UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SUSAN LONG, et al.
 
Plaintiffs, 
 
v. 
JANET RENO, et al.
 
Defendants. 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

This action seeks to prevent the further destruction of records in the computerized case management systems for the United States Attorneys' offices. The United States Attorneys' offices have destroyed these records without a valid schedule for disposition of these agency records -- a clear violation of the Records Disposal Act (RDA), 44 U.S.C. § 3314.

Each United States Attorney's office in the ninety four districts maintains a computerized case management system that tracks the workload of that office from referral of a matter through case closure. The electronic records in the computerized case management systems for each district office constitute a unique database of information from which a researcher can monitor the activities of that office, and, for example, derive the prosecutorial decisions made by that office over a given time period. Therefore, these records have significant historical and research value. Routine destruction without the benefit of proper scheduling for disposition, risks loss of a substantial body of information about the law enforcement priorities and efforts of the nation's chief law enforcers -- the United States Attorneys -- over many years.

This motion seeks to enjoin the destruction of records in two district offices -- the Western District of Kentucky and the District of Minnesota. Plaintiffs have evidence from affidavits submitted by employees of these two offices that electronic records "were shredded during the normal course of business" and that there is no adequate records maintenance program to safeguard against further loss or destruction. See Declaration of Carol Uebelhoer and Declaration of Verlyn Bryant (attached as Exhibits A and B to Declaration of Susan Long). The ongoing destruction of the electronic records threatens irreparable injury to plaintiffs Long and Burnham who have outstanding Freedom of Information Act (FOIA) requests for electronic records in the case management systems in these two district offices. Given the uniqueness of these records, without injunctive relief, plaintiffs have no adequate remedy. A balance of the equities and the strong public interest in ensuring that valuable agency records are not destroyed without proper authorization weighs heavily in favor of granting preliminary injunctive relief to plaintiffs.(1)

STATEMENT OF FACTS

Plaintiffs Susan Long and David Burnham are professors at Syracuse University and co-directors of the Transactional Records Access Clearinghouse (TRAC). TRAC is a non-profit research organization affiliated with Syracuse University. Its mission is to compile and disseminate comprehensive information about the functioning of federal enforcement and regulatory agencies. To accomplish this mission, TRAC collects detailed data on law enforcement from the federal government, analyzes and verifies that data, and distributes that data on the World Wide Web and by creating various information products including computer data sets on tapes and diskettes, tabular analysis and reports. Users of TRAC's information include news organizations, businesses, Congressional Committees, the federal court systems, scholars, public interest groups, law libraries, and government agencies. Declaration of Susan Long ¶ 1 (Long Decl.)

As part of its work, TRAC has in the past, is presently, and will in the future, use the FOIA to obtain access to the electronic records in the United States Attorneys' computerized case management systems. Long Decl. ¶ 12. Plaintiff Public Citizen is a national nonprofit consumer and citizen advocacy membership organization. As part of its ongoing work monitoring the enforcement activities of the federal government, Public Citizen has used and will continue to use in the future statistical information compiled by TRAC. As such, Public Citizen has a present and ongoing interest in preservation of, and FOIA access to, the electronic records in the computerized case management system in the Unites States Attorneys' offices. Complaint ¶ 6.

Each year TRAC obtains data from the Executive Office for United States Attorneys (EOUSA) under the FOIA on civil and criminal cases handled by each United States Attorney's office. The information provided to TRAC reflects case information recorded locally by individual United States Attorney's offices which, in turn, is provided to the EOUSA. The EOUSA compiles this data in a database it terms its "Central File" and processes the data for use in both internal Department of Justice (DOJ) reports and the United States Attorneys' Annual Statistical Report. Long Decl. ¶ 3. The processing of data necessarily involves excluding some of the information extracted from the local case management systems from inclusion in the Central Files: "there are variations in reporting among districts, both internal to the office and court-imposed ... [and] [b]ecause the Central System file format differs from file formats used in the local case management systems, certain information may be submitted as part of the extract, but not included in the Central System." See Long Decl. ¶ 14 (citing Declaration of Eileen Shelley Menton ¶ 5 (attached as Exhibit C to Long Decl.). TRAC uses the data that it obtains from the EOUSA's Central File to perform its data analysis and to produce its information products. Long Decl. ¶ 3.

Under the Records Disposal Act, agencies may not dispose of records like those in the case management systems unless there is a disposition schedule, approved by the Archivist, that provides for disposition of the records after a specified period of time. 44 U.S.C. § 3303a. Destruction of records, including electronic records, without a disposition schedule is strictly forbidden by the statute and the Archivist's regulations on electronic records. 44 U.S.C. § 3314; 36 CFR § 1234.40.

There is, however, apparently no disposition schedule for the electronic records in the case management systems. TRAC's efforts to find a disposition schedule have been fruitless. In response to inquiries about the authority for destroying case management system records and backup tapes, representatives of the DOJ have stated that the agency relies, in part, upon General Records Schedule 20 and that disposition of the records has occurred in the "normal course of business." Complaint ¶ 17. Apparently, the EOUSA has not submitted to the Archivist, or received approval of, a disposition schedule authorizing disposition of the electronic records in the computerized case management systems. Complaint ¶ 16.

TRAC recently learned about destruction and loss of records in the case management systems in the United States Attorneys' offices for the Western District of Kentucky and the District of Minnesota when TRAC sought access to those records in the district office to verify the accuracy of the data it had obtained previously from the EOUSA's Central File. See Long Decl. ¶¶ 9-10. TRAC relies on EOUSA's Central File data in preparing its reports. TRAC has been criticized on occasion by Justice Department officials for publishing "inaccurate" data. Specifically, in November 1996, United States Attorney Michael Troop for the Western District of Kentucky criticized as "faulty" TRAC's data related to his office's handling of referrals from the Drug Enforcement Administration in a letter to The Lexington Herald. Likewise, in May 1997, United States Attorney David L. Lilliehaug for the District of Minnesota criticized TRAC's data related to his office's handling of criminal referrals from the Bureau of Alcohol, Tobacco, and Firearms. In a guest column for the Saint Paul Pioneer Press,

U.S. Attorney Lilliehaug described TRAC's data as "incomplete" and "inaccurate." Long Decl ¶¶ 4-5.

In an effort to resolve any discrepancies between the individual office's data and the data TRAC had received from the EOUSA, in 1996 and 1997 plaintiffs filed FOIA requests with the two United States Attorneys' offices for records concerning the offices' computerized case management systems including a request for the electronic records in each office's computerized case management system. Long Decl. ¶ 6. By March 1998, Professors Long and Burnham had received only a few pages of paper records in response to their FOIA requests and they filed suit in the Northern District of New York in the case captioned Long/Burnham v. Department of Justice, No. 98-cv-370, to compel disclosure of the records they had sought in our FOIA requests. Long Decl. ¶ 7.

As part of the ensuing FOIA litigation, in May 1998, the DOJ filed affidavits with the court in New York. Long Decl. ¶ 8. Certain of these affidavits state that electronic records in the case management system for the Unites States Attorneys' office for the Western District of Kentucky were destroyed some six months after the FOIA request was submitted. See Long Decl. ¶ 9. Specifically, Carol J. Uebelhoer, Systems Manager for the computerized case management system in the Western District of Kentucky, states that the backup reel-to-reel-tapes for the Talons case management system "were destroyed during a massive shredding that took place in June of 1997." Id. (citing Uebelhoer Decl. ¶ 3 (attached as Exhibit A to Long Decl.)). In addition, although extract tapes from the Western District of Kentucky's case management system were copied to cassette tapes and sent to the EOUSA and then returned one month later, those tapes were also "destroyed during the normal course of business about 6 months ago." Id.

The affidavits filed by the DOJ also reveal that neither United States Attorneys' office has a proper records management program in place to preserve records and to guard against their destruction or loss. See Long Decl. ¶ 10. For example, Declarant Uebelhoer states that under the Western District of Kentucky's current "Phoenix system," backup tapes are "retained for approximately two weeks and then they are recycled and the data on them is overwritten." Id. (citing Uebelhoer Decl. ¶ 4 (Ex. A to Long Decl.)) Declarant Verlyn Bryant, supervisory computer specialist and chief of Central Systems Service, EOUSA, states that the local computerized case management system in the District of Minnesota has failed and that the requested electronic records have not been recovered. Id. (citing Bryant Decl. ¶ 5 (Exhibit B to Long Decl.))

On June 18, 1998, plaintiffs sent a letter to Archivist Carlin and Attorney General Reno requesting that they investigate the destruction of electronic records, take steps to recover the destroyed records, and ensure that there is no further destruction of electronic records in the computerized case management systems unless and until disposition procedures are reviewed, approved and properly authorized. The June 18 letter further requests that Archivist Carlin and Attorney General Reno provide plaintiffs with written assurance within ten days that adequate steps have been taken to prevent further destruction and describe the steps that will be taken to investigate prior destruction and possible recovery of records. Complaint ¶ 22; see Exhibit A. On July 2, 1998, the National Archives wrote to counsel for plaintiffs stating that it had requested that the DOJ investigate the allegations of record destruction. See Exhibit B. However, the DOJ has not responded to plaintiffs' request for assurance that no further destruction of original records or backup tapes in the computerized case management systems in either United States Attorney's office will occur. The National Archives has not taken any steps to halt the destruction of the records. Complaint ¶ 23.

On June 18, 1998, plaintiffs sent a separate letter to counsel for defendant DOJ in the Long/Burnham v. Department of Justice case asking that they provide plaintiffs with written assurance within ten days that steps would be taken to preserve the electronic records in the computerized case management system in the United States Attorneys' offices for the Western District of Kentucky and the District of Minnesota, and that no further destruction would take place in the case management systems unless and until the Archivist has authorized records disposition pursuant to a valid records disposition schedule. Complaint ¶ 24; see Exhibit C. Plaintiffs have not received any written response to their June 18 letter to counsel for defendant DOJ in the Long/Burnham v. DOJ case. Complaint ¶ 25. While plaintiffs have been told orally that there may be duplicate copies of the records that were destroyed in the Western District of Kentucky, and that it may be possible to reconstruct the records in Minnesota that have not yet been recovered, they have not yet received any written assurance from the DOJ of these representations. Long Decl. ¶ 11. Those oral representations are inconsistent with prior sworn affidavits. See Long Decl. ¶¶ 9-10.

Plaintiffs' interest in the electronic records in the case management systems is a continuing one. Long Decl ¶ 12. In April 1998, plaintiffs Long and Burnham submitted two additional FOIA requests for, among other things, access to electronic records in the computerized case management systems for the United States Attorneys' offices for the Western District of Kentucky and the District of Minnesota since the date of their previous request. So far, they have not yet received any electronic records in response to these requests and, indeed, have not received any electronic records from the District of Minnesota for either the April 1998 request or the August 1997 request. Long Decl. ¶ 12. In addition, in the near future plaintiffs will seek access to the electronic records in the computerized case management systems in the Unites States Attorneys' offices in other districts as part of TRAC's work of compiling statistical information on law enforcement efforts nationwide. Long Decl. ¶ 12.

ARGUMENT

Plaintiffs are entitled to preliminary injunctive relief to prevent further unauthorized destruction of electronic records in the case management systems in the United States Attorney's offices for the Western District of Kentucky and the District of Minnesota. While this action seeks review of the records management and disposition practices in all of the ninety four districts, plaintiffs' request for preliminary injunctive relief is limited to the two district offices for which plaintiffs have received evidence from the government's own affidavits that unauthorized destruction has occurred, for which they have received no written assurances from the DOJ that unauthorized destruction will cease, and for which they have outstanding FOIA requests. Only preliminary injunctive relief to halt unauthorized records disposition in those two district offices during the pendency of this litigation will ensure that the records plaintiffs seek under the FOIA will still exist at the end of this litigation.

This Circuit looks to four factors to evaluate claims for preliminary injunctive relief: (1) whether plaintiffs are likely to prevail on the merits; (2) whether plaintiffs will be irreparably injured; (3) whether preliminary relief will substantially harm other parties; and (4) whether injunctive relief is in the public interest. Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 259 F.2d 921 (D.C. Cir. 1958); see also Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). As discussed below, all of these factors favor a preliminary injunction of further destruction of electronic records in the computerized case management in these two United States Attorneys' offices.

I. THERE IS A SUBSTANTIAL PROBABILITY THAT PLAINTIFFS WILL PREVAIL ON THE MERITS.

Plaintiffs' claim on the merits is straightforward. The complaint states three causes of action. Count One states a violation of the RDA for disposal of records without a valid disposition schedule and seeks injunctive and declaratory relief to prevent further destruction of agency records. Count Two states a violation of the Federal Records Act (FRA) for failure to maintain proper records management practices in the United States Attorneys' offices and seeks declaratory relief. Count Three states a claim under the FRA and RDA against the Archivist and seeks declaratory and injunctive relief to compel investigation of the reported destruction of records, prevent further destruction, and initiate recovery of the destroyed records.

This motion for preliminary injunctive relief is limited to the unauthorized destruction of records described in Count One and is crafted narrowly so as to enjoin the destruction of records in the two district offices -- Western District of Kentucky and District of Minnesota -- where plaintiffs have obtained evidence of destruction and loss of electronic records in the case management systems. There is a substantial probability that plaintiffs will prevail on the merits of Count I because disposition of agency records without a valid records disposition schedule is a clear violation of the RDA, 44 U.S.C. § 3314. As this Court explained most recently in Public Citizen v. Carlin, No. 96-2840, "[i]f a document qualifies as a record the [Federal Records Act] prohibits an agency from 'discarding it by fiat.'" Slip. Op. at 4 (Oct. 22, 1997) (citing Armstrong v. Executive Office of the President, 1 F.3d 1274, 1278 (D.C. Cir. 1993) and American Friends Serv. Comm. v. Webster, 720 F.2d 29, 62 (D.C. Cir. 1983)). Under the RDA, 44 U.S.C. §§ 3301, et. seq., the agency must procure the approval of the Archivist before disposing of any record. 44 U.S.C. § 3303a.

To recap the legal framework as set forth in Carlin and Armstrong, the RDA provides for two methods of receiving records disposition authority. First, under the system of individual agency schedules, an agency submits to the Archivist a "request for disposition authority" or "disposition schedule" in which the agency identifies agency records for proposed disposition after a specified time lapse. 44 U.S.C. § 3303a. After public notice and comment, the Archivist must assess the value of the records. If the Archivist determines that the records do not have sufficient administrative, legal research or other value, he can approve a schedule authorizing disposition. Id., § 3303a(a). Otherwise, the records should be transferred to the Archivist for permanent preservation. § 2107. As an alternative to individual agency schedules, Congress has authorized the Archivist to promulgate General Records Schedules governing the disposition of certain kinds of records provided that they do not have sufficient administrative, legal research or other value, to warrant their continued preservation. 44 U.S.C. § 3303a(d); Carlin, slip op. at 30; Armstrong, 1 F.3d at 1279. Agencies may purge incidental electronic files but only by acting "with the Archivist's approval" to dispose of documents lacking in sufficient value to warrant their continuing preservation. Armstrong, 1 F.3d at 1287.

Here, there is no dispute that the electronic records in the case management systems are agency records. See 44 U.S.C. § 3101. Therefore, the DOJ may dispose of these electronic records only in accordance with a records disposition schedule approved by the Archivist. 44 U.S.C. § 3314; 36 CFR §§ 1234.32-1234.34. Apparently, however, the EOUSA has not submitted to the Archivist, or received approval of, a disposition schedule authorizing disposition of the electronic records in the computerized case management systems. Even though plaintiffs have made repeated requests for any disposition schedule that may authorize destruction of these records, all that representatives of the DOJ have offered is that the agency relies, in part, upon GRS 20 and that disposition of the records has occurred in the "normal course of business." See Complaint ¶ 17.

GRS 20, however, cannot validly authorize destruction of these agency records. By order of October 22, 1997, in Public Citizen v. Carlin, No. 96-2840, this Court declared GRS 20 null and void and enjoined the parties in the Carlin case from destroying electronic records pursuant to GRS 20. For the same reasons that this Court rejected the Archivist's and agency's reliance on GRS 20 in Carlin, DOJ cannot rely on GRS 20 here. The Court's decree in Carlin is certainly sufficient to establish that plaintiffs have a likelihood of prevailing on the merits if DOJ relies on GRS 20.(2)

Given that there appears to be no valid records disposition schedule in place authorizing the destruction or disposition of these records, given the evidence that plaintiffs have received that destruction of electronic records in the case management systems, including backup tapes, has occurred, and given the refusal of the DOJ to provide written assurances to cease these unauthorized practices, plaintiffs have a likelihood of prevailing on Count One.

Finally, it is well established under this Circuit's precedents that plaintiffs such as these have standing to bring suit to obtain judicial review of the federal agency and the Archivist's failure to prevent ongoing and unauthorized record destruction or loss. See Armstrong v. Bush, 924 F.2d 282, 295 (D.C. Cir. 1991); American Friends Service Comm, 720 F.2d at 57. Plaintiffs Professors Long and Burnham are researchers that as part of their work have in the past, are presently, and will in the future use the FOIA to obtain access to the electronic records in the United States Attorneys' computerized case management systems. Long Decl. ¶ 12. If the United States Attorneys' offices are permitted to destroy such records "by fiat," plaintiffs' rights of access to these records will be completely frustrated. See Long Decl ¶¶ 13-14; see also Carlin, slip op. at 9-12; American Friends Serv. Comm., 720 F.2d at 57. In addition to impairment of rights under the FOIA, plaintiffs' rights to notice and comment on proposals by a federal agency to destroy the electronic records in the computerized case management systems, and the right to try to convince the Archivist that such records should not be destroyed because they have sufficient administrative, legal, research or other value to warrant their continued preservation, will also be completely frustrated. Long Decl. ¶¶ 16-17.

II. THE ONGOING DESTRUCTION OF THE ELECTRONIC RECORDS IN THE CASE MANAGEMENT SYSTEMS IMPOSES IRREPARABLE HARM UPON PLAINTIFFS.

The harm plaintiffs will suffer from unauthorized destruction of electronic records in the case management systems before a decision on the merits can be granted is irreparable. As this Court recognized in Carlin, Congress "intended, expected and positively desired private researchers ... to have access to the documentary history of the federal government." Slip Op. at 29 (citing American Friends Serv. Co,,, 720 F.2d at 57). The electronic records in the case management systems have significant research and historical value. Each office's case management system is a unique database of records. By analyzing the data in the case management systems, researchers can assess trends in law enforcement priorities and other relevant information. TRAC is currently engaged in such research and will continue to be engaged in this research into the foreseeable future. Without access to these electronic records, validation of the statistical information provided by EOUSA and other data assimilation and research will be impossible. Long Decl. ¶ 13.

Destruction or loss of the electronic records in the local case management systems results in the irreparable loss of data that is only maintained in the case management systems in the district offices. Long Decl ¶ 14. While some data is extracted monthly from the district records and sent to the EOUSA, as Eileen Shelley Menton, then-Assistant Director, Case Management Staff, EOUSA, states, "there are variations in reporting among districts, both internal to the office and court-imposed." Id. (citing Menton Decl. ¶ 5 (Exhibit C to Long Decl.)) Not all information recorded in the district offices is required to be submitted to EOUSA: "The case tracking systems used by the districts, PROMIS on PRIME minicomputers, USACTS II on PRIME minicomputers, TALON on the EAGLE network, and LIONS on the Phoenix network, are designed to aid the Assistant United States Attorneys in handling their caseload. To accomplish this goal, these local systems contain numerous data elements and free form friends. The Central System here at EOUSA only collects information from the districts necessary to generate monitoring reports and statistics. While this basic information is required to be entered at the local level, use of the additional data elements and free form fields is at the discretion of the local offices. As such EOUSA has no control over the input and data retention in the districts.... specific information on the local system and its usage must be obtained from the local office." Id. (citing Declaration of Verlyn Bryant ¶ 2 (emphasis added) (attached as Exhibit B to Long Decl.)) In addition, the EOUSA Central System does not maintain all of the information submitted to it as an extract from the local case management systems. Id. (citing Menton Decl. ¶ 5 ("Because the Central System file format differs from file formats used in the local case management systems, certain information may be submitted as part of the extract, but not included in the Central System.")) Therefore, the records in the case management systems in the district offices are unique because it shows the contents of the records before the data is extracted by the district office and the extract is reformatted by EOUSA for the Central File. To obtain the complete data of the district offices, plaintiffs must obtain access to the data in the case management systems in the district offices. Long Decl. ¶ 14. If this data is destroyed, plaintiffs' right of access is irreparably foreclosed.

Plaintiffs' need for a preliminary injunction for the two district offices is particularly acute because TRAC has outstanding FOIA requests for the electronic records in the case management systems in both of these districts -- in the Western District of Kentucky since late 1996 and in the District of Minnesota since August 1997. TRAC renewed these requests in April 1998, broadening their request to include the civil as well as criminal records. So far, TRAC has received no electronic records from Minnesota and only some electronic records from Kentucky. Long Decl. ¶ 12. Thus, the harm that would be imposed by unauthorized destruction is not only irreparable, but also would completely frustrate plaintiffs' statutory rights under the FOIA.

III. THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST FAVOR PRELIMINARY INJUNCTIVE RELIEF.

There is no evidence that preservation of these records (many of which include records responsive to plaintiffs' outstanding FOIA requests) until a decision on plaintiffs' claims can be rendered on the merits would impose any significant cost or administrative burden on defendants. In fact, the relief that plaintiffs seek is simply compliance with the extant requirements of the RDA that forbids record disposition or destruction without a valid schedule. 44 U.S.C. § 3314. Any burden of complying with the law governing records disposition in two district offices cannot possibly outweigh the irreparable impact of destruction or loss of these unique agency records that plaintiffs seek for professional research and to which they are duly entitled access under the FOIA.

Finally, the public interest in these records weighs in favor of granting preliminary injunctive relief. As described above, where a statute prohibits the actions that plaintiffs seek to enjoin (unauthorized disposition of records), the public interest weighs heavily in favor of compelling defendants to comply with the law. See Wright, Miller & Kane, Federal Practice and Procedure § 2948.4, at 209 (1995). So too, the public interest in these records is quite strong because of the vital importance of these records to the public's understanding of federal law enforcement. Long Decl ¶ 15. Federal prosecutors play a pivotal role in federal law enforcement decisions as the chief federal law enforcement officers within their district. It is usually the decision of the district office that determines whether an individual is charged and prosecuted for a federal crime and, if charged, what that charge or charges will be. Thus, to understand the federal law enforcement role, it is essential to understand the day-to-day operations of each United States Attorney's office. Each district office's case management system provides a window on federal law enforcement activities and priorities. Access to such government databases is at the core of the public interest in understanding the activities of the federal government. This interest was most recently reaffirmed by Congress's enactment of the Electronic Freedom of Information Act Amendments and formal recognition that computer database records are records subject to the FOIA. See 5 U.S.C. § 552(f)(2); see also Department of Justice Report on "Electronic Record" Issues Under the Freedom of Information Act, S. Hrg. 1098, 102nd Cong., 2d Sess. 33 (1992) (discussing access to government computer databases).

Accordingly, given the strong public interest in this case, only a nominal bond should be required under Rule 65(c). It is difficult to conceive how defendant will be damaged by being enjoined from further unauthorized destruction of electronic records in the case management systems in the two district offices. Moreover, courts have recognized that, in actions such as this one, where plaintiffs are seeking to benefit the general public by enforcing a federal statute, a nominal bond is appropriate. See, e.g., Baxley v. Corps. of Engineers, 411 F. Supp. 1261, 1275 (N.D. Ala. 1976) (one dollar bond required for injunction to enforce National Environmental Policy Act procedures); Natural Resources Defense Council v. Morton, 337 F. Supp. 167 (D.D.C. 1971), aff'd on other grounds, 458 F.2d 827 (D.C. Cir. 1972) (security of $100 required in the face of estimate of millions of dollars in damages from injunction against leasing operations on continental shelf); see also Canterbury Career School, Inc. v. Riley, 833 F. Supp. 1097 (D.N.J. 1993) (no bond where school serving public interest by providing education to low income individuals). Where, as here, "the amount of any order for bond or security would be based upon gross speculation or conjecture, and would have the effect of discouraging suits to remedy more flagrant abuses in federal administrative programs," only a nominal bond should be required. Bartels v. Biernat, 405 F. Supp. 1012, 1019 (E.D. Wis. 1975); accord California ex rel. Van de Kamp v. Tahoe Regional Planning Authority, 766 F.2d 1319, 1325-26 (9th Cir. 1985).

CONCLUSION

For the reasons given, plaintiffs respectfully request that this Court issue an order preliminarily enjoining destruction of electronic records in the computerized case management in the two United States Attorneys' office for the Western District of Kentucky and the District of Minnesota.

Respectfully submitted
Colette G. Matzzie
Michael Tankersley
PUBLIC CITIZEN LITIGATION GROUP
1600 20th Street, N.W.
Washington, D.C. 20009
 
Attorneys for Plaintiffs

Footnotes

1. On July 22, 1998, plaintiffs were given an oral representation during a telephone conference with officials from the Executive Office for United States Attorneys that there may be copies of the destroyed electronic records. See Declaration of Susan Long ¶ 11. That representation is contrary to previous representations under oath that the only copy of the data had been shredded. Moreover, despite repeated requests, plaintiffs have not been provided written assurance that there will be no further record destruction and the Justice Department has not identified any valid records disposition schedule authorizing destruction of records in the case management system. Accordingly, plaintiffs have no choice but to seek preliminary injunctive relief.

2. In fact, there is a strong argument that defendants are already enjoined by this Court's order in Carlin from relying on GRS 20 to authorize disposition of the electronic records in the case management systems. After all, defendants Reno and EOUSA are certainly "in privity" if not the same person as those actually enjoined in Carlin (and certainly the defendant Archivist is bound). See, e,g, United States v. Dean Rubber Mfg. Co., 71 F. Supp. 96, 98 (W.D. Mo. 1946) (citing Chase Nat'l Bank v. Norwalk, 291 U.S. 431, 441 (1933)). In any event, even if Carlin is not binding as a matter of res judicata, Carlin is binding on defendants as a matter of stare decisis unless reversed by the Court of Appeals.