COURT EXTENDS ORDER REQUIRING WHITE HOUSE TO RETAIN BACK-UP COPIES OF E-MAILS

24 Apr 2008 // Today in CREW v. Executive Office of the President, et al., Magistrate Judge John Facciola issued a report and recommendation that the preservation order now in place requiring the White House to preserve certain back-up copies of missing e-mails be extended in several key respects.

First, Judge Facciola recommended that District Court Judge Henry Kennedy order the Executive Office of the President (EOP) to collect and preserve all e-mails on .pst files for individuals employed at the White House between March 2003 and October 2005, the period during which more than 10 million White House e-mails went missing.

Second, Judge Facciola recommended that the preservation order be extended to data copied onto flash drives and other portable media for purposes other than preservation, in light of the White House's admission that it did not interpret the original preservation order as requiring preservation of such materials.

In addition, Judge Facciola ordered the White House to provide him with answers to questions he had posed in an earlier order but which were still unanswered regarding the costs of requiring EOP to conduct forensic imaging.

Finally, today's order requires the White House to advise the court whether all back-up tapes created between March 2003 and October 2003 have been preserved and, to the extent they have not, to specify the dates for which no back-ups exist.

This final order is based on an apparent contradiction between the previously submitted declaration of Theresa Payton, who acknowledged that prior to October 2003 the White House regularly overwrote back up tapes and the litigation statements of EOP's Office of Administration (OA) who told the court that "it is simply incorrect" that OA does not possess back up tapes "for back-ups of the EOP Network before October 2003."

The initial preservation order was issued in response to CREW's request for a temporary restraining order to require the White House to preserve all remaining copies of the missing emails.