UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FREEDOM WATCH, INC.,
Plaintiff,
v. Civil Action No. 14-1832 (JEB)
UNITED STATES DEPARTMENT OF
STATE,
Defendant.
MEMORANDUM OPINION
Pursuant to a Freedom of Information Act request, Plaintiff Freedom Watch, Inc., seeks
documents relating to a type of sanctions waiver the U.S. State Department granted to certain
countries doing business with Iran. The Court previously granted summary judgment to State in
2015, concluding that it had adequately but unsuccessfully searched for such records. See
Freedom Watch, Inc. v. U.S. Dep’t of State (Freedom Watch I), 77 F. Supp. 3d 177 (D.D.C.
2015). During the pendency of Plaintiff’s appeal therefrom, it was publicly revealed that former
Secretary of State Hillary Clinton had used a personal email and server to conduct Department
business. Reopening the case, the Court subsequently oversaw State’s search of those emails for
responsive records and in April 2016 again granted its summary-judgment motion. See Freedom
Watch, Inc. v. U.S. Dep’t of State (Freedom Watch II), 2016 WL 1555672 (D.D.C. Apr. 15,
2016). When news broke a few months later that the Federal Bureau of Investigation had
recovered and given to State thousands of new documents related to Clinton’s personal email and
server, Freedom Watch filed the instant Motion for Relief from Judgment, which the Court will
now deny.
1
I. Background
On May 21, 2013, Plaintiff submitted the following FOIA request to the U.S. State and
Treasury Departments:
Any and all documents that refer or relate in any way to the final
decisions to grant waivers to all countries and other interests doing
business with the Islamic Republic of Iran pursuant to the
Comprehensive Iran Sanctions, Accountability, and Divestment Act
[CISADA], 22 U.S.C. § 8501 et[] seq. or Executive Order 13553.
ECF No. 57-2 (Declaration of John F. Hackett), Exh. 1 at 2. Upon receipt of this request, State
undertook several detailed steps, including the search of eleven separate offices or records
systems. See Freedom Watch I, 77 F. Supp. 3d at 179-80. No responsive documents were
located. Id. at 180. Unsatisfied with that result, Plaintiff brought suit and State (Treasury having
been dismissed) moved for summary judgment. Id. In granting judgment on the adequacy of the
search — the only issue Plaintiff had raised — the Court rejected several challenges, finding
that: (1) four press releases trumpeted by Freedom Watch as having not been produced were, in
actuality, not responsive to the request; (2) Defendant was not required to also search for
documents relating to waivers issued under the National Defense Authorization Act of 2012,
where the request had exclusively cited CISADA and Executive Order 13553; (3) State had
consulted with appropriate individuals in conducting the search; and (4) discovery regarding the
search process was not warranted. Id. at 182-83.
Plaintiff appealed, and fairly soon thereafter, news reports about Clinton’s private email
account and server appeared. Seizing on this development, Freedom Watch asked the Court of
Appeals to remand the matter for discovery and an order to show cause why Clinton should not
be held in contempt. The D.C. Circuit ultimately ordered that “the case be remanded for the
district court to manage record development and oversee the search of the former Secretary’s
2
emails for records responsive to Freedom Watch’s FOIA request.” ECF No. 54 (Mandate). The
Court of Appeals further ordered that “the motion for discovery and other relief be denied
without prejudice to Freedom Watch seeking the same relief from the district court on remand.”
Id.
This Court immediately set a status conference, at which it ordered the government to
search the emails in its possession and advise Plaintiff of the results. See Minute Orders of Nov.
3, 2015, and Nov. 24, 2015. State did so and then renewed its motion for summary judgment,
explaining that it had “conducted a supplemental search” of “approximately 30,000 e-mails,
comprising approximately 52,455 pages,” and located no responsive records. See Hackett Decl.,
¶¶ 10-11, 14 (footnote omitted). Freedom Watch believed Defendant’s efforts were insufficient
and opposed the motion on essentially the same grounds that the Court had previously found
wanting.
The Court concluded that State’s search for responsive materials contained in the new
Clinton emails was adequate, finding that: (1) State’s search was not deficient simply because it
found no responsive documents, and the myriad press releases and newspaper articles Plaintiff
cited did not suggest otherwise, as none mentioned CISADA or Executive Order 13553, the
subjects of Plaintiff’s FOIA request; (2) discovery was not warranted; and (3) Defendant was not
required to canvass offices within State for documents, as the search was limited to a fixed set of
emails. See Freedom Watch II, 2016 WL 1555672, at *4-5. The Court, accordingly, granted
State’s renewed motion for summary judgment. Id. at *5.
A few months after the Court again entered judgment in favor of Defendant, and while
Plaintiff’s appeal was pending, “the FBI delivered to State discs containing information
recovered by the FBI during the course of its investigation into former Secretary Clinton’s use of
3
a personal email account.” Opp. at 3-4. This Court, in fact, is overseeing in another matter the
review of approximately 14,900 emails on the first of those discs. See Judicial Watch, Inc. v.
U.S. Dep’t of State, No. 15-687, Minute Orders of Aug. 22, 2016, and Sept. 23, 2016. In light of
those new emails, Freedom Watch has now filed a Motion for Relief from Judgment under
Federal Rules of Civil Procedure 60(b)(2) and (3). See Mot. at 3.
II. Legal Standard
Federal Rule of Civil Procedure 60(b) governs the vacating of judgments. As relevant
here, it permits the Court to “relieve a party or its legal representative from a final judgment,
order, or proceeding for the following reasons: . . . (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to move for a new trial under Rule
59(b),” and “(3) fraud . . . , misrepresentation, or misconduct by an opposing party.”
To obtain relief from a judgment under Rule 60(b)(2), a movant must demonstrate that:
(1) the newly discovered evidence [is] of facts that existed at the
time of trial or other dispositive proceeding, (2) the [party seeking
relief] must have been justifiably ignorant of [the evidence] despite
due diligence, (3) the evidence must be admissible and of such
importance that it probably would have changed the outcome, and
(4) the evidence must not be merely cumulative or impeaching.
Lightfoot v. District of Columbia, 555 F. Supp. 2d 61, 68 (D.D.C. 2008) (quoting United States
v. Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001)) (alterations in original).
To obtain relief under Rule 60(b)(3), a movant must demonstrate that the “fraud
prevented him or her from fully and fairly presenting his or her case, and that the fraud is
attributable to the party or, at least, to counsel.” Green v. Am. Fed. of Labor & Congress of
Indus. Orgs., 811 F. Supp. 2d 250, 253 (D.D.C. 2011) (citation and internal quotation marks
omitted).
4
III. Analysis
Given that Plaintiff seeks relief under both subsections of the Rule, the Court will look at
each separately. As to Rule 60(b)(2), Freedom Watch contends that the thousands of recovered
emails constitute newly discovered evidence. See Mot. at 3. State initially took the position that
Plaintiff was not entitled to relief under 60(b)(2) because it could not demonstrate that the new
emails “probably would have changed the outcome.” Opp. at 5 (quoting Epps v. Howes, 573 F.
Supp. 2d 180, 185 (D.D.C. 2008)). Its first two searches were so comprehensive, it argued, that
“the only reasonable inference” to be drawn was “that a search of the FBI materials” using the
same search terms “would yield the same result, that is, no responsive records.” Id. at 6.
The Court found this argument potentially problematic, given that State could not know
what the new emails contained absent a search, and communicated its skepticism to the parties at
a status hearing. See Minute Order of Oct. 6, 2016. State thus agreed to file a Supplemental
Opposition, see id., and did so on October 13, 2016. See ECF No. 69. In it, Defendant
explained that it had searched the new documents provided to it by the FBI and located no
responsive records. See id. at 2. According to Eric F. Stein, the Acting Co-Director of the
Office of Information Programs and Services at State, the Department’s search efforts involved
the following steps:
An A/GIS/IPS Analyst with knowledge of both the request and the relevant records
system conducted a full-text search of the documents provided to the Department
by the FBI. The analyst searched these electronic records using the search terms:
“Iran” or “Sanctions” or “13553” or “Comprehensive Iran Sanctions,
Accountability, and Divestment Act” or “CISADA” as separate search terms in
combination with “Grant Waivers” or “Business.” There was no date restriction.
ECF No. 69-1 (Declaration of Eric F. Stein), ¶ 6.
This search used the same terms employed in the two prior searches, each of which the
Court found adequate. See Freedom Watch II, 2016 WL 1555672, at *2; Freedom Watch I, 77
5
F. Supp. 3d at 181-83; Stein Decl. ¶ 6. This method continues to appear entirely reasonable to
the Court; indeed, Freedom Watch in its Reply does not even challenge the manner of the search.
Because Defendant’s adequate search revealed no responsive records, it is clear that the
documents given to State by the FBI after the Court’s April 2016 judgment would not “have
changed the outcome” of the prior proceedings. See Epps, 573 F. Supp. 2d at 185 (quoting
Lightfoot, 555 F. Supp. 2d at 66-67). Plaintiff thus is not entitled to relief under Rule 60(b)(2).
As to Rule 60(b)(3), Plaintiff has presented absolutely no evidence of fraudulent activity
related to State’s searches, let alone the requisite “clear and convincing evidence.” Shepherd v.
Am. Broadcasting Cos., Inc., 62 F.3d 1469, 1477 (D.C. Cir. 1995). In addition, there is no
evidence that State had possession of any of the emails recently provided to it by the FBI at the
time of its earlier searches. In fact, Freedom Watch’s sole argument in response to State’s
contention that Plaintiff is not entitled to 60(b)(3) relief is a request for discovery — specifically,
depositions of “the individuals who signed affidavits on behalf of the U.S. Department of State.”
Reply at 2. But as this Court has twice before explained, discovery is neither necessary nor
appropriate here. See Freedom Watch II, 2016 WL 1555672, at *4; Freedom Watch I, 77 F.
Supp. at 183. Perhaps the third time will be the charm. Again,
“[d]iscovery is generally inappropriate in a FOIA case.” Gov’t Accountability
Project v. U.S. Dep’t of Justice, 852 F. Supp. 2d 14, 27 n.5 (D.D.C. 2012) (citation
and quotation marks omitted). More important, Plaintiff here has offered no valid
reason to question the good faith or efficacy of State’s search. See Military Audit
Project v. Casey, 656 F.2d 724, 751 (D.C. Cir. 1981) (affirming denial of discovery
where appellants had not “succeeded in raising substantial questions . . . concerning
the substantive content of the affidavits relied upon by defendants”) (ellipsis in
original; internal quotation marks and footnote omitted).
Freedom Watch II, 2016 WL 1555672, at *4 (quoting Freedom Watch I, 77 F. Supp. at 183)
(emphasis added). Plaintiff is not entitled to relief under 60(b)(3) either.
6
IV. Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s Motion for Relief from
Judgment. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 21, 2016
7