Court weighs expediting missing White House e-mail suit

Today, a federal magistrate ordered the Bush administration to disclose details about the information contained in backup files it was instructed to preserve during ongoing litigation over the alleged illegal deletion of millions of White House e-mail messages.

The order comes as the court is weighing a motion from George Washington University's National Security Archive and the government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) to expedite the discovery process of the lawsuits the groups filed last September. They have since consolidated their suits.

The groups say the Executive Office of the President, the White House’s Office of Administration, and the National Archives and Records Administration failed to meet legal obligations under the Presidential Records Act by not preserving millions of e-mail messages sent and received from 2003 to 2005.

In November 2007, a federal judge granted the groups’ requests for a temporary restraining order and instructed the Bush administration to safeguard backup files that might contain e-mail messages the groups say were deleted from White House servers.

The plaintiffs have also asked the court to speed the legal process. Some messages from that time period could still be retrievable from e-mail folders on individual workstations, but they are more likely to be deleted as time goes on, they said. The groups also noted the limited time left in the Bush administration.

But before ruling on the motion, John Facciola, the federal magistrate who will decide whether to speed the legal process, ordered the Bush administration to answer four questions about information contained on the backup tapes within five business days.

He wrote that although the November court order to maintain the backup tapes answered the plaintiffs’ questions about the preservation process, it was important to determine what information was actually on the tapes before ruling on the motion for an expedited discovery process.

If copies of the e-mail messages in question are contained in the backup files already being preserved under the order, speeding the process is unnecessary, especially given that the defendants have filed a motion to dismiss the suit, Facciola wrote.

White House lawyers have questioned the plaintiffs’ standing, filed a motion to dismiss the complaint and opposed the motion for expedited discovery.

But Facciola said in the order that if the missing e-mail messages are not on the backup tapes, then time is much more important because they could be on individual workstations.

CREW and the National Security Archive are demanding that White House officials recover and restore the e-mail messages and install a new automatic electronic records management system similar to the one that they discontinued when they changed e-mail servers in 2002.

Officials must answer the following questions in sworn declaration within five business days:


  • Are the backups catalogued, labeled or otherwise identified to indicate the period of time they cover?

  • Are the backups catalogued, labeled or otherwise identified to indicate the data contained therein?

  • Do the backups contain e-mail messages written and received between 2003 and 2005?

  • Do the backups contain the e-mail messages said to be missing that are the subject of the lawsuit?

About the Author

Ben Bain is a reporter for Federal Computer Week.

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