White House e-mail in "true emergency conditions"

Magistrate judge orders search of all White House computers, grants plaintiffs' request for inventories and preservation of evidence

Washington, D.C., January 15, 2009 - The federal magistrate judge overseeing the White House e-mail litigation today said the issue had reached "true emergency conditions" with only "two business days before the new President takes office" and that "the importance of preserving the e-mails cannot be exaggerated," according to the court's Memorandum Opinion issued this morning along with an Order and posted on the National Security Archive website, www.nsarchive.org.

Magistrate Judge John Facciola formally ordered the White House to search all Executive Office of the President components' workstations and portable media for possibly missing e-mail -- enforcing yesterday's order from U.S. District Judge Henry Kennedy -- after government lawyers at a hearing yesterday represented that they would only search those EOP components that create federal agency records and leave out offices that create presidential records.

Today's order also granted plaintiffs' requests that a full inventory of all backup tapes and portable media containing White House e-mail be delivered to the Archivist of the United States and filed with the court, and that the full administrative record and all other evidence related to the White House e-mail be preserved under the custody of the Archivist.

"From the outset, the White House has fought tooth and nail against having to preserve sources of missing e-mail as well as other evidence relating to this case," said Sheila Shadmand of Jones Day, counsel for the Archive.  "For the umpteenth time, this Court has commanded that they do so.  We expect they will yet again object to the terms of these Orders, when instead they should be busy complying with it.  The clock is running out."

The hearing yesterday before Magistrate Judge Facciola included representations from Justice Department attorney Helen Hong that the White House had spent $10 million on an e-mail restoration project that had located some 14 million e-mail that had not been counted in a 2005 analysis by White House staff.

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