Some of the more particular rules at issue go to the legal proceedings involving those documents as much as logging systems.

In a piece of litigation, if there are items that are being asked for (as discovery or under a FOIA request) by one party, the other party has to either produce them or explain to the court why they are not being produced. In a FOIA setting (the ACLU case here is that kind of setting – other cases out there also had document production requirements that were in a discovery setting and not a FOIA setting), the way the government is supposed to respond with the documents that it would have to produce “but for” it’s right to assert some kind of exemption or privilege is through a “Vaughn Index”

A Vaughn Index is a judicially created requirement on the lawyers for Gov, in response to a FOIA request, to: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption. What would typically happen is gov would make a copy set of documents it is not going to produce under the FOIA request litigation and that set would match up with the index. That way the original documents continue to be used and in play and filed however they need to be filed, etc.

Here, Gov/OLC/Barron is saying that back in 2005, when the Vaugh Index was prepared for this piece of ACLU litigation (originally they had tried not have to prepare one at all and just claim generic privileges), a copy set was not kept because *the documents were too sensitive.” Now, they are asserting this as a fact, although supposedly the people who made the decision not to keep a copy set aren’t around and no one is getting them to make any declarations under oath about the “why” of there being no copy set. Barron is very careful to make sure that he is only stating things “on information and belief” over and over, since he has no personal knowledge, and yet he chirps up with the reason for no copy set as if he does have personal knowledge – which is interesting in and of itself

OK, even if you didn’t want to make extra copies of the documents because they were so senstive, they are being asked for in all kinds of settings – not just this ACLU litigation. So one way that I am familiar with (and there are probably others that the litigators here would know about) to keep track of the documents on something like a Vaugh Index (or a production list over which privilege is being asserted and that you won’t bates stamp) is to affix to the documnet a tracking sheet – which litigation it is responsive too, what exemptions/assertions were relied on in that litigation to not produce it, how it is referenced in that litigaton. There was no reason that the documents in the OLC SCIF couldn’t have tracking sheets in lieu of copy sets.

In any event, of all kinds of documents being held in the OLC’s Sensitive Compartmentalized Information Facility under various filing systems and mechanism, some 183or so were determined back in 2005 to be responsive to the ACLU requests, but OLC wasn’t going to turn them over, so onto a Vaughn Index they go. But then, supposedly, no one made any notations on them or tracking sheets or anything and they were all returned to their generic places in the filing system. Then, at various times and from time to time, at least the CIA and OPR stopped by the OLC SCIF and took stacks of info for various reasons (and during this time, other litigation was going on where document production was at issue and other FOIA requests were being processed or subject of litigation as well, some where some of the same documents that were on the ACLU 1005 Vaughn Index were at issue, as well as other documents, and some of those documents were staying in the OLC SCIF, but some were being trotted over to at least OPR and CIA – and without any real revelations of how they were handled there. For that matter – we are only getting this info for the OLC Vaughn Index documents and only getting it now – what was happening with documents that were in the care and custody of other people and places isn’t even being touched on yet.

So as EW has mentioned, the Vaughn index gets one pre-Obama correction and now, in connection with responding to filings by the ACLU and rulings by the Judge on the sufficiency of the Vaughn Index, Barron & Co at OLC are saying at least four sets of very disturbing things.

1. Because the prior index(es) were so bad when it comes to adequately describing the documents not being produced, and because no copy sets were kept, OLC isn’t really sure for a big chunk of the 183 documents if they can really “match” the documents that they are now holding back and not producing with the documents under the old Vaughn index, especially since the ones they think are matchs often have discrepancies from their description on the old index (like page numbers, dates, etc.)

2. Even making their best guesses, they have a set of at least 11 documents from the old index that they can’t find.

3. After the first index was made, documents have gone in and out of the OLC SCIF to other agencies and to other departments of DOJ, without any way to trace what went to whom, when, and whether it came back.

4. Oh, and by the way – once they started looking so hard for those missing 11 or so documents they realized that there are another 160+ or so documents that SHOULD HAVE BEEN on the old list, but were left off.

Now I don’t know what the statutes or interdepartmental rules or any punishment related to them would be. But in the judicial setting, what we have are at least three sets of issues that I can see.

One is the general professional ethics issues for the lawyers in the ACLU suit (and since the revelations go to how documents at the OLC SCIF were handled in general, this goes to numerous other suits), who have duties of candor to the tribunal and other kinds of duties and the impact of the failure to fulfill those duties. That impact can have a wide range of responses from the court, and they would typically be tied to how big the breaches are and how long they continued and whether originally responsible lawyers owned up or others had to come in and air the laundry, etc.
The second is duties under procedural rules of court relaing to production and case law rules like the Vaughn index requirements, and what are the appropriate remedies for those breaches of litigation rules of procedure.

The third is the issue and area of obstruction of justice. While you usually don’t have obstruction at issue for simple or non-material etc. violations of rules of professional conduct or even procedural rules, you can reach a point where the nature of the activity becomes fraud on the court and/or obstruction of justice.

Basically, you have Barron telling the court that he has now, years later, found almost as many documents as were originally described that now need to be added. He’s also told the court that OLC so handled documents that it can’t tell what it did or didn’t list in indexes (and presumably that holds for other proceedings than the ACLU FOIA litigation) with respect to torture litigation. Oh, and documents that were supposedly so sensitive that you couldn’t make a copy set have been trotted around from offices to offices without receipts and without tracking sheets. Oh, and some seem to have never made it back. And oh yeah – there also seem to be way over 150 documents that no one bothered to mention to the court in this ACLU proceeding (and you have to wonder about all the other proceedings)

And the court is going to have to decide now whether or not it is believeable that all this is a matter of Joey’s Dog Ate His Homework and let it slide, or not. And if not, how far it is going to go. If it wants to appoint counsel to pursue possible obstruction and fraud on the court issues, as was done in the Stevens litigation, then what? And how do you limit that to the issues of the ACLU case only, when what Barron has said clearly implcates lots of other litigation?