Citizens for Responsibility and Ethics in Washington v. U.S. Department of Veterans Affairs

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________
)
CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1481 (PLF)
)
U.S. DEPARTMENT OF VETERANS )
AFFAIRS, )
)
Defendant. )
____________________________________)

OPINION

This Freedom of Information Act case is before the Court on the defendant’s

renewed motion for summary judgment. On September 28, 2011, the Court denied that motion

without prejudice and granted in part the plaintiff’s request for discovery. This Opinion explains

the reasoning underlying that September 28, 2011 Order and sets forth the scope of permissible

discovery.1

1
The papers reviewed in connection with the defendant’s renewed motion for
summary judgment include: the plaintiff’s complaint (“Compl.”) [Dkt. No. 1]; the defendant’s
motion for summary judgment (“First MSJ”) [Dkt. No. 16]; the plaintiff’s opposition to the
defendant’s motion for summary judgment (“Opp. to First MSJ”) [Dkt. No. 18]; the defendant’s
reply in support of its motion for summary judgment (“Reply to Opp. to First MSJ”) [Dkt.
No. 21]; the plaintiff’s supplemental memorandum in opposition to the defendant’s motion for
summary judgment (“Pl. Surreply to First MSJ”) [Dkt. No. 23]; the defendant’s renewed motion
for summary judgment (“Mot.”) [Dkt. No. 36]; the defendant’s statement of material facts as to
which there is no genuine dispute (“Def. Statement”) [Dkt. No. 36]; the plaintiff’s opposition to
the defendant’s renewed motion for summary judgment (“Opp.”) [Dkt. No. 37]; the plaintiff’s
statement of material facts as to which there is no genuine issue (“Pl. Statement”) [Dkt. No. 37];
the defendant’s reply in support of its renewed motion for summary judgment (“Reply”) [Dkt.
No. 40]; the plaintiff’s surreply to the defendant’s reply in support of its renewed motion for
summary judgment (“Pl. Surreply”) [Dkt. No. 45]; the defendant’s memorandum in response to
 I. BACKGROUND

On March 20, 2008, Dr. Norma J. Perez, at that time employed as a psychologist

and coordinator of the post traumatic stress disorder (“PTSD”) clinical team at a Department of

Veterans Affairs (“VA”) medical center in Temple, Texas, authored an e-mail that she sent to

eight local VA colleagues. See Declaration of Norma J. Perez (“Perez Decl.”) ¶¶ 1, 3, Oct. 1,

2010 [Dkt. No. 40-8]. This e-mail, titled “Suggestion,” stated in full:

Given that we are having more and more compensation seeking
veterans, I’d like to suggest that you refrain from giving a
diagnosis of PTSD straight out. Consider a diagnosis of
Adjustment Disorder, R/O PTSD.

Additionally, we really don’t or have time to do the extensive
testing that should be done to determine PTSD.

Also, there have been some incidence [sic] where the veteran has a
C & P, is not given a diagnosis of PTSD, then the veteran comes
here and we give the diagnosis, and the veteran appeals his case
based on our assessment.

This is just a suggestion for the reasons listed above.

Perez Decl., Attachment, E-mail from Dr. Norma J. Perez at 1, Mar. 20, 2008. This e-mail was

leaked to the public in May 2008. See generally Compl., Ex. 6.

Dr. Perez since has stated that her intent in sending this e-mail “was to emphasize

the importance of providing an accurate diagnosis and to ensure that veterans receive treatment

appropriate to their precise needs immediately; thus improving the access to care and quality of

care provided to veterans.” Perez Decl. ¶ 3. But many viewed the e-mail as suggesting that VA

the plaintiff’s surreply (“Def. Response to Pl. Surreply”) [Dkt. No. 49]; the defendant’s notice of
supplemental release (“Def. Supp. Release”) [Dkt. No. 50]; and the plaintiff’s response to the
defendant’s notice of supplemental release (“Pl. Response to Def. Supp. Release”) [Dkt. No. 51].

2
employees should refrain from giving PTSD diagnoses as a cost-cutting measure, see generally

Compl., Ex. 6, and Dr. Perez’s e-mail became the subject of a congressional hearing and

substantial news coverage. See Opp. at 3.

On May 14, 2008, shortly after Dr. Perez’s e-mail became public, plaintiff

Citizens for Responsibility and Ethics in Washington (“CREW”) submitted an FOIA request to

the VA, stating:

CREW seeks from the [VA], any and all records from January 1,
2001, to the present relating to any and all guidance given to any
VA staff, consultants and/or other recipient(s) of federal funds
regarding the diagnosis of post traumatic stress disorder (“PTSD”)
in veterans. This request includes, but is not limited to, any and all
records that reflect or contain guidance on (1) whether or not to
make a diagnosis of PTSD; (2) alternative diagnoses that should or
could be made in lieu of diagnosing PTSD; (3) time or expense
factors bearing on a diagnosis of PTSD; and (4) guidance on PTSD
diagnoses as they relate to veteran appeals. As used herein,
“guidance” includes both formal and informal guidance, advice,
recommendations, both formal and informal, no matter how
memorialized. Please note that we are not seeking records about
individual veterans or individual veteran applications for benefits.

Compl., Ex. 1, Letter from Anne L. Weismann to the VA at 1, May 14, 2008 [Dkt. No. 1-2].

CREW also requested from the VA a wavier of fees associated with processing its request for

records. See id. at 2.

By letter dated June 5, 2008, the VA denied CREW’s request for a fee waiver and

also claimed that the request for documents was “‘overly broad’” and imposed on the VA “‘an

extremely burdensome search effort.’” Compl. ¶ 18 (citation omitted). CREW appealed the

VA’s decisions administratively, see id. ¶ 19, but, as of August 27, 2008, the VA neither had

responded to CREW’s administrative appeal nor had produced any documents responsive to

3
CREW’s request. See id. ¶ 22. Consequently, on that date, CREW filed a complaint in this

Court under the FOIA, making two claims: (1) that the VA failed to produce requested records;

and (2) that the VA improperly denied CREW’s request for a fee waiver. See id. at 6-8.

After CREW filed its complaint, the VA issued the requested fee waiver to

CREW, reversing its prior position. See Order at 1, June 6, 2009 [Dkt. No. 12]. The Court

therefore dismissed as moot CREW’s second claim for relief, see id., leaving one remaining

claim in this case: that the VA failed to produce requested records to CREW. See Compl. ¶ 2.

On September 23, 2009, the VA filed a motion for summary judgment in which it

asserted that it had performed an adequate search and released to CREW all records responsive to

CREW’s request. See First MSJ at 1. CREW opposed the VA’s motion, arguing, among other

things, that the VA’s declarations were deficient and that the VA had failed to conduct an

adequate search for electronic records. See Opp. to First MSJ at 8-14. Regarding the issue of

electronic records, although Dr. Perez’s e-mail was dated March 20, 2008, CREW asserted that

the VA’s declarations revealed that its search of its electronic records “did not reach back to that

time, but rather included only e-mail messages dating back to December 9, 2008.” Id. at 9. In

support of its position, CREW pointed to the declaration of John Livornese, the Director of FOIA

Service for the VA, in which Mr. Livornese stated: “As a result of the search [of Dr. Perez’s

records], two files were provided by VA Exchange Administrators — a snapshot of her current

mailbox and a copy of email messages dating back to 12/9/08, which contained one or more

search terms and were deemed responsive.” Declaration of John Livornese (“Sept. 2009

Livornese Decl.”) ¶ 8, Sept. 18, 2009 [Dkt. Nos. 16-4, 36-3].

4
 The VA subsequently explained in reply that it was “unable to recover emails

created before December 9, 2008 because the VA’s regular rotation of backup tapes precluded

the recovery of older email messages.” Reply to Opp. to First MSJ at 9. In a supplemental

declaration dated November 5, 2009, Mr. Livornese further elaborated:

Results of the search of the Perez email account that were deemed
responsive included a copy of email messages dating back to
12/9/08. Email messages prior to that date were not available for
the following reasons: a search of email by history involves a
search of emails that have been backed-up. Prior email messages
are backed up, or copied, to a tape; when a request is made for a
search of email, the tapes are restored. In this case, the availability
for the tapes on the email system containing the Perez emails
allowed for recovery back to the date of 12/9/08. Tapes containing
information prior to this date had been placed back into tape
rotation and reused, causing old data to be rewritten. Emails
before 12/9/08, therefore, were not available. In sum, although the
search encompassed the period January 1, 2001 to December 31,
2008, the records retrieved as a result of that search dated back
only to December 9, 2008.

Supplemental Declaration of John Livornese (“Nov. 2009 Livornese Supp. Decl.”) ¶ 5, Nov. 5,

2009 [Dkt. Nos. 21-1, 36-3].

Far from putting this issue to rest, CREW considered the VA’s reply a

“revelation[] that the VA . . . destroyed documents clearly responsive to CREW’s . . . FOIA . . .

request[.]” Pl. Surreply to First MSJ at 1. According to CREW, Mr. Livornese’s supplemental

declaration established that the “VA destroyed potentially responsive records after CREW made

its FOIA request in this matter on May 14, 2008 — a request that expressly sought emails and

other electronic records — and after CREW filed its lawsuit on August 27, 2008 in this case.”

Id. at 2-3 (emphasis in original).

5
 After briefing on the VA’s motion for summary judgment was complete, the VA

made two supplemental releases of documents to CREW, containing, among other things, a copy

of Dr. Perez’s March 20, 2008 e-mail. See Notice of Supplemental Release at 1, Mar., 26, 2010

[Dkt. No. 24]; Notice of Supplemental Release at 1-2, Apr. 16, 2010 [Dkt. No. 30]. And the VA

then withdrew its motion for summary judgment with the intent of filing a renewed motion that

would consolidate all issues into a single set of briefs. See Notice of Withdrawal of Motion at 1,

May 27, 2010 [Dkt. No. 32].

Before the parties proceeded with a second round of summary judgment briefing,

however, another issue arose: CREW sought the deposition of Mr. Livornese “to obtain

information on the unexplained issue of destruction of electronic records[.]” Opp. to Mot. for

Protective Order at 6, July 6, 2010 [Dkt. No. 34]. The VA sought a protective order precluding

this deposition. See Mot. for Protective Order at 1, July 1, 2010 [Dkt. No. 33]. The VA argued

that such discovery was inappropriate in this FOIA case; moreover, the VA asserted that

CREW’s concerns likely would be addressed in the VA’s renewed summary judgment motion.

See id. at 4-5. As the VA stated, its renewed motion would include “a declaration from Mr.

Livornese and an IT employee who was more directly involved with the electronic search,”

which would address “the extent to which backup tapes were searched.” Id. at 5 n.2.

On July 14, 2010, the Court denied the VA’s motion for a protective order,

concluding that limited discovery through Mr. Livornese’s deposition likely would assist the

Court in resolving the issues in this case. See Memorandum Op. & Order at 1, July 14, 2010

[Dkt. No. 35]. Thus, the parties proceeded with Mr. Livornese’s deposition, which took place on

July 23, 2010.

Soon thereafter, on August 3, 2010, the VA filed its renewed motion for summary

judgment. CREW filed its opposition, and the VA replied. Both sides then filed surreplies.

6
 II. THE FREEDOM OF INFORMATION ACT

The fundamental purpose of the FOIA is to assist citizens in discovering “what

their government is up to.” U.S. Department of Justice v. Reporters Comm. for Freedom of the

Press, 489 U.S. 749, 773 (1989) (internal quotations and citation omitted) (emphasis in original).

As the Supreme Court recently emphasized again, the FOIA strongly favors openness and

“‘broad disclosure’” with narrowly construed exemptions. Milner v. Department of the Navy,

131 S. Ct. 1259, 1265 (2011) (quoting Department of Justice v. Tax Analysts, 492 U.S. 136, 151

(1989)). As Congress recognized in enacting the FOIA, an informed citizenry is “vital to the

functioning of a democratic society, needed to check against corruption and to hold the governors

accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978);

see also Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (purpose of the FOIA is

“to pierce the veil of administrative secrecy and to open agency action to the light of public

scrutiny”) (internal quotations and citation omitted). Therefore, “disclosure, not secrecy, is the

dominant objective of the Act.” Department of the Air Force v. Rose, 425 U.S. at 361.

FOIA cases typically and appropriately are decided on motions for summary

judgment. See Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.

2009); Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007); Farrugia v.

Executive Office for U.S. Attorneys, Civil Action No. 04-0294, 2006 WL 335771, at *3 (D.D.C.

Feb. 14, 2006). And in an FOIA case, the Court may award summary judgment solely on the

basis of information provided in affidavits or declarations when the affidavits or declarations are

“relatively detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991) (internal quotations and citation omitted), and “describe the documents and the

7
justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir.

1973); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). In the end, an agency must

demonstrate that “each document that falls within the class requested either has been produced, is

unidentifiable, or is wholly [or partially] exempt from the Act’s inspection requirements.”

Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotations and citation omitted); see

also Students Against Genocide v. Department of State, 257 F.3d 828, 833 (D.C. Cir. 2001);

Hertzberg v. Veneman, 273 F. Supp. 2d at 74.

III. DISCUSSION

A. The VA’s Evolving Declarations

The VA contends that it is entitled to summary judgment because it conducted

reasonable searches for responsive records and released to CREW all responsive records in full

except for one minor withholding, the redaction of a name, under FOIA Exemption 6. CREW

argues that summary judgment is inappropriate because the VA has failed to conduct reasonable

searches for responsive records. Most importantly for CREW’s request for discovery, its

opposition includes an allegation that the VA improperly destroyed relevant records. As CREW

describes it, the VA “failed to impose a litigation hold for records responsive to CREW’s FOIA

request and, as a result, the VA has improperly destroyed responsive records after they were

requested by CREW.” Opp. at 9.

8
 CREW’s allegation of document destruction arises from four declarations of Mr.

Livornese now filed in this case and the declarations of Ronald Klavohn, the Director of the Core

Infrastructure Services group for the Office of Information and Technology at the VA. The Court

reviews below those declarations as they relate to the allegation of document destruction.

In Mr. Livornese’s first declaration, which he signed on September 18, 2009, he

stated that the VA searched Dr. Perez’s electronic records for documents responsive to CREW’s

FOIA request. See Sept. 2009 Livornese Decl. ¶ 8. He asserted, without providing any

explanation, that the VA only was able to review Dr. Perez’s e-mail messages dating back to

December 9, 2008. See id. The e-mail that ultimately gave rise to this case, however, was sent

by Dr. Perez nine months earlier, on March 20, 2008. See Perez Decl. ¶ 3.

On November 5, 2009, Mr. Livornese submitted a supplemental declaration in

which he provided an explanation for the purported December 9, 2008 limitation on available

e-mails:

Results of the search of the Perez email account that were deemed
responsive included a copy of email messages dating back to
12/9/08. Email messages prior to that date were not available for
the following reasons: a search of email by history involves a
search of emails that have been backed-up. Prior email messages
are backed up, or copied, to a tape; when a request is made for a
search of email, the tapes are restored. In this case, the availability
for the tapes on the email system containing the Perez emails
allowed for recovery back to the date of 12/9/08. Tapes containing
information prior to this date had been placed back into tape
rotation and reused, causing old data to be rewritten. Emails
before 12/9/08, therefore, were not available. In sum, although the
search encompassed the period January 1, 2001 to December 31,
2008, the records retrieved as a result of that search dated back
only to December 9, 2008.

Nov. 2009 Livornese Supp. Decl. ¶ 5 (emphasis added).

9
 Mr. Livornese then signed a second supplemental declaration, dated March 12,

2010, which was not provided to CREW’s counsel until the day of Mr. Livornese’s court-ordered

deposition on July 23, 2010. See Second Supplemental Declaration of John Livornese (“Mar.

2010 Livornese 2d Supp. Decl.”), Mar. 12, 2010 [Dkt. Nos. 36-3]. Mr. Livornese stated in that

declaration that he was submitting it “to further clarify the searches that were performed.” Id.

¶ 3. He did not revise either of his two prior sworn statements that the VA only was able to

review Dr. Perez’s e-mails dating back to December 9, 2008. Nor did he suggest that those

statements were inaccurate in any way. Instead, Mr. Livornese stated only that more information

“clarifying that issue” would be forthcoming in a subsequent declaration by another, unnamed

VA employee:

In my prior declarations, I also discussed the date range of
materials that were retrieved in the search of Norma Perez’s User
Hard Drive, User Server Folder, Outlook Exchange (Email) Files,
and personal email folder. . . . An employee in the Office of
Information and Technology’s Core Infrastructure Services group
and/or Network Security Operations Center . . . will provide a
declaration further clarifying that issue.

Mar. 2010 Livornese 2d Supp. Decl. ¶ 6 (citation omitted).

In its renewed motion for summary judgment, filed on August 3, 2010, the VA

specifically acknowledged that Mr. Livornese inadvertently had made inaccurate statements in

his first two declarations. See Mot. at 11. As the VA described it,

In the declaration submitted with previous summary judgment
briefing, John Livornese mistakenly referred to December 9, 2008
as the date of the oldest available email messages retrieved through
the electronic search of Dr. Perez’s records. . . . That error led other
witnesses and defense counsel to mis-describe December 9, 2008
in the same manner . . . to indicate that the emails retrieved by the
electronic search of Dr. Perez’s computer files dated back to
December 9, 2008. . . . However, it has since become clear that Mr.
Livornese (who supervised, but did not personally conduct the

10
 electronic search . . . ) was mistaken regarding the date range of
retrievable emails. The Director of Core Infrastructure Services
group[, Mr. Klavohn,] . . . has clarified that December 9, 2008 is
the date of the oldest monthly disaster recovery tape that was
available at the time of the electronic search. . . . [D]efendant’s
prior reference to December 9, 2008 as the date of the oldest
retrievable email files was a mistake; Mr. Livornese appears to
have confused the date of the disaster recovery tape with the date
of the oldest files on that tape.

Id. at 11 (citations omitted).

With its renewed motion for summary judgment, the VA submitted the

declaration of Ronald Klavohn. See Declaration of Ronald Klavohn (“Klavohn Decl.”), Mar. 31,

2010 [Dkt. No. 36-3]. Mr. Klavohn signed and dated that declaration on March 31, 2010, see id.

at 2 — almost a month before the VA produced Mr. Livornese for deposition on July 23, 2010,

and only 19 days after Mr. Livornese signed his second supplemental declaration. Although Mr.

Klavohn was alluded to by Mr. Livornese during his deposition, Mr. Klavohn’s declaration was

not provided to CREW’s counsel before or at Mr. Livornese’s deposition. Rather, it was

attached to the VA’s renewed motion for summary judgment, filed on August 3, 2010.

In his March 31, 2010 declaration, Mr. Klavohn explained that — contrary to

what Mr. Livornese previously twice stated under oath — December 9, 2008 in fact was not the

date of the oldest available e-mail messages retrieved through the electronic search of Dr. Perez’s

records. Klavohn Decl. ¶ 9. Rather, December 9, 2008 was the date of the oldest monthly

recovery tape that was available at the time of the electronic search, id. ¶ 7, and this backup tape

“would contain any emails that were in [Dr. Perez’s] mailbox on [December 9, 2008] but the

actual email messages could go back further in time; in other words the emails on the tape could

date back earlier than the date of the tape.” Id. ¶ 9.

11
 Regarding the creation of backup tapes, Mr. Klavohn described the following

process:

Each night, Monday through Friday, a backup tape is created which
contains an exact copy of each user’s mailbox as it existed at the
time that the backup tape was created. Under normal operations,
those tapes are kept for 15 days and then reused. Under normal
operations, once a month one tape is cycled out of the rotation and
it is kept for a longer period of time, usually one year, before it is
rotated back for reuse. All our tapes are automatically created by
the system and are used for disaster recovery in case of system
failure or for restoration of files that are accidentally deleted. At
the time of the electronic search for records responsive to this
FOIA request, the oldest monthly backup tape available was the
one dated 12/9/08. No monthly back up tapes were created
between January 2008 through November 2008.

Klavohn Decl. ¶ 7 (emphasis added).

After CREW pointed out that Mr. Klavohn’s declaration provided no explanation

whatsoever as to why monthly backup tapes were not created between January 2008 and

November 2008, see Opp. at 7, Mr. Klavohn submitted a supplemental declaration, dated

September 30, 2010, in which he stated:

I am submitting this supplemental declaration to reiterate that the
absence of back-up tapes between January 2008 and November
2008 is unrelated to the CREW request that is the center of this
litigation. . . . The automatic system for creating monthly back-up
tapes was not in effect between January 2008 and November 2008,
because the daily tapes were set to unlimited retention for use in
another litigation matter (which is not a FOIA case and does not
involve CREW’s FOIA request). With the unlimited retention for
the back-up tapes taken between January 2008 and November
2008, the automated system for creating back-up tapes did not have
the capacity to create additional monthly back-up tapes. . . . The
automatic system was updated to resume the normal backup-tape
rotation including creation of daily backups with a 15-day retention
time and creation of monthly back-up tapes with a 1 year retention
on October 28, 2008. However, when the VA’s backup software

12
 was programmed to resume the normal back-up tape rotation, the
software rendered all of the daily, unlimited retention, backup tapes
created prior to October 28, 2008 unusable. The unusability of
those tapes resulted from the way in which the backup software
sets new rotation schedules; the nature of the software rendered
those older back-up tapes unusable. . . . The first monthly back-up
tape created in 2008 was made on December 9, 2008, after the
back-up rotation was set back to normal operational mode.

Supplemental Declaration of Ronald Klavohn (“Klavohn Supp. Decl.”) ¶¶ 3, 5, 6, Sept. 30, 2010

[Dkt. No. 40-5].

Mr. Livornese submitted a fourth declaration, dated September 29, 2010, over a

year after his first declaration in this case, in which he finally retracts his prior inaccurate

statements and confirms that “December 9, 2008 is the date of the oldest back-up tape that was

searched,” not the date of the oldest retrievable e-mails. See Supplemental Declaration of John

Livornese (“Sept. 2010 Livornese 4th Decl.”) ¶ 8, Sept. 29, 2010. Mr. Livornese explained in

that declaration that his “prior testimony was based upon an error in the report from OIT, and that

the . . . electronic search recovered a broader range of records than [he] initially believed.” Id.

According to CREW, these declarations establish that the VA improperly

destroyed responsive records. See Opp. at 9; Pl. Surreply at4. And relying on the court of

appeals’ decision in Chambers v. U.S. Department of the Interior, 568 F.3d 998 (D.C. Cir. 2009),

CREW argues that the VA’s improper destruction of responsive records “bears on the issue of

whether the agency conducted an adequate search.” Opp. at 9. Moreover, “in light of the [VA’s]

conduct in this case,” CREW requests that the Court (1) “state clearly for the VA the obligations

of federal agencies to preserve evidence and impose litigation holds for responsive materials

upon receipt of FOIA requests”; (2) approve the deposition, at the VA’s expense, of Dr. Perez

13
and possibly the recipients of her March 20, 2008 e-mail, as well as the deposition of Mr.

Klavohn for purposes of obtaining discovery regarding the circumstances of the suspension of

normal operations in saving backup tapes; and (3) order the VA “to attempt to reconstruct the

destroyed records or information contained in the destroyed records[.]” Opp. at 11-12.

Upon consideration of the parties’ papers, the attached declarations and exhibits,

the relevant legal authorities, and the entire record in this case, the Court will grant in part

CREW’s second request; will deny without prejudice CREW’s third request; and will deny

CREW’s first request. Because the Court concludes that limited discovery should proceed, the

Court also will deny without prejudice the VA’s renewed motion for summary judgment.2

B. CREW’s Requests for Discovery and Record Reconstruction

The Court is deeply troubled (1) that Mr. Livornese, prior to his court-ordered

deposition on July 23, 2010, made inaccurate statements in two declarations; (2) that Mr.

Livornese signed a second supplemental declaration on March 12, 2010 that was not provided to

CREW’s counsel until four months later, at Mr. Livornese’s court-ordered deposition on July 23,

2010; (3) that Mr. Livornese’s second supplemental declaration did not correct his prior

inaccurate statements — or even suggest that they were inaccurate in any way — but simply

2
CREW requests that the Court award it attorneys’ fees and costs incurred in this
case generally, as well as costs incurred in taking the deposition of Mr. Livornese. See Opp.
at 15, 20. Because final judgment is not appropriate at this stage, and because CREW has not
articulated any need for an interim award of fees, the Court concludes that CREW’s request for
fees is premature. See Beltranena v. Clinton, 770 F. Supp. 2d 175, 187 (D.D.C. 2011) (citing
Hussain v. U.S. Department of Homeland Sec., 674 F. Supp. 2d 260, 272-73 (D.D.C. 2009)).
The VA will, however, be required to bear the costs of the depositions ordered by this Opinion
and accompanying Order.

14
stated that another, unnamed VA employee would “provide a declaration further clarifying that

issue,” Mar. 2010 Livornese 2d Supp. Decl. ¶ 6; (4) that the VA did not provide Mr. Klavohn’s

declaration, dated March 31, 2010, to CREW’s counsel at the July 23, 2010 deposition of Mr.

Livornese, even though the substance of the undisclosed declaration was discussed by Mr.

Livornese at the deposition and counsel for the VA certainly knew of the existence of the

Klavohn declaration; and (5) that even Mr. Klavohn’s first declaration was incomplete and had to

be supplemented after its deficiencies were pointed out by CREW.

The Court is not yet ready to conclude that the myriad declarations, the way they

evolved and changed, and the timing of their disclosure means that the VA improperly destroyed

responsive records. Nor is the Court ready to order at this time the VA to attempt to reconstruct

any of its records, since such an order must be based on a finding of improper document

destruction. See Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 67 (D.D.C. 2003)

(“Reconstruction of . . . destroyed documents to the extent possible is an appropriate remedy for

bad faith document destruction.”); Cal-Almond, Inc. v. U.S. Department of Agric., 960 F.2d 105,

109 (9th Cir. 1992) (“Absent a showing that the government has improperly destroyed agency

records, FOIA does not require these records to be recreated.”) (internal quotations omitted).

But the Court does believe that counsel for the VA decided as a matter of

litigation tactics not to be forthcoming by withholding relevant evidence until after the limited

discovery ordered by this Court was concluded: Although Mr. Livornese signed his second

supplemental declaration on March 12, 2010, it was not provided to CREW until the date of his

court-ordered deposition, on July 23, 2010. Although Mr. Klavohn signed his first declaration on

March 31, 2010, it was not provided to CREW until after Mr. Livornese’s deposition concluded.

15
These litigation tactics — which at the very least contradict the fundamental purpose of the FOIA

— rendered Mr. Livornese’s deposition at best incomplete, and perhaps useless. The Court

therefore agrees with CREW that it should be permitted to take additional discovery for the

purpose of determining whether the explanation for the current state of affairs is document

destruction, incompetence, or something in between. It is clear to the Court that this discovery

will be central to any subsequent dispositive motion and will assist the Court in resolving any

such motion once filed.

Consequently, in light of its broad discretion to manage discovery, see, e.g.,

Budick v. Department of the Army, 742 F. Supp. 2d 20, 39 (D.D.C. 2010), the Court will grant in

part CREW’s second request: that is, it will approve the deposition of Mr. Klavohn and an

additional deposition of Mr. Livornese, both at the VA’s expense, for the purpose of obtaining

discovery regarding the circumstances of the suspension of normal operations in saving backup

tapes as it relates to this case and whether the explanation for the suspension is document

destruction or something else. The Court will not, at this time, approve the deposition of Dr.

Perez or the recipients of her March 20, 2008 e-mail; CREW, however, may make an appropriate

motion for such discovery after taking the depositions of Mr. Klavohn and Mr. Livornese.

* * *

The Court will deny CREW’s request to “state clearly for the VA the obligations

of federal agencies to preserve evidence and impose litigation holds for responsive materials

upon receipt of FOIA requests.” Opp. at 11. In its opposition to that request, the VA argues that

“CREW has not cited a single case that holds that agencies must preserve, restore, and search

16
disaster recovery tapes whenever a pending FOIA request seeks electronic records.” Reply at 13.

According to the VA, “there is no legal foundation, nor legitimate reason, for imposing such a

sweeping new burden upon federal agencies.” Id. Whether the VA is correct or not, there is no

claim for such relief in CREW’s complaint and, even if there were, it is not clear that an FOIA

lawsuit is the proper mechanism through which to litigate such a claim.3

IV. CONCLUSION

For the foregoing reasons, the Court will deny without prejudice the defendant’s

renewed motion for summary judgment [Dkt. No. 36] and will grant in part the plaintiff’s request

for discovery. An Order consistent with this Opinion issued on September 28, 2011. An Order

specifying the terms of the permissible discovery, as set forth in this Opinion, shall issue this

same day.

SO ORDERED.

/s/
PAUL L. FRIEDMAN
DATE: December 15, 2011 United States District Judge

3
CREW’s request for such declaratory relief relies on an extension of the court of
appeals’ holding in Chambers v. U.S. Department of the Interior, 568 F.3d 998 (D.C. Cir. 2009)
— a case that dealt with the deliberate destruction of a specific document — to require that once
CREW made its FOIA request, the VA then had an obligation to preserve backup tapes. The
court in Chambers did not set forth such a requirement on agencies. Where a plaintiff contends
that an agency failed to show the adequacy of its search because it did not “address . . . archived
emails and backup tapes,” the court of appeals has concluded that it is reasonable to expect an
agency “to inform the court and plaintiff[] whether backup tapes of any potential relevance exist;
if so whether their responsive material is reasonably likely to add to that already delivered; and, if
these questions are answered affirmatively, whether there is any practical obstacle to searching
them.” Ancient Coin Collectors Guild v. U.S. Department of State, 641 F.3d 504, 514 (D.C. Cir.
2011). But to this point the court of appeals has not set forth a rule requiring that an agency
always must preserve backup tapes upon the making of a FOIA request.

17