Case 1 19-cv-01333-ABJ Document 16-8 Filed 10 01 19 Page 1 of 3 EXHIBIT H Plaintiffs' Motion for a Temporary Restraining Order Case Document 16-8 Filed 10 01 19 Page 2 of 3 CRE citizens for responsibility cc and ethics in washington September 25 2019 BY EMAIL Katheryn L Wyer Federal Programs Branch US Department of Justice Civil Division 1100 Street N W Room 12014 Washington DC 20005 Re CREW v Trump Case No 19-cv-1333 D D C May 7 2019 Dear Ms Wyer Thank you for your letter of September 23 2019 responding to our letter of September 20 2019 seeking assurances that Defendants will preserve speci ed categories of records pending the conclusion of this litigation We are disappointed that rather than provide those assurances you have mischaracterized our request as seeking privileged legal advice and ignored the obligations Rule 26 of the Federal Rules of Civil Procedure imposes on Defendants First Plaintiffs did not and are not requesting privileged legal advice including the content of any preservation hold you have imposed As our previous letter makes clear we are simply asking for con rmation that certain categories of records we have outlined will be preserved Defendants can certainly respond to this request without disclosing any legal advice you have provided them as their counsel and that is all that we ask Second as you know the obligation to preserve relevant evidence through a litigation hold does not commence with the start of discovery but runs from the time that a party has notice or should have known that evidence is relevant to either pending or future litigation See Zhi Chen v District ofColumbia 839 F Supp 2d 7 12 D D C 2011 con rming that a party has an obligation to preserve potentially relevant evidence once that party anticipates litigation citation omitted Zubulake v UBS Warburg LLC 220 F R D 212 S D N Y 2003 same That as your letter states we are asking for assurances that you have taken appropriate preservation steps before a defendant has even led a response to the complaint does not alter this obligation Third it cannot legitimately be questioned that we seek the preservation of relevant evidence The complaint rests on allegations that President Trump has a pattern and practice of af rmatively refusing to create and preserve records of his communications and meetings with certain foreign leaders in violation of his non-discretionary obligations under the Presidential Records Act and that he has asserted control over agency records improperly treating them as presidential records Recent revelations about President Trump s conversations with the president of Ukraine in which he has admitted applying pressure on the Ukrainian government to investigate Hunter Biden the son of one of his political rivals in the upcoming 2020 presidential 1101 Street NW Suite 201 Washington DC 20005 202 408 5565 phone 202 588 5020 fax 1 a Case Document 16-8 Filed 10 01 19 Page 3 of 3 election and the existence of a whistleblower complaint about this and other incidents likely contain evidence of the President s recordkeeping practices that lie at the heart of Plaintiffs complaint Moreover the fact that the White House is negotiating with Congress over the release of the whistleblower complaint a record of the Of ce of the Director of National Intelligence raises serious questions about the White House s role in controlling access to agency records additional conduct that mirrors that alleged in our complaint Both existing documents and evidence that the Defendants failed to create certain documents are properly subject to discovery here reinforcing the need that they be preselved pending the outcome of this litigation Fourth your statement that Department of Justice attorneys have appropriately advised our clients concerning their preservation obligations as is our standard practice falls far short of what courts have required parties to disclose when faced with requests similar to that in our September 20 letter Most fundamentally Plaintiffs are entitled to know the kinds and categories of records Defendants have been instructed to preserve and what speci c actions Defendants were instructed to take to that end Cannata v Wortdwide Corp No 10-68 2011 WL 3495987 at 3 D Nev Aug 10 2010 See also United States ex rel Barko v Halliburton 74 F Supp 3d 183 190 D D C 2014 citing In re eBay Setter Antitrust Litigation 2007 WL 2852364 at 2 ND Cal Oct 2 2007 party may discover the steps the opposing party has taken to preserve relevant Our letter seeks precisely that information Moreover you have offered no explanation for your standard practice making it impossible to determine whether you have met your legal obligations The serious violations of law that we allege in our complaint concern a failure if not outright refusal to follow the mandatory recordkeeping requirements of the PRA Given this context it is critical that we receive assurances that all relevant information has been and will be preserved Your letter falls far short of those assurances We therefore our request that you confirm the kinds and categories of records Defendants have been instructed to preserve no later than 5 pm on Friday September 30 2019 Sincerely eismann Chief FOIA Counsel 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