WASHINGTON, D.C.—In a case concerning the Freedom of Information Act, a magistrate judge in the U.S. District Court for the District of Columbia yesterday ordered the Executive Office of the President to show cause why it should not be required to preserve data in response to a motion to that end by the National Security Archive (NSA). In November, Judge Henry H. Kennedy Jr. granted NSA a temporary restraining order (TRO) to prevent the Executive Office from destroying any e-mails or other electronic media (Citizens for Responsibility and Ethics in Washington v. Executive Office of the President, et al., No. 1:07-cv-01707; The National Security Archive v. Executive Office of the President, et al., No. 1:07-cv-01577, D. D.C.; See January 2008, Page 10).

On March 11, NSA moved to extend the TRO. Magistrate Judge John M. Facciola, who had recommended approval of the TRO, issued the present order, deferring a final ruling on the motion.

In September, NSA and Citizens for Responsibility and Ethics in Washington filed separate complaints, voicing concerns that potentially millions of e-mails in the Executive Office had not been properly archived. The plaintiffs seek enactment of a recovery and backup plan to assure that future communications are properly archived. In the November order, Judge Kennedy ordered that preservation of the materials under the TRO must be “under conditions that will permit their eventual use.” The Executive Office subsequently moved to dismiss the matter; the court has not yet ruled on the motion.

Magistrate Judge Facciola noted that an across-the-board order to preserve all disputed data, including temporary data within computers’ “slack space” would “have a significant effect on” the Executive Office because it would essentially require the office “to quarantine every workstation within its control.” However, the magistrate held, the failure to ensure preservation of data would “threaten[] the plaintiffs with irreparable harm” because of the potential of said data being lost.

As such, Magistrate Judge Facciola ordered the Executive Office to show cause why it should not be ordered to take a less “draconian measure” of creating a “forensic copy” of the relevant data presently on each workstation. The order directed the office to include costs and other factors involved in such a task. Magistrate Judge Facciola ordered a reply to be filed by March 21.

[Editor's Note: Full coverage will be in the March issue. In the meantime, the order is available at www.mealeysonline.com or by calling the Customer Relations Department at 1-800-MEALEYS. Document #68-080321-015R. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.

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