Case 1 19-cv-01333-ABJ Document 16-9 Filed 10 01 19 Page 1 of 3 EXHIBIT I Plaintiffs' Motion for a Temporary Restraining Order Case 1 19-cv-01333-ABJ Document 16-9 Filed 10 01 19 Page 2 of 3 U S Department of Justice Civil Division Federal Programs Branch Mailing Address P O Box 883 Washington D C 20044 Kathryn Wyer Senior Trial Counsel Overnight Delivery Address 1100 L St NW Room 12014 Washington D C 20005 Tel 202 616-8475 Fax 202 616-8470 kathryn wyer@usdoj gov September 27 2019 Via Electronic Mail Anne L Weisman Citizens for Responsibility and Ethics in Washington 1101 K Street NW Washington DC 20005 Re CREW v Trump No 1 19-cv-1333 D D C Dear Ms Weisman This letter responds to your letter sent to me by e-mail dated September 25 2019 which in turn followed earlier correspondence from you dated September 20 2019 and my response dated September 23 2019 While disclaiming any intent to seek privileged legal advice concerning Defendants' litigation hold obligations including the content of any litigation hold your most recent letter again asks the government to confirm that specific categories of information are being preserved That clearly implicates privileged legal advice In support of your request you recite generic pronouncements regarding parties' preservation obligations as well as two decisions that allowed a party to seek information regarding the opposing party's preservation efforts during discovery in light of the specific facts of the case Of course the holdings of those cases are inapplicable here because we have not entered into any discovery process in this case Rather Defendants' motion to dismiss is not yet fully briefed Regardless of what information regarding an opposing party's preservation efforts might legitimately be sought in discovery in a particular circumstance you have identified no instance where a party was deemed entitled to such information at the outset of a case while a motion to dismiss is pending and before any discovery has taken place Indeed the Federal Rules of Civil Procedure provide no mechanism to ask the Court to compel an opposing party to provide information outside the discovery process See Fed R Civ P 37 a 3 A - B indicating that a party can prevail on a motion to compel only where the opposing party fails to make a disclosure required by Rule 26 a or has failed to respond to a discovery request such as an interrogatory or a request for production Your attempt to conduct informal discovery here is premature and particularly inappropriate when the Court's subject matter jurisdiction over this action remains in dispute--even more so when Plaintiffs' opposition brief essentially concedes that governing D C Circuit authority in Armstrong v Bush 924 F 2d 282 D C Cir 1991 does not allow judicial Case 1 19-cv-01333-ABJ Document 16-9 Filed 10 01 19 Page 3 of 3 review of Plaintiffs' Presidential Records Act claims I previously assured you that we have appropriately advised our clients of their preservation obligations Those obligations of course include the obligation to preserve all evidence relevant to the claims and defenses in this case But the advice provided about how to carry out that obligation is privileged Moreover nothing in your letter or in the allegations of Plaintiffs' complaint suggests that spoliation of relevant evidence is likely to occur Absent any authority supporting the unprecedented disclosures that you request at this early stage of the case Defendants do not intend at this time to respond further to your inquiries about the content of their preservation hold Sincerely s Kathryn Wyer Page 2 This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu