001, 107 days for OAG, 47 days for ODAG, and 47 days for OAAG ; in 2000, 12 days for OAG and OAAG, and 9 days for ODAG. See Pl.s Mot. for Disc., 14-16 (citing DOJ FOIA Annual Report for years 2000 to 2004).

From July 7, 2005, to January 23, 2006. 9

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delay of preparation of an interim response because attention was focused on preparing the Answer and coordinating with the litigator.”). In sum, the Court is not persuaded that

plaintiffs requests, which were granted expedited processing, were handled in such a manner, nor was the plaintiff advised of the progress of its requests in a time sensitive manner. Because the government has not provided any evidence to show that the two hours of free search time were handled in an expedited manner, the Court finds that a sufficient question has been raised as to the propriety of its conduct to warrant limited discovery.

B. DOJS FOIA Annual Reports

Plaintiff presented statistical evidence, collected annually by the DOJ for submission to Congress, that showed the median period of time for processing expedited FOIA requests for years 2000 to 2004. Plaintiffs fee waiver request to the Civil 8 Division was denied 201 days after its FOIA request was granted 9

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From June 28, 2005, to January 23, 2006. 10

From August 9, 2005, to January 19, 2006. 11

It took OIP 42 days to grant plaintiffs request for 12 expedited processing. Plaintiffs submitted its request on June 28, 2005, and it was granted on August 9, 2005.

From June 28, 2005, to January 19, 2006. 13

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expedited processing and 210 days after its initial FOIA 10 request was submitted. Further, plaintiffs fee waiver request to the OIP was denied 163 days after its FOIA request was 11 granted expedited processing and 206 days after its initial 12 13 FOIA request was submitted. The Court observes that the time periods for processing plaintiffs fee waiver requests exceeds the median processing time reflected in the statistics for years 2000 to 2004. Thus, the time periods for actually producing responsive documents would greatly exceed the median time for processing expedited FOIA requests.

The government argues that the statistics, although reflective of the reasonable amount of time the government takes to process expedited requests, are irrelevant and are not applicable to this case because this case is an “atypical” case involving an unusually large number of documents. However, when the court inquired of the government how it can be sure that this case is “atypical,” the government admitted that it did not

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The following exchange occurred between the Court and the 14 government counsel:

Government: And these statistics that theyre talking about, which I think show that the agency does process these requests in a reasonable amount of time, we didnt talk about them because they are irrelevant.

Court: Im not so sure its irrelevant. If you told me at the last hearing, Judge, this is just business as usual and this is the requisite time frame for these types of requests, your representation are belied by the stats, arent they?

Government: This request involved eight to ten million documents. Not one of statistics they cite necessarily involve that volume of documents. . . . This is a normal processing of an extraordinary request. . . . We processed this as expeditiously as we would process any request weve given expeditious handling. Because there are more documents, its going to take more time. . . .

Tr. 4/6/06 27:5-16; 29:4-9.

Court: [G]overnment says to Congress this is the normal period for resolving requests for expedited review, and there are a number of days cited depending on the year. And youre telling me now, though, that those are the atypical cases or this is the atypical case, the case before me?

Government: The statistics dont represent the normal amount of time for processing.

Court: I thought it was the average amount of time?

Government: Well, there is a median.

Id. at 32:13-22.

Court: Do you know for a fact that the request in those reports provided to Congress did not border on the number of documents in this case, do you know that for a fact?

Government: I know that all of them didnt.

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know. In fact, the government counsel conceded that she had 14

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Court: Is there any one case in there thats unlike or like this case?

Government: I dont know.

Court: Then how can you tell me this case is different?

Id. at 33:19-34:2.

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not even looked at the statistics because she considered them to be largely irrelevant. See Tr. 4/6/06, 35:12-14 (”As I told you before, Your Honor, I haven’t looked at those statistics because they’re largely irrelevant.”).

The Court finds the governments dismissive view of the statistical evidence troubling. The crux of the governments argument is that there is nothing unusual or out of ordinary in the amount of time it has taken to process CREWs two FOIA requests. However, its own annual statistics submitted to Congress belie that argument. The statistics clearly show that the time it has taken the government to process CREWs two expedited requests has been much longer than the average period of time it has taken to process expedited requests during the past five years. The Court does not find such evidence irrelevant. To the contrary, the evidence is quite relevant and informative as to what constitutes the average or ordinary period of time for processing expedited requests.

The government has repeatedly claimed that “this is a normal processing of an extraordinary request,” Tr. 4/6/06, 29:4-5, yet,

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when the Court inquired as to what makes CREWs requests extraordinary compared to the FOIA requests cited in DOJs reports, the government could not provide an adequate response.

In fact, the government has not presented any comparative evidence at all to demonstrate the extraordinary nature of CREWs requests, including no evidence as to the number of responsive documents involved in the FOIA requests cited in its annual statistical reports to Congress. Such comparative evidence may have demonstrated to the Court that CREWs FOIA requests are truly “extraordinary” compared to other expedited requests for previous years. Although the government has had an adequate opportunity to present such evidence, in its opposition to the plaintiffs discovery request, at the motions hearing, and through its affidavits, it has failed to do so. In short, the Court finds the governments statements about the “extraordinary” nature of CREWs requests to be conclusory and utterly unsubstantiated. The governments own statistics indicate that the processing of CREWs requests has been anything but ordinary and normal, and the paucity of evidence proffered by the government to show otherwise raises a question as to whether the government has been diligent and expeditious in complying with its FOIA obligations.

C. Fee Waiver

Finally, the government argues that beyond the two hours of

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free search, it could not have undertaken any further document searches because it could not continue to search without payment or a commitment to pay from plaintiff under the FOIA statute.

Thus, according to the government, plaintiff is partly to blame for the delay in processing its FOIA requests.

The OIP did not notify CREW that its fee waiver request was denied until January 19, 2006, nearly seven months after CREW initially made its request. The same length of delay applies to CREWs fee waiver request to the Civil Division. The OIP finally affirmed the Civil Divisions denial of CREWs fee waiver request on January 23, 2006. Surely, the OIP was aware that both of CREWs FOIA requests had been granted expedited processing and it must also have been aware that it and the Civil Division could not undertake further searches beyond the free two hours without payment. Nonetheless, OIP did not issue its decisions regarding CREWs fee waiver request and appeal for seven months. The government can hardly fault CREW for failing to pay and holding up the search process when it actually held up the process by not adjudicating CREWs fee waiver request and appeal in an expeditious manner. After all, the cost of continuing the search was over $90,000, and as already recognized, CREW is a non-profit organization.

The government further alleges that its adjudication of CREWs administrative appeal of the Civil Divisions fee waiver

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denial was handled in a normal and ordinary manner by showing how a senior counsel assigned to the appeal worked in a diligent manner to prepare a response by January 23, 2006. See Pustay Decl. 44, 45. (the senior counsel was “assigned to many other duties and responsibilities including supervising litigation, reviewing fee waiver appeals of other OIP staff members, working on approximately forty other pending administrative appeals, performing designated FOIA ombudsperson work, drafting letters and appeal recommendations, and instructing in FOIA training programs.”). Yet, the government does not specify exactly how many other fee waiver appeals the senior counsel was handling and how many of those appeals involved requests that were granted expedited processing. The Court is not persuaded by the governments argument that CREW is to blame for the delay for not paying up front for its FOIA requests. The ball was in the governments court with regard to CREWs fee waiver requests and it was the government that took seven months to decide the fee waiver issue. In sum, the Court is persuaded that the facts of this case warrant limited discovery for the purpose of exploring the reasons behind the delays in processing CREWs FOIA requests.

IV. Conclusion

The foregoing discussion demonstrates that limited discovery is warranted in this FOIA case. Accordingly, plaintiffs Motion for Discovery is GRANTED; and it is

Case 1:05-cv-02078-EGS Document 16 Filed 06/01/2006 Page 18 of 19

19

ORDERED that plaintiff shall depose (1) Associate Attorney General Robert McCallum; (2) Director of OIP, Daniel Metcalfe; (3) Steve Brody, individual on the tobacco team responsible for assembling documents responsive to CREWs FOIA requests; and (4) James Kovakas, attorney in charge of the Civil Divisions FOIA processing; and it is

FURTHER ORDERED that depositions of the four above-named individuals shall be limited to 5 hours total; and it is

FURTHER ORDERED that United States Magistrate Judge Alan Kay will supervise the taking of the depositions and resolve any issues that may arise therein; and it is

FURTHER ORDERED that briefing on the merits of CREWs entitlement to a fee waiver shall be postponed until the completion of the depositions; and it is

FURTHER ORDERED that the parties are to submit a joint status report as to the status of this case within 60 days of this ORDER.

SO ORDERED.

SIGNED: EMMET G. SULLIVAN

UNITED STATES DISTRICT COURT JUDGE

JUNE 1, 2006

Case 1:05-cv-02078-EGS Document 16 Filed 06/01/2006 Page 19 of 19

Category -Lawsuits -Court Documents Lawsuit -Doj

**———————————————————

CREW motion on McCallum, documents, July 27, 2006

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff, :

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant

________________________________________:

PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER OF JUDGE KAY LIMITING SCOPE OF EXAMINATION AND MOTION TO COMPEL

The government’s opposition to CREW’s motion for reconsideration rests on the charge that through the Court-ordered discovery CREW is off on a frolic and banter, designed to avoid resolution of the underlying legal merits of CREW’s Freedom of Information Act (“FOIA”) complaint. Nothing could be further from the truth. No one is more eager than CREW to get the documents to which it is entitled under the FOIA. The parties are engaged in discovery, however, because rather than process CREW’s FOIA requests, the Department of Justice (“DOJ”) waited seven months and then told CREW that because every document was privileged, CREW was not entitled to a fee waiver. DOJ repeated this claim in response to queries from the Court about the necessity for discovery. Discovery would be fruitless, DOJ claimed, because every responsive document is exempt and not producible to CREW. See, e.g., Transcript of February 9, 2006 Hearing at 15, 16-17 (attached to CREW’s Motion for Discovery as Exhibit B).

In short, we are engaged in side issues on discovery precisely because DOJ has refused to produce any documents to CREW and has taken the sweeping and unsubstantiated position that

**———————————————————

2

the entire universe of responsive documents is exempt. The breadth of the government’s position coupled with its failure to explain its seven months of inaction appropriately led the Court to authorize discovery on the issue of the government’s bad faith.

Now DOJ argues that the Court need not consider the fruits of that discovery, beyond accepting DOJ’s decidedly abbreviated and lop-sided view of what discovery has shown to date. From this, DOJ asks the Court to leapfrog over the issue of DOJ’s bad faith and proceed directly to the question of whether CREW is entitled to a fee waiver under the FOIA. DOJ’s eagerness to avoid a full accounting of its handling of CREW’s FOIA requests is understandable. While any consideration of the merits of the discovery is premature, under the most generous interpretation of what it has yielded DOJ was grossly negligent at multiple levels in its handling of CREW’s two FOIA requests, and made it representations to this Court that are both factually incorrect and misleading.1

Discovery has also raised more serious questions, however, about the veracity of a government deponent, and it is these questions that CREW seeks to answer more fully. As CREW demonstrated in its opening brief, the unduly stringent parameters Judge Kay placed on

—–

1 For example, even though it was Mr. McCallum’s decision that was at the heart of CREW’s FOIA request, Mr. McCallum had no specific recollection of the FOIA. See, e,g., McCallum Depo. at 50. Nor did he recall anyone within DOJ asking him to identify any potentially responsive documents he may have had. Id. Similarly, Stephen Brody, former Deputy Director and current Acting Director of the tobacco litigation team, testified that he had no role within DOJ in processing CREW’s FOIA request, Brody Depo. at 30, and was not even aware of CREW’s FOIA requests until “probably October or November of 2005.” Id. at 27. Mr. Metcalfe testified that even though he was the decision-maker on CREW’s appeal from the Civil Division’s initial decision to deny CREW’s request for a fee waiver, he had no recollection of being aware that CREW’s request was expedited until January of 2006. Metcalfe Depo. at 27.
In other words, at every level DOJ displayed a callous disregard for its statutory obligations under the FOIA. For the Court’s convenience, these excerpts from the deposition transcripts are attached as Exhibit A.

**———————————————————

3

the scope of CREW’s inquiry of Mr. McCallum deprived CREW and this Court of a full record on the issue of Mr. McCallum’s veracity and the veracity of the government’s claims in defending its seven-month delay. CREW accordingly seeks targeted and limited additional discovery to address these issues.2

1. CREW Should Be Afforded An Opportunity To Ask Mr. McCallum Additional Questions That Bear Directly On His Veracity.

Contrary to DOJ’s claims, CREW is not seeking to question Mr. McCallum about “the underlying tobacco litigation,”3 “the credibility of his assertions about what is in his files,”4 or “any other decision or statement that plaintiff deems objectionable.” Id. Rather, CREW seeks to question Mr. McCallum on a very limited universe of topics, specifically relating to the contents of McCallum Exhibits 2 and 3. There is no question that Judge Kay precluded CREW from asking Mr. McCallum about these documents, and DOJ’s suggestion to the contrary (D’s Oppos. at 7) rests on a ruling that Judge Kay made with respect to the deposition of Mr. Brody, not Mr. McCallum. As outlined in Plaintiff’s Opposition to Defendant’s Motion for a Protective/Sealing Order and Return of Federal

—–

2 DOJ claims that contrary to CREW’s count of having consumed four hours and five minutes of the five hours this Court allotted for discovery, CREW actually consumed four hours and 59 minutes. D’s Oppos. at 3 n.3. As support, DOJ points to what it claims the transcripts show. Id. DOJ, however, ignores Judge Kay’s ruling during the June 14, 2006 discussion with counsel (a ruling he repeated during Mr. McCallum’s deposition) that only the time spent during the questioning and answering of witnesses counts in determining the amount of time CREW has consumed. As the declaration of Daniel C. Roth attests (attached as Exhibit B), CREW took great pains to ensure an accurate representation to this Court. DOJ, by contrast, has not provided the kind of calculations that would establish an accurate count, relying instead on nothing more than the transcripts themselves.

3Defendant’s Opposition to Plaintiff’s Motion for Reconsideration of Order of Judge Kay Limiting Scope of Examination and Motions to Compel (“D’s Oppos.”) at 5.

4 Id. at 6.

**———————————————————

4

Documents, (“P’s Oppos.”), there is a clear conflict between Mr. McCallum’s deposition testimony in this matter and his written responses to questions from the Senate Foreign Relations Committee.

DOJ’s only response to this conflict is to suggest that it does not exist because the Senate Foreign Relations Committee never reached such a conclusion. D’s Oppos. at 8. This is nonsensical. The Senate Foreign Relations Committee was never presented with Mr. McCallum’s deposition testimony. Even more to the point, that Committee has never opined one way or the other on Mr. McCallum’s veracity in responding to written questions from its members.

DOJ also suggests that CREW is relying on the beliefs of Sharon Eubanks, currently an employee of CREW and formerly the Director of DOJ’s tobacco litigation team, for evidence of this conflict. D’s Oppos. at 8. To the contrary, as outlined in significant detail in P’s Oppos., CREW is relying on extrinsic documentary evidence that includes the documents under seal and Mr. McCallum’s initial and clarifying responses to written questions from Senator Joseph Biden, Ranking Member of the Senate Foreign Relations Committee.

DOJ also contests the significance of sealed McCallum Exhibit 3, arguing that the declaration of Marshall Jarrett “corroborate[s] Mr. McCallum’s testimony that the two did not speak.” D’s Oppos. at 8. Mr. Jarrett did not attest that the two never spoke. Rather, he said “[t]he Associate Attorney General, Robert McCallum, has taken no part in supervising or directing OPR’s investigation in this matter.” Declaration of H. Marshall Jarrett at ¶9, submitted in support of Defendant’s Opposition to Plaintiff’s Motion for Discovery. Mr. McCallum, however, went further in response to a question from Senator Biden, by stating “I had no contact

**———————————————————

5

with Marshall Jarrett regarding the OPR investigation.” Questions for the Record Submitted to Ambassador-Designate Robert McCallum at 22 (Exhibit E to P’s Oppos.). At a minimum, CREW should be entitled to explore the discrepancies raised by the contents of McCallum Exhibit 3 and Mr. McCallum’s response to the Senate Foreign Relations Committee. Even if Mr. McCallum did not follow-up on his promise to call Mr. Jarrett, the fact that the third-highest ranking official at the Department of Justice held himself out to a subordinate as having the authority to direct any aspect of the OPR investigation is relevant on the issue of Mr. McCallum’s truthfulness in the proceedings before this Court.5

DOJ also disputes CREW’s entitlement to ascertain the universe of documents responsive to CREW’s FOIA request. D’s Oppos. at 7. This argument overlooks the fact that DOJ has attempted to explain the inordinate delay here by the large universe of responsive documents – a universe DOJ has suggested constitutes many millions of pages, all of which are privileged. The veracity of DOJ’s assertions in this regard are very much at issue, especially because DOJ has never given either CREW or the Court any kind of precise count or accounting of what those documents are. CREW should therefore be permitted to explore this issue with limited questions of witnesses such as Mr. McCallum, who have responsive documents and who can attest to their volume and general nature

In sum, CREW’s attempt to get seek limited additional discovery is by no means a wild goose chase. CREW has specific extrinsic evidence that in at least a few instances on key issues

—–

5 DOJ argues that Judge Kay properly limited CREW’s questioning to first-hand knowledge. D’s Oppos. at 7. As CREW explained in its opening brief, this ruling conflicts with Rule 26(b), which defines the scope of relevant discovery as follows: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1).

**———————————————————

6

Mr. McCallum may not have testified truthfully. CREW also seeks to probe facts that go to the government’s own defense of its inaction, namely the privileged nature and vast volume of documents the agency has in response to CREW’s FOIA requests. Permitting CREW to seek limited discovery beyond the unduly constricted limitations established by Judge Kay will assist this Court in answering the pending question of whether DOJ acted in bad faith.

2. The Conduct of Mr. Brody’s Private Counsel Did Not Conform With Rule 30(d) of the Federal Rules of Civil Procedure.

DOJ takes issue with CREW’s characterization of the conduct of Mr. Brody’s private counsel, arguing that the information CREW was seeking was outside the scope of permissible discovery (D’s Oppos. at 9) and, in any event, his counsel never instructed Mr. Brody not to answer CREW’s questions (id. at 11). What DOJ fails to address, however, is that Rule 30(d) requires that “[a]ny objection during a deposition must be stated concisely and in a nonargumentative and non-suggestive manner.” (emphasis added). Under any fair reading of the deposition transcript, the manner in which Mr. Brody’s counsel articulated objections does not conform to this standard.

Indeed, CREW has provided the Court with the full transcript because the instances in which his counsel virtually testified for the deponent were so numerous. CREW stands by that transcript which, CREW submits, is proof enough of counsel’s improper and obstructionist conduct. Because CREW was precluded from obtaining the full testimony of the deponent, CREW seeks the opportunity to submit a limited number of written questions to Mr. Brody.

3. DOJ Has Failed To Demonstrate That Its Counsel Did Not Have An Improper, Off-the-Record Conference With Mr. Metcalfe.

In its opening brief CREW set forth the bases for its claim that DOJ’s counsel improperly

**———————————————————

7

conferred with Mr. Metcalfe before conducting her cross-examination. They include the fact that counsel and the deponent conferred privately for at least five minutes before the crossexamination began, during which counsel had a list of prepared questions in hand. In response, DOJ claims the right of its counsel to “confer with her client regarding the implications of Judge Kay’s ruling.” D’s Oppos. at 12.

But what DOJ has not explained is what those “implications” could possibly be, beyond the substance of Mr. Metcalfe’s upcoming cross-examination. The ruling in question limited DOJ to seven questions. Thus, the only logical inference from what DOJ is now claiming is that DOJ was conferring with the deponent to determine which of the seven out of 19 prepared questions (to which Mr. Metcalfe undoubtedly had prepared answers) counsel would ask. This is nothing short of prohibited coaching. See United States v. Philip Morris, Inc., 212 F.R.D. 418, 420 (D.D.C. 2002).

The reason for this prohibition is clear – under Rule 30(c), cross-examination, like direct examination, is to proceed “as permitted at trial.” Just as counsel would be prohibited from mapping out with her witness his cross-examination at trial, so too is she prohibited from mapping out his cross-examination during his deposition. Counsel’s conduct appears to have run afoul of this prohibition.

Tellingly, DOJ has not offered an explanation of what its counsel and the deponent did discuss during the break, and relies instead on the absence of proof that the discussions concerned the substance of his upcoming cross-examination. D’s Oppos. at 12. But apart from questioning the deponent on re-direct about the substance of these discussions – something CREW attempted but was blocked by assertions of privilege – CREW has no way to ascertain

**———————————————————

8

what the two discussed. Where, as here, there are external indicia that the discussion was improper and DOJ has failed to rebut that evidence, the Court should properly conclude that counsel’s conduct violated Rule 30(c) of the Federal Rules of Civil Procedure.

As appropriate relief, CREW has requested that the cross-examination be stricken from the record. DOJ argues in response, as it did during the deposition, that CREW “does not want this Court to hear truthful and relevant information” on an issue that DOJ characterized repeatedly as irrelevant, but now calls “the root issue of this discovery.” D’s Oppos. at 12. CREW’s objections go not to substance, but place. The Court should not countenance DOJ’s use of the deposition forum to sandbag the plaintiff and, more seriously, the Court, with allegations that the Court’s statistical analysis was based on incorrect numbers (Metcalfe Depo. at 71), incorrect time periods (id. at 72), and an apples to oranges comparison (id. at 74),6 when the government failed to take advantage of its multiple opportunities to address this issue in a more appropriate venue.7

That this is not the appropriate venue to discuss these statistics is made all the more evident by the selective and misleading nature of the testimony DOJ elicited from Mr. Metcalfe. For example, to highlight a supposed error of the Court, counsel and Mr. Metcalfe focused on the disparity between the time it took the Civil Division to act on CREW’s request for a fee waiver, which Mr. Metcalfe identified as six days, and the “201 or 210 days in the opinion.”

—–

6 The full cross-examination of Mr. Metcalfe is attached as Exhibit C.

7 Having failed to address the statistics during the briefing on the merits of CREW’s request for discovery, apparently based on a strategic decision to call the statistics “irrelevant,” and having failed to seek reconsideration of the Court’s Memorandum Opinion and Order of June 1, 2006, it is especially inappropriate for DOJ to use the deposition forum as a vehicle to attack the factual sufficiency of the Court’s findings.

**———————————————————

9

Metcalfe Depo. at 74. The Opinion’s statistics on which this question is based, however, deal with “processing expedited FOIA requests,” (Opinion at 12) not deciding fee waiver requests. In other words, DOJ’s question and answer conflate two separate inquiries. Moreover, DOJ’s question takes advantage of an apparent typographical error in the Court’s Opinion referring to the time it took OIP to deny CREW’s fee waiver request as the time it took the Civil Division to deny a similar request. Id.

Similarly, in trying to place the conduct of DOJ’s Office of Information and Privacy (“OIP”) within the median time OIP processed other requests over a period of five years, Mr. Metcalfe overlooked years when the average time was significantly lower than the time period presented here. For example, Mr. Metcalfe testified: “I see numbers as low as 42, I see numbers as high as 148, 136, 128, so it does appear to me that, yes, that number 136 . . . is indeed within that range.” Metcalfe Depo. at 73. What Mr. Metcalfe apparently did not see was numbers as low as 9 and 12 that, when averaged with the other numbers, yield an average median response time for the three senior leadership offices of 73 days. Whether one compares that number to the 136 days that DOJ now characterizes as the correct response time, or the 163 days that the Court used, one thing is clear: OIP’s processing of CREW’s FOIA request significantly exceeds the median response time of recent years.

CONCLUSION

CREW is not seeking to continue the discovery process indefinitely. Rather, CREW seeks the opportunity to ask Mr. McCallum additional, targeted questions on topics that were precluded by Judge Kay’s Order, but which relate to clearly relevant issues, namely the deponent’s veracity and the truthfulness of DOJ’s representations about the reason for the delay

**———————————————————

10

in processing CREW’s requests. For the foregoing reasons and those set forth in CREW’s opening brief, CREW’s motion for reconsideration and to compel should be granted.

Respectfully submitted,

__/s/________________________

Anne L. Weismann

(D.C. Bar No. 298190)

Melanie Sloan

(D.C. Bar No. 434584)

Citizens for Responsibility and

Ethics in Washington

1400 Eye Street, N.W., Suite 450

Washington, D.C. 20005

Phone: (202) 408-5565

Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: July 27, 2006

**———————————————————

CREW Exhibits, July 27, 2006

EXHIBIT A

Page 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

V.

UNITED STATES DEPARTMENT OF JUSTICE

Defendant.

Case No. 05-2078 (EGS)

Washington, D.C. July 18th, 2006

Videotaped Deposition of:

ROBERT D. MCCALLUM, JR.,

Called for oral examination by counsel for Plaintiff, pursuant to notice, at the District of Columbia District Court, 333 Constitution Avenue, N.M., Washington, D.C., beginning at 10:40 a.m, before Teague Gibson of Capital Reporting, a Notary Public.

* * * * *

Page 50

1 understood it’s about the tobacco litigation.

2 Q And did you understand that documents that

3 you might have could be responsive to this request?

4 A I did not — better way to say it is I

5 don’t have any recollection of a specific request

6 and therefore knowing that my documents would have

7 been involved in it but it was my general

8 understanding certainly that my, you know, documents

9 would be involved in such a FOIA request.

10 Q And did anyone within the Department of

11 Justice ask you to identify documents in your

12. possession that might be potentially responsive to

13 this request?

14 A I don’t recall anyone specifically asking

15 me to do that. But I’m sure that occurred.

16 Q And would that request come to you

17 directly?

18 A I don’t know or through somebody on my

19 staff at the Department of Justice. I have no

20 recollection one way or the other.

21 Q And do you have any recollection of making

22 any of your documents available for someone within

Page 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

V.

UNITED STATES DEPARTMENT OF JUSTICE

Defendant.

Case No. 05-207 8 (EGS)

Washington, D.C. July 19th, 2006

Deposition of:

STEPHEN BRODY,

Called for oral examination by counsel for Plaintiff, pursuant to notice, at the offices of Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, NW., Suite 450, Washington, D.C. beginning at 10:45 a.m, before Teague Gibson of Capital Reporting, a Notary Public.

**———————————————————

Page 27

1 A Yes.

2 Q And when did you first become aware that

3 CREW had filed those requests?

4 A First time I was really aware of it was

5 probably October or November of 2005.

6 Q And so at that time were you aware that

7 the Department was also in litigation with CREW

8 concerning the FOIA requests?

A Yes.

10 Q Prior to that period of time were you ever

11 asked by anyone to review documents to see whether

12 they would be responsive to CREW’s FOIA request?

13 A No.

14 Q So I don’t want to misstate your

15 testimony, I want to make sure I’m clear though, is

16 it your best recollection that you didn’t have any

17 knowledge of the FOIA requests until CREW was

18 already in litigation with the Department?

19 A Correct. To be completely accurate, it’s

20 possible that I may have seen the FOIA request when

21 it came in but there were a lot of FOIA requests at

22 that time and if I saw it it would have just been

Page 30

1 Q Is it your testimony that you have had no

2 role within the Department in processing CREW’s FOIA

3 request?

4 A That’s correct.

5 Q Have you had a role in the litigation and

6 the Department’s defense of the litigation?

A Yes.

8 Q And please describe for me what that role

was?

10 A Without describing the substance of

11 anything, my role has merely been answering

12 questions that Lisa Olson has had along the way to

13 assist her with the defense of the lawsuit.

14 Q Were you ever tasked with putting together

15 documents, a representative sampling of documents,

16 from the body of documents that were potentially

17 responsive to CREW’s FOIA request?

18 A At one point in time -

19 MR. WEINBERG: Why don’t you answer this

20 question in terms of what you did without getting

21 into any conversations that you had.

22 A Sure. See if I can answer it this way.

**———————————————————

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

V

UNITED STATES DEPARTMENT OF JUSTICE

Defendant.

Case No. 05-2078 (EGS)

Washington, D.C. July 19th, 2006

Deposition of:

DANIEL METCALFE,

Called for oral examination by counsel for Plaintiff, pursuant to notice, at the offices of Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N.M., Suite 450, Washington, D.C. beginning at 3:30 p.m, before Teague Gibson of Capital Reporting, a Notary Public.

* * * * *

866.448. DEPO www. CapitalReportingCompany. corn

**———————————————————

Page 27

1 appeal aspect of the Civil Division FOIA request.

2 Q Who was that discussion with?

3 A Janice McCloud.

4 Q Was she the senior attorney that was

5 assigned to handle the appeal?

6 A Yes.

7 Q Were you aware that the requests had been

8 expedited?

9 A You’re asking was I aware. You said were

10 you aware.

11 Q Are you aware?

12 A At what point in time?

13 Q When did you — were you aware that they

14 had been expedited?

15 A Yes, I’m aware of that today, yes.

16 Q And when did you become aware that the

17 Civil Division request had been expedited?

18 A Sitting here today I have no recollection

19 of becoming aware of that prior to January of this

20 year when I acted upon or approximately the time I

21 acted upon the appeal from the denial of the fee

22 waiver request made to the Civil Division.

866.448. DEPO www. CapitalReportingCompany. com

**———————————————————

EXHIBIT B

**———————————————————

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

Plaintiff,

V.

U.S. DEPARTMENT OF JUSTICE

Defendant.

Civil Action No. 05-2078 (EGS)

DECLARATION OF DANIEL C. ROTH

I, Daniel C. Roth, hereby declare as follows:

1. I serve as Counsel at Citizens for Responsibility and Ethics in Washington (”CREW”), the plaintiff in the above-captioned case. For the depositions of Robert MeCallum, Jr., Stephen Brody, and Daniel Metcalfe taken on July 18 and July 19, 2006, 1 was tasked with producing an accurate record of the time consumed by CREW, pursuant to the instructions issued by Judge Kay during a meeting with the parties on June 1, 2006, which I attended.

2. For the deposition of Mr. MeCallum, CREW Chief Counsel, Anne Weismann, and I reviewed and marked the deposition transcript for objections that extended well beyond a concisely-stated objection or other instances, such as prolonged exchanges between counsel, constituting breaks in the questioning of Mr. McCallum. CREW staff then undertook two timed reviews of the video record, excluding time that had been marked on the transcript by CREW counsel. By this count, Mr. McCallum’s deposition consumed 115 minutes, to which I added five minutes as a cushion of fairness, for a total of 120 minutes.

3. Because the depositions of Messrs. Brody and Metcalfe were recorded by stenographic means, and because the stenographic transcript is not time-stamped at regular intervals that would be informative on the issue of time consumed, I kept track of the time expended on all extended speaking objections, conferences, and other time spent off-the-record with a watch that included a second hand. These excisions from the total time spent on the record totaled 30 minutes for the deposition of Mr. Brody (adding breaks of 3, 4, 3, 1, 1, 4, .5, .5, 1, 5, 1, 3.5, and 2.5 minutes) and 12 minutes (adding breaks of 6, 2, and 4 minutes) for the deposition of Mr. Metcalfe. In several instances I rounded down to the nearest minute or half-minute, but never did I round up. Subtracting these excisions from the total time spent on-the-record - 85 minutes in the case of Mr. Brody, 80 in the case of Mr. Metcalfe (ending at 4:40 PM, when CREW’s examination of Mr. Metcalfe concluded) - I reached the final calculations that Mr. Brody’s deposition consumed 55 minutes, and Mr. Metcalfe’s 68 minutes.

4. Adding 120, 55, and 68, plus another two minutes to ensure fairness and the clarity of a round number, I submitted to Ms. Weismann the figure of 245 minutes, or four hours and five minutes, consumed.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: [handwritten: July 26, 2006]

DANIEL C. ROTH

**———————————————————

EXHIBIT C

**———————————————————

Page 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

—————————

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

V.

UNITED STATES DEPARTMENT OF JUSTICE

Defendant.

Case No. 05-207 8 (EGS)

Washington, D.C. July 19th, 2006

Deposition of:

DANIEL METCALFE,

Called for oral examination by counsel for Plaintiff, pursuant to notice, at the offices of Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N,W., Suite 450, Washington, D.C. beginning at 3:30 p.m, before Teaque Gibson of Capital Reporting, a Notary Public.

* * * *

Page 70

1 processing of the FOIA cases so I think it does

2 encompass some degree of an acknowledgment by Judge

3 Sullivan that he viewed the statistics and was

4 somewhat critical of the Department. So I’m going

5 to permit you to ask those seven questions and

6 hopefully it’ll be brief. Counsel, get it over and

7 done with and go on.

8 MS. WEISMANN: We may have redirect?

9 JUDGE KAY: The answer is yes, on those

10 questions.

11 MS. WEISMANN: Yes, of course.

12 JUDGE KAY: Okay. Thank you, Counsel.

13 MS. WEISMANN: Thank you.

14 MS. OLSON: Thank you. Take a couple minutes

15 break, if that’s okay.

16 (Off the record)

17 MS. WEISMANN: I’d like the record to reflect

18 that counsel and the witness just had at least a

19 five minute conversation in which they had questions

20 with them and it appeared that they were consulting

21 over the content of those questions.

22 MS. OLSON: That’s your perception of the

Page 71

1 situation, Ms. Weismann, and I’m not going to

2 comment on it.

3 BY MS. OLSON:

4 Q Mr. Metcalfe, I want to you look at what

5 we were looking at on page 12 at the bottom where it

6 says the plaintiff’s fee waiver request to the Civil

7 Division was denied 201 days after its FOIA request

8 was granted expedited processing and 210 days after

9 its initial FOIA request was submitted. Are the

10 courts numbers correct?

11 A No, no, I believe the court’s numbers are

12 incorrect in that putting aside the difference

13 between 201 and 210 these numbers appear to conflate

14 together. Actually the initial request level with

15 action at the administrative appeal level which are

16 indeed two separate stages of action and when it

17 comes to two statistics are treated entirely

18 different. By that I mean to say only the initial

19 request level activity is reflected in the annual

20 FOIA report that is cited in footnote 8, whereas

21 administrative appeal activity is not so treated or

22 reflected in the annual report.

Page 72

1 Q If you please look at the sentence that

2 contains footnote 13. The court says plaintiff’s

3 fee waiver request to OIP was denied 206 days after

4 its initial request was submitted. Is the time

5 period in footnote 13 on which he basis his

6 calculation correct?

7 A No, it is incorrect because the phrase 206

8 days is presented as if those are working days or

9 business days is the phrasing of that as opposed to

10 calendar days. And under the reporting requirements

11 and the reporting regime established by Congress

12 Subsection E of the Act through the 1996 amendments

13 all reporting and accounting statistics are based

14 upon working days, so that therefore if one were to

15 look at calendar days and present a number that

16 would be accurate with respect to calendar days that

17 would not be accurate with respect to working days

18 and one would be left with, to put it in common

19 parlance, an apples and oranges situation.

20 Q Given the time period for OIP’s request is

21 July 1st, 2005 to January 19th, 2006, what is the

22 number that correctly would be reported by the

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Page 73

1 agency in its statistics in the way those statistics

2 are required to be reported?

3 A I can answer that question by first noting

4 that I believe there was a slight error in that the

5 court was counting as of the date of the action on

6 the expedited processing whereas it should have been

7 counting as of the date of the request for expedited

8 processing, by that I mean to say the date it was

9 received by the Agency which I believe was July 1st,

10 2005. And if one were to count working days as the

11 statistics are in fact counted under the statute

12 scheme from July 1st, 2005 to January 19th, 2006 I

13 believe one would reach the number of 136 and it is

14 the number of 136 that would create an apples and

15 apples comparison with the numbers that appear in 16 footnote 8 as opposed to an apples and oranges

17 comparison which one is left with on the face of the

18 court’s opinion.

19 Q Is that 136 within the range of numbers in

20 the statistics in footnote 8?

21 A I’m looking now at the range of numbers

22 appearing in footnote 8 and I see numbers as low as

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1 42, I see numbers as high as 148, 136 and 134, 128,

2 so it does appear to me that, yes, that number 136

3 again reflecting the working days so that we’re

4 talking about apples and apples not oranges and

5 apples is indeed within that range.

6 Q Going back to the Civil request that the

7 opinion discusses at the bottom of page 12, assuming

8 that CREW’s FOIA request to Civil was opened on June

9 28th, 2005 and action was taken on the fee waiver

10 part of CREW’s request on July 7th, 2005, what would

11 be the number of days used in the annual report to

12 record that request in its statistics as opposed to

13 the 201 or 210 days in the opinion?

14 A Given the dates you just read to me I

15 think the answer would be nine calendar days, but

16 six working days with the 4th of July holiday being

17 there and that the number six is what would appear

18 properly in the annual report. Specifically the

19 number of working or business days between the date

20 that the request was received by the component and

21 the date that the action was taken.

22 MS. OLSON: No more questions.

Page 75

1 BY MS. WEISMANN:

2 Q During the break that you took your

3 counsel before we resumed the redirect did you

4 discuss any of the contents of your testimony with

5 your counsel?

6 MS. OLSON: I object to that, of course he

7 discussed the contents of his testimony, I’m his

8 lawyer.

9 Q I’m talking about the contents of the

10 testimony you just gave?

11 MS. OLSON: I object. Any discussions that we

12 had are attorney/client privilege.

13 Q I’m entitled to ask the questions. And

14 prior to coming here today did you discuss with your

15 counsel these precise questions that you would be -

16 that she would ask you?

17 MS. OLSON: I object, attorney/client work

18 product.

19 Q And are you aware that these statistics -

20 that the statistics on which Judge Sullivan relied

21 for his opinion were presented to the court based on

22 OIP’s own annual statistics? Are you aware of that?

Page 76

1 A Ms. Weismann, let me make sure I

2 understand your question. I’m going to give you my

3 understanding of it, please tell me if I have it

4 correct or incorrect. Are you asking me whether I’m

5 aware that the statistics that are in footnote 8 are

6 derived from the annual FOIA report?

7 Q No.

8 A I believe I answered that question or said

9 so.

10 Q I’m asking whether you’re aware that CREW

11 in its briefing on this issue submitted statistics

12 that CREW got directly from the annual statistics

13 that OIP presents to Congress?

14 MS. OLSON: If he can answer that question.

15 A I think I can.

16 Q Have you read the pleading in the case,

17 that’s the representation that was made. I’m

18 talking about the briefing. Have you read the brief

19 that we filed?

20 A Yes, I definitely did.

21 Q You’re aware that we put in certain

22 statistics in our brief?

Page 77

1 A I am aware having read the brief that

2 there are statistics in your brief, yes.

3 Q Are you aware that Justice Department had

4 numerous opportunities to respond to this?

5 MS. OLSON: I object, this is so outside the

6 issue.

7 MS. SLOAN: You want to call Judge Kay, let’s

8 call him.

9 MS. WEISMANN: I don’t think we need to call

10 him. 11 MS. OLSON: It’s outside the scope of the

12 order. The order concerns delay in processing.

13 MS. SLOAN: Not outside the scope of your

14 re-direct.

15 MS. OLSON: You’ll have to speak.

16 MS. WEISMANN: Are you going to direct him not

17 to answer?

18 MS. OLSON: It’s outside the scope of the

19 order. You’re asking him what we did in litigation

20 and I know if you want to try to con Judge Sullivan

21 into some sort of a side track, that’s fine. It’s

22 like — this is so beside the point that I’d be

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1 happy if you want to take it up. Our questions

2 concerned the delays in the processing which are

3 discussed in this order and if you want -the

4 question you are now asking are what we did in this

5 litigation in the briefs. Mr. Metcalfe is a fact

6 witness. If you want to ask him about the

7 statistics he’s very happy to answer those questions

8 but you’re asking him about a privileged

9 attorney/client and work product communication.

10 MS. WEISMANN: Are you finished with your

11 objection?

12 MS. OLSON: Yes, but I’m directing him not to 13 answer because you’re asking him for privileged

14 information as well as information that’s outside

15 the scope of the order.

16 MS. WEISMANN: Just to be clear, it’s your view

17 that it’s privileged whether or not he was aware

18 that the Government had an opportunity to respond to

19 CREW’s submission?

20 MS. OLSON: That’s outside the scope. That

21 particular question is outside the scope of the

22 order allowing discovery in this case concerning

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1 delays in FOIA processing. So yes, under Rule 30

2 I’m instructing him not to answer.

3 Q Was it your understanding when you came

4 here today, Mr. Metcalfe, that you would be

5 discussing statistics?

6 MS. OLSON: Objection. Again that calls for

7 privileged attorney/client communications.

8 MS. WEISMANN: I’m asking for his

9 understanding, not the basis of his understanding.

10 MS. OLSON: He would have no basis for any

11 understanding except what he and I discussed.

12 MS. WEISMANN: So you’re objecting?

13 MS. OLSON: Yes, as attorney/client.

14 MS. WEISMANN: And directing him not to answer?

15 MS. OLSON: Yes.

16 MS. WEISMANN: I want the record to reflect

17 since I think this is consist with the discussion we

18 had with Judge Kay who was not physically present

19 that counsel had a list of what she has identified

20 as 19 typed questions.

21 MS. OLSON: And I’d like to state on the record

22 that opposing counsel, Ms. Weismann, has had

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Page 80

1 probably 30 or 40 pages of typed questions

2 throughout these depositions as is the normal

3 practice of an attorney.

4 MS. WEISMANN: We are done.

5 (Reading and signing was waived)

6 (5:20 p.m. the deposition was concluded)

2 Responses to “CREW v. DOJ on McCallum, Documents, FOIA Delay”

  1. MAPster Says:

    FYI: http://www.citizensforethics.org/press/pressclip.php?view=2956

  2. John Snow Says:

    Why did McCallum ask Prof. Bazerman of Harvard to alter his testimony about the need for Court Monitors, by it’s very nature a forward remedy? How can that action be reconciled with his explanation he was merely trying to harmonize a financial backward remedy with the DC Court of Appeals ruling ? …Someone in the WH told McCallum to do this and it would seem it was on behalf of Big Tobacco. The monitors are designed to limit the WMD element in tobacco…We have come full circle…The protectors of the WMDs are in the WH…

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