Citizens for Responsibility and Ethics in Washington v. Executive Office of the President, Case No. 1:07-cv-01707 (D. D.C. October 19, 2007)
In a case brought pursuant to the Administrative Procedure Act and the Federal Records Act seeking restoration of deleted emails from backup tapes, Magistrate Judge John Facciola recommended that the District Judge issue an injunction requiring the Government to preserve backup media. The case resulted from the widely reported deletion of emails by the White House. After the Complaint was filed, the Government stated that it fully intended to preserve the backup media and offered to put that intention into a declaration. Plaintiff insisted on a stipulation, which the Government refused to give. The Magistrate Judge, concerned by the refusal of a stipulation and the fact that a declaration is not punishable by contempt, found that the equities weighed in favor of the plaintiff.
The Judge noted that if in fact the emails have been deleted, then the backup media are the only place where they may be found. Obliteration of that media would result in irreparable harm to the plaintiff. Since the Government has already indicated that it fully intended to preserve the backup media, there was no burden on the Government to do so under a court order. The public interest lies in the preservation of the backup media, and there are substantial legal questions presented by the lawsuit.
In its objections, the Government argues the absence of imminent, irreparable harm, the continued representations of its intent to preserve all backup media, and the overbreadth of the order.