Court orders White House to preserve e-mail backups

A federal district court judge issued a temporary restraining order today requiring the Bush administration to safeguard backup media files that may contain copies of millions of White House e-mail messages — the subject of ongoing litigation.

Citizens for Responsibility and Ethics in Washington (CREW), a watchdog group, requested the order last month. It and George Washington University’s National Security Archive are suing the Bush administration for allegedly failing to “recover, restore and preserve certain electronic communications created and/or received within the White House.”

The complaint alleges that since 2003 the Bush administration has illegally discarded about 5 million e-mail messages that it was required to keep under records laws. The plaintiffs are demanding that the missing messages be restored using the backup media files and that the administration implement a new “adequate electronic management system.”

The groups’ lawsuits against the Executive Office of the President, the White House’s Office of Administration, and the National Archives and Records Administration have now been consolidated.

CREW filed for the temporary restraining order after the group said it did not receive adequate assurances from the White House that the backups were being protected.

The decision by the U.S. District Court for the District of Columbia confirms a magistrate’s earlier recommendation that the order be issued. Under the temporary restraining order, the defendants are required to safeguard all media in their possession as of Nov. 12.

But because the order is not retroactive, it does not clarify what has happened to the backups since 2003, said Meredith Fuchs, the National Security Archive’s general counsel. Concerns that the backups could have been erased in the past four years -- perhaps as part of normal business processes -- coupled with the limited time remaining for the Bush administration prompted the plaintiffs to ask for an expedited discovery process, she said.

The Bush administration formally opposed the early discovery request Nov. 9, she said.

"We will study the Court's order and the magistrate's recommendations," said White House spokesman Blair Jones. "However, the Office of Administration has been taking steps to maintain and preserve backup tapes for the official email system. We have provided assurances to the plaintiffs and to the Court that these steps were being taken. We will continue preserving the tapes in compliance with the Court's order."