BULKY DOCUMENTS
`
`(Exceeds 10 0 pages)
`
`Proceeding/Serial No: 91 1 68789
`
`Filed: 4[20[2010
`
`Title: APPENDIX OF CASES TO OPPOSER’S
`
`OPPOSITION TO APPLICANT’S MOTION TO
`
`COMPEL
`
`Part
`
`1
`
`of
`
`1
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of Application Serial No. 78/492,687
`Publication Date: September 13, 2005
`
`TAKE-TWO INTERACTIVE
`SOFTWARE, INC.,
`
`Opposition No.: 91168789
`
`Opposer,
`
`V.
`
`RUSSELL G. WEINER,
`
`Applicant.
`
`APPENDIX OF CASES TO OPPOSER’S OPPOSITION TO
`APPLICANT’S MOTION TO COMPEL
`
`2664965.]
`
`

`
`Opposer Take-Two Interactive Software, Inc. hereby submits true and correct copies of
`
`the following decisions in connection with its Opposition to Applicant’s Motion to Compel:
`
`Alexander v. F.B.I., 194 F.R.D. 305 (D.D.C. 2000).
`
`Gray v. Faulkner, 148 F.R.D. 220 (ND. Ind. 1992).
`
`Rockwell Int ’l Corp. v. H. Wolfe Iron and Metal Co., 576 F. Supp. 511 (W.D.
`
`Patrick v. Essa Standard Oil Co., 156 F. Supp. 336 (D.N.J. 1957).
`
`In re G-I Holdings Inc., 218 F.R.D. 428 (D.N.J. 2003).
`
`Regan-Touhy v. Walgreen Co., 526 F.3d 641 (10th Cir. 2008).
`
`Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655 (D. Kan.
`
`Quiksilver, Inc. v. Kymsta Corp, 247 F.R.D. 579 (C.D. Cal 2007).
`
`Webster Motor Car Co. v. Packard Motor Car Co., 16 F.R.D. 350 (D.D.C.
`
`1.
`
`2.
`
`3.
`
`Penn. 1983).
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`1999).
`
`1954).
`
`In addition, for the Board’s convenience, attached are true and correct copies of the
`
`following decisions available on Westlaw:
`
`10.
`
`Paramount Pictures Corp. v. Replay TV, 2002 WL 32151632 (C.D. Cal. May 30,
`
`MGP Ingredients, Inc. v. Mars, Inc., 2007 WL 3010343 (D. Kan.2007).
`
`3M Co. v. Kanbar, 2007 WL 1725448 (N.D. Cal. 2007).
`
`Christensen v. Provident Life and Accident Ins. Co., 2009 WL 1636020 (N .D.
`
`2002).
`
`1 1.
`
`12.
`
`13.
`
`Cal. 2009).
`
`2664965.]
`
`

`
`Respectfully submitted,
`
`Date: April 20, 2010
`
`Karin G. Pagnanelli
`Eric G. German
`
`MITCHELL SILBERBERG & KNUPP LLP
`
`ll377 West Olympic Boulevard
`Los Angeles, California 90064
`(310) 312-2000
`Attorneys for Opposer Take—Two Interactive
`Software, Inc.
`
`2664965.l
`
`

`
`Tab 1
`
`APPENDIX OF CASES TO OPPOSER’S
`
`OPPOSITION TO
`
`APPLICANT’S MOTION TO COMPEL
`
`Offered by Opposer Take-Two Interactive
`Software, Inc.
`
`Take Two Interactive Software, Inc.
`v. Russell G. Weiner
`
`Opposition No. 91168789
`Serial No. 78/492,687
`
`2664883.]
`
`1
`
`

`
`Westlaw.
`
`194 F.R.D. 305
`
`(Cite as: 194 F.R.D. 305)
`
`P
`
`United States District Court,
`District of Columbia.
`
`Cara Leslie ALEXANDER, et al., Plaintiffs,
`v.
`
`FEDERAL BUREAU OF INVESTIGATION, et
`al., Defendants.
`Civ.A. Nos. 96-2123, 97-l288(RCL).
`
`May 17, 2000.
`
`Plaintiffs brought suit alleging that their privacy in-
`terests were violated when the Federal Bureau of
`
`improperly handed over to the
`Investigation (FBI)
`White House hundreds of FBI files of former polit-
`ical appointees and government employees from the
`Reagan and Bush Administrations. On plaintiffs’
`motion to compel production,
`the District Court,
`Lamberth, J., held that: (1) plaintiffs were not en-
`titled to production of a list of persons whose FBI
`reports were requested by the White House during
`tenure of particular White House employee, absent
`evidence that the Executive Office of the President
`
`(2) plaintiffs were
`(EOP) possessed any such list;
`entitled to production of computer service records
`for computer belonging to long-time aide to the
`President who allegedly spoke with White House
`lawyer about entering data from what appeared to
`be FBI files into a White House database that could
`be shared with the Democratic National Committee;
`(3) plaintiffs were entitled to production of the tele-
`phone logs of the First Lady, and eight White
`House employees, over objection that request was
`unduly burdensome; and (4) plaintiffs were not en-
`titled to production of telephone billing records
`which did not contain “call detail”—i.e., the numbers
`to and from which the call was placed.
`
`Motion granted in part, denied in part, and deferred
`in part.
`
`West Headnotes
`
`[1] Federal Civil Procedure 170A Q‘-'-91593
`
`Page 1
`
`170A Federal Civil Procedure
`
`l70AX Depositions and Discovery
`I70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`l70Ak1593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were not entitled to discover
`
`documents concerning proper requests and uses of
`FBI
`information, or
`information relating to any
`misuse of FBI information concerning two former
`White House employees other than certain incidents
`involving them which could prove to be circum-
`stantial
`evidence of
`file misuse
`aimed at
`the
`
`plaintiffs.
`
`[2] Federal Civil Procedure 170A éfi1271
`
`170A Federal Civil Procedure
`
`l70AX Depositions and Discovery
`l70AX(A) In General
`l70Akl27l
`k. Proceedings
`Most Cited Cases
`
`to Obtain.
`
`information bears the
`The party seeking to compel
`burden of first demonstrating its relevance.
`
`[3] Federal Civil Procedure 170A ‘£31593
`
`l70A Federal Civil Procedure
`
`l70AX Depositions and Discovery
`l70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`I70Akl593 k. Government Records,
`Papers and Property. Mos’: Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were not entitled to discover
`
`documents sufficient to show the filing system in
`the Executive Office of the President
`(EOP)
`for
`documents relating to former White House employ-
`ee whose security clearance form was released by
`the Department of Defense, her subsequent employ-
`er, absent evidence that the EOP participated in the
`
`© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`194 F.R.D. 305
`
`(Cite as: 194 F.R.D. 305)
`
`Page 2
`
`release of the form, or any other FBI information
`concerning employee,
`in violation of the Privacy
`Act. 5 U.S.C.A. § 552a.
`
`such list. Fed.Rules Civ.Proc.Rule 34(a), 28 U.S.C.A.
`
`[7] Federal Civil Procedure 170A ©:>l593
`
`[4] Federal Civil Procedure 170A (‘$1574
`
`l70A Federal Civil Procedure
`
`170/\ Federal Civil Procedure
`
`l 70AX Depositions and Discovery
`l70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)2 Subject Matter in General
`l70Akl574 k. Existence, Possession,
`Custody, Control and Location. Most Cited Cases
`Discovery rule pertaining to production of docu-
`ments only requires a party to produce documents
`that
`are
`already
`in
`existence.
`Fed.Rules
`Civ.Proc.Rule 34(a), 28 U.S.C.A.
`
`|5] Federal Civil Procedure 170A é7~=>l574
`
`I70/\ Federal Civil Procedure
`
`l70AX Depositions and Discovery
`l7()AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l7OAX(E)2 Subject Matter in General
`l70Akl 574 k. Existence, Possession,
`Custody, Control and Location. Most Cited Cases
`A party is not required to prepare, or cause to be
`prepared, new documents solely for their produc-
`tion. Fed.Rules Civ.Proc.Rule 34(a). 28 U.S.C.A.
`
`[6] Federal Civil Procedure 170A 6331593
`
`l70A Federal Civil Procedure
`
`l 70AX Depositions and Discovery
`l70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`l70Akl593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were not entitled to production
`of a list of persons whose FBI reports were reques-
`ted by the White House during tenure of particular
`White House employee, absent evidence that
`the
`Executive Office of the President possessed any
`
`l70AX Depositions and Discovery
`l7OAX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`l70Akl593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were not entitled to production
`of documents relating to laptop and desktop com-
`puters and removable storage devices used or as-
`signed to the First Lady relating to Travelgate,
`Filegate,
`the WhoDB computer system, or the ob-
`taining or use of FBI files or government records,
`absent evidence that any such documents existed.
`Fed.Rules Civ.Proc.Rule 34(a), 28 U.S.C.A.
`
`[8] Federal Civil Procedure 170A €>=>1593
`
`l70A Federal Civil Procedure
`
`l70AX Depositions and Discovery
`170AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`l70Akl593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were entitled to production of
`computer service records for computer belonging to
`long-time aide to the President who allegedly spoke
`with White House lawyer about entering data from
`what appeared to be FBI files into a White House
`database that could be shared with the Democratic
`
`request was “reasonably
`National Committee, as
`calculated to lead to the discovery of admissible
`evidence.” Fed.Rules Civ.Proc.Rule 26(b)(l), 28
`U.S.C.A.
`
`[9] Federal Civil Procedure 170A Q/‘:>1593
`
`l70A Federal Civil Procedure
`
`© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`I94 F.R.D. 305
`
`(Cite as: 194 F.R.D. 305)
`
`l70AX Depositions and Discovery
`l70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`l70Akl593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were entitled to production of
`all documents from the archiving of computer files
`from computers used by long—time aide to the Pres-
`ident who allegedly spoke with White House law-
`yer about entering data from what appeared to be
`FBI files into a White House database that could be
`
`shared with the Democratic National Committee, as
`such information could lead to discovery of admiss-
`ible evidence. Fed.Rules Civ.Proc.Rule 26(b)(l), 28
`U.S.(,‘.A.
`
`|l0| Federal Civil Procedure 170A 617-91593
`
`170A Federal Civil Procedure
`
`l70AX Depositions and Discovery
`l7OAX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`170A X(E)3 Particular Subject Matters
`l70Ak1593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were not entitled to production
`of documents relating to the reassignment or return
`to excess inventory pool of computers or hard disk
`drives used by several White House employees,
`in-
`cluding long—time aide to the President, absent ex-
`planation of how information that an old computer
`had been put in excess inventory, and its hard drive
`eliminated, was likely to lead to the discovery of
`admissible
`evidence.
`Fed.Rules
`Civ.Proc.Rule
`
`26(b)( l ), 28 U.S.C.A.
`
`[11] Federal Civil Procedure 170A €-391593
`
`l70A Federal Civil Procedure
`
`l7()AX Depositions and Discovery
`l70AX(I£) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`
`Page 3
`
`l70Akl593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were entitled to production of
`documents in the inventory tracking database of the
`Executive Office of the President (EOP) in order to
`show identify computer currently assigned to long-
`time aide to the President who allegedly spoke with
`White House lawyer about entering data from what
`appeared to be FBI files into a White House data-
`base that could be shared with the Democratic Na-
`
`tional Committee, as request was reasonably calcu-
`lated to lead to the discovery of admissible evid-
`ence. Fed.Rules Civ.Proc.Rule 26(b)(l), 28 U.S.C.A.
`
`[12] Federal Civil Procedure 170A ¢€,«‘7>1634
`
`l70A Federal Civil Procedure
`
`l70AX Depositions and Discovery
`l70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)5 Compliance; Failure to Com-
`
`ply
`
`170Akl634 k. Sufficiency of Compli-
`ance. Most Cited Cases
`
`Search of approximately 60 boxes of documents for
`documents on particular topics, by using indices
`rather than by individual search of each box, was
`inadequate response to request for production, ab-
`sent specific, detailed showing of the burden that
`individual search would require.
`
`[13] Federal Civil Procedure 170A €:1593
`
`l70A Federal Civil Procedure
`
`l70AX Depositions and Discovery
`l70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`l70Akl593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI
`files were entitled to production
`from the Executive Office of the President (EOP)
`of all documents which discussed,
`interpreted or
`
`© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`194 F.R.D. 305
`
`(Cite as: I94 F.R.D. 305)
`
`analyzed a 1975 legal memorandum to Counsel for
`the President concerning applicability of the Free-
`dom of Information Act (FOIA) to the EOP; memo
`was cited in opinion letter in support of argument
`that
`the Privacy Act does not apply to the EOP,
`which was major issue in pending case, and thus
`documents
`discussing memo were
`relevant.
`5
`U.S.C.A. §§ 552, 552a; Fed.Rules Civ.Proc.Rule
`26(b)(l), 28 U.S.C.A.
`
`|14| Federal Civil Procedure 170A 6731593
`
`l7()A Federal Civil Procedure
`
`l70AX Depositions and Discovery
`l70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l7OAX(E)3 Particular Subject Matters
`l70Akl593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were entitled to production of
`the telephone logs of the First Lady, and eight
`White House employees, over objection that
`re-
`quest was unduly burdensome, absent showing, by
`way of estimated required staff hours, estimated
`cost, or
`some other specific showing,
`just how
`search oflogs would be overly burdensome.
`
`[15] Federal Civil Procedure 170A €Z1593
`
`l70A Federal Civil Procedure
`
`l70/\X Depositions and Discovery
`l70AX(E) Discovery and Production of Doc-
`uments and Other Tangible Things
`l70AX(E)3 Particular Subject Matters
`l7OAkl593 k. Government Records,
`Papers and Property. Most Cited Cases
`Plaintiffs who brought suit alleging White House
`misuse of FBI files were not entitled to production
`of telephone billing records which did not contain
`“call detail”-i.e.,
`the numbers to and from which
`the call was placed,
`as
`such records were not
`“reasonably calculated to lead to the discovery of
`admissible evidence”; however, plaintiffs were en-
`titled to billing records for cellular phones which
`did contain such detail. Fed.Ru|es Civ.Proc.Rule
`
`Page 4
`
`26(b)(l), 28 U.S.C.A.
`*307 Larry Klayman,Judicial Watch,
`ington, D.C., for plaintiffs.
`
`Inc., Wash-
`
`David W. Ogden, Acting Assistant Attorney Gener-
`al, Wilma A. Lewis, United States Attorney, Anne
`Weismann, James J. Gilligan, Elizabeth Shapiro,
`U.S. Department of Justice, Washington, D.C., for
`defendants EOP and FBI.
`
`David E. Kendall, Marcie Ziegler, Williams & Con-
`nolly, Washington, D.C.,
`for defendant Hillary
`Rodham Clinton.
`
`MEMORANDUM AND ORDER
`
`LAMBERTH, District Judge.
`
`This matter comes before the court on Plaintiffs‘
`
`Motion [944] to Compel Production of Documents
`Regarding Second Request to the Executive Office
`of the President and for Further Relief the Court
`
`Deems Just and Proper. Upon consideration of this
`motion, and the opposition and reply thereto,
`the
`court will GRANT IN PART, DENY IN *308
`PART, AND DEFER IN PART plaintiffs’ motion,
`as discussed and ordered below.
`
`I. Background
`
`The underlying allegations in this case arise from
`what has become popularly known as “Filegate.”
`Plaintiffs allege that their privacy interests were vi-
`olated when the FBI improperly handed over to the
`White House hundreds of FBI files of former polit-
`ical appointees and government employees from the
`Reagan and Bush Administrations.
`
`This particular dispute revolves around requests for
`the production of documents served on the Execut-
`ive Office of the President (“EOP”) on October 27,
`1998. The EOP served its responses and produced
`documents on January 14, 1999. These responses,
`however, included several objections to the requests
`as
`irrelevant, unduly burdensome, or beyond the
`
`© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`194 F.R.D. 305
`
`(Cite as: 194 F.R.D. 305)
`
`scope of this court's orders. Plaintiffs initially filed
`their motion to compel documents regarding their
`second request for documents on March 26, 1999.
`Plaintiffs then withdrew that motion, and the parties
`engaged in negotiations
`regarding the plaintiffs’
`motion. The EOP provided plaintiffs with supple-
`mental
`information and documentation on April 22,
`and April 29, 1999.
`
`On June 14. 1999, plaintiffs filed a revised motion
`to compel documents. After this motion was filed,
`the parties engaged in further discussions and sev-
`eral more of the plaintiffs’ arguments were rendered
`moot. Plaintiffs, however, still seek to compel doc-
`uments relating to several of their requests. These
`remaining requests include requests for documents
`relating to Linda Tripp and Kathleen Willey, a list
`of those individuals whose FBI files were requested
`by the White House during Craig Livingstone's ten-
`ure there, certain e-mails and hard drives of relev-
`ant
`individuals, documents relating to Mrs. Clin-
`ton's and EOP computers and the information con-
`tained
`therein,
`certain
`documents
`regarding
`“Travelgate” and “Filegate”, documents relating to
`a 1975 Memorandum to Counsel for the President
`
`on FOIA, and telephone logs and related billing re-
`cords for nine individuals. In light of recent devel-
`opments
`regarding the
`records management of
`White House e-mails,
`the plaintiffs‘ requests for e-
`mails and hard drives will be addressed later in a
`
`separate opinion. The remaining requests, however,
`are addressed below.
`
`II. Analysis
`
`1. Documents regarding Kathleen Willey and Linda
`Tripp (Request Nos. 1-3, 79)
`
`A. Documents related to requests for and uses of
`Willey's
`and Tripp's FBI
`information,
`including
`such
`information received or given to
`James
`Carville or the EIP (Request Nos. 1-2, 79).
`
`[1] In their first and second requests, plaintiffs seek
`all documents related to any requests for or use of
`
`Page 5
`
`information in FBI files or government records per-
`taining to Kathleen Willey and Linda Tripp.
`Plaintiffs further seek all documents referring or re-
`lated to Willey and Tripp obtained from or
`provided to James Carville or the Education and In-
`formation Project, Inc. (“EIP”). “Parties may obtain
`discovery regarding any matter not privileged,
`which is relevant to the subject matter involved in
`the pending action.” FED.R.ClV.P. 26(b). As the
`BOP points out, this court has already ruled on the
`relevance of issues concerning Willey and Tripp to
`this case.
`
`With regards to Kathleen Willey, the court has al-
`lowed discovery into the letters sent from her to
`President Clinton, which were publicly released by
`the White House alter Willey's appearance on “60
`Minutes”. See Alexander v. FBI, 186 F.R.D. 113.
`115 (D.D.C.l998). This court found such discovery
`to be relevant to the pending case because if, as this
`court
`has
`since
`found,
`those
`letters were
`“maintained in a way that
`implicated the Privacy
`Act, then [their] misuse could prove to be circum-
`stantial
`evidence of
`file misuse
`aimed at
`the
`
`plaintiffs in the case at bar.” Ia’.; see also Alexander
`v. FBI, 193 F.R.D.
`1 (D.D.C.2000) (finding that the
`Willey letters were maintained in a way that implic-
`ated the Privacy Act). Regarding Linda Tripp,
`this
`court has held that documents relating to the De-
`partment of Defense's release of information from
`Ms. Tripp's security clearance form, or other al-
`leged misuse of Ms. Tripp's government files, are
`relevant to *309 the case at bar. See Alexander v.
`
`FBI, Civ. No. 96-2123, Order at 6-7 (D.D.C. April
`12, 1998); Alexander v. FBI, 186 F.R.D. 113, 115
`(D.I).C.1998).
`
`The EOP states in its opposition that, consistent
`with the court's prior ruling,
`it searched and pro-
`duced all documents relating to “the maintenance
`and release” and “requests from the White House
`Counsel's Office” of those “documents concerning
`Ms. Willey that have been publicly released.” Op-
`position by Defendant EOP to Plaintiffs‘ Motion to
`Compel Documents Regarding Second Request
`to
`
`© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`I94 F.R.D. 305
`
`(Cite as: 194 F.R.D. 305)
`
`it has
`EOP at 5, 8. The EOP further states that
`searched for and provided documents relating to the
`Department of Defense's release of Tripp's security
`clearance form, and any other alleged misuse, as set
`out by this court. See id. at 7.
`In response to Re-
`quest 79,
`the BOP states that
`it searched for and
`produced all documents obtained from or provided
`to James Carville or the Education and Information
`
`Project “relating to the maintenance and release of
`documents concerning Ms. Willey that have been
`publicly released, and documents relating to [the
`Department of Defense's]
`release of infomiation
`from Ms. Tripp's security clearance form.” Id. at 9.
`Therefore, the EOP has already provided all relev-
`ant material responsive to the plaintiffs‘ request.
`
`Plaintiffs are not entitled to documents concerning
`proper requests and uses of Willey's and Tripp's
`FBI information, as this information clearly has no
`relevance to the pending action. Plaintiffs‘ request
`is also denied to the extent that it seeks information
`
`relating to any misuse of Willey's and Tripp's FBI
`information other
`than those particular
`instances
`already addressed. As
`this court has previously
`stated,
`it will not “allow plaintiffs to discover in-
`formation on all of the White House's alleged ad-
`versaries without any proper factual grounds to sup-
`port such discovery.” Alexander V. FBI,
`I86 F.R.D.
`H3, H9 (D.D.C.l998)
`(denying discovery into
`matters concerning Monica Lewinsky). This court
`has allowed discovery into matters concerning Wil-
`ley and Tripp due to the fact
`that
`the plaintiffs
`presented the court with “discrete factual bas[es]"
`to support their theory of file misuse, and “the type
`of misuse paralleled the allegations of plaintiffs in
`the case at bar." la’.
`
`The plaintiffs have presented no evidence of any
`misuse of Willey's and Tripp's FBI information oth-
`er than the release of Willey's letters and Tripp's se-
`curity clearance form. As the EOP has already pro-
`duced all documents concerning these instances of
`misuse,
`the plaintiffs‘ requests for any other docu-
`ments pertaining to Willey's and Tripp's FBI
`in-
`formation are denied.
`
`Page 6
`
`B. Documents showing the EOP's filing system for
`documents relating to Linda Tripp (Request No. 3).
`
`[2][3] In their third request, plaintiffs seek all docu-
`ments sufficient
`to show the filing system in the
`EOP for documents relating to Linda Tripp. N
`The EOP also objected to this request, arguing that
`the information the plaintiffs seek is irrelevant. The
`party seeking to compel
`information bears the bur-
`den of first demonstrating its relevance. See Alex-
`ander v. FBI, 192 F.R.D. 42, 44-45 (D.D.C.2000);
`Alexander
`V.
`FBI,
`186
`F.R.D.
`I85.
`l87
`(D.D.C.l999); Alexander v. FBI,
`I86 F.R.D. 21, 45
`(D.D.C.l998). The plaintilfs correctly state that in-
`formation regarding the filing system from which
`records that were publicly released were obtained is
`relevant because the Privacy Act protects records
`depending on how they were stored. The EOP re-
`sponds, however,
`that with regards to publicly re-
`leased Tripp records,
`information regarding their
`filing system is irrelevant because “it was the De-
`partment of Defense that released the information
`concerning Ms. Tripp.” EOP Opposition at 9.
`
`FNI. The plaintiffs also requested this in-
`formation as
`to Monica Lewinsky and
`Kathleen Willey. The plaintiffs withdrew
`their
`request
`as
`to Monica Lewinsky,
`however, and the BOP has provided all
`documents pertaining to the filing system
`for
`the Willey documents. Therefore,
`the
`only issue that remains concerns the docu-
`ments relating to Tripp.
`
`Plaintiffs allege that they have evidence of a “direct
`link” between the White House and the release of
`
`this information. This evidence, however, consists
`only of the fact that, *3l0 shortly before Tripp's in-
`formation was published in an article in The New
`Yorker, Jane Mayer, the author of that article called
`a deputy of then-current White House Press Secret-
`ary Mike McCurry, at which time the deputy re-
`ferred her to the Department of Defense. The court
`finds that such evidence is insufficient to establish
`
`the relevance of the EOP's filing system in this
`case. The evidence before this court indicates only
`
`© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`194 F.R.D. 305
`
`(Cite as: 194 F.R.D. 305)
`
`that the Department of Defense released Tripp's se-
`curity form from their
`files. Plaintiffs’ additional
`evidence of a brief contact between Jane Mayer and
`a deputy at the White House fails to establish that
`the EOP also participated in the release of Tripp's
`form, or any other FBI information,
`in violation of
`the Privacy Act. Therefore, the plaintiffs’ request is
`denied
`
`2. Plaintiffs’ request for a list of persons whose FBI
`reports were requested by the White House during
`Craig Livingstone’s tenure (Request No. 5).
`
`[4][5j[6] In their fifth request, plaintiffs seek to ac-
`quire a list of persons whose FBI reports were re-
`quested by the White House during Craig Living-
`stone's tenure. The EOP responded that it does not
`have any such list, and therefore, it has produced no
`documents. Rule 34 of the Federal Rules of Civil
`
`Procedure governs discovery requests for the pro-
`duction of documents and things.
`It allows a party
`to serve on another party a request to produce any
`designated documents that “are in the possession,
`custody or control of the party upon whom the re-
`quest
`is served.” FED.R.ClV.P. 34(a). Therefore,
`Rule 34 only requires a party to produce documents
`that are already in existence. See Rockwell
`lnt’l
`Corp.
`1’. H. Wolfe Iron and Metal C0,, 576 F.Supp.
`Sll, 5ll
`(W.D.Pa.l983); see also 8A CHARLES
`A. WRIGHT, ARTHUR R. MILLER, & RICHARD
`L. MARCUS, FEDERAL PRACTICE AND PRO-
`CEDURE § 22l0 (2d ed. 1994) (“[A] party can not
`be required to permit
`inspection of documents or
`things that it does not have and does not control.”)
`A party is not required “to prepare, or cause to be
`prepared,” new documents solely for their produc-
`tion. See Rockwell, 576 F.Supp. at 511. Therefore,
`as there is no evidence that the EOP does in fact
`
`possess any list of individuals whose background
`summaries or FBI
`reports were requested by the
`White House from the FBIF“,
`the plaintiffs‘
`re-
`quest to compel such a list is denied.”-‘
`
`Fl’\l2. As evidence that the EOP does have
`
`the desired list, the plaintiffs cite the EOP's
`
`Page 7
`
`statement at a status conference that “there
`
`background
`10,000
`approximately
`were
`summary reports of Clinton White House
`employees [and political employees] in the
`Clinton White House.” Plaintiffs’ Reply at
`14. The fact that the BOP had such inforrn-
`
`ation, however, has no bearing on the issue
`at hand~whether the BOP also compiled a
`list of which particular
`summary reports
`were requested by the White House over a
`specific period of time.
`
`FN3. This
`
`court
`
`further notes
`
`that
`
`the
`
`plaintiffs would not be entitled to receive a
`list of any persons whose files were re-
`quested at a time when they were em-
`ployed by the Clinton Administration, as
`such
`information
`is
`irrelevant
`to
`the
`
`pending action. See Alexander v. FBI, 193
`F.R.D.
`l
`(D.D.C.2000)
`(denying discovery
`into matters
`regarding the files of then-
`current Clinton Administration employees
`based on the fact
`that such information is
`
`to the pending action); Alexan-
`irrelevant
`FBI,
`186
`F.R.D.
`200.
`204
`der
`v.
`(D.D.C.l999)
`(same); Alexander
`v. FBI,
`Civ. No. 96-2123, Memorandum and Order
`at 8 (D.D.C. Apr. 16, 1999) (same).
`
`3. All documents relating to any desktop or laptop
`computer and any floppy disks used by or assigned
`to Mrs. Clinton, which contain information relating
`to Travelgate, Filegate,
`the White House Oflice
`Database computer system, or the obtaining or use
`ofFBIfiles or government records (Request 21-22).
`
`the information
`[7] Plaintiffs also seek to compel
`contained in all
`laptop and desktop computers and
`removable storage devices used or assigned to Mrs.
`Clinton
`relating
`to Travelgate,
`Filegate,
`the
`WhoDB computer system, or the obtaining or use
`of FBI files or government records. The EOP re-
`sponded that, according to its records, no laptop or
`desktop computers have ever been assigned to Mrs.
`Clinton. See EOP Opposition at 11. The EOP fur-
`
`© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`194 F.R.D. 305
`
`(Cite as: 194 F.R.D. 305)
`
`Page 8
`
`is unaware of
`it has inquired, but
`ther stated that
`Mrs. Clinton using White House computers for any
`purpose relating to *311 the plaintiffs‘ request. See
`id. Therefore, the EOP states, it has nothing to pro-
`duce.
`
`to
`relevant
`is
`regarding Marsha Scott's computer
`the pending action as it may bear on the possible
`misuse of the plaintiffs‘ files. The court will now
`address the relevance of the particular documents
`requested by the plaintiffs.
`
`is
`response
`the EOP's
`that
`argue
`Plaintiffs
`“suspicious,” given Thomas McLarty's testimony
`that he thinks (but
`is not certain) that he has seen
`Mrs. Clinton typing on a laptop. Plaintiffs‘ Motion
`to Compel at 22. As
`the EOP correctly notes,
`however, such suspicion is
`insufficient
`to support
`their motion to compel. Plaintiffs must demonstrate
`that the documents they seek to compel do,
`in fact,
`exist and are being unlawfully withheld. See Ayala
`v. Tupio. 1991 WL 241873 at *2 (D.D.C. Nov.l,
`1991)
`(denying motion to compel because that
`party seeking production could not
`identify any
`specific
`information that was being withheld).
`Thus, having failed to demonstrate that any docu-
`ments have been withheld, the plaintiffs’ request is
`denied.
`
`4. Documents pertaining to EOP Computers and
`Computer Service Records
`(Request Nos. 37-4],
`and 43-44).
`
`Plaintiffs initially requested several documents re-
`lating to the computers and hard drives of several
`different White House
`employees. The White
`House objected to the plaintiffs‘ request as irrelev-
`ant and overbroad, arguing that many of these em-
`ployees were unconnected to this litigation. In their
`motion to compel, the plaintiffs eliminated their re-
`quest as to all those employees objected to, with the
`exception of Marsha Scott. Plaintiffs argue that
`Scott, a long—time aide to the President,
`is relevant
`to the pending case.
`In support of their claim,
`plaintiffs point
`to Tripp's testimony at her depos-
`ition that she saw Bill Kennedy talking with Scott
`about entering data from what appeared to be FBI
`files into a White House database that could be
`shared with the Democratic National Committee.
`
`See Tripp Deposition at 141-148; 163-167. Based
`on this evidence,
`the court finds that
`information
`
`computer
`Scott's
`A. Marsha
`(Request Nos. 37, 40-41, and 43).
`
`service
`
`records
`
`[8] Plaintiffs first request several computer service
`records pertaining to Marsha Scott,
`including all
`documents related to the archiving, wiping and/or
`restoration of Scott's
`computers
`and hard disk
`drives, and all of her OA62, OA65 and CSAR
`forms. The EOP objected to these requests as irrel-
`evant. 17“
`
`FN4. Notwithstanding their objections that
`the information sought was irrelevant,
`the
`EOP did produce requests for the archiving
`of hard disk drives and CSAR forms OA62
`and OA65 for several individuals.
`
`Form OA65, as described by former White House
`Branch Chief of Customer Service Computer Sup-
`port Laura Crabtree?“ at her deposition,
`is
`a
`handwritten form by which users request service for
`their computer. Plaintiffs argue that
`they are en-
`titled to any OA65 forms and all other documents
`requests for the archiving, wiping or restoration of
`Scott's
`computers
`and hard drives
`to establish
`whether her hard drive had been erased or archived
`
`and to determine the current location of any com-
`puters or hard drives used by her in the past.
`
`the prior testi-
`FN5. The court notes that
`mony of Ms. Crabtree, as well as affidavits
`filed by Daniel Barry, have been called in-
`to question by recent revelations regarding
`the White House's prior
`searches of e-
`mails, and are the subject of a pending mo-
`tion filed by the plaintiffs for an eviden-
`tiary hearing. However,
`as
`the court
`is
`granting the plaintiffs‘
`requests
`for
`these
`forms described by Ms. Crabtree in her de-
`
`© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`

`
`194 F.R.D. 305
`
`(Cite as: 194 F.R.D. 305)
`
`the plaintiffs suffer no detriment
`position,
`by the court's
`reliance on this particular
`testimony for this l