Cases & Deals

National Security Archive and White House reach agreement for restoration of millions of missing Bush White House emails

Clients National Security Archive, The

On behalf of the National Security Archive, Jones Day filed a Complaint in September 2007 in the United States District Court for the District of Columbia seeking orders to restore millions of emails deleted from White House servers during the Bush Administration. After winning an immediate Temporary Restraining Order and then surviving the government's motion to dismiss, the Archive negotiated an agreement that restored for public record millions of emails documenting the Bush Administration's response to historically significant events.

The Archive's eight count complaint sought orders under the Federal Records Act (FRA) compelling the Executive Office of the President and other Defendants to initiate action to recover millions of e-mails that were deleted during critical periods of our nation's history, and to establish a records management system to ensure that White House e-mails are adequately archived and preserved. The Archive's complaint used previously untested provisions of the FRA to argue that restoration must be compelled by the Court. Shortly after the Archive filed its complaint, CREW filed a verbatim complaint and the cases were consolidated.

In November 2007, the Plaintiffs successfully obtained a TRO from Judge Kennedy preventing the destruction of backup tapes that may contain the missing e-mails. On November 10, 2008, Judge Kennedy denied the Defendants' motion to dismiss, ruling in favor of the Archive's brief on each of the Government's challenges to the lawsuit. The case also sparked a Congressional inquiry, which resulted in thousands of documents regarding the deletion being provided by the Bush Administration to Congress. On the eve of the Presidential transition in January 2009, Judge Kennedy granted the Archive's request to extend the TRO to cover additional media, thus preserving all available repositories for the missing emails that may have otherwise been lost in the transition. Jones Day then began settlement negotiations with the Obama Administration to identify and restore missing emails from the preserved media, and to establish an adequate preservation system for the White House going forward.

Those negotiations culminated in an agreement signed on December 14, 2009 obligating the government to: make public thousands of documents regarding the deletions and the government's failure to take corrective action; work with the Archive to ensure that the current White House email system was in compliance with the FRA; and, most importantly, restore millions of emails identified during the lawsuit as having been deleted from the system.

The completion of the government's obligations resulted in the restoration of over 22 million Bush Administration emails, which can now one day be made public. The emails were restored from 94 historically significant days – ranging from the decision to invade Iraq to the aftermath of Hurricane Katrina – days which were identified by the Archive during the lawsuit as having virtually no saved emails despite the significance of the day's events.

The lawsuit was widely publicized and consistently covered by CNN, MSNBC, the BBC, the Washington Post, the ABA Journal and the AmLaw Litigation Daily, as well as in numerous other international media and trade press.

National Security Archive v. Executive Office of the President, et al., Civil Action Nos. 07-1577 and 07-1707

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