Leopold v. NSA, No. 14-805, 2016 WL 3747526 (D.D.C. July 11, 2016) (Chutkan, J.)

Leopold v. NSA, No. 14-805, 2016 WL 3747526 (D.D.C. July 11, 2016) (Chutkan, J.)

Re: Requests for records concerning surveillance of federal and state judges

Disposition: Denying defendant's renewed motion for summary judgment

• Procedural Requirements, Searching for Responsive Records: The court rejects defendant's "conten[tion] that simply asking two senior OLC attorneys whether they were aware of any OLC projects concerning the propriety of surveilling federal or state judges, regardless of whether the project resulted in final legal advice, satisfied their obligations under FOIA to conduct the search for draft memoranda and legal opinions required by the court's July 2015 Memorandum Opinion and Order." The court finds this "[d]espite the long tenures of the two senior OLC attorneys who were asked about potentially responsive records, and their familiarity with OLC's work on national security and surveillance matters." The court "finds that the senior attorneys' responses to this inquiry do not provide sufficient basis to reasonably conclude either that OLC is unlikely to possess responsive records or that responsive records are unlikely to be found by a more in-depth search." "Moreover, the court finds that asking all current OLC attorneys if they had, or were aware of, any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges – as was done here after Plaintiff filed his opposition brief – was also insufficient."
  
  The court also addresses defendant's burdensome arguments and "finds that requiring OLC to manually open, one-by-one, over 160,000 files from over 100 OLC attorneys and staff members and then search the full text of each file individually would be unduly burdensome." However, regarding certain e-mails at issue, the court finds that "[g]iven that these emails and their attachments can be searched using an eDiscovery tool without needing to open each email and its attachments individually, and in the absence of any representations from [defendant] or any other declarant regarding the burden associated with running such searches separate and apart from searching OLC's paper files and hard drives, Defendants have not demonstrated that doing so would constitute an undue burden."
  
  "[T]he court . . . orders OLC to use the Clearwell eDiscovery tool referenced in the Fourth . . . Declaration to search the email files of departed OLC attorneys, as well as any attachments to those emails, for any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges." "The parties are . . . further ordered to meet and confer to jointly devise the search terms to be used this search, and to attempt to narrow the search – such as, for example, by devising date and custodian limitations – so as to lessen OLC's burden in conducting it."