Full opinion text
MEMORANDUM OPINION ROYCE C. LAMBERTH, District Judge. This matter comes before the Court on plaintiffs’ motions for orders to show cause or other relief regarding discovery disputes as to electronic information requested from the White House. INTRODUCTION In the midst of a discovery dispute between the parties about the extent to which the defendant Executive Office of the President (“EOP”) should be required to perform electronic searches of White House e-mails, plaintiffs initiated the present proceeding by filing their Emergency Motion to Supplement Plaintiffs’ Motion to Compel and Request for Evidentiary Hearing (“Emergency Motion”). In that motion, plaintiffs charged that EOP and its counsel submitted to this Court an “obviously false” declaration from Daniel A. Barry (“Barry”) “as part of their effort to stonewall and obstruct plaintiffs’ narrowed request for e-mail.” (Emergency Motion at 5.) Plaintiffs claimed that Barry, a career employee and computer specialist in the White House Office of Administration (“OA”), falsely declared that, since July 14, 1994, all White House e-mails were stored and archived in the White House Automated Records Management System (“ARMS”). Invoking the Court’s “inherent authority and its duty to supervise the integrity of its processes,” plaintiffs requested an evidentiary hearing “to ferret out the facts in this apparent obstruction of justice.” {Id. at 10.) The Court granted plaintiffs’ request for an evidentiary hearing “[bjecause the facts are clearly in dispute and cannot be resolved without a hearing.” (Order of July 20, 2000, at 3.) The Court heard' testimony from numerous witnesses, ranging from working-level contractual employees, to Charles F.C. Ruff, late former Counsel to the President, to White House Chief of Staff John Podes-ta. It has also reviewed thousands of pages of documents. Although plaintiffs were given every opportunity to develop their case, if any, to the fullest extent, it is clear that neither EOP nor its counsel obstructed plaintiffs’ request for e-mail or engaged in any other obstruction of justice, and neither EOP nor its counsel acted in bad faith to abuse the Court’s processes. In addition, there is no evidence that e-mails relevant to this case were lost and not retrieved and produced. In short, plaintiffs have come up with no credible evidence to substantiate the charges they made when they filed their Emergency Motion. The evidence shows the following: (1) on July 14, 1994, EOP put a system (“ARMS”) into operation to store and archive electronic records, including e-mails; (2) after the introduction in 1996 of a new e-mail system called “Lotus Notes,” a coding error was made for which a private contractor to EOP was responsible, that caused external e-mail to Lotus Notes accounts handled by a server named, “Mail2” not to be received by or stored in ARMS; (3) the existence of what later became known as the “Mail2 problem” was discovered by employees of Northrup-Grumman (“NG”), a successor EOP private contractor, in June 1998, and reported immediately to OA officials, to the White House Counsel, and to the Deputy White House Chief of Staff; (4) the Mail2 problem was fixed prospectively in November 1998, and a process was undertaken at the Court’s request to restore e-mails affected by the Mail2 problem and make them searchable for this litigation; (5) OA officials, who had differing degrees of understanding of the technical problem, were neither responsible for nor had a basis to know to what extent-the problem affected the integrity of EOP’s responses to past or pending email production demands by Congress or the Office of Independent Counsel, or EOP’s position with respect to potential e-rnail searches in the present case; (6) the White House Counsel’s office, which did have the responsibility to ensure full compliance with information requests, did not understand the extent of the technical problem, and those few attorneys in that office who were aware of it erroneously believed that past searches had not been affected, so there was no problem; and therefore (7) neither OA nor the Counsel’s office timely alerted Department of Justice (“DOJ”) counsel in the present case to the Mail2 problem. The Court has concluded that the essem tial errors made by the White House Counsel’s Office were caused by a lack of familiarity with computer terminology and language and workings by the lawyers involved. Mr. Barry, the computer expert, simply talked a different language, and the lawyers he dealt with did not fully appreciate the significance of some of the information that he gave them, and the information he didn’t give them. All of this occurred long before development of current sophisticated ways that lawyers have had to learn to deal with computer experts. It calls to the Court’s mind its own experience in dealing with intelligence officials, i.e., if you don’t use the right words in your question, you won’t get the right answer. You have to learn to ask the question in a number of ways, and probe and examine and get into the nitty-gritty to understand what the truth is. None of the White House lawyers involved in this matter did that. But plaintiffs produced no evidence whatsoever that any of those lawyers deliberately obstructed justice, or deliberately provided what turned out to be false information to the Court. Not only is the evidence not “clear and convincing,” as would be required for this Court to rule for plaintiffs on their contempt motion, but there is simply no evidence of any deliberate effort to conceal the truth. Plaintiffs would have the Court infer that some grand conspiracy existed to deprive them of necessary information. Plaintiffs simply have no such evidence. FACTUAL BACKGROUND 1. ARMS Following the resolution of the Armstrong litigation, EOP undertook the task of storing and archiving electronic records, including e-mails. To accomplish this task, Barry, a computer specialist in OA hired during the term of President George H.W. Bush, designed a records management system called ARMS. (Aug. 8 Tr. 33-34.) EOP put ARMS into operation on July 14, 1994. (Aug. 31 Tr. 41.) When ARMS became operational, it received and stored e-mails from an existing e-mail system called the “All-in-One”. email system. (Aug. 3 Tr. 35.) Barry worked extensively with this All-in-One system. (Id. at 24-25.) His responsibilities included reconstructing e-mail from All-in-One backup tapes, on which pre-July 1994 e-mail was stored. (Aug. 21 Tr. 39-40.) When a new e-mail system called “Lotus Notes” was added beginning in 1996, a computer software program known as the Notes-ARMS interface was developed so that e-mails from Lotus Notes also would be received by ARMS for storage. (Aug. 3 Tr. 43.) Barry did not have responsibility for the Lotus Notes e-mail system or its interface program with ARMS, although he continued to operate and maintain ARMS, and he searched ARMS for documents at the request of the White House Counsel’s office. (Id. at 52.) Instead, PRC, Inc., a private contractor for EOP, operated and maintained Lotus Notes from its inception until late 1997, when the operation and maintenance of Lotus Notes and its interface with ARMS were taken over by Northrup-Grumman (“NG”), another private contractor. (Aug. 1 Tr. 229; Aug. 2 Tr. 14-15; Aug. 3 Tr. 43; Aug. 21 Tr. 30-31.) 2. The January 1998 Anomaly and the First Barry Declaration On January 12,1998, plaintiffs served on the EOP a Notice of Deposition and Request for Production of Documents pursuant to Federal Rule of Civil Procedure Rule 30(b)(5),(6) (“30(b)(6) Notice”). The 30(b)(6) Notice sought the designation of one or more representatives to testify on a total of nine issues, two of which concerned the storage and retrieval of e-mail at EOP. Before EOP formally responded to the 30(b)(6) Notice, EOP’s counsel, on January 13, 1998, wrote a letter to plaintiffs’ counsel explaining EOP’s position with regard to searching for and producing archived email. (See Allison Giles Ltr. to Larry Klayman, Ex. 1 to PL Opp. to EOP’s Mot. to Dismiss (“Giles-Klayman Ltr”), at 5, Jan. 13,1998.) Counsel for EOP explained in the letter that “EOP e-mail, at least during the time most relevant to this lawsuit, was not archived in a unified, logically formatted database and cannot be word-searched except at enormous time and expense.” (Id. at 3.) In addition, “EOP is currently engaged in the process of restoring pre-July 1994 e-mail to tapes in the equivalent word-searchable format as post-July 1994 e-mail.” (Id. at 4 n. 1) Counsel said EOP would be willing to perform a word search of e-mail that was limited to certain dates and specified users. (Id. at 2.) Meanwhile, on January 30, 1998, while conducting a search of ARMS records in response to a subpoena from the Office of the Independent Counsel, Barry noticed an “anomaly.” (Aug. 3 Tr. 72.) It appeared that only the outbound part of an e-mail “conversation” between Ashley Raines (“Raines”) of OA and Monica Lewinsky (“Lewinsky”) (then employed outside the White House) had been received by ARMS. (Id. at 68-69.) Upon investigation, and in consultation with NG employee John Spriggs (“Spriggs”), Barry determined that some inbound e-mails in this conversation appeared to have successfully entered the Lotus Notes e-mail system but had not been received by or stored in ARMS. (Id. at 69-70; Pl.Ex. 9-49.) Barry did not attempt to determine whether this was an episodic problem, or a systemic one, capable of repetition. (Aug. 3 Tr. 72.) Because there were a substantial number of inbound e-mails from Lewinsky already stored in ARMS, however, Barry suspected that it was not systemic. (Id.) Barry reported his finding to his immediate supervisor, Jim Wright, and at Wright’s direction, he prepared an “incident report” documenting what he had found. (Pl. Ex.9-49.) In response to the 30(b)(6) Notice, EOP filed a Motion for a Protective Order on March 4, 1998. (See Mot. for Prot. Order, Mar. 4, 1998.) Consistent with the January 13, 1998 letter to plaintiffs’ counsel, EOP argued in the motion that, among other things, “[w]holesale restoration and searches of years-old backed-up and archived e-mail” would be “burdensome, costly, and unlikely to .lead to responsive documents.” (Mem. Supp. Mot. for Prot. Order 10.) In support of its motion, EOP submitted a declaration from Barry dated March 4, 1998. (See PLEx. 18.) This declaration was the product of consultation between DOJ, White House Counsel’s Office, and Barry. (See, e.cj., Aug. 3 Tr. 122-26; Aug. 21 Tr. 58-59; Aug. 22 Tr. 45^7; PLEx. 40-2888; PLEx. 46; PLEx. 49.) It “discusses the processes required for the restoration and reconstruction of backed-up EOP e-mail, and the resources required for these tasks.” (PLEx. 18 ¶ 3.) Barry explained in the declaration that, prior to July. 14,1994, there was no system in EOP for archiving e-mail in word-searchable format, although there were backup tapes for this period.. (Id. ¶ 4.) For backed-up e-mail to be searched, the data had to be restored (to on-line status) and reconstructed (pieced together, in a word-searchable and ■ printable format). (Id. ¶ 5.) Barry described the lengthy process of restoring and reconstructing backup tapes as “time-consuming and resource-intensive.” (Id. ¶¶ 6-10.) Barry also explained that, in response to court orders in Armstrong, the Information Systems and Technology (“IS & T”) branch of OA was “in the process of restoring and reconstructing pre-July 1994 e-mail to a word-searchable format.” (Id. ¶ 10.) Barry’s explanation of the restoration and reconstruction of e-mails was made with reference to the All-in-One e-mail system with which he was familiar. (Aug. 3 Tr. 161.) In contrast, Barry said, “[s]ince July 14, 1994, e-mail within EOP has been archived weekly in an online format that is susceptible to being word-searched.” (Pl.Ex. 18 ¶ 11.) By this statement Barry claims that he intended to describe what ARMS does, which is to archive email. (Aug. 3 Tr. 150.) Barry claims that he did not intend by this statement to declare categorically that “all” post-July 14, 1994, e-mail had been received by and was stored in ARMS, because like other computer experts, he knew that computer systems are subject to glitches, and he testified that he would never say that any system is going to perform a certain task on every single occasion. (Id. at 162; Aug. 22 Tr. 88.) At the time he worked on his declaration, Barry did not tell counsel about the anomaly he found on January 30, 1998, or the incident report he prepared about it, (Pl.Ex.9 — 49), because — he testified — they did not seem to him relevant, (Aug. 22 Tr. 92). Barry claims that he saw a clear distinction between what ARMS does and what ARMS contains. (Id. at 91.) In his declaration, Barry testified that he believed he was only describing what ARMS does and not what was in it. (Id. at 91-92.) Therefore, at the time Barry signed the declaration, he believed that his entire declaration, including his description of ARMS, was accurate. (Id. at 107.) In their Opposition to EOP’s motion, plaintiffs argued that the discovery sought by their 30(b)(6) Notice was necessary to obtain information about EOP’s e-mail and other computer information systems and to overcome EOP’s objections that the search for and production of e-mail and computer-stored documents would be too time-consuming and expensive. (Opp. to Mot. for Prot. Order 9.) Plaintiffs also submitted a declaration from Paul Hill, who they presented as their own computer expert, to counter EOP’s contentions concerning burden. (Id.) In response to Hill’s declaration, EOP submitted a supplemental declaration from Barry, dated March 30, 1998. (Pl.Ex.44.) Barry’s supplemental declaration, like his original declaration, refers in part to “the restoration and reconstruction of backed-up EOP email.” (Id. ¶ 4.) Barry claims that he intended his reference to e-mail to mean All-in-One email, because that was the subject of his original declaration and that was the e-mail system with which he worked extensively. (Aug. 18 Tr. 20.) Barry addressed All-in-One reconstruction in both declarations because he was responsible for reconstruction of All-in-One email from backup tapes. (Id. at 20, 22.) 3. The Barry Deposition On April 13, 1998, the Court ruled on EOP’s Motion for a Protective Order. 188 F.R.D. 111. As to e-mail, the Court “eon-cludefd] that the EOP is not required to completely restore all deleted files and email as plaintiffs insist.” Id. at 117. Rather, as counsel for EOP had suggested in their January 13, 1998 letter, the Court found that plaintiffs had the option of pursuing discussions with DOJ “regarding targeted and appropriately worded searches of backed-up and archived e-mail and deleted hard drives for a limited number of individuals.” Id. (citing EOP’s 30(b)(6) Reply 8 n. 7). However, the Court did permit plaintiffs to depose “individuals with relevant knowledge of the ... e-mail systems at the offices relevant to this case in an effort to determine whether any other means exist to restore the deleted ... e-mail of specific individuals’ computers.” 188 F.R.D. at 117. The offices identified as relevant were the White House Office and OA, to the extent it supported the White House Office. Id. at 118. Consequently, EOP designated Barry — the person most knowledgeable about All-in-One e-mail, the Armstrong reconstruction, and ARMS— for deposition. Barry testified that he understood that the subject matter of his deposition would be the same technical areas that were covered by his first and supplemental declarations. (Aug. 17 Tr. 108, 112.) In particular, he understood the deposition would focus upon his expertise with the All-in-One e-mail system and with ARMS. (Aug. 3 Tr. 62, 186, 191.) Barry testified that because he was comfortable with these substantive areas, he did not review them with DOJ counsel and White House counsel when they met with him to prepare for his deposition. (Aug. 17 Tr. 108-09, 112-13.) The preparation was limited largely to reviewing the logistics and format of the deposition, because Barry had never been deposed before. (Id.) Plaintiffs’ counsel deposed Barry on June 11, 1998. (Pl.Ex.50.) Barry was asked about the location of e-mails, and he responded that the e-mail messages from July 14, 1994 onward “currently reside in the ARMS, Automated Records Management System data warehouse.” (Id. at 145.) As before, Barry claims that he understood this question to concern All-in-One e-mail messages destined for ARMS. (Aug. 3 Tr. 183.) When asked “[w]hat percentage of the White House Office, OA E-mail users can send E-mail messages using ALL-IN-1,” Barry responded that 100% could do so. (Pl.Ex. 50 at 189.) Barry believed that 100% could also use Lotus Notes e-mail, (id. at 189-90), but he observed that he is “not a Lotus [N]otes expert by any means,” (id. at 244). Barry also testified at his deposition that he was not aware of any e-mails after November 1992 being lost or destroyed before they could be backed up properly. (Pl.Ex. 50 at 229.) Barry also testified that e-mail sent to EOP accounts from outside EOP would be received and archived in ARMS just as if it had been sent from inside EOP. (Id. at 274, 283.) Barry claims that he did not perceive any link between the questions he was' asked at his deposition concerning what he únderstood to be the All-in-One e-mail system and the anomaly he discovered in January. (Aug. 3 Tr. 187.) 4. Discovery of “Mail2” Problem In June 1998, the anomaly Barry had noted in January 1998 was proven to be a systemic problem. NG employees Robert Haas (“Haas”) and Yiman Salim (“Salim”), during a June training session to bring the newly-hired Salim up to speed, discovered the existence of e-mail from the Lotus Notes e-mail system which had never been transferred to ARMS. (Id. at 185.) After reporting the discovery to their supervisor, Betty Lambuth (“Lambuth”), the NG group, which also included Spriggs and Sandy Golas (“Golas”), determined that the cause of the problem was a coding error — specifically, the use of upper case letters rather than mixed case letters to identify the Mail2 server which handled Lotus Notes e-mails of certain users. They discovered that because the Notes-ARMS interface program was case sensitive, this error had caused incoming internet e-mail from systems outside the EOP to affected Lotus Notes accounts on the Mail2 server not to be transferred into the ARMS system. (Id. at 194.) At the time NG initially discovered the Mail2 problem, Barry was not informed. (Aug. 3 Tr. 86; Aug. 18 Tr. 115, 121.) When Barry returned from a trip in early July, he was instructed first to report to his supervisor, Kathleen Gallant (“Gallant”), and then to Lambuth. (Aug. 3 Tr. 86; Aug. 18 Tr. 115; Aug. 22 Tr. 94.) It was during his briefings on July 6, 1998 that Barry learned, for the first time, of the systemic Mail2 problem. (Aug. 3 Tr. 86.) That same week, Barry reviewed his deposition transcript. (Aug. 3 Tr. 194; Aug. 17 Tr. 72-73.) Barry understood that this was his opportunity to make any changes he thought were necessary, substantive or otherwise, to correct his deposition. (Aug. 17 Tr. 74, 77.) Barry availed himself of that opportunity, marking up his copy of the deposition transcript with the requested corrections and faxing the marked-up pages to DOJ counsel Julia Fayngold (“Fayngold”) for the preparation of an errata sheet. (Pl.Ex. 47; Aug. 22 Tr. 40-41, 96.) The changes Barry made were all of a clerical nature. (Id. at 96-97.) Although Barry sent deposition corrections to Fayngold the same week he learned of the Mail2 problem, he claims that he did not connect that knowledge with his deposition testimony. (Aug. 22 Tr. 100.) That testimony had focused instead on ARMS and the process of searching ARMS and had touched on the AU-in-One e-mail system. The Mail2 problem, in contrast, was not a problem with ARMS itself but with the Notes-ARMS interface; the Mail2 server was separate from the ARMS hardware; and neither the Mail2 problem nor the Mail2 server affected the process by which one searches ARMS. (Id. at 100-01; Aug. 3 Tr. 68, 101.) Similarly, Barry testified that it never crossed his mind to go back and amend his first declaration because there was no connection in his mind between the Mail2 problem and the earlier declaration describing the All-in-One reconstruction effort and the process by which ARMS is searched. (Aug. 22 Tr. 95-96.) Because Barry never made a connection in his own mind between the Mail2 problem and his prior statements in the Alexander case, he never advised the lawyers he had worked with on the case, in either the White House Counsel’s Office or DOJ, of the Mail2 problem. (Aug. 22 Tr. 100, 106-07.) This is the type of compartmentalized thinking of a computer expert to which the Court made reference earlier. Plaintiffs would have this Court conclude that Barry is lying and participating in a conspiracy and a deliberate cover-up. The Court concludes to the contrary. Barry has truthfully described his thought process. Flawed as it is, he genuinely believes he told the truth in his declaration and at his deposition. It turned out, unfortunately, that Barry made statements in his declarations and deposition that simply were not true. 5. Reaction to the Mail2 Problem As soon as NG discovered the Mail2 problem, NG employees notified their government counterparts, who in turn immediately advised the appropriate officials within OA. (Aug. 23 Tr. 5-8; Aug. 2 Tr. 38-39.) Action was taken on two fronts. First, OA and NG were instructed to find a way to fix the problem, or as that process soon became known, to “stop the bleeding.” (Aug. 23 Tr. 97.) OA’s primary concerns were document preservation and compliance with archival requirements, and it assigned the task of fixing the problem to NG contractual employees and technicians within OA. (Aug. 23 Tr. 9-10, 23.) Second, OA management made sure that government officials outside OA who needed to be advised of the problem because of outside information requests were so advised. Thus, Mark Lindsay (“Lindsay”), then General Counsel of OA, advised the Assistant to the President for Management and Administration, the Deputy Chief of Staff of the White House, and the Counsel to the President about the problem. (Sept. 22 Tr. 32-35; Aug. 23 Tr. 18, 45^46.) Action on these two fronts proceeded as follows: (a) Fixing the problem and preserving records In June 1998, after NG employees learned of the Mail2 problem, they advised their supervisor Lambuth, who in turn, advised Laura Crabtree (“Crabtree”), the IS & T Desktop Branch Supervisor, who in turn, advised Lindsay, (Aug. 23 Tr. 5-8.) Lindsay informed OA Director Ada Posey (“Posey”) and Assistant to the President for Management and Administration Virginia Apuzzo (“Apuzzo”), and Posey assigned Lindsay and OA procurement counsel Kate Anderson the task of working with NG to fix the Mail2 problem. (Aug. 16 Tr. 188-89; Aug. 23 Tr. 24.) The plan for fixing the Mail2 problem involved a two-step process. The first was the prospective fix (“stopping the bleeding”), which would involved recoding “MAIL2” to “Mail2” for the affected e-mail users, thereby allowing external e-mail on the Mail2 server to pass through the Notes-ARMS interface program and enter ARMS. (Aug. 14 Tr. 133-34; Aug. 23 Tr. 97.) The second step was to restore from backup tapes those e-mails which had not entered ARMS and move them into ARMS. (Sept. 22 Tr. 67-68.) But the execution of this plan was slowed by several factors. First, shortly after the Mail2 problem was discovered, NG underwent a series of changes in both its management and organizational structure at EOP. In particular, NG relocated both Lambuth and her superior, Stephen Hawkins (“Hawkins”), and the employees responsible for working together to resolve the Mail2 problem were reassigned to separate working groups and given new responsibilities. (Aug. 1 Tr. 50; Aug. 15 Tr. 34.) As a result, the NG employees lacked both the mandate and guidance they required from their management to address the Mail2 problem, and it was not until the early fall of 1998, when they reached out to their company counsel, that they received the direction they were seeking. (Aug. 14 Tr. 54-56, 71-74.) Second, progress on the prospective fix of Mail2 was delayed by a dispute over the scope of NG’s contract. NG initially took the position that because the Mail2 problem was caused by a coding error made when the previous contractor, PRC, Inc., was responsible for the Notes-ARMS interface program, the task of fixing the Mail2 problem was outside the scope of NG’s contract and therefore, not its responsibility. Thus, shortly after the discovery of the Mail2 problem, NG supervisor Hawkins advised Lindsay that NG would not do any work on the problem. That triggered an extensive period of negotiations between NG and OA. Eventually, in December 1998, NG did submit a proposal, not to fix the Mail2 problem, but to study how to do so, at a cost of $600,000. OA officials, including Posey and Lindsay, found this proposal merely to study the problem to be far too expensive. (Aug. 16 Tr. 189-90; Aug. 23 Tr. 191; Pl.Ex. 9-64.) The cost seemed especially high in view of the fact that OA was then struggling with limited resources, including a recent 25% staff cut, and the daunting task of insuring that all OA computer systems were made Y2K compliant. (Aug. 16 Tr. 110; Aug. 17 Tr. 58-59; Sept. 22 Tr. 82-83.) ín the meantime, OA took steps to preserve the e-mails affected by the Mail2 problem by preserving the backup tapes rather than recycling them, as was the ordinary practice. (Aug. 23 Tr. 101.) The need to purchase new tapes instead of recycling the old ones created further demands on OA’s limited budget. While OA and NG engaged in unsuccessful negotiations to restore the backup tapes, OA acted to “stop the bleeding” by having NG recode “MAIL2” to “Mail2” for the affected e-mail users, to allow external e-mail to pass through the Notes-AKMS interface program and enter ARMS. (Aug. 14 Tr. 22; Aug. 23 Tr. 191.) Thus, in November 1998, the Mail2 problem was prospectively fixed. (b) Alleged threats to NG employees Plaintiffs offered testimony from Lam-buth, Haas, and Golas that when the Mail2 problem was first detected, NG employees were threatened with adverse consequences, including termination of employment and possible jail terms, if they revealed its existence. Lambuth testified that then-IS & T branch supervisor Crabtree related to her that then-OA General Counsel Lindsay had threatened the NG group, including Lambuth, Spriggs, Salim, Haas, and Golas, with jail terms if they disclosed the Mail2 problem. (Aug. 1 Tr. 18-19.) According to Lambuth, after Crabtree related the alleged threats to her, Lambuth conveyed them to her staff. (Id. at 22.) Lambuth testified that Lindsay made the alleged threat in a separate meeting with the NG group and Crabtree in Crabtree’s office, with Lindsay participating via speaker phone. (Aug. 1 Tr. 28-29.) Lambuth also testified that Lindsay threatened her during a meeting she attended in the office of Paulette Cichon, a claim that both Lindsay and Cichon have denied. (Aug. 23 Tr. 37; see Aug. 1 Tr. 92.) In contrast, neither Haas nor Golas testified to hearing the alleged threats from either Lambuth or Lindsay. Haas testified that is was Crabtree, not Lindsay, who referred to jail in response to a flippant comment by Haas about the consequences of discussing Mail2 with his wife. (Aug. 15 Tr. 32-33.) Golas testified only that she heard the word “jail” without knowing who said it. (Aug. 2 Tr. 164.) Lindsay denied making any threats, (Aug. 23 Tr. 36-37), and Lambuth and Golas testified that both Spriggs and Salim denied ever hearing the alleged threats, (Aug. 1 Tr. 87; Aug. 2 Tr. 165). In any event, all participants in the initial discussions about the Mail2 problem agreed that it was important and reasonable to keep their discovery of the Mail2 problem confidential until they had a fuller understanding of its nature and scope. (Aug. 1 Tr. 79; Aug. 2 Tr. 167-68; Aug. 15 Tr. 25-29; Aug. 23 Tr. 23.) Indeed, Haas and Golas testified that at the conclusion of a meeting about the subject, Lambuth, turning to the NG employees, gave the request for confidentiality her stamp of approval by asking whether each of the NG employees understood the request. (Aug. 2 Tr. 167-68; Aug. 15 Tr. 30-32.) The instructions concerning confidentiality were soon countermanded. Gallant, the IS & T supervisor, learned of the Mail2 problem within a few days of its discovery by the NG employees, and she took steps to have her staff address it. (Aug. 1 Tr. 219-21.) For example, she instructed Barry to obtain a full briefing on the problem from Lambuth upon his return on July 6. (Aug. 3 Tr. 86.) Barry communicated freely with NG and IS & T employees on the Mail2 matter, and openly expressed his concerns about it in a series of e-mails. (See, e.g., PI. Exs. 9-25, 9-40, 9-52.) He was never instructed to remain silent about the problem. (Aug. 22 Tr. 94-95.) Gallant also instructed her staff to stop using the term “Project X” when referring to the plans to fix the Mail2 problem because it sounded unnecessarily sinister. (Aug. 1 Tr. 219-21.) In addition, to reassure the NG employees, Gallant removed Crabtree from the Mail2 project. (Aug. 3 Tr. 222-23.) Lambuth, Haas, and Golas apparently understood that they needed clearance before discussing the matter with their NG supervisors. However, the first time discussions with NG supervisors came up (during a confrontation between Golas-and NG supervisor Stephen Hawkins), Lindsay spoke with Hawkins to defuse the misperception about secrecy that NG employees harbored. (Aug. 15 Tr. 36-38.) Gallant also told Hawkins that NG should arrange for the NG Mail2 group to meet with the company’s legal counsel, so that the NG employees could be advised of their legal rights and reassured that there was no cause for concern. (Aug. 1 Tr. 220-22.) The NG employees sought and obtained a meeting of that kind, on September 9, 1998, at which they discussed their concerns about the Mail2 matter with in-house counsel for NG. (Aug. 14 Tr. 54-55; Nov. 1 Tr. 82-85, 94-95.) There is no evidence that alleged threats of retaliation were communicated to NG in-house counsel at that meeting. (See Dec. 22 Tr. 29-30, 62, 86-87, 152, 162-63, 166, 169, 208.) After that meeting, the NG employees also met with Hawkins, and Hawkins advised them that there was no reason to fear retribution over Mail2. (Aug. 14 Tr. 71, 74.) After receiving these reassurances, Haas realized that the NG employees had blown the matter of alleged threats out of proportion, and that he had let his imagination run wild. He felt “childish” about it and admitted that the whole thing may have been the product, of “too many spy novels.” (Aug. 15 Tr. 34-37.) Indeed, after receiving these reassurances, Haas forgot about the alleged threats. (Aug. 14 Tr. 74.) Also following the September 9th meeting, NG’s director of contracts and pricing, Joseph Lucente (“Lucente”), and NG’s corporate counsel, Ralph Pope (“Pope”), sent a letter dated September 14, 1998, to Dale Helms, EOP’s contracting officer. In this letter Lucente, on behalf of NG, complained that another EOP employee (namely, Crabtree) had directed NG employees to perform repair tasks on the Mail2 problem that NG believed were outside the scope of its contract with EOP. (Pl.Ex. 9-64; Nov. 1 Tr. 101.) Concurrently, NG retained Earl J. Silbert (“Sil-bert”) as outside counsel to contact the White House Counsel’s office and make sure it was aware of Lucente’s letter and to advise it that NG attorneys were available to discuss the matters it raised. (Oct. 3 Tr. 40-41,100-01; Dec. 22 Tr. 23-24, 57-58, 69-70, 75-77, 152, 162-63, 169, 208.) Lucente’s letter made no mention of any threats to NG employees that they would be fired or jailed if they disclosed the Mail2 problem. (See Pl.Ex. 9-64.) Similarly, Silbert recalled no discussions about threats with the White House Counsel’s office, NG’s in-house counsel, the NG employee whom he interviewed, or anyone else in 1998. Silbert was confident that if he had had such discussions, he would have remembered them. (Oct. 3 Tr. 54, 63, 65, 73-74, 80, 83; Dec. 20 Tr. 48, 49, 72-75.) Both White House Counsel Charles Ruff and Lanny Breuer, the White House attorney whom Silbert called, similarly recalled no conversation with Silbert about threats to NG employees or any other aspect of the Mail2 problem. Breuer testified that if he had had discussions about these threats, he would have advised the White House Counsel. (Oct. 19 Tr. 65, 68-71 (morning session).) Ruff testified, however, that he learned of the alleged threats from the press. (Aug. 28 Tr. 71-72,130.) Pope and Lowell Brown, the NG corporate counsel who handled the Mail2 matter and to whom Silbert reported his conversations with the White House, also heard nothing about discussions of threats to NG employees. (Dec. 22 Tr. 29-30, 62, 86-87, 152, 162-63, 166, 169, 208.) Indeed, neither of these individuals — Pope, who met with the NG employees on September 9, 1998, and Brown, then head of internal investigations for NG and the person who retained Silbert — was even aware in 1998 of allegations that NG employees had been threatened with firing or jail, or heard of such allegations before the year 2000. (Id. at 62-65, 88-89, 151-53, 175-76.) Both Silbert and Brown testified that had any credible evidence of the alleged threats been brought to their attention, they would have engaged in thorough internal investigations to determine whether there was cause to take further action. (Oct. 3 Tr. 68-71; Dec. 22 Tr. 91-93, 95.) (c) Federal Records Act issue Lindsay, as OA general counsel, was not only concerned with fixing the Mail2 problem, but was also aware that it potentially raised serious issues about the preservation of records in compliance with the Federal Records Act and compliance with subpoenas and document requests. (Aug. 23 Tr. 98-99.) With respect to the Federal Records Act issue, Lindsay called Jason Baron (“Baron”), then a trial attorney in the Federal Programs Branch of DOJ, during June or July of 1998. (Id. at 98-100; Aug. 31 Tr. 47.) Baron was knowledgeable about the Federal Records Act and its construction by the District of Columbia Circuit in the Armstrong case, and Lindsay wanted to be briefed about that to determine whether the Mail2 problem presented an Armstrong issue. (Id. at 48.) Baron met with Lindsay the day after Lindsay called. (Id. at 46.) Lindsay described the Mail2 problem generally to Baron, and Baron learned that the problem was a recent one and had to do with external e-mail coming into the EOP but not entering ARMS. (Id. at 49-53.) The conversation between Lindsay and Baron did not concern the present case, (Aug. 23 Tr. 101), nor did Lindsay or Baron even refer to this case at any point during the conversation, (Aug. 31 Tr. 135). Baron concluded that the Mail2 problem, as described to him by Lindsay, did not implicate Armstrong because of the contemporaneous time-frame of the problem, because it only involved external e-mail coming into presidential records components of EOP, and because it was not the result of an intentional act. (See Aug. 23 Tr. 100-01.) For these reasons, and because Lindsay told him that EOP was working to solve the problem, Baron apparently did not inform his supervisor in the Federal Programs Branch about the Mail2 problem, and he did not relate his conversation with Lindsay to any member of the DOJ trial team in this case. (Aug. 31 Tr. 82-83,105,135.) (d) Compliance with information requests As noted above, Mark Lindsay understood that the Mail2 problem not only implicated records preservation issues, but also raised concerns about compliance with information requests. (Aug. 23 Tr. 98-99.) As a result, after Lindsay learned of the problem around June 18, 1998, and advised Apuzzo, Assistant to the President for Management and Administration, Lindsay asked his staff (at Apuzzo’s direction) to prepare a memorandum outlining the nature of the problem. (Aug. 23 Tr. 6; Sept. 22 Tr. 33; Pl.Ex. 9-1.) Apuzzo also asked Lindsay to inform Counsel to the President Charles F.C. Ruff (“Ruff’), of the problem, both by memorandum and in person. (Aug. 23 Tr. 34, 36; Sept. 22 Tr. 33, 39, 44; Pl.Ex. 9-1.) Lindsay converted the memorandum that was prepared for him, (Pl.Ex.9-136), into a memorandum from Apuzzo to Deputy Chief of Staff John Podesta (“Podesta”), (Aug. 23 Tr. 45). That memorandum, dated June 19, 1998, advised Podesta of an “anomaly” involving the Mail2 server by which incoming internet e-mail in some users’ accounts was not being transferred to ARMS. (Pl.Ex.9-4.) The memo also explained that “[a]n important function the [ARMS] system supports is the identification and retrieval of documents in response to information requests.” (Id.) Podesta received the memorandum and by way of a note in the margin, directed Apuzzo to have Lindsay brief him on the problem. (Pl.Ex. 9-4; Sept. 22 Tr. 44.) Apuzzo also sent a copy of the memorandum to Ruff on June 19, 1998. (Aug. 23 Tr. 48; Sept. 22 Tr. 40, 43; Pl.Ex. 9-1.) Lindsay had a “relatively brief’ meeting with Ruff on June 19, 1998. (Aug. 23 Tr. 55; Aug. 28 Tr. 62.) Lindsay, who knew little more at the time than what was in the memorandum, conveyed to Ruff the “sum and substance of what ... is contained in the memorandum.” (Aug. 23 Tr. 56; Aug. 28 Tr. 62.) He told Ruff that his office would try to fix the problem as soon as possible. (Aug. 23 Tr. 57.) At about the same time, Lindsay had a “very short meeting” with Podesta, (Aug. 23 Tr. 66), in which he informed Podesta of essentially the same information that was in the memorandum, (id. at 63; Oct. 10 Tr. 53). Podesta wanted to make sure that the White House Counsel’s office had been advised, and that Lindsay was “going to be working with the counsel’s office to address the issue.” (Aug. 23 Tr. 65; Decl. of John Podesta, Ex. 1 to EOP’s Mot. for Reconsideration of Order of Sept. 12, 2000 (“Podesta Deck”), ¶5; Oct. 10 Tr. 52-53.) The conversation between Lindsay and Podesta involved the nature of the computer anomaly and the fact that Lindsay was going to work on it, (Podesta Decl. ¶ 5), not how it may have affected document production, (Aug. 23 Tr. 65). After being reassured by Lindsay that Ruff was informed of the problem, Podesta had no further conversations with Lindsay about Mail2, and he heard nothing more about it until the year 2000. (Oct. 10 Tr. 58-59.) After learning of the Mail2 problem from Lindsay, Ruff told Deputy White House Counsel, Cheryl Mills (“Mills”), about his conversation with Lindsay and discussed with her the need to find out whether the Mail2 problem affected prior document productions. (Aug. 28 Tr. 81-82.) Although Ruff appreciated that the problem may have affected prior document productions, (id. at 83), the matter that was “the most current and pre-eminent” concern to him at the time was the subpoenas involving Lewinsky from the Office of the Independent Counsel to which his office had recently responded, (id. at 82-83). Ruff was unaware of any request for production, or search, of e-mail in the present case, (id. at 48, 128), and he did not focus particularly on this case at the time, (id. at 84). Mills’ recollection of this conversation is that Ruff informed her that “there was a problem with the e-mail, and certain emails may or may not have been captured with respect to the Lewinsky investigation; that OA was conducting a search.” (Sept. 1 Tr. 83.) Mills testified — somewhat curiously — that Ruff did not show her the Apuzzo memorandum describing the email problem. (Id. at 86.) Mills testified that her “impression” was that the e-mail problem affected only the Lewinsky investigation, not any other case or investigátion. (Id. at 85.) She understood “that Mr. Lindsay had indicated [to Mr. Ruff] that there were certain e-mails that may or may not have been captured”, (id.), and she “assumed that Mr. Lindsay would communicate with OA whatever steps needed to be taken” to ensure that any missing e-mails were located and brought to the Counsel’s Office for review. (Id. at 79-80.) This was the most critical error made in this entire fiasco. Ruff properly followed up by turning the problem over to his deputy to handle. Mills’ actions were totally inadequate to address the problem. Her failure was only compounded when Lindsay never raised a follow-up question about what Ruff was doing and how the issue was being addressed and the problem solved. Lindsay’s actions were those of the perfect bureaucrat — hand off the problem to someone else and then wash your hands of it. While the Court finds the actions of both Lindsay and Mills to be loathsome, there is simply no evidence that they were motivated by an intent to engage in a conspiracy or to obstruct justice. Subsequent to Ruffs delegation of the issue to Mills, someone from the White House Counsel’s Office contacted Lindsay and asked that OA conduct a search of email associated with four named individuals. (Aug. 23 Tr. 142-43.) Lindsay gave the names to Crabtree, and asked her to give them to the appropriate computer people to conduct the search. (Id. at 43.) The requested names reached Lambuth, who around June 20, 1998, asked Spriggs to check the e-mail files of four or five individuals to see if they contained any email from Lewinsky. (Aug. 2 Tr. 200; Aug. 14 Tr. 6, 29.) Spriggs, who was working with Haas at the time, showed Haas the note in which Lambuth made the request, and the two worked together to perform the search. (Aug. 2 Tr. 199— 201.) Haas located about 400 e-mails from Lewinsky in the file of Raines, who was not on the list of names given to him but whose file he searched because of his knowledge of the January 1998 anomaly. (Aug. 2 Tr. 201-02.) At Lambuth’s direction, Haas printed out those e-mails. (Id at 203.) With the exception of two emails, Haas never read any of them. (Id at 203, 207, 208-09.) Haas gave the emails to Lambuth, and Lambuth delivered them to Lindsay. (Aug. 14 Tr. 8, 10.) Lindsay took the documents to the White House Counsel’s Office and left them with an administrative assistant. (Aug. 23 Tr. 144; see also Sept. 1 Tr. 72.) When the approximately 400 printed out Lewinsky e-mails arrived, Mills asked Associate White House Counsel Michelle Peterson (“Peterson”) to conduct a comparison between those e-mails and the Lewinsky e-mails that had been produced in response to a subpoena from the Office of the Independent Counsel. (Sept. 1 Tr. 72-73; Aug. 28 Tr. 197.) Peterson had the most familiarity with the Lewinsky documents because she had handled the production to the Independent Counsel. (Sept. 1 Tr. 73.) After examining the documents Mills gave her, Peterson realized that they were all a-mails between Lewinsky and Raines. (Aug. 28 Tr. 200.) Consequently, she obtained from the Office of Records Management copies of all the Lewinsky-Raines emails that had been produced to the Independent Counsel, and she stacked them next to the stack of documents Mills had given her. (Id) Peterson then undertook the “ministerial task” of comparing the two stacks to see whether all the e-mails in the stack she had gotten from Mills were also in the stack of e-mails that had been produced to the Independent Counsel. (Id at 201-02.) She found that “everything that was in the stack that Ms. Mills gave [her] was also contained in the stack that [they] had already produced to Independent Counsel Starr.” (Aug. 28 Tr. 202-03.) Peterson was “relieved]” that nothing had been omitted from the production to the Independent Counsel, (id at 203), and she concluded, as a result, that the problem Mills had described to her was “a nonissue,” (id at 210). She then telephoned Mills and informed her that the emails Mills had given her were the same as the e-mails that had been produced. (Id. at 209-10; Sept. 1 Tr. 76.) Mills passed this information along to Ruff, and in her mind, “that was the end of the matter.” (Sept. 1 Tr. 108.) Mills’ totally inadequate performance of duty directly led to all the adverse criticism the White House suffered in this document production fiasco. When Ruff was informed that a comparison was done between the e-mails that had not entered ARMS because of the problem Lindsay had told him about and the emails that had been produced to the Independent Counsel, and that the “comparison showed that the two packages were identical”, he concluded that the problem “had not infected prior document product.” (Aug. 28 Tr. 85, 113.) To Ruff, that was the end of the Mail2 problem. (Id. at 136.) In hindsight, Ruff acknowledged that, it was now apparent that his understanding of the impact of the Mail2 problem upon prior document productions was “mistaken.” (Id. at 123.) To the extent that the White House Counsel’s Office “failed to understand the true nature of this problem for any reason,” he, as the head of that office, took responsibility for it. (Id.) He assured the Court, however, that “if there had been any sense on my part or the part of any of the members of my staff that, in fact, there was a problem that persisted or that infected our prior productions, we would have done something about it.” (Id. at 124.) The Court credits Ruffs belief as sincere, but concludes that Ruffs deputy (Mills) failed miserably in her follow-up. (e) The Insight Magazine article Shortly after the Mail2 problem had been fixed prospectively, plaintiffs’ counsel sent a letter to DOJ attaching an article dated December 28, 1998, from Insight Magazine. (Pl.Ex.20.) The article addressed two subjects. First, it alleged that extensive, previously undisclosed telephone billing records were in the Old Executive Office Building. Second, the article stated that a routine computer repair job at the White House had resulted in a “blockage” of about 100,000 e-mails, and that a project — called “Project X” — was underway to restore them. The article made no reference to “Mail2,” nor suggested that any e-mail was unavailable for searching. (Id.) On December 15, 1998, plaintiffs’ counsel brought the Insight article to the Court’s attention during a hearing to determine the amount of time defendants would be allotted to cross-examine Linda Tripp. (See Dec. 15, 1998 Tr. 12 (transcript of status hearing); Aug. 28 Tr. 170.) Plaintiffs’ counsel described the import of the article as confirming Tripp’s testimony that a “big brother” computer system existed at the White House. “[T]hey never erased anything[;] ... there is a backup email system.” (Dec. 15 Tr. 12-13.) DOJ counsel for EOP, Elizabeth Shapiro (“Shapiro”), in response to a question from the Court, stated that she was not then in a position to provide a response to the allegations in the Insight article. (Dec. 15 Tr. 34.) She stressed, however, as counsel for EOP had done many times in the past, that the parties had not yet reached agreement as to the parameters of any e-mail search. (Id.) In addition, counsel for EOP requested an opportunity to respond to the Insight article, after counsel had the opportunity to look into the allegations. (Id. at 45.) Subsequent to the December 15, 1998 hearing, DOJ counsel for EOP did, in fact, make inquiries to the White House regarding the Insight article. As Peterson testified: “[T]he Justice Department made inquiries as to whether or not there was any truth to this article, and I did my best to find out whether there was.” (Aug. 28 Tr. 180.) While Peterson could not remember the DOJ lawyer with whom she spoke about the Insight article, and while the focus in her mind was the article’s allegation regarding telephone billing records, she was positive that she had conversations with DOJ counsel regarding the article. (Aug. 28 Tr. 180-81.) With respect to the e-mail portion of the article, Peterson could not recount the specific conversation. (Id.) Nevertheless, she “cannot imagine that I was not asked about the e-mail question as well,” (id. at 183), and suspects that she conveyed to DOJ counsel the extent of her contemporaneous knowledge of the subject: that there had been “a small problem that appeared to exist with respect to the Lewinsky search that turned out not to be a problem.” (Id. at 184.) Shapiro subsequently confirmed to the Court that she was the DOJ attorney who brought the Insight article to Peterson’s attention and discussed the entire article with her. (Oct. 10 Tr. 99-101.) With respect to the allegation in the article that additional telephone records resided in the basement of the Old Executive Office Building, Peterson advised that, after consulting with Hall, she was assured that the allegations were untrue. (Id. at 100.) With respect to the e-mail portion of the article, Peterson reported that “there had been some issue relating to the Lewinsky matter, that it had been fixed.” (Id.) Because the telephone record allegations proved to be incorrect, because the Lewinsky matter had been deemed irrelevant to the case, because counsel understood that whatever “nonissue” had occurred with respect to the Lewinsky production had been fixed, and because, in any event, no ARMS search for e-mails had yet been performed in the case, DOJ counsel for EOP did not feel it necessary to respond to the Insight article or to pursue the matter further. (Id. at 100-01.) This, of course, turns out to be another point where much grief could have been spared if a more thorough inquiry had been made by DOJ and White House counsel. Another opportunity was squandered. It is understandable to the Court, because plaintiffs’ overblown rhetoric over time tends to dull the senses of even the most competent opposing counsel. And once again, the Court finds that this failure to adequately investigate was simple error, not part of some grand conspiracy to deprive plaintiffs of their rights. (f) Restoration of the unarchived email Once the Mail2 problem had been fixed prospectively, the backup tapes ordered preserved, and the White House Counsel’s Office advised of the problem, restoration from the backup tapes of the e-mail affected by the Mail2 problem — while necessary — was not the top priority within OA. (Aug. 23 Tr. 153,159,173; Sept. 22 Tr. 82-83.) Rather OA faced a “Y2K imperative.” (Sept. 22 Tr. 69, 96-95; Aug. 23 Tr. 153, 159, 173.) Simply put, it was deemed essential for OA to bring all EOP systems into Y2K compliance or possibly face catastrophic system failures. (Sept. 22 Tr. 95.) Bringing all of EOP’s computer systems into Y2K compliance and embarking upon a sizeable e-mail reconstruction project were both expensive and resource-intensive propositions. (Sept. 22 Tr. 69, 70, 83.) EOP’s information technology infrastructure was antiquated, (Aug. 23 Tr. 152-53), and at the time in question, IS & T’s human and fiscal resources were already stretched thin. Under these circumstances, Lindsay was advised by the members of OA’s technical staff that attempting to undertake the Mail2 reconstruction project at the same time as the Y2K effort would place the success of the Y2K program, which was already behind schedule, at substantial risk. In addition, even if funding for the Mail2 project was forthcoming, management was advised that OA did not have the capacity to handle both projects. (Sept. 22 Tr. 82-83.) Given the urgency of Y2K, therefore, Lindsay did not request funding for the Mail2 reconstruction when he testified in March 1999 before the congressional committee responsible for EOP appropriations. (Aug. 23 Tr. 14-15, 152-53; Sept. 22 Tr. 83; Aug. 17 Tr. 69.) While OA evaluated the issue, it decided, for strategic reasons, that it needed to push as hard as possible to receive from Congress the maximum amount of funds to support the Y2K effort. (Aug. 23 Tr. 153.) Nevertheless, though it was not the subject of his testimony, Lindsay did inform committee staff and the chairman about the instability of EOP’s systems, and the potential to lose information. (Aug. 23 Tr. 154-55.) To the computer technicians working within OA, it appeared that their concerns about a retrospective fix of the Mail2 problem were going unheeded. Barry, for example, sent a number of e-mails expressing his concerns about the Mail2 problem. (See, e.g., PLEx. 9-53; Aug. 22 Tr. 105; Pl.Ex. 9-37; Pl.Ex. 24-4484; Aug. 18 Tr. 126, 172; Pl.Ex. 39-2804, 2798.) These technicians, however, were not involved in, or privy to, the broader policy considerations of EOP, the strategic considerations that went into the appropriations process, (Aug. 16 Tr. 17-18), or the information that had come back from the White House Counsel’s Office, (Aug. 15 Tr. 10-11). For Lindsay’s part, to the extent he was made aware of the technical staffs concerns second hand, he testified that he understood them only to involve an archival “reconstruction issue,” and not the completeness of searches performed on ARMS. (Aug. 23 Tr. 172-74, 200.) 6. Plaintiffs ’ Second Request for Production of Documents and the July 1999 Barry Declaration On October 27, 1998, plaintiffs served their Second Set of Requests for the Production of Documents (“Second Set”) on the EOP. Request No. 28, as originally submitted, sought “[a]ll e-mail correspondence to or from Craig Livingstone, Anthony Marceca, Hillary Rodham Clinton, Bernard Nussbaum, or William Kennedy recovered in previous e-mail searches, as described by Daniel Barry at [various] pages ... of his June 11, 1998 deposition .... ” (Second Set 12 (emphasis added).) EOP objected to this request as overbroad and irrelevant, and it reiterated its earlier offer “to perform searches of archived White House email within parameters as to date, users, and search terms reasonably calculated to lead to the discovery of relevant information without imposing an undue burden on EOP.” (EOP’s Response to Second Set 22, 26, Jan. 14, 1999; see also Giles-Klayman Ltr.) On March 26,1999, plaintiffs filed a 135-page motion to compel concerning almost 100 of the requests in their second set of document requests. After EOP brought to plaintiffs’ attention the fact that they failed to comply with Local Rule 108(m), plaintiffs withdrew that motion, and the parties engaged in two days of negotiations. EOP provided plaintiffs with supplemental information and documentation concerning Request No. 28 on April 22, 1999. EOP stated that following the discovery of the FBI files matter in June 1996, a search was performed for e-mail to or from Craig Livingstone or Anthony Marceca during August 14-27, 1993. That search yielded no results. (Supp. Response to Second Set 13-14, Apr. 30, 1999.) EOP pointed out that this result was consistent with Barry’s March 4, 1998 declaration, which explained that Livingstone did not have an e-mail account at the White House. (Id. at 14.) Further, EOP stated it had never “otherwise performed a search for archived e-mail related to the FBI files matter.” (Id.) EOP refused, however, to provide discovery about searches of White House e-mail undertaken in connection with other controversies, rejecting plaintiffs’ theory that these searches might yield e-mail relevant to this case. (Id.) EOP reiterated its offer to perform a search on a reasonable number of relevant individuals’ e-mail, using a reasonable set of search terms. (Id.) Plaintiffs then filed, on June 14, 1999, a. Motion to Compel Production of Docu-merits Regarding Second Request of EOP and for Further Relief as the Court Deems Just and Proper (“Mot. to Compel”). Plaintiffs argued that they needed responses to many of their “computer-related requests” so they could “properly evaluate the estimates and opinions given by the EOP’s own computer experts regarding the burden the EOP alleges it would suffer if it had to search for and produce electronic documents”. (Mot. to Compel 2.) In addition, plaintiffs’ motion transformed Request No. 28 from a request for e-mail correspondence to or from five individuals recovered in past searches into a first-time request for a “preliminary” search of e-mail to or from thirty named individuals plus “all past and present members of Mrs. Clinton’s staff, and all those who worked at the OPS during the Clinton Administration.” (Id. at 27.) On July 9, 1999, EOP filed an opposition to the motion to compel and attached another declaration from Barry (“1999 Barry Decl.”) of the same date. The purpose of the declaration was to respond to plaintiffs’ search request by providing an estimate of the time and cost associated with it. (Aug. 28 Tr. 220, 245.) Indeed, DOJ counsel informed Peterson in the White House Counsel’s Office shortly after plaintiffs filed their motion to compel that EOP would probably need a declaration from Barry “describing] how difficult it would be to do the search that plaintiffs’ counsel had asked for.” (Id. at 220.) On June 22, 1999, Peterson sent an email to Barry conveying to him the contours of the search requested by plaintiffs and asking him to explain whether the search would be too burdensome. (Pl.Ex. 39-1051628-29; Aug. 28 Tr. 244-45.) The next day, Barry provided her with an estimate of the time and cost of conducting the search. (Pl.Ex.39-1051630-31.) These estimates became the basis for the assertions regarding the time and cost of plaintiffs’ requested e-mail search. (Compare id. with 1999 Barry Decl. ¶¶ 6-12.) The 1999 Barry Declaration was initially drafted by DOJ counsel. (Aug. 18 Tr. 141; see Pl.Ex. 39-1051813.) DOJ counsel consulted with Barry several times in early July, both directly and through Peterson, in an effort to edit and finalize the document. (See PI. Exs. 39-1051813-31, 39-1051834-54.) Barry was shown the drafts, and he marked them up and faxed them back to either White House counsel or DOJ counsel. (Aug. 17 Tr. 145-46.) Among his edits were several changes to the wording of the first sentence of paragraph four, (id. at 148-50), which read, “Since July 14, 1994, e-mail within EOP has been archived weekly in an on-line format,” (Pl.Ex.39-1051633). Barry struck the phrase “weekly in an on-line format” and substituted “in the EOP Automated Records Management System (ARMS).” (Id.; Aug. 17 Tr. 148-50.) These changes were later incorporated into the declaration. (Aug. 17 Tr. 159-60; see 1999 Barry Decl. ¶ 4.) In its final form, paragraph four of the declaration stated: Since July 14, 1994, e-mail within the EOP system administered by the Office of Administration has been archived in the EOP Automated Records Management System (ARMS). With this current system, this e-mail is susceptible to being word-searched, for a single character string (e.g., “FBI” or “FBI files”) or a multiple character string (“and” and “or” searches) found on any one line of text. (1999 Barry Decl. ¶ 4.) Barry viewed this statement in paragraph four as “essentially the same” as the statement he had made in paragraph eleven of his earlier (March 4, 1998) declaration. (Aug. 18 Tr. 144.) He expressed his understanding of the earlier statement — with genuine incredulity that it could be interpreted differently from the way he intended — as follows: [Paragraph eleven] defines what ARMS does. ARMS archives e-mail. That’s what it does. That what it says it does. So how can it be false, if that’s what ARMS does? It doesn’t to my knowledge say that ARMS archives all e-mail within the EOP. I wouldn’t have signed it. I wouldn’t have signed it today. I wouldn’t sign it in '93. I wouldn’t sign it anywhere in my career at EOP. (Aug. 3 Tr. 150.) Similarly Barry understood paragraph four of the 1999 declaration to be no more than “an introductory paragraph saying what ARMS has been doing for the last two years, three years.” (Aug. 17 Tr. 165.) It was a general “introduction to ARMS.” (Id. at 149.) From