Case 1:08-cv-01548-CKK Document 34 Filed 11/12/2008 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
CREW, et al., )
)
v. ) Civil Action No.: 08-1548 (CKK)
)
RICHARD B. CHENEY, et al., )
)
Defendants. )
__________________________________________)

DEFENDANTS’ STATUS REPORT

Pursuant to the Court’s Minute Order of November 11, 2008, defendants hereby submit

the following status report. Nancy Regan Smith, the Director of Presidential Materials Staff in

the Office of Presidential Libraries at NARA testified at a deposition on November 10, 2008. At

the conclusion of the almost seven-hour deposition, only one issue remains in dispute between

the parties.1 In response to a question about the existence of any “written documents concerning

what vice presidential records must be preserved,” Rough Dep. Tr. at 88:10-89:10, Ms. Smith

testified that she was unaware of any documents providing guidance about vice presidential

records, but was aware of “generic guidance” about “the handling, as I remember it, of

Presidential records.” Id. at 219:2-8. She further testified that the guidance consisted of three

separate memoranda from then-Counsel to the President Alberto R. Gonzales, Harriet Miers, and

Fred F. Fielding addressed to “various White House components,” although Ms. Smith could not

recollect whether the Office of the Vice President was included. Id. at 211:10-12. When Ms.

Smith was asked to describe the substance of the memoranda, counsel for defendants objected

that the question sought information outside the scope of discovery (e.g., did not seek

information about vice-presidential records or vice presidential records keeping practices and

1
Plaintiffs’ counsel this morning suggested that an additional scope issue remains as counsel seeks to delve into the
President’s recordkeeping guidance and guidelines with Ms. O’Donnell, without a predicate foundation that the
guidance specifically also pertains to vice presidential records or is used by the Office of the Vice President.
 Case 1:08-cv-01548-CKK Document 34 Filed 11/12/2008 Page 2 of 3

classification guidelines, but rather presidential records) and likely sought the substance of

privileged communications (deliberative process and attorney-client privilege). The witness was

instructed not to answer the question.

Defendants propose, without waiving any privileges described below, that if the Court

requires, defendants may submit the three memoranda to the Court for its in camera review. To

be clear, no document discovery has been permitted (and defendants would vigorously object to

any such expansion of discovery in this matter). Nonetheless, the Court’s in camera ex parte

review of the documents should confirm that the information contained in the memoranda is not

central to the litigation and should not be the subject of further deposition testimony.2

The memoranda are protected by privilege as well. Ms. Smith testified that she had been

provided copies of the memoranda as part of an ongoing deliberative process through which

White House Counsel sought NARA’s “input before” some of the memoranda were “finalized.”

Id. at 4-10. Although Ms. Smith testified that she had seen the final memoranda issued by White

House Counsel to staff of the White House Office, the substance of the memoranda is otherwise

covered by the attorney-client privilege. Thus, unlike many circumstances in which a “final”

decision is made public, the “final” memoranda here is the subject of attorney-client privilege.

The disclosure of the final legal memoranda to NARA—where NARA had been consulted in the

deliberative process for its expertise on recordkeeping matters—should not constitute a waiver of

the privilege. To so hold would chill future Administrations from sharing final drafts of

memoranda about Presidential Records Act matters issued by White House Counsel, even

though NARA had provided input on its drafting in earlier phases (which would unquestionably

be protected by the deliberative process privilege). If that is the case, NARA’s role in providing

guidance on PRA issues could be disrupted dramatically going forward.

2
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Respectfully submitted this 12th day of November, 2008.

GREGORY G. KATSAS
Assistant Attorney General

JEFFREY A. TAYLOR
United States Attorney

/s/ Helen H. Hong ______________________

JOHN R. TYLER (DC Bar No. 297713)
HELEN H. HONG (CA SBN 235635)
Trial Attorneys
U.S. Department of Justice, Civil Division
P.O. Box 883, 20 Massachusetts Ave., NW
Washington, D.C. 20044
T: (202) 514-5838
Counsel for Defendants

2
And, indeed, would raise the concerns expressed in Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) about the
President’s recordkeeping practices. Plaintiffs’ counsel would not commit this morning that she would not seek
leave to request those memoranda. Defendants vigorously object and preserve all privilege objections.