In re: Hillary Clinton ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 2, 2020 Decided August 14, 2020
No. 20-5056
IN RE: HILLARY RODHAM CLINTON AND CHERYL MILLS,
PETITIONERS
On Petition for Writ of Mandamus
(No. 1:14-cv-01242)
David E. Kendall argued the cause for petitioners. With
him on the petition for writ of mandamus and the reply were
Katherine M. Turner, Stephen L. Wohlgemuth, Suraj Kumar,
and Beth A. Wilkinson.
Ramona R. Cotca argued the cause for respondent
Judicial Watch, Inc. With her on the response to the petition
for writ of mandamus were Lauren M. Burke and Paul J.
Orfanedes. Michael Bekesha entered an appearance.
Mark R. Freeman, Attorney, U.S. Department of Justice,
argued the cause for respondent United States Department of
State. With him on the response to the petition for writ of
mandamus were Hashim M. Mooppan, Deputy Assistant
Attorney General, and Mark B. Stern, Attorney.
Before: GRIFFITH, PILLARD and WILKINS, Circuit Judges.
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Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: This petition arises from a
Freedom of Information Act (“FOIA”) case brought by
Judicial Watch, Inc. against the U.S. Department of State.
See Judicial Watch, Inc. v. Dep’t of State, No. 1:14-cv-1242
(D.D.C. filed July 21, 2014). Petitioners are former Secretary
of State Hillary Rodham Clinton (a third-party intervenor in
the case), and Secretary Clinton’s former Chief of Staff,
Cheryl Mills (a nonparty respondent in the case). On March
2, 2020, the District Court granted Judicial Watch’s request to
depose each Petitioner on a limited set of topics. On March
13, 2020, Secretary Clinton and Ms. Mills petitioned this
Court for a writ of mandamus to prevent the ordered
depositions. For the reasons detailed herein, we grant the
petition in part and deny it in part – finding that although
Secretary Clinton meets all three requirements for mandamus,
Ms. Mills does not – and remand the case for proceedings
consistent with this opinion. See Cheney v. U.S. Dist. Court,
542 U.S. 367, 380 (2004).
I.
On May 13, 2014, Judicial Watch submitted a FOIA
request to the State Department for records in the Office of
the Secretary regarding Ambassador Susan Rice’s September
16, 2012 television appearances. The request sought:
Copies of any updates and/or talking points
given to Ambassador Rice by the White House
or any federal agency concerning, regarding, or
related to the September 11, 2012 attack on the
U.S. consulate in Benghazi, Libya.
3
Any and all records or communications
concerning, regarding, or relating to talking
points or updates on the Benghazi attack given
to Ambassador Rice by the White House or
any federal agency.
Complaint at 2 ¶ 5, No. 1:14-cv-1242, ECF No. 1 (July 21,
2014) (lettering omitted). After the State Department failed to
timely respond, Judicial Watch filed suit in the United States
District Court for the District of Columbia on July 21, 2014,
and the case was assigned to Judge Lamberth. See id. at ¶¶ 5-
9. The State Department produced four responsive
documents to Judicial Watch in November 2014 and provided
a draft Vaughn Index in December 2014, Pl.’s Mot. for Status
Conf. at 4 ¶ 5, No. 1:14-cv-1242, ECF No. 12 (Mar. 16,
2015). Judicial Watch subsequently requested a declaration
describing the Department’s search. See Third Joint Status
Rep. at 2 ¶ 3(c), No. 1:14-cv-1242, ECF No. 16 (May 1,
2015). In joint status reports filed on December 31, 2014 and
February 2, 2015, the parties informed the court that they
might be able to settle the case or narrow the issues before the
court, but that the State Department would first conduct
additional searches for responsive documents by April 2015.
See Joint Status Rep., No. 1:14-cv-1242, ECF No. 10 (Dec.
31, 2014); Joint Status Rep., No. 1:14-cv-1242, ECF No. 11
(Feb. 2, 2015).
In early March 2015, Judicial Watch learned that
Secretary Clinton had used a private email server to conduct
official government business during her tenure as Secretary of
State. See Emergency Mot. at 3 ¶ 3, No. 1:14-cv-1242, ECF
No. 13 (Mar. 16, 2015). And on August 21, 2015, it moved
for limited discovery related to the State Department’s record-
keeping system during Secretary Clinton’s tenure. See Mot.
for Discovery at 6, No. 1:14-cv-1242, ECF No. 22 (Aug. 21,
4
2015). Contemporaneously, another district court judge,
Judge Sullivan, was supervising a separate FOIA case
between the same parties and considering similar discovery
requests. Judicial Watch, Inc. v. Dep’t of State, No. 1:13-cv-
1363 (D.D.C. filed Sept. 10, 2013). In addition, the State
Department’s Inspector General, the FBI, and the House
Select Committee on Benghazi were conducting independent
investigations of Secretary Clinton’s use of a private email
server. As a result, Judge Lamberth delayed consideration of
Judicial Watch’s discovery request. Mem. and Order at 2-3,
No. 1:14-cv-1242, ECF No. 39 (Mar. 29, 2016). Judge
Sullivan ultimately granted Judicial Watch’s request for
discovery on the use of the private email server, ordered the
disclosure of federal records from Ms. Mills and Huma
Abedin (Secretary Clinton’s former Deputy Chief of Staff),
and authorized Judicial Watch to send interrogatories to
Secretary Clinton and to depose Ms. Mills, among others.
Mem. Order at 13-14, No. 13-cv-1363, ECF No. 73 (May 4,
2016).
On December 6, 2018, after the parties substantially
completed discovery before Judge Sullivan and the
government investigations had concluded, Judge Lamberth
ordered additional discovery in this case. Mem. Op. at 1, 4-5,
9, No. 1:14-cv-1242, ECF No. 54 (Dec. 6, 2018). Although
discovery in FOIA cases is rare, Judge Lamberth ordered the
parties to develop a discovery plan regarding whether
Secretary Clinton’s “use of a private email [server] while
Secretary of State was an intentional attempt to evade FOIA,”
“whether the State Department’s attempts to settle this case in
late 2014 and early 2015 amounted to bad faith,” and
“whether State ha[d] adequately searched for records
responsive to Judicial Watch’s request.” Order, No. 1:14-cv-
1242, ECF No. 55 (Dec. 6, 2018). On January 15, 2019, the
District Court entered a discovery plan permitting Judicial
5
Watch to: depose “the State Department,” several former
government officials and employees, and a former Clinton
Foundation employee; serve interrogatories on several other
government officials; obtain via interrogatories the identities
of individuals who conducted the search of the records; and
discover unredacted copies of various relevant documents and
any records related to the State Department’s conclusion
about the need to continue searching for responsive records.
Mem. Op. and Order, No. 1:14-cv-1242, ECF No. 65 (Jan. 15,
2019). The District Court reserved a decision on whether to
permit Judicial Watch to depose Petitioners, id. at 2, and
Secretary Clinton subsequently intervened, Mot. to Intervene,
No. 1:14-cv-1242, ECF No. 128 (Aug. 20, 2019); see also
Order, No. 1:14-cv-1242, ECF No. 129 (Aug. 21, 2019)
(granting the unopposed motion to intervene).
On March 2, 2020, after the January 15, 2019 round of
discovery was substantially complete, the District Court
authorized yet another round of discovery, including the
depositions of Petitioners. See Mem. Order, No. 1:14-cv-
1242, ECF No. 161 (Mar. 2, 2020). Although Judicial Watch
had proposed a broader inquiry, see Status Rep. at 13-15, No.
1:14-cv-1242, ECF No. 131 (Aug. 21, 2019), the court limited
the scope of Secretary Clinton’s deposition to her reasons for
using a private server and her understanding of the State
Department’s records-management obligations, Mem. Order
at 6-10, ECF No. 161. The court also limited the scope of
questions regarding the 2012 attack in Benghazi to both
Petitioners’ knowledge of the existence of any emails,
documents, or text messages related to the attack. Id. at 10-
11.
On March 13, 2020, Secretary Clinton and Ms. Mills
filed a petition for writ of mandamus in this Court, requesting
an order “directing the district court to deny Judicial Watch’s
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request to depose” them. Pet. at 4. Pursuant to this Court’s
order, Judicial Watch and the State Department each filed
responses.1
II.
The common-law writ of mandamus, codified at 28
U.S.C. § 1651(a), is one of “the most potent weapons in the
judicial arsenal,” see Will v. United States, 389 U.S. 90, 107
(1967), and mandamus against a lower court is a “drastic”
remedy reserved for “extraordinary causes,” Ex parte Fahey,
332 U.S. 258, 259-60 (1947). Mandamus lies only where the
familiar tripartite standard is met: (1) the petitioner has “no
other adequate means to attain the relief”; (2) the petitioner
has demonstrated a “clear and indisputable” right to issuance
of the writ; and (3) the Court finds, “in the exercise of its
discretion,” that issuance of the writ is “appropriate under the
circumstances.” Cheney, 542 U.S. at 380-81. Although these
hurdles are demanding, they are “not insuperable,” id. at 381,
and a “clear abuse of discretion” by a lower court can
certainly justify mandamus, Bankers Life & Cas. Co. v.
Holland, 346 U.S. 379, 383 (1953).
Applying this standard, we find the petition as to
Secretary Clinton satisfies all three prongs, while the petition
as to Ms. Mills fails to satisfy the first. Since the “three
threshold requirements are jurisdictional,” regardless of Ms.
1
Although the State Department does not support the petition for
mandamus before this Court, it opposed the motions to grant discovery
below, in relevant part. See Mem. in Opp., No. 1:14-cv-1242, ECF No. 27
(Sept. 18, 2015); Tr. of Proc. at 19-37, No. 1:14-cv-1242, ECF No. 53
(Oct. 16, 2018); Status Rep., No. 1:14-cv-1242, ECF No. 133 (Aug. 21,
2019); Tr. of Proc. at 28-39, No. 1:14-cv-1242, ECF No. 137 (Aug. 22,
2019); Status Rep., No. 1:14-cv-1242, ECF No. 154 (Dec. 18, 2019); and
Tr. of Proc. at 21-31, No. 1:14-cv-1242, ECF No. 156 (Dec. 19, 2019).
7
Mills’ petition’s merit on the other two inquiries, we are
bound to deny the writ and dismiss her petition for lack of
jurisdiction. Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189
(D.C. Cir. 2016).
A.
Under the first prong of Cheney, Secretary Clinton and
Ms. Mills must each have “no other adequate means to attain
the relief” they request on mandamus. 542 U.S. at 380.
Judicial Watch argues that the appropriate way for both
Petitioners to garner review of the discovery order is to
disobey it, be held in contempt, and then appeal that final
order. See Judicial Watch Resp. at 12-14. However, while
this is presently a viable path for Ms. Mills, a nonparty
respondent, it is not for Secretary Clinton who has intervened
and is a party in the case. See Mot. to Intervene, ECF No.
128; Order, ECF No. 129.
It is true that “in the ordinary case, a litigant dissatisfied
with a district court’s discovery order must disobey the order,
be held in contempt of court, and then appeal that contempt
order on the ground that the discovery order was an abuse of
discretion.” In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir.
1996); see also Church of Scientology of Cal. v. United
States, 506 U.S. 9, 18 n.11 (1992); In re Papandreou, 139
F.3d 247, 250 (D.C. Cir. 1998). However, as we explained in
In re Sealed Case No. 98-3077, “the disobedience and
contempt route to appeal cannot be labeled an adequate means
of relief for a party-litigant.” 151 F.3d 1059, 1065 (D.C. Cir.
1998) (emphasis added); see also In re City of New York, 607
F.3d 923, 934 (2d Cir. 2010) (same). In re Sealed Case No.
98-3077 raised the concern – elided in cases cited by Judicial
Watch such as Kessler and Papandreau – that “[w]hile a
criminal contempt order issued against a party is considered a
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final order and thus appealable forthwith under 28 U.S.C.
§ 1291 . . . a civil contempt order issued against a party is
typically deemed interlocutory and thus not appealable under
28 U.S.C. § 1291[.]” 151 F.3d at 1064 (citations omitted); see
also Byrd v. Reno, 180 F.3d 298, 302 (D.C. Cir. 1999) (noting
that unlike a criminal contempt order, a civil contempt order
is not an appealable final order). Where, as here, a district
court has broad discretion to hold a party refusing to comply
with a discovery order in either civil or criminal contempt, “‘a
party who wishes to pursue the disobedience and contempt
path to appeal cannot know whether the resulting contempt
order will [in fact] be appealable.’” In re Sealed Case No. 98-
3077, 151 F.3d at 1065 (quoting 15B CHARLES ALAN
WRIGHT, A RTHUR R. MILLER, & EDWARD H. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3914.23 (2d ed.
1992)). And since, in this case, potential contempt charges
against Secretary Clinton would arise during ongoing
litigation and not at the conclusion of the proceedings when a
civil contempt adjudication might be appealable, this
uncertainty is crucial. The discovery order at issue arises out
of a civil FOIA proceeding. See Compl., ECF No. 1.
Secretary Clinton, who is properly characterized as a party in
that civil proceeding, simply cannot know ex ante whether
refusal to comply will result in a non-appealable civil
contempt order or an appealable criminal contempt order.
Thus, “forcing a party to go into contempt is not an ‘adequate’
means of relief in these circumstances.” See In re Kellogg
Brown & Root, Inc., 756 F.3d 754, 761 (D.C. Cir. 2014).
The same regime, however, does not apply to Ms. Mills,
a nonparty respondent in the case. It is well settled that “a
nonparty can appeal an adjudication of civil contempt[.]”
15B CHARLES ALAN WRIGHT , ARTHUR R. MILLER, &
EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE
§ 3917 (2d ed. 1992); see also U.S. Catholic Conference v.
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Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988)
(“The right of a nonparty to appeal an adjudication of
contempt cannot be questioned. The order finding a nonparty
witness in contempt is appealable notwithstanding the
absence of a final judgment in the underlying action.”)
(quoting United States v. Ryan, 402 U.S. 530, 532 (1971) and
Cobbledick v. United States, 309 U.S. 323, 328 (1940));
Petroleos Mexicanos v. Crawford Enters., Inc., 826 F.2d 392,
398 (5th Cir. 1987); United States v. Columbia Broad. Sys.,
666 F.2d 364, 367 n.2 (9th Cir. 1982) (compiling cases).
Since Ms. Mills could appeal either a civil or a criminal
contempt adjudication, unlike Secretary Clinton she does have
available an “adequate means to attain the relief” and as such
her petition fails at prong one. Cheney, 542 U.S. at 380.
Petitioners argue that given the “congruence of interests”
between Ms. Mills and Secretary Clinton, Ms. Mills might
also somehow be prevented from appealing a civil contempt
adjudication. Pet’r Reply at 3 n.1. However, this concern
arises primarily in cases where sanctions are imposed jointly
and severally upon both a party and a nonparty, requiring the
court to evaluate whether the nonparty can appeal in a way
that does not implicate the rights of the party. See, e.g., Nat’l
Abortion Fed’n v. Ctr. for Med. Progress, 926 F.3d 534, 538-
39 (9th Cir. 2019); In re Coordinated Pretrial Proceedings in
Petroleum Prod. Antitrust Litig., 747 F.2d 1303, 1305 (9th
Cir. 1984). But here, we are not faced with uncleavable
interests. Ms. Mills could directly appeal a civil contempt
citation and obtain relief without impacting whether Secretary
Clinton must sit for her separate deposition.
Finally, considering the burden the depositions would
place on Petitioners given their scope and complete
irrelevance to this FOIA proceeding (discussed in further
detail infra at subsections B and C), we need not reach
10
Petitioners’ and Respondent’s arguments regarding how
Secretary Clinton and Ms. Mills’ status as former Executive
Branch officials might play into our analysis. See Pet. at 23-
32; Judicial Watch Resp. at 12-14.
B.
Next, we turn to the second prong of the Cheney test,
asking whether the District Court’s Order granting Judicial
Watch’s request to depose Petitioners constituted a “clear and
indisputable” error. 542 U.S. at 381. Petitioners can carry
their burden in this inquiry if the challenged order constitutes
a “clear abuse of discretion.” Id. at 380. Although a district
court has “broad discretion to manage the scope of discovery”
in FOIA cases, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991), we find the District Court clearly
abused its discretion by failing to meet its obligations under
Rule 26 of the Federal Rules of Civil Procedure, by
improperly engaging in a Federal Records Act-like inquiry in
this FOIA case, and by ordering further discovery without
addressing this Court’s recent precedent potentially
foreclosing any rationale for said discovery.
In the vast majority of FOIA cases, after providing
responsive documents, the agency establishes the adequacy of
its search by submitting a detailed and nonconclusory
affidavit on a motion for summary judgment. Brayton v.
Office of the U.S. Trade Representative, 641 F.3d 521, 527
(D.C. Cir. 2011); see also SafeCard Servs., 926 F.2d at 1200.
These affidavits are to be accorded a presumption of good
faith and cannot be rebutted by “purely speculative claims
about the existence and discoverability of other documents.”
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.
Cir. 1981). Although, as a general rule, discovery in a FOIA
case is “rare,” Baker & Hostetler LLP v. U.S. Dep’t of
11
Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (quoting
Schrecker v. U.S. Dep’t of Justice, 217 F. Supp. 2d 29, 35
(D.D.C. 2002)), courts may order limited discovery where
there is evidence – either at the affidavit stage or (in rarer
cases) before – that the agency acted in bad faith in
conducting the search, see Goland v. CIA, 607 F.2d 339, 355
(D.C. Cir. 1978) (affirming the district court’s finding that
plaintiff had not made a sufficient showing of bad faith, so
summary judgment without discovery was warranted).
It is this bad-faith hook that the District Court used to
justify several rounds of discovery in this case. In March
2016 the District Court authorized discovery into whether the
State Department’s attempts to settle the FOIA case in late
2014 and early 2015 – before Secretary Clinton’s use of a
private server became public knowledge – amounted to bad
faith. Memo. and Order at 1-2, ECF No. 39; see also Memo.
and Order at 7, ECF No. 65. Judge Lamberth explained that
given recent developments, the case had “expanded to
question the motives behind Clinton’s private email use while
Secretary, and behind the government’s conduct in this
litigation.” Memo. and Order at 1, ECF No. 65. In its March
2, 2020 order authorizing yet more discovery – including the
depositions at issue here – the District Court again
acknowledged that discovery in FOIA cases is “rare” but
reminded the parties of its view that “it was State’s
mishandling of this case – which was either the result of
bureaucratic incompetence or motivated by bad faith – that
opened discovery in the first place.” Memo. Order at12, ECF
No. 161.
However, in finding suspicions of bad faith by the State
Department opened the door for these far-reaching
depositions of Petitioners, the District Court clearly abused its
discretion in at least three ways. First, the District Court
12
abused its discretion by failing to “satisfy[] its Rule 26
obligation.” AF Holdings, LLC v. Does 1-1058, 752 F.3d
990, 995 (D.C. Cir. 2014). The mere suspicion of bad faith
on the part of the government cannot be used as a dragnet to
authorize voluminous discovery that is irrelevant to the
remaining issues in a case. A district court’s discretion to
order discovery, although broad, is clearly “cabined by Rule
26(b)(1)’s general requirements,” id. at 994, which allow
parties to discover “any nonprivileged matter that is relevant
to [a] claim or defense and proportional to the needs of the
case,” 2 FED . R. CIV . P. 26(b)(1); see also Food Lion v. United
Food & Commercial Workers Int’l Union, 103 F.3d 1007,
1012 (D.C. Cir. 1997) (“[N]o one would suggest that
discovery should be allowed of information that has no
conceivable bearing on the case.” (internal quotation marks
omitted)); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
352, n.17 (1978) (concluding that plaintiffs sought
information without “any bearing . . . on issues in the case”
and noting that “when the purpose of a discovery request is to
2
At the time AF Holdings was decided, Rule 26 required “a discovery
order be ‘[f]or good cause’ and relate to a ‘matter relevant to the subject
matter involved in the action.’” 752 F.3d at 995 (quoting FED. R. C IV . P.
26(b)(1) (2000)). However, in the 2015 Amendments, those portions of
Rule 26 were removed and the Rule was narrowed to only allow
discovery of any “nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case[.]” FED. R.
CIV . P. 26(b)(1) (2015) (emphasis added); see also id. advisory
committee’s note to the 2015 amendment (“The amendment deletes the
former provision authorizing the court, for good cause, to order discovery
of any matter relevant to the subject matter involved in the action.”).
Explaining that the “for good cause” and “any matter relevant to the
subject matter” language was “rarely invoked,” the Committee noted that
these and other changes were made to “guard against redundant or
disproportionate discovery.” Id. This change only strengthens
Petitioners’ argument that the District Court abused its discretion in
ordering these depositions.
13
gather information for use in proceedings other than the
pending suit, discovery properly is denied”).
Here, the District Court ordered Secretary Clinton’s
deposition primarily to probe her motives for using a private
email server and her understanding of the State Department’s
records-management obligations. See Mem. Order at 10, ECF
No. 161. However, neither of these topics is relevant to the
only outstanding issue in this FOIA litigation – whether the
State Department has conducted an adequate search for
talking points provided to Ambassador Rice following the
September 11, 2012 attack in Benghazi, or for any
communications or records related to those specific talking
points. See Compl. at ¶ 5, ECF No. 1. The proposed
inquiries are not, as Judicial Watch insists, “vital to
determining the adequacy of the search for records at issue in
[its] FOIA request,” Pl.’s Reply at 10, No. 1:14-cv-1242, ECF
No. 144 (Oct. 3, 2019), and we find there is little reason to
believe that the information sought will be relevant to a claim
or defense as required by Rule 26. See AF Holdings, 752
F.3d at 995 (finding discovery improper where the
information sought would not meet the Rule 26 standard and
would “be of little use” in the lawsuit).
The District Court has impermissibly ballooned the scope
of its inquiry into allegations of bad faith to encompass a
continued probe of Secretary Clinton’s state of mind
surrounding actions taken years before the at-issue searches
were conducted by the State Department. Secretary Clinton
has already answered interrogatories from Judicial Watch on
these very questions in the case before Judge Sullivan,
explaining the sole reason she used the private account was
for “convenience.” Resp. to Order at 3, No. 1:14-cv-1242,
14
ECF No. 143 (Sept. 23, 2019).3 But more importantly, even
if a deposition of Secretary Clinton were to somehow shake
some novel explanation loose after all these years, this new
information simply would have no effect on the rights of the
parties in this FOIA case, making it “an inappropriate avenue
for additional discovery.” Status Rep. at 5, ECF No. 133. As
the Department of Justice argued below:
Even if this Court found that Secretary Clinton
used private email with the specific intent of
evading FOIA obligations, Plaintiff has already
received the only relief such a finding would
(arguably) make available: State’s recovery,
search, and processing of any records held by the
former Secretary, including records that were not
in the possession, custody, or control of State at
the time the FOIA request was filed or the original
searches were conducted.
Id. Discovery in FOIA cases is not a punishment, and the
district court has no basis to order further inquiry into
Secretary Clinton’s state of mind, which could only
conceivably result in relief Judicial Watch has already
received – discovery. See Baker & Hostetler, 473 F.3d at
318. Furthermore, a bad-faith inquiry in a FOIA context is
only relevant as it goes to the actions of the individuals who
conducted the search. See, e.g., Ground Saucer Watch, 692
F.2d at 771-72 (reviewing accusations of bad faith on the part
of the CIA stemming from how officials instructed employees
3
See Pet. at 27-28 (citing Resp. to Order at Ex. A, ECF No. 143
(Interrogatory 7, inquiring about the reasons why Secretary Clinton used a
private email account; Interrogatories 4, 5, 6, and 20 asking about the
process by which she made this decision; and Interrogatories 7, 8, and 9,
inquiring whether FOIA or other recordkeeping laws played any role in
her decision to use a private server)).
15
to conduct searches, how they construed the nature and scope
of the FOIA request, and the failure to produce certain later-
uncovered documents). Since there is no evidence Secretary
Clinton was involved in running the instant searches –
conducted years after she left the State Department – and
since she has turned over all records in her possession, see
Status Rep. at 6, ECF No. 133, the proposed deposition topics
are completely attenuated from any relevant issue in this case.
As to Ms. Mills, who already testified for seven hours in
the case before Judge Sullivan, including on Secretary
Clinton’s use of a private email and FOIA, Resp. to Order at
1, No. 1:14-cv-1242, ECF No. 142 (Sept. 23, 2019), there is
no new information that justifies a duplicative inquiry that is
also irrelevant to the remaining issues in the case. See Mot.
for Discovery at 4, ECF No. 22 (Judicial Watch noting, nine
months before Ms. Mills’ deposition, its awareness of some
31,830 emails deemed private by Secretary Clinton). Ms.
Mills was no longer employed by the State Department when
these FOIA searches were conducted, and the District Court’s
general belief that discovery was appropriate because the
State Department “mishandl[ed] this case,” Mem. Order at 1,
ECF No. 161, has no link to a far-reaching deposition of Ms.
Mills.
Second, the District Court abused its discretion by
misapplying the relevant legal standard for a FOIA search. It
is elementary that an agency responding to a FOIA request is
simply required to “conduct[] a ‘search reasonably calculated
to uncover all relevant documents.’” Steinberg v. U.S. Dep’t
of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting
Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir.
1984)) (emphasis added). Unlike the Federal Records Act –
which requires federal agencies to protect against the removal
or loss of records, 44 U.S.C. § 3105, and allows certain
16
parties to bring suit to compel enforcement action to recover
unlawfully removed or destroyed documents, id. § 3106(a);
see also Judicial Watch, Inc. v. Pompeo, 744 F. App’x 3
(D.C. Cir. 2018) – the appropriate inquiry under FOIA is
much more limited. In a FOIA case, a district court is not
tasked with uncovering “whether there might exist any other
documents possibly responsive to the request,” but instead,
asks only whether “the search for [the requested] documents
was adequate.” Weisberg, 745 F.2d at 1485 (citations
omitted).
Here, rather than evaluating whether the State
Department’s search for documents related to Ambassador
Rice’s Benghazi talking points was adequate, the District
Court has instead authorized an improper Federal Records
Act-like inquiry to uncover purely hypothetical emails or
communications. Ground Saucer Watch, 692 F.2d at 772
(explaining that “unadorned speculation” cannot compel
further discovery). The District Court attempted to justify the
instant depositions, in part, because approximately thirty
“previously undisclosed” emails were produced by the FBI in
unrelated litigation and because it felt the State Department
“failed to fully explain the new emails’ origins[.]” Memo.
Order at 1-2, ECF No. 161. However, these documents – all
of which Judicial Watch has conceded are nonresponsive to
its FOIA request, see Tr. of Proc. at 35, ECF No. 156, and
which it seems were in fact in the State Department’s
possession but were simply not searched in response to this
narrow FOIA request, Oral Arg. Tr. at 52-53, – do not call
into question the adequacy of the search or justify this wide-
ranging and intrusive discovery.
It is well established that the reasonableness of a FOIA
search does not turn on “whether it actually uncovered every
document extant,” SafeCard Servs., 926 F.2d at 1201, and that
17
the failure of an agency to turn up a specific document does
not alone render a search inadequate, Iturralde v. Comptroller
of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). In fact, this
Court has stated that the belated disclosure of even responsive
documents does not necessarily undermine the adequacy of an
agency’s search. See, e.g., Goland, 607 F.2d at 374; Ground
Saucer Watch, 692 F.2d at 772. But here, the District Court
determined that the discovery of nearly thirty nonresponsive
documents that were already in the State Department’s
possession justified the depositions of persons who were not
even involved in the search. We disagree and point the
District Court back to the sole, narrow inquiry before it –
whether the State Department made “a good faith effort to
conduct a search for the requested records, using methods
which can be reasonably expected to produce the information
requested.” Nation Magazine v. U.S. Customs Serv., 71 F.3d
885, 890 (D.C. Cir. 1995) (quotation marks omitted).
Third, the District Court failed to properly consider the
central factor in this FOIA case – whether the agency’s search
was reasonably calculated to discover the requested
documents – by disregarding this Court’s recent decision in
Pompeo, 744 F. App’x at 4. The District Court premised its
approval of Petitioners’ depositions partially on its belief that
the State Department had “failed to persuade the Court that all
of Secretary Clinton’s recoverable emails have been located.”
Mem. Order at 2, ECF 161. However, it made this
proclamation without addressing this Court’s decision in a
recent Federal Records Act case between the same parties
affirming that the State Department “ha[d] already taken
every reasonable action to retrieve any remaining [Clinton]
emails.” Pompeo, 744 F. App’x at 4. In Pompeo, we found
that “no imaginable enforcement action” could turn up
additional emails and stated that it was “both fanciful and
unpersuasive” to claim that the State Department had not
18
done enough to retrieve emails from persons outside the
agency with whom the Secretary may have corresponded. Id.
Although Pompeo did not address this specific search for
Ambassador Rice’s Benghazi talking points, its language is
clear – the State Department has exhausted every reasonable
means to retrieve all of Secretary Clinton’s recoverable
emails. Id. Although we decline to adopt Petitioners’
characterization of this as a “mootness” issue, see Pet. at 19-
22, we find the District Court did err by failing to address our
findings in Pompeo and simply insisting Petitioners’
depositions would somehow squeeze water out of the rock. If
a search for additional Clinton emails has been exhausted in a
Federal Records Act case – under a statutory scheme that does
provide a process for the recovery or uncovering of removed
records – the grounds for continued foraging in the more
limited context of a FOIA case are fatally unclear.
C.
This brings us to the third prong of the Cheney standard,
which asks if the Court, “in the exercise of its discretion, [is]
satisfied” that issuance of the writ “is appropriate under the
circumstances.” 542 U.S. at 381. Applying this “relatively
broad and amorphous” standard, In re Kellogg Brown & Root,
Inc., 756 F.3d at 762, we find the totality of circumstances
merits granting the writ.
We observe, at the outset, that although Judicial Watch
devotes considerable attention to the first two prongs of
Cheney, see Judicial Watch Resp. at 11-24, it “offers no
reason, nor can we detect one, why we should withhold
issuance of the writ if [Secretary Clinton] is otherwise entitled
to it.” In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017)
(per curiam); see generally Judicial Watch Resp. Because the
mandamus prongs are jurisdictional, Am. Hosp. Ass’n, 812
19
F.3d at 189, Judicial Watch’s failure to address the third
prong is not dispositive, see Montrois v. United States, 916
F.3d 1056, 1060 (D.C. Cir. 2019) (“We must assure ourselves
of the existence of jurisdiction even though no party argues it
is lacking.”), but our own review of the issue leads us to
conclude that Cheney’s third prong is satisfied. In light of the
importance of the congressional aims animating FOIA, and in
order to forestall future, similar errors by district courts that
would hamper the achievement of those aims, we find that the
totality of the circumstances counsels us to hold, in the
exercise of our discretion, that mandamus is appropriate under
these circumstances.
While “[i]n the ‘normal course, mandamus is not
available to review a discovery order’, . . . . [m]andamus is
appropriate [] where review of an order ‘after final judgment
is obviously not adequate.’” In re Al Baluchi, 952 F.3d 363,
368 (D.C. Cir. 2020) (quoting In re Executive Office of
President, 215 F.3d 20, 23 (D.C. Cir. 2000)) (emphasis
added) (alteration omitted). In this vein, courts have found
mandamus appropriate in the discovery context where
necessary to correct an error with potentially far-reaching
consequences. See, e.g., In re Kellogg Brown & Root, Inc.,
756 F.3d at 763 (“This Court has long recognized that
mandamus can be appropriate to ‘forestall future error in trial
courts’ and ‘eliminate uncertainty’ in important areas of law.”
(quoting Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524
(D.C. Cir. 1975)); In re Sims, 534 F.3d 117, 128-29 (2d Cir.
2008) (mandamus may be appropriate to review discovery
orders involving privilege where “immediate resolution will
avoid the development of discovery practices or doctrine
undermining the privilege”); Colonial Times, Inc., 509 F.2d at
524 (mandamus may be appropriate where resolution of
discovery issue will “add importantly to the efficient
administration of justice”); Sanderson v. Winner, 507 F.2d
20
477, 479 (10th Cir. 1974) (per curiam) (granting mandamus to
vacate discovery order where district court’s “decision [w]as
an unwarranted extension” of Supreme Court precedent,
“which extension would limit and curtail” a federal rule “in a
manner never contemplated”).
These considerations counsel the issuance of the writ in
the instant circumstances. As already noted, the District
Court’s Order reflects a deeply flawed view of both FOIA and
Rule 26, with the result that the contemplated discovery has
traveled far afield from the narrow issue in this FOIA case –
the adequacy of the State Department’s search for documents
relating to talking points given to Ambassador Rice for a
single day’s television appearances. Compl. at ¶ 5, ECF No.
1 (emphasis added); see also Iturralde, 315 F.3d at 315
(emphasizing that, under FOIA, the adequacy of the search is
measured “by the appropriateness of the methods used,” “not
by the fruits of the search”). While the first rounds of
discovery may have, as the District Court stated, prompted
“more questions than answers,” Mem. Order at 1, ECF No.
161, a court may not order discovery to probe any subject that
piques curiosity, see FED . R. CIV. P. 26(b)(1), especially in the
circumscribed posture of a FOIA case. Here, the FOIA
request is for Benghazi-related documents actually given to
Ambassador Rice, but the depositions were to ask why
Secretary Clinton set up a private server years earlier and with
whom she generally corresponded. None of this bears on the
question of what documents, if any, were given to
Ambassador Rice about the Benghazi attack.
Illustrating the inappropriateness of the ordered
discovery, the District Court authorized Judicial Watch to
depose Secretary Clinton and Ms. Mills about “their
knowledge of the existence of any emails, documents, or text
messages related to the Benghazi attack.” Mem. Order at 10,
21
ECF No. 161. However, the only basis for this request that
Judicial Watch now points to is a passage in one of the nearly
thirty nonresponsive emails discussed above, which suggests
that Huma Abedin sent Secretary Clinton texts about the
latter’s schedule. See Judicial Watch App’x at 15. These
unrelated text messages, although potentially piquing the
court’s curiosity, simply cannot justify the requested
depositions. First, during the events in question, electronic
messages (such as text messages), were not considered federal
agency records under the Federal Records Act. See 44 U.S.C.
§ 2911(c)(1) (amending the Act in November 2014 to include
“electronic messages” or “electronic messaging systems that
are used for purposes of communicating between
individuals[]”); see also Guidance on Managing Electronic
Messages, Bulletin 2015-02 (July 29, 2015) (setting forth new
records management requirements that apply to electronic
messages, including text messaging),
https://www.archives.gov/records-mgmt/bulletins/2015/2015-
02.html. While this quirk of timing may not bar the State
Department from searching for pre-2014 text message records
in response to another FOIA request, Judicial Watch’s “mere
speculation” about the existence of relevant text messages in
this case is certainly insufficient to compel further discovery
here. Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (per
curiam) (“[M]ere speculation that as yet uncovered
documents might exist[] does not undermine the
determination that the agency [has] conducted an adequate
search for the requested records.”).
Second, this is not a case of a government agency
refusing to provide records from a personal email that is the
subject of a direct FOIA request, see, e.g., Competitive Enter.
Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 146-47
(D.C. Cir. 2016), or arguing that certain records are not in its
control and as such cannot be produced, see, e.g., Kissinger v.
22
Reporters Comm. for Freedom of the Press, 445 U.S. 136,
151-57 (1980). Judicial Watch has conceded that it is not
alleging a “cover-up” by either Secretary Clinton or Ms.
Mills, see Oral Arg. Tr. at 46, and there is no evidence or
even an accusation that Secretary Clinton or Ms. Mills
communicated about the specific issue at hand – Ambassador
Rice’s talking points or their creation – in a method that
would not have been captured by the State Department’s
search to date. For example, in opposing the State
Department’s motion for summary judgment, Judicial Watch
filed a Rule 56(d) declaration specifying the additional
discovery it sought and made no mention of the prospect of
outstanding text messages or other electronic
communications. Mot. for Discovery at 8, ECF No. 22.
Instead, Judicial Watch specified that it sought “limited”
discovery, focusing exclusively on email records. Id. at 1.
The closest Judicial Watch came to raising the prospect of
text messages was to request “[i]nformation about what
electronic and computing devices (BlackBerrys, iPhones,
iPads, laptops, desktops, etc.) were used by key officials, their
locations and Defendant’s ability to search for potentially
responsive records” – devices that have already been turned
over to the State Department and examined. Id. at 8; see also
Pompeo, 744 F. App’x at 4 (detailing the FBI’s search of
Secretary Clinton’s devices). Again focusing on email
records, Judicial Watch elaborated that it sought those devices
because it believed that Secretary Clinton may have used “a
Blackberry and iPad as Secretary for her government email.”
Mot. for Discovery at 8 n. 15, ECF No. 22.
“To be sure, there are limits to the impact of a single
district court ruling . . . . But prudent counsel monitor court
decisions closely and adapt their practices in response.” In re
Kellogg Brown & Root, Inc., 756 F.3d at 762-63. If left
unchecked, the premise that such wide-ranging discovery
23
should and will be countenanced under FOIA “would extend
the FOIA to an essentially limitless number of materials . . . .
The Act was not intended to be accorded such a reach.”
Wolfe v. Dep’t of Health & Human Servs., 711 F.2d 1077,
1081 (D.C. Cir. 1983). Such an “unwarranted extension” of
FOIA, certainly “never contemplated” by Congress, see
Sanderson, 507 F.2d at 479, would threaten an exponential
increase in putative FOIA suits seeking commensurate levels
of irrelevant and potentially harassing discovery.
FOIA represents a “congressional commitment to
transparency,” Judicial Watch, Inc. v. Dep’t of Defense, 913
F.3d 1106, 1109 (D.C. Cir. 2019) – a commitment whose
fulfillment would be substantially hampered were judicial and
other governmental resources devoted not to the iterated
topics of FOIA requests and suits, but to free-ranging and
perpetually evolving inquiries for which FOIA requests
served as mere jumping-off points. The important aims at the
core of FOIA therefore counsel us not to let the instant error
lie. Cf. Colonial Times, Inc., 509 F.2d at 524 (mandamus
may be appropriate to “add importantly to the efficient
administration of justice”). In the face of the District Court’s
“clear abuse of discretion” in ordering this discovery, we find
the writ is “appropriately issued,” Schlagenhauf v. Holder,
379 U.S. 104, 110 (1964), to “forestall future error in trial
courts” considering similarly attenuated discovery requests
under FOIA, see Colonial Times, Inc., 509 F.2d at 524.
The circumstances under which this particular discovery
order arises only buttress our finding of the appropriateness of
mandamus. Judicial Watch does not in fact want for the
information it purports to seek and has already been afforded
extensive discovery related to the proposed deposition topics.
In this FOIA case alone, it has taken eighteen depositions and
propounded more than four times the presumptive maximum
24
number of interrogatories. See Status Rep. at 1-3, No. 154;
FED. R. CIV. P. 33(a)(1) (“Unless otherwise stipulated or
ordered by the court, a party may serve on any other party no
more than 25 written interrogatories[.]”). In its parallel FOIA
case before Judge Sullivan, Judicial Watch received sworn
interrogatories from Secretary Clinton herself as well as a
lengthy deposition of Ms. Mills and seven other witnesses,
traversing the proposed deposition topics and resulting in the
identification of no additional records responsive to the
instant FOIA request. Mem. Order at 13-14, No. 13-cv-1363,
ECF No. 73 (May 4, 2016). As discovery progressed, Judge
Sullivan invited Judicial Watch to seek leave to serve even
more interrogatories if there were “follow up questions” it had
been “unable to anticipate,” Mem. Op. at 18-19, No. 1:13-cv-
1363, ECF No. 124 (Aug. 19, 2016), an avenue Judicial
Watch did not pursue.
Judicial Watch also has available to it a voluminous
public record about the proposed deposition topics. As noted,
several executive agencies and a House Select Committee
have conducted inquiries into Secretary Clinton’s use of a
private email server and made their findings public.4
4
See Pet. at 26 n.5 (citing U.S. Department of State, Office of Inspector
General, Evaluation of the Department of State’s FOIA Processes for
Requests Involving the Office of the Secretary (Jan. 2016),
https://www.stateoig.gov/system/files/esp-16-01.pdf; U.S. Department of
State, Office of Inspector General, Office of the Secretary: Evaluation of
Email Records Management and Cybersecurity Requirements (May 2016),
https://fas.org/sgp/othergov/state-oig-email.pdf; U.S. Department of
Justice, Office of Inspector General, A Review of Various Actions by the
Federal Bureau of Investigation and Department of Justice in Advance of
the 2016 Election (June 2018),
https://www.justice.gov/file/1071991/download; House of Representatives
Select Committee on Benghazi, Final Report of the Select Committee on
the Events Surrounding the 2012 Terrorist Attack in Benghazi, H.R. Rep.
No. 114-848 (2016), https://www.congress.gov/congressional-
report/114th-congress/house-report/848/1).
25
Secretary Clinton also provided eleven hours of public
testimony before the House Select Committee, see The Select
Committee on Benghazi, Hearing 4 – Former Secretary of State
Hillary Clinton (Oct. 22, 2015), https://archives-benghazi-
republicans-oversight.house.gov/hearings/hearing-4, and has
answered countless media inquiries on the matter. These facts
underscore both the impropriety of the District Court’s Order
and the appropriateness of turning the page on the issue.5
CONCLUSION
For the reasons set forth above, we grant the petition for
mandamus as to Secretary Clinton, deny it as to Ms. Mills and
dismiss Ms. Mills’ petition for lack of jurisdiction, and
remand the case for proceedings consistent with this opinion.
So ordered.
5
Especially in light of Judicial Watch’s present access to extensive
information responsive to its proposed deposition topics, the deposition of
Secretary Clinton, if allowed to proceed, at best seems likely to stray into
topics utterly unconnected with the instant FOIA suit, and at worst could
be used as a vehicle for harassment or embarrassment. We refrain from
opining further on these topics except to observe that neither path can be
squared with the dictates of either FOIA or Rule 26.