Alexander v. Federal Bureau of Investigation

186 F.R.D. 12, 1998 U.S. Dist. LEXIS 22419, 1998 WL 1048985
District Court, District of Columbia·Decided May 4, 1998·No. No. Civ. 96-2123 RCL·Published·Cited by 13 cases

Opinion

MEMORANDUM AND ORDER

LAMBERTH, District Judge.

This matter comes before the court on Motion of the United States Secret Service to Modify Subpoena and Motion of the United States Secret Service for Protective Order. On January 9, 1998, plaintiffs served a subpoena and notice for deposition on the United States Secret Service (“Secret Service”) seeking information regarding the disclosure of Federal Bureau of Investigation (“FBI”) files that are the subject to the underlying lawsuit. Presently, the Secret Service moves this court to modify to the subpoena duces tecum at issue and for protective order. Upon consideration of the submissions of the parties and the relevant law, the motions of the Secret Service are granted in part and denied in part.

I. Background

The underlying allegations in this case arise from what has become popularly known as “Filegate.” According to their complaint, plaintiffs allege that the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the administrations of Presidents Reagan and Bush. Plaintiffs further aver that the requests for the files came from Bernard Nussbaum, David Craig Livingstone, and Anthony Marceca, who were allegedly acting outside the scope of their employment and at the request of defendant Hillary Rodham Clinton. Plaintiffs allege that these actions were taken for partisan political purposes in order to obtain potentially embarrassing and damaging information on former Reagan and Bush administration personnel.

On January 9, 1998, plaintiffs served a subpoena on the Secret Service seeking documents and testimony of persons with knowledge concerning this case. In essence, the subpoena served by plaintiffs requests five distinct types of information: (1) records, notes, communications, or other documents produced pursuant to congressional subpoena, grand jury subpoena, or any voluntary agreement with the Department of Justice or other investigatory agency of the United States, including the Office of the Independent Counsel, concerning or relating to the disclosure to White House personnel or to other persons in the White House, of FBI background investigation files or summary reports on former appointees and employees of the administrations of Presidents Reagan and Bush and copies of any subpoena(s) or voluntary agreement(s) pertaining to these documents (requests 1 and 2); (2) records, correspondence, notes, communications, or other documents concerning or relating to communications to or from numerous officials concerning or relating to the access to and disclosure of FBI background investigation files or summary reports on former appointees and employees of the administrations of Presidents Reagan or Bush (request numbers 3-18); (3) records, correspondence, notes, communications, or other documents concerning or relating to any matters in the complaints of this case which were removed from the premises of the United States Government, including but not limited to, the White House, the Department of Justice and/or the FBI before, during, or after the deponent’s employment with the United States (request number 19); (4) all records, correspondence, notes, communications, tapes, cassettes, or other documents concerning or relating to the system of recording devices, whether audio or video, used to record sounds, pictures in any office, common, and/or other areas of the White House, and the entirety of the Executive Office of the President (“EOP”) and all such documents and recordings concerning or relating to the [15]*15system for controlling access to the White House by any official, employee, detailee, resident, volunteer, intern, visitor, or guest (request numbers 20 and 21); and (5) any and all documents and things which refer or relate in any way to the matter commonly known as “Filegate.”

By agreement of counsel, the date for service of objections was extended from January 23, 1998 to February 2, 1998 and the return date of the subpoena was extended from January 28, 1998 to February 9, 1998. On February 3, 1998, the Secret Service filed a motion to modify the subpoena with respect to both the time frame within which to reply and the scope of the subpoena at issue and has since filed a motion for protective order. Presently the Court turns its attention to these motions.

II. Analysis

Rule 45 of the Federal Rules of Civil Procedure provides that “the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow a reasonable time for compliance ... (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3)(A). In its motions for protective order and to modify the subpoena and to extend time within which to comply with the subpoena, the Secret Service raises several arguments under this rule. Accordingly, each argument will be considered separately by this court.

A. Motion to Extend Time to Respond to Request Number 1

As stated, the subpoena at issue originally contemplated a return date of January 28, 1998 and this date was subsequently extended by agreement of counsel to February 9, 1998. The motion to extend time filed by the Secret Service indicates that for various reasons, production of documents responsive to request number 1 would not be possible until March 31,1998. Specifically, the Secret Service contends that the task of copying the voluminous amount of material responsive to this request and a review of the materials for privileged or otherwise protected matter and any redaction necessitated an extension of time within which to respond to the request. Moreover, the Secret Service believed that materials produced pursuant to congressional and/or grand jury subpoenas are likely to include substantial information protected under the Privacy Act, 5 U.S.C. § 552a. The materials would have to be reviewed for material covered under this Act and redacted accordingly. The Secret Service asserted that the production of responsive documents could be completed by March 31,1998.

During the April 1,1998 status conference, counsel for the Secret Service represented to this court that the disclosure of the information and documents sought pursuant to request number 1 had been completed by March 31, 1998. In light of the submissions of the Secret Service, the motion to extend is granted. The Secret Service has demonstrated to the satisfaction of this court that an extension of time within which to respond to the subpoena was warranted and the court concludes that March 31, 1998 was a reasonable date for the Secret Service to have responded.

B. Objections to Request Number 2

The Secret Service seeks to modify the subpoena with respect to request number 2 and to have this request struck to the extent that it seeks grand jury subpoenas served upon the Secret Service on grounds that disclosure of this information would impede an ongoing criminal investigation. Mem. in Supp. of Mot. to Modify Subpoena Ex. F at 3.

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Alexander v. Federal Bureau of Investigation, 186 F.R.D. 12, 1998 U.S. Dist. LEXIS 22419, 1998 WL 1048985 (D.D.C. 1998).

186 F.R.D. 12 (Alexander v. Federal Bureau of Investigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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