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`1a
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`____________________
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`APPENDIX A
`____________________
`
`United States Court of Appeals
`for the District of Columbia Circuit
`
`Argued June 2, 2020 Decided August 31, 2020
`
`No. 20-5056
`
`
`
`IN RE: HILLARY RODHAM CLINTON AND
`CHERYL MILLS, PETITIONERS
`
`
`
`On Panel Rehearing
`Of Petition for Writ of Mandamus
`(No. 1:14-cv-01242)
`
`
`
`Before: GRIFFITH, PILLARD and WILKINS, Circuit
`Judges.
`
`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
`
`
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`2a
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`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. 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.
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`3a
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`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
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`4a
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`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
`recordkeeping system during Secretary Clinton’s
`tenure. See Mot. for Discovery at 6, No. 1:14-cv-1242,
`ECF No. 22 (Aug. 21, 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).
`
`the parties
` On December 6, 2018, after
`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
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`5a
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`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 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.
`
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`6a
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`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 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
`
`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).
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`7a
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`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 conditions must be satisfied before
`[mandamus] may issue,” regardless of Ms. Mills’
`petition’s merit on the other two inquiries, we are
`bound to deny the writ and dismiss her petition. See
`Cheney, 542 U.S. at 380 (citing Kerr v. U.S. Dist.
`Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)).
`
`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
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`8a
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`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
`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
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`9a
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`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, ARTHUR 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
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`10a
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`(2d ed. 1992); see also U.S. Catholic Conference v.
`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
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`11a
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`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 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.
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`12a
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`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 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
`
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`13a
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`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 at 12, 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 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
`
`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
`
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`14a
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`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 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
`
`
`at 995 (quoting FED. R. CIV. 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.
`
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`15a
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`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, ECF No. 143 (Sept. 23, 2019).3 But
`
`
`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
`
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`16a
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`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
`
`recordkeeping laws played any role in her decision to use a
`private server)).
`
`
`
`
`
`
`
`
`
`
`
`
`17a
`
`(reviewing accusations of bad faith on the part of the
`CIA stemming
`from how officials
`instructed
`employees 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
`
`
`
`
`
`
`
`
`
`
`
`18a
`
`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 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’
`
`
`
`
`
`
`
`
`
`
`
`19a
`
`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 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).
`
`
`
`
`
`
`
`
`
`
`
`20a
`
`
`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 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
`
`
`
`
`
`
`
`
`
`
`
`21a
`
`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 Kello
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