Case 1 19-cv-01333-ABJ Document 16-7 Filed 10 01 19 Page 1 of 3 EXHIBIT G Plaintiffs' Motion for a Temporary Restraining Order Case 1 19-cv-01333-ABJ Document 16-7 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 23 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 20 2019 Your letter requests Defendants' assurances that certain specific categories of records will be preserved pending a decision in this case It also requests that we describe to you certain aspects of the preservation advice that we have provided to our clients in this matter I of course cannot share with you the privileged legal advice that we have conveyed to our clients regarding their preservation obligations arising from this lawsuit As you are no doubt aware most courts hold that litigation hold notices are considered privileged and protected by the attorney-client privilege or work product doctrine E g Greenberger v IRS 283 F Supp 3d 1354 1373 n 15 N D Ga 2017 litigation hold letters are generally privileged see also Cannata v Wyndham Worldwide Corp No 10-68 2011 WL 3495987 at 2 D Nev 2011 In general unless spoliation is at issue a litigation hold letter is not discoverable Even those courts that have suggested that parties may probe basic information about preservation have said only that parties may do so as part of discovery proceedings See id That authority does not create a freestanding right to demand that defense counsel disclose preservation guidance outside of the discovery process before a defendant has even filed a response to the complaint Finally Plaintiffs' inquiries into Defendants' recordkeeping practices are particularly inappropriate in light of the fact that the Presidential Records Act does not allow courts at the behest of private citizens to rule on the adequacy of the President's records management practices or overrule his records creation management and disposal decisions Armstrong v Bush 924 F 2d 282 290 D C Cir 1991 Case 1 19-cv-01333-ABJ Document 16-7 Filed 10 01 19 Page 3 of 3 I can assure you however that we have appropriately advised our clients concerning their preservation obligations as is our standard practice Our hope is therefore that you will withdraw your request that Defendants disclose their preservation advice and refrain from filing baseless motions with the Court Should you nevertheless elect to draw the Court into this dispute we will be prepared to explain the numerous reasons why you are not entitled to the relief that you are seeking -- including as set out in our motion to dismiss the fact that judicial review is not available over any of the claims that you have asserted in this case I trust that this is responsive to your concerns If you wish to discuss this further please feel free to contact me Sincerely s Kathryn Wyer 202 616-8475 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
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