Judge tells White House to resolve e-mail backup 'ambiguity'

A federal judge has told the White House to answer "once and for all" whether backup tapes holding e-mail documents sought by a Washington-based watchdog group have been preserved.

In the order, District Court Judge John M. Facciola said that the Executive Office of the President must tell the court by May 5 whether any backup tapes created between March 2003 and October 2003 have been preserved. Further, the government must disclose the specific dates when e-mail messages were not backed up.

The White House has been working for months trying to fend off a lawsuit filed last May in federal court in Washington by the Citizens for Responsibility and Ethics. The nonprofit organization is seeking access to White House e-mails related to a number of controversial issues such as reasons for starting the war in Iraq, the release of a former CIA operative's name and the U.S. Department of Justice's actions.

In the report, Judge Facciola cited what he called an apparent contradiction by Theresa Payton, CIO in the Executive Office of the President, in statements about whether the White House has tapes backing up e-mail messages sent between March 2003 and October 2003. In a document filed with the court in January, Payton stated that prior to October 2003 the White House regularly overwrote its backup tapes.

However, Judge Facciola noted that the White House officials have separately told the court that it is "simply incorrect" that the Office of Administration does not possess backup tapes of the EOP network before 2003. "The Court must admit that it is still unclear which backup tapes are being preserved and stored by the EOP," he wrote.

To help recover e-mails which the White House contends are missing, Judge Facciola recommended that District Court Judge Henry Kennedy order it to collect and preserve e-mails from .PST files located on workstation hard drives of employees who worked at the EOP between March 2003 and October 2005.

In addition, he recommended that White House employees be ordered to turn over any flash drives or other portable media that may contain e-mails sent or received between the dates in question.

On May 5, the White House must also tell the court: how many current employees were working at the White House between March 2003 and October 2005; how many hard drives were in use between those dates in question; and the costs associated with forensic imaging of e-mails.

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