UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SHIRLEY SHERROD, Plaintiff, ) ) ) ) ) v. ANDREW BREITBART, LARRY O’CONNOR, AND JOHN DOE, Defendants. ) ) ) ) ) ) ) Case No. 1:11-cv-00477 (RJL) DEFENDANT LARRY O’CONNOR’S MOTION TO COMPEL COMPLIANCE WITH SUBPOENAS DIRECTED TO THE UNITED STATES DEPARTMENT OF AGRICULTURE AND THE EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES COMES NOW Defendant Larry O’Connor, by and through counsel, and hereby moves the Court to compel compliance with subpoenas directed to the United S tates Department of Agriculture and the Executive Office of the President of the United States. In support of his motion, O’Connor refers to the memorandum attached hereto and made a part hereof. Pursuant to Local Civil Rule 7(m), after the Feb ruary 20, 2014 hearing, coun sel for O’Connor conferred further with counsel for the Department of Justice and counsel for Shirley Sherrod regarding resolution of this matter. Counsel for the Government r efused to make any changes to its initial proposal and opposes the relief sought by this motion. Case 1:11-cv-00477-RJL Document 93 Filed 03/03/14 Page 1 of 3
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Sherrod v Breitbart - O'Connor Motion to Compel Subpoena to USDA 3-3-2014
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8/20/2019 Sherrod v Breitbart - O'Connor Motion to Compel Subpoena to USDA 3-3-2014
I. INTRODUCTION...............................................................................................................1
II. FACTUAL BACKGROUND .............................................................................................2
III. ARGUMENT ......................................................................................................................6
A. The documents O’Connor seeks are relevant to the parties’ claims anddefenses ...................................................................................................................6
1. The USDA and EOP discovery relates to whether Sherrod canestablish that the Blog Post caused her injury ............................................. 6
2. Information from the USDA and the EOP that supports defendants’
evaluation of Sherrod and her speech is relevant ...................................... 10
B. The Department of Justice’s proposal for production of USDA and EOPdocuments is unreasonably deficient.....................................................................11
1. The Government’s proposed search terms would fail to uncoverapproximately half of the responsive documents from USDA .................11
2. The DOJ’s proposal would fail to uncover the communications withinExecutive Office of the President..............................................................12
C. O’Connor’s proposal for the production of USDA documents is reasonable
and not burdensome...............................................................................................12
D. O’Connor’s proposal for the production of EOP documents is reasonable andnot burdensome ..................................................................................................... 13
E. After sitting on its hands for more than three months, the Government cannotnow complain that a timely production would be too burdensome ordisruptive ...............................................................................................................14
IV. CONCLUSION .................................................................................................................15
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Brown v. Petrolite Corp.,965 F.2d 38 (5th Cir. 1992).......................................................................................................6
Cheney v. U.S. District Court ,542 U.S. 367 (2004) ..........................................................................................................13, 14
Moldea v. New York Times Co.,22 F.3d 310 (D.C. Cir. 1994)...................................................................................................10
Phila. Newspapers v. Hepps,475 U.S. 767 (1986) ................................................................................................................10
Schoen v. Wash. Post ,246 F.2d 670 (D.C. Cir. 1957)...................................................................................................7
Simon v. Shearson Lehman Bros,895 F.2d 1304 (11th Cir. 1990) ................................................................................................. 6
Zinda v. La.-Pac. Corp.,409 N.W.2d 436 (Wis. Ct. App. 1989), aff’d in part, rev’d in part on other grounds,440 N.W.2d 548 (Wis. 1989) .................................................................................................... 6
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O’Connor served the subpoenas on the USDA and EOP in November 2013. Since then,
the Government has made one and only one proposal on December 19, 2013, for a process to
search, identify, and collect responsive documents. An analysis of the Government’s proposal
based on USDA documents already made public showed that it would fail to uncover
approximately half of the responsive documents. To ensure a more complete production,
counsel for O’Connor provided the Government a counter-proposal with additional keywords to
search the critical 16-day time period in July 2010 surrounding Sherrod’s resignation.
Thereafter, to accommodate the Government’s claims of alleged burden, O’Connor has reduced
significantly the number of search terms in his proposal. But for three months the Government
has refused to add search terms or even begin collecting documents. And just this past week it
has claimed that it will take several months merely to collect the e-mails while it reserves all
objections on relevance and privilege.
Accordingly, O’Connor hereby moves to compel production of documents from the
USDA and EOP and seeks an order requiring the Government to make a prompt production of
documents based on the reasonable keyword search protocol attached hereto as Exhibit 1.
II. FACTUAL BACKGROUND
The USDA’s role in this case began well before BigGovernment.com published a single
word about Shirley Sherrod in Andrew Breitbart’s Blog Post on July 19, 2010. Four days earlier,
on July 15, at least three USDA officials, including Sherrod’s direct supervisor, were alerted to a
video clip on YouTube that showed Sherrod making her racially charged speech that is the
subject of this lawsuit.2 The video contained Sherrod’s statements that she was reluctant to give
“the full force” of her assistance to a troubled white farmer, but that she later decided to help
2 Big Government, NAACP Bigotry in their ranks, YOUTUBE (July 19, 2010), available athttp://www.youtube.com/watch?v=t_xCeItxbQY (attached as Exhibit 4).
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him. In e-mail exchanges with her supervisor, other USDA officials, and the two U.S. senators
from Georgia, Sherrod claimed that the video was taken out of context, emphasized that she had
helped the white farmer, and noted that the anecdote in the video clip referred to events from
more than twenty years before.3
Sherrod claims that the Blog Post was defamatory because it was “misleading,”4 but if
there was anyone who should not have been “misled,” it was Sherrod’s bosses at the USDA.
They knew Sherrod. They had vetted her background prior to her appointment.5 They were
familiar with her track record in that position. And they were on notice, from Sherrod herself, of
the purported full “context” of her controversial speech.
Notwithstanding their knowledge of these key facts, dozens of internal government e-
mails demonstrate that USDA officials, with encouragement from the White House, were among
the harshest critics of Sherrod after the video made news. USDA e-mails released under the
Freedom of Information Act (“FOIA”) reveal a chain reaction of outrage that rippled swiftly
through the agency and culminated in Sherrod’s forced resignation. For example, on the
morning of July 19, Chris Mather, the USDA’s communications director, e-mailed colleagues:
“Urgent, This is horrible.”6 Krysta Harden, an assistant secretary at the USDA who was
traveling with Secretary Tom Vilsack that day, responded that the Secretary was “absolutely sick
and mad over the S Sherrod issue” and wanted her put on administrative leave “immediately.”7
3 The video had been uploaded to YouTube by O’Connor, who had intended to set the video as“private” for viewing only by his colleagues. But unbeknownst to O’Connor at the time, heinadvertently made it available for public viewing. As many as 40-50 people viewed the video,and at least two separately e-mailed Sherrod on July 15, 2010. Sherrod responded, copying theUSDA officials. See Selection of E-mails Released by USDA Pursuant to FOIA (attached asExhibit 5) at FOIA Production (“FP”) 001, 003.4 E.g., Compl. ¶ 4 [Dkt. 1, Ex. B].
Even as the agency was doing all it could to sever ties with Sherrod, the e-mails make
clear that high-ranking agency officials understood the “full context” of Sherrod’s speech all
along. For instance, more than two hours before Cook’s final phone call to Sherrod demanding
her resignation, Dallas Tonsager, the USDA undersecretary of rural development, e-mailed
Secretary Vilsack and other officials explaining Sherrod’s side of the story:
Shirley explained to Cheryl [Cook] that this piece of tape shows only one small part of a longer story she told of her personal transformation beyond race, and isabout a farmer who came to see her in 1986 when she was working as a farmadvocate. The rest of the story apparently explains how she came to assist thisfarmer and many other white farmers during this time period.16
Of course, the video excerpt in the Blog Post itself makes clear that Sherrod ultimately
helped the white farmer and that she was discussing “her personal transformation beyond race.”17
And Sherrod herself had already explained them to her bosses before and right after the Blog
Post was published.18 In other words, Secretary Vilsack, the USDA, and the White House could
not have been duped by a “misleading” video or a critical blog post; they understood all of the
relevant facts better than anyone. Yet they chose to cut ties with Sherrod anyway – and they did
so hastily, harshly, and heavy-handedly, only then to abruptly reverse course two days later and
offer her job back.
What is less clear at this stage is why the agency acted this way. The e-mails produced
under FOIA are heavily redacted and many appear to be missing completely. For instance, e-
mails about Sherrod’s role in Pigford v. Glickman, a high-profile class action lawsuit alleging
racial discrimination against black farmers by the USDA, and that lawsuit’s relation to Sherrod’s
termination, are redacted. In addition, the Government failed to produce any e-mails that were
16 Ex. 5, FP 008. See also Ex. 5, FP 020 (Vilsack’s chief of staff: “Has anyone had directconversation with the USDA staff to hear her explanation?” Deputy chief of staff: “Yes…”).17 Compl., Ex. A.18 Ex. 5, FP 001, 003.
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Zinda v. La.-Pac. Corp., 409 N.W.2d 436, 442 (Wis. Ct. App. 1989) (plaintiff’s “burden to show
that the loss was attributable to the defamation, not to [his] wrongful discharge.”), aff’d in part,
rev’d in part on other grounds, 440 N.W.2d 548 (Wis. 1989). As the D.C. Circuit has held, there
is “no doubt” that a defamation plaintiff must show that her harm “was the natural and proximate
consequence of the alleged inaccuracies contained in the article, and not the result of other
causes[.]” Schoen v. Wash. Post , 246 F.2d 670, 672 (D.C. Cir. 1957).
The Complaint alleges that the Blog Post caused her harm: “by causing Mrs. Sherrod’s
forced resignation from the USDA”; “by inhibiting [her] successful performance of her previous
job duties”; “by limiting [her] future career prospects”; and “by subjecting [her] to unwanted
attention, harassment and persecution.”19 In addition, O’Connor has asserted the affirmative
defense that he cannot be liable for harm caused by “the acts of others.”20 To the extent any of
Sherrod’s alleged harm was caused by the Obama Administration, Secretary Vilsack, or others,
that evidence is directly relevant to claims and defenses in this case.
Furthermore, the existence of this evidence is far from speculative. The FOIA e-mails
show that Sherrod’s role in the Pigford v. Glickman litigation (known as “ Pigford I ”), and not the
Blog Post, may well have caused Secretary Vilsack to ask for her resignation. Pigford I involved
allegations by African-American farmers that federal loan officers at the USDA had
“systematically thwarted [the farmers’] attempts to borrow money to farm” because of their
race.21 Sherrod, her husband Charles, and an organization that they appear to have resurrected
for purposes of the Pigford litigation, New Communities, Inc., were major claimants in the case.
Just days before Sherrod was appointed to her federal position at USDA, New
19 Compl., p. 36, Count 1.20 Answer of Defendant Larry O’Connor [Dkt. 38], p. 13, Aff. Defense 18.21 Sharon LaFraniere, U.S. Opens Spigot After Farmers Claim Discrimination, N.Y. TIMES
(April 25, 2013), available at http://www.nytimes.com/2013/04/26/us/farm-loan-bias-claims-often-unsupported-cost-us-millions.html?_r=0.
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Communities and the Sherrods were awarded more than $13 million for their claims in Pigford I ,
including $300,000 to the Sherrods for purported “mental anguish” caused by USDA. The
settlement was the largest awarded in the Pigford I litigation. In her book, The Courage to Hope,
Sherrod noted that her appointment as Georgia Director of Rural Development made her the boss
of the same administrators at USDA that she had had to “nudge and confront” during the Pigford
I case, implying that her role in Pigford I may not have endeared her to others at the agency.22
Thus, although Sherrod has tried to redirect attention away from her settlement and the
controversy surrounding whether Pigford I was “a magnet for fraud” and subject to systematic
abuse,
23
the USDA e-mails and other evidence reveal that Pigford I was very much part of the
discussion surrounding her termination.24
Indeed, during July 2010, a controversial bill was pending in Congress to appropriate
more than $1 billion for settlements to a second wave of plaintiffs in what is known as Pigford
II .25 USDA’s Assistant Secretary for Congressional Relations Krysta Harden and her deputy –
both of whom would have been responsible for helping to shepherd Pigford II funding legislation
through Congress – were among the first to call for Sherrod’s firing.26 They also immediately
began contacting key members of Congress, “authorizers” and “appropriators.”27 The e-mails
22 Shirley Sherrod, The Courage to Hope (Atria 2012) at 133.23 LaFraniere, supra note 21.24 For example, one heavily redacted USDA e-mail dated July 20, 2010 had a subject line thatreferenced Sherrod’s “Track B Decision.” Track B refers to the track in the Pigford I settlementwhere a claimant can attempt to prove actual damages (and thus obtain an increased award) asopposed to the standard settlement amount. Ex. 5, FP 041.25 President Obama would state just a few weeks after Plaintiff’s resignation that funding the$1.25 billion Pigford II settlement, which had been stalled in Congress for more than sevenmonths, was a “priority.” See Rachel Slajda, Obama: Pigford II Settlement For African-
American Farmers Is A ‘Priority,’ TALKING POINTS MEMO (Sept. 10, 2010), available athttp://talkingpointsmemo.com/muckraker/obama-pigford-ii-settlement-for-african-american-farmers-is-a-priority.26 Ex. 5, FP 007, 009.27
See, e.g., Ex. 5, FP 054.
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again ignore Sherrod’s explanations? Why did USDA official Cheryl Cook claim that it was the
White House that had demanded her resignation when Secretary Vilsack later claimed that it was
his decision alone? Why did Secretary Vilsack completely reverse his decision when he knew
about the “context” of her remarks from Sherrod herself prior to her resignation? The
Government’s contention that the Secretary’s public comments are all that the parties need is not
a basis for refusing to provide relevant information concerning who and what was responsible for
allegedly injuring Sherrod as she claims.
2. Information from the USDA and the EOP that supports defendants’
evaluation of Sherrod and her speech is relevant.
O’Connor is entitled to information that will support his evaluation and characterization
of Sherrod and her speech. It is well-established that the plaintiff bears the burden of proving
falsity. See Phila. Newspapers v. Hepps, 475 U.S. 767, 775 (1986). To the extent that the
commentary in the Blog Post is substantially supported by information from the USDA and the
EOP, Sherrod cannot succeed on her defamation claim. Moldea v. New York Times Co., 22 F.3d
310, 318-19 (D.C. Cir. 1994) (“‘[s]ubstantial truth’ is a defense to defamation”).
The Blog Post commented that Sherrod viewed her work at USDA through a “prism of
race and class distinctions.”33 E-mails, documents and other information from the USDA that
show how Sherrod conducted her work during her short tenure at the USDA are thus directly
relevant. In her March 27, 2010 speech, Sherrod criticized current federal programs “with
business and industry” that had given “not one dime to black business.”34 She also spoke about a
family that had recently come to her for assistance concerning their “515 acres of land” and
33 Compl., Exhibit A.34 Transcript, NAACP Video of Ms. Sherrod’s March 27, 2010 Speech Available athttp://www.naacp.org/news/entry/video_sherrod/ (attached as Exhibit 7) at 21:2-12.
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bemoaned to her audience that there was a “white man already lined up to buy it.”35 To the
extent USDA has similar information about Sherrod’s views and conduct, it is relevant.
B. The Department of Justice’s proposal for production of USDA and EOP documents
is unreasonably deficient.
1. The Government’s proposed search terms would fail to uncover
approximately half of the responsive documents from USDA.
The Department of Justice (“DOJ”) proposal principally includes (1) a search of e-mails
from a group of USDA employees for the names and titles of the parties to this action; and (2) a
search of the e-mail accounts of Sherrod and two of her Georgia State Rural Development
colleagues using just seven keyword search terms.36 To test the effectiveness of this proposal,
counsel for O’Connor ran the DOJ’s search terms through the incomplete and heavily redacted
FOIA documents. Approximately 46 percent of the documents did not contain a single term on
DOJ’s search term list, documents even the USDA acknowledged were responsive to the FOIA
requests concerning Secretary Vilsack’s decision to seek Sherrod’s resignation.37
For example, the DOJ’s proposal would have missed USDA’s Director of
Communications asking Secretary Vilsack’s Deputy Chief of Staff, “Did Shirley ever send us the
whole tape?”38 It also would have missed the response to that e-mail: “I never heard from her.”39
O’Connor’s proposal would capture those communications. Similarly, the DOJ proposal would
have failed to pick up the discussions between Secretary Vilsack and high-ranking members of
35 Id. at 23:24-24:1-9.
36 The DOJ’s search proposal is attached as Exhibit 8.37 See Memorandum of the Department of Justice [Dkt. 89] (filed Feb. 20, 2010) at 5(identifying FOIA request for all e-mails concerning Sherrod, her speech and her resignation,among other things).38 Ex. 5, FP 038.39 Ex. 5, FP 038. On July 15, a full four days before the Blog Post was published, a USDAofficial had also asked Sherrod for the tape of her full speech. See Ex. 5, FP 002 (“If you canlink me to the entire tape and I see this was out of context I will do what I can to get your entiremessage out.”). It appears that Sherrod never responded by e-mail and never provided the tape.
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the White House including Chief of Staff Rahm Emanuel, Press Secretary Robert Gibbs, and
Cabinet Secretary Christopher Lu.40
A search term list that fails to uncover half of the documents is unreasonably restrictive.
2. The DOJ’s proposal would fail to uncover the communications within
Executive Office of the President.
The DOJ’s proposal is restricted to the USDA’s documents and would not uncover
communications internal among White House staff. The EOP documents also have not been
collected and searched, even though the subpoena was served more than three months ago. The
limited, available documents from USDA strongly suggest that there were internal EOP
communications concerning the decision to seek Sherrod’s resignation and Secretary Vilsack’s
public statement vehemently criticizing her. For example, USDA Director of Communications
remarked to a White House spokesman regarding the White House’s involvement: “I guess
some folks over there are circling wagons.”41 Once Sherrod was asked to resign, a White House
communications director commented to the USDA regarding Secretary Vilsack’s public
statement: “We’re good with this version on this end. Counsel has cleared the language.”42
C. O’Connor’s proposal for the production of USDA documents is reasonable and not
burdensome.
To make the search term list reasonably effective at identifying relevant documents,
O’Connor respectfully requests that the Court require USDA and the EOP to supplement DOJ’s
proposed list with the search terms identified in the protocol attached as Exhibit 1. Each of the
40 Ex. 5, FP 045, 046. See also Ex. 5, FP 007, 022, 024, 025, 026, 027, 032, 034, 035, 038, 042,044, 047, 052-053.41 Ex. 5, FP 011-012.42 Ex. 5, FP 023. In addition, White House “officials” reportedly have acknowledged in background interviews that “the White House was more involved in the immediate response tothe video of [Ms.] Sherrod’s remarks than officials initially let on.” See Mary Clare Jalonick,Sherrod firing: emails reveal White House role, CHRISTIAN SCIENCE MONITOR (March 8, 2012),available at http://www.csmonitor.com/USA/Latest-News-Wires/2012/0308/Sherrod-firing-emails-reveal-White-House-role.
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search terms in this protocol comes from USDA documents released pursuant to FOIA requests.
As such, the Government cannot contend that these terms are not reasonably calculated to lead to
the discovery of relevant evidence. The size and scope of the search term list (and the number of
individuals whose e-mails need to be searched) is necessary and reflective of the extensive
communications within USDA and the White House about Sherrod, her speech, her resignation
and the aftermath of her resignation. Since they are proven to identify documents the relevance
of which even USDA has acknowledged, it cannot be disputed that the search terms in Exhibit 1
are appropriate to identify additional relevant documents.
O’Connor’s proposal in Exhibit 1 for the search and production of USDA documents is
not burdensome. It essentially limits the search of e-mails to one keyword – Sherrod – except for
a key 16-day period in 2010, where it requires a search using multiple terms. To the extent that
these searches return an unwieldy number of documents, counsel for O’Connor has informed the
Government that the proposal may be re-evaluated.
D. O’Connor’s proposal for the production of EOP documents is reasonable and not
burdensome.
The Government asserts, on the one hand, that the EOP played no part in the decision to
ask Sherrod to resign,43 but on the other, that it purportedly has a multitude of documents relating
to its involvement that would present burdens of constitutional proportions. The Government
cites Cheney v. U.S. District Court , 542 U.S. 367 (2004), where it sought mandamus, but there
are significant dissimilarities between the discovery in Cheney and the EOP subpoena.
In Cheney, Vice President Cheney was a party and personally the subject of exceedingly
43 The Government contends that Secretary Vilsack’s statement to the press on July 21, 2010 that“[t]here was no pressure from the White House” to ask Plaintiff to resign [Dkt. 89-4 at 1-2]forecloses discovery on the issue. Secretary Vilsack, however, is neither the finder of fact northe arbiter of relevance in this litigation. As demonstrated herein, supra at 4, 11-12, there ismore than sufficient foundation to conclude that the EOP was directly involved with Sherrod’stermination.
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PROTOCOL FOR SEARCH AND PRODUCTION OF E-MAIL RECORDS
OF THE UNITED STATES DEPARTMENT OF AGRICULTURE
1. Shirley Sherrod E-mails: For the dates July 25, 2009 through July 19, 2010, the USDA shallsearch and produce Shirley Sherrod’s e-mails (including inbox, outbox, drafts, and
attachments).
2. Headquarters (“HQ”) E-mails (Sherrod Only): For the dates January 1, 2009 through July
14, 2010, the USDA shall search and produce the e-mail (including inbox, outbox, and
attachments) of the individuals listed in Exhibit A to this Protocol for all documentscontaining the word “Sherrod” (excepting references to “Sherrod Brown,” “Sen. Brown,” and
“Senator Brown”).1
3. Rural Development (“RD”) E-mails (Sherrod Only): For the dates July 1, 2009 through July
14, 2010, the USDA shall search and produce the e-mail (including inbox, outbox, andattachments) of the individuals listed in Exhibit B to this Protocol for all documents
containing the word “Sherrod” (excepting references to “Sherrod Brown,” “Sen. Brown,” and“Senator Brown”).
2
4. HQ and RD E-mails (Search Term List): For the dates July 15, 2010 through July 30, 2010,the USDA shall search and produce the e-mail (including inbox, outbox, and attachments) of
the individuals listed in Exhibits A and B to this Protocol for all documents containing the
words or phrases listed in Exhibit C to this Protocol.
5. HQ and RD E-mails (Sherrod Only): For the dates July 31, 2010 through December 31,2012, the USDA shall search and produce the e-mail (including inbox, outbox, drafts, and
attachments) of the individuals listed in Exhibits A and B to this Protocol for all documents
containing the word “Sherrod” (excepting references to “Sherrod Brown,” “Sen. Brown,” and
“Senator Brown”).
1 Counsel for Mr. O’Connor understands, based on representations from counsel for the
Department of Justice, that the emails of Rural Development employees are organized separatefrom the e-mail for USDA headquarters staff. As a result, Exhibit A lists headquarters
employees and Exhibit B lists Rural Development employees.
2 Mr. O’Connor is not requesting e-mails for Rural Development employees prior to July 1, 2009
because counsel for Mr. O’Connor understands, based on representations from DOJ counsel, that
those e-mails are on inaccessible magnetic storage tapes.
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The Honorable Tom Vilsack,Secretary of the U.S. Department of Agriculture;and Shirley
Sherrod
Tuesday, August 24, 2010
SECRETARY VILSACK: Good morning, everyone. We have just about an hour-and-a-
half conversation with myself and Shirley. During the course of our conversation, we had Dr.Joe Leonard, the Assistant Secretary of Civil Rights, and Pearlie Reed, who is the AssistantSecretary for Administration. We had a far and good conversation.
Shirley was interested in the progress that we were trying to make in terms of settlinglawsuits that had been filed against the Department for civil rights violations, commonly
referred to as the "Pigford case," which Shirley unfortunately knows far too much about as a
plaintiff in that case early in the process, and I think it's fair to say that we both feel it'sappropriate and necessary for the Senate to take action as quickly as possible to make sure thatthe appropriations for those cases are made and that we get those cases settled as quickly as
possible, as well as the cases that have been filed against the Department by Native Americansand Hispanic and women farmers.
We also talked about the fact that in the previous eight years prior to this administration,there had been a number of claims that for whatever reason were not fully looked at and
investigated. We have reopened those cases, but we need congressional action, the Statute ofLimitations, to make sure that we do justice to those folks who were not treated fairly by the
Department.
Shirley was also very interested in the work that we're doing with an independent
consultant, the Jackson Lewis group, which has been hired by us sometime ago prior to thisincident, in which we asked the Jackson Lewis group to go out into a number of States to take areal hard look at our current procedures and policies in terms of how we deal with folks who
come into the Farm Service Agency Offices and the Rural Development Office to see if thereare ways in which we can make sure that we don't have these problems of discrimination in the
future. That work will be completed sometime this year, and that becomes relevant to nextsteps for the Department and Shirley.
I did my best, I think it's fair to say. I did my best to try to get her to come to USDA, tostay at USDA on a full-time basis. We talked about the Office of Advocacy and Outreach and
what her unique skills could bring to that office. We also talked about the opportunity thatwould be made available, if that was not something she was interested in doing, to return to
Georgia in her position as the State Director. For reasons that Shirley will get into, that doesn'tfit what she needs, what she wants, and what she deserves, and so we talked about the
possibility of utilizing Shirley's unique characteristics and experiences and her passion, herundying passion to see discrimination rooted from this country, so that when we get the reportfrom the consultant that tells us the steps that we need to take to improve our processes and
procedures at all levels, it's my intent and hope that we can ask for Shirley to assist us in somesort of consulting way for full implementation and proper implementation of those
recommendations. And I think there's no one in the country better suited to assist us in thateffort than Shirley.
Having been a victim of discrimination, having had a family who suffered a painful loss asa result of discrimination, having served as the Director of Rural Development and knowing
full well the programs and having worked in Georgia to begin changing things in that State, sothat there was fairness and full opportunity, there's no one that can help us better in that position than Shirley. So we are looking forward to later in the year reconnecting, once the
report is concluded, and we also talked very briefly about the steps we have taken internally
within USDA following our study of the circumstances and some of the steps that we're takingto improve decisionmaking as USDA.
With that, Shirley?
MS. SHERROD: Good morning. I want to say thank you to the Secretary for the updates
on Pigford and the discussion we've had this morning about what happened and the steps thatwill be taken in the future, so that hopefully on one else will have to deal with what I've had to
deal with over the last four or five weeks.
I enjoyed my work at USDA. As most of you know, I didn't work in government prior toabout a year ago now. It only lasted 11 months, but I did enjoy that work and would want tosee that work continue. I just don't think at this point, with all that has happened, I can do that
either in the new position that was offered or as State Director for Rural Development inGeorgia.
It doesn't mean that I'm not interested in that work because I certainly am. I was workingon many of those issues long before coming to the government and would hope to be able to
work on many of those issues in the future.
So I've had lots of support from around the country. I've had many, many, many thousands
of pieces of mail. Many of those, I would like to answer. I need a little time to be able to dealwith that, to sort of take a break from some of all that I've had to deal with over the last few
weeks, and I look forward to some type of relationship with the Department in the future.
We do need to work on the issues of discrimination and racism in this country, and I
certainly would like to play my role in trying to help deal with it, so thank you.
MODERATOR: Questions from members of the media?
QUESTION (Associated Press): Secretary Vilsack, Mary Clare Jalonick from AP. Could
you tell us a little bit about the investigation you all did into what happened? I know that wassupposed to be finished around --
SECRETARY VILSACK: Sure. You know, it starts with the responsibility that I have totake personally for making sure that instructions that are given to staff are clear and completeand comprehensive. It requires us to take a look at travel schedules to make sure that we have
sufficient staff at various offices.
At the time this incident occurred, I was on travel, the Chief of Staff was on travel, so weneed to do a better job of coordinating travel schedules.
We obviously have to take a look at the process that was used for political appointees interms of actions and steps. We need a much more collaborative process engaging the UnderSecretaries and senior staff members before decisions are finalized.
We obviously also have to make sure that everyone has contact information that's accurate
and complete, and we have to establish protocols for contacting folks who may be in a situation
where there may be the possibility of disciplinary action, to make sure that their rights are fully protected.
Political appointees were treated a little differently than a career appointee, and weobviously need to make sure that there's a more parallel system for political appointees, so that
what Shirley went through doesn't happen again. That's the goal.
These recommendations will be and are in the process of being incorporated into our procedures now.
QUESTION (CNN): Secretary Vilsack, Brian Todd from CNN.
The afternoon that Ms. Sherrod came out and clarified what had happened, it became clearthat her remarks were taken out of context. You still stood by the removal of her, at least in theimmediate. Why did you do that, and what changed your mind since then? Was there pressure
from somewhere else outside the Department?
SECRETARY VILSACK: No, there wasn't pressure, but because I was not necessarily inthis office, I didn't avail myself of the full range of advice and counsel. I was not aware, forexample, that the Under Secretary of Rural Development was attempting to get a hold of me to
suggest that perhaps we needed to take another period of time to review.
Obviously, when the full transcript of what Shirley's remarks were, were made known tome, it was pretty obvious that this was a circumstance and situation where her comments were
taken totally and completely out of context, and that the main message, which is a message thatwas very supportive of what we're trying to do at USDA was not inconsistent, as I hadoriginally thought, but very consistent with what we were trying to do. What Shirley was trying
to point out was that there is and has been for sometime issues of discrimination and bias and prejudice in this country, that USDA because of the enormity of our Department has so many
opportunities to intersect with people, that there needed to be an effort to make sure that USDAwas an example, an exemplary administration, an exemplary Department when it comes to civil
rights. Obviously, with the claims that had been filed against us in the past, we have had workto do.
So all of that transported in a couple-of-day period and led me to believe that I had made amistake, which I acknowledged and certainly contacted Shirley and told her I was sorry for
what we had done and asked for her forgiveness, and she was gracious enough to give it to me.
QUESTION (ABC News): Dean Norland from ABC News.
Ms. Sherrod, is this a satisfactory conclusion to what you have gone through the past fiveor six weeks, and wouldn't it be more a sense of completion if you had stayed in this building
and worked on problems of discrimination rather than going off and taking a break and not being directly involved in the process?
SECRETARY VILSACK: Sounds like the hard sell I gave you in the office.
MS. SHERROD: (Laughs.) Yes, it is.
The Secretary did push really, really hard for me to stay and work from the inside in the
position. It is a new position.
I, you know, look at what happened now, and I know he's apologized and I accept that. I just -- and there are new processes in place, and I hope that it works. I don't want to be the oneto test it. (Laughs.)
So, you know, I think there is -- I think I can be helpful to him and the Department if I just
take a little break and look at how I can be more helpful in the future.
I guess that's enough to be said.
SECRETARY VILSACK: May I say this? And I think it's important to understand whyShirley has unique opportunities here.
In her work in Georgia, she was beginning a process of going into counties and areas of herState where there was deep poverty, high unemployment, not much outreach from previous
efforts by USDA, and she was making strides to make sure that those counties that had beenignored in the process were recognized, appreciated, and helped. That's the kind of work that Isuspect -- but I don't know, but I suspect will come forward with the recommendations from
the review of the two-year review that's taking place of our programs.
At that point, we can, I think, tailor an opportunity, if you will, to meet those unique
characteristics, and Shirley can help us implement those recommendations with a focus whereshe's not worried about administrative issues having to deal with personnel or budgets or things
of that nature, the details, the day-to-day details of a senior position. She'll be able to focus on
what she was doing a good job of in Georgia, be able to spend the personal time and also to beable to balance that time.
As she pointed out, she and her husband have been struggling with this for 40 --
MS. SHERROD: Forty-five years.
SECRETARY VILSACK: -- 45 years, and she's got children and, more importantly, Ithink now grandchildren she wants to spend time with, and so it's perfectly understandable, but
I don't want anybody to think that she cannot be of significant help here. I believe she can.
That's why I offered her the opportunities that I did, but I think this might be a better fit for her,and I think she'll be able to devote the time and attention and passion that she wants.
QUESTION: Shirley, this question is for you. How much time are you looking to take off,
and any thought or vision of what you want your future collaboration to be?
MS. SHERROD: You know, as far as my role with the Department, that will be strictly upto the Secretary, and I think he's looking at getting that report in before we can discuss it, so I
have no idea how long that will take. I don't know the time table for that, but it doesn't meanthat I won't be speaking out. I've had many, many requests from around the country for people-- from people who want to hear from me. I'd like to hear from them because I'd like to know,
I'd like to hear about efforts that are being made in communities that are dealing with the issueof racism and discrimination, and I really like to highlight them because I know there are
people out there who care, who want to work on the issues, who are working on the issues, andI think we need more of that. I think we need to hear those stories as we move forward.
That's what this country needs. You know, we're a great country, and there are people whocare. We're hearing too much from those who would want to point out the negative right now,
and I really would like to concentrate on the positive.
QUESTION: What was the exact role, the exact position, and the duties there, and were
you tempted to take it?
MS. SHERROD: Yes, I was tempted to take it. I'm not sure of the total role, and theSecretary can speak more to that than I can at this point. I was tempted. (Laughs.)
SECRETARY VILSACK: The Office of Outreach and Advocacy was created by the
Congress to do work that needs to be done in USDA to make sure that people understand andappreciate what programs USDA offers and how to access them.
As I think Shirley's work in Georgia pointed out, there are an awful lot of people that have
no idea how broad the scope of this Department is and are often -- because of the poverty or thedifficulties of managing governments at the local level oftentimes are overwhelmed by theapplication process by the complexity of the Federal bureaucracy that they have to work
through.
So the idea of this office, working with our Civil Rights Office, was to do a better job ofintegrating into those communities and making sure that they understood what was available
and making sure that they had access to the programs because there are probably counties thathave not accessed USDA programs that are precisely the reason why we created these
programs.
What Shirley would have done in that position is that she would have overseen, if you will,that effort to make sure that we are penetrating. In the position that I'm thinking of in terms of
the study that's going to come forward, I think she'll be able to also do that but maybe be ableto focus more of her time and dig deeper than she would if she had administrative
responsibilities, which is what she would have had as a senior executive.
QUESTION: Just to the question earlier, are you saying that you never spoke to anyone at
the White House right before Ms. Sherrod stepped down? And if you did speak to someone atthe White House, can you tell us who it was?
SECRETARY VILSACK: I didn't speak to anyone at the White House.
As I said earlier, this was my responsibility, and I had to take full responsibility for it, and I
continue to take full responsibility for it. I will take it for as long as I live.
This was -- you know, I pride myself on the work that I do, and I know that I disappointedthe President, I disappointed this administration, I disappointed the country, I disappointed
Shirley. I have to live with that, and I accept that responsibility. That's what happens when youhave this kind of position.
My only hope is and my belief is that despite this difficulty, despite the challenges and the problems that we've seen and that poor Shirley had to go through, maybe, just maybe this is an
opportunity for the country to have the kind of conversation that Shirley thinks we ought tohave, and maybe, just maybe this will put a spotlight not necessarily on this incident, but withall of this media attention, maybe there will be a spotlight on the efforts that USDA is making
in the area of civil rights, it is trying to solve and settle cases that have been outstanding -- forhow many years, Shirley? Twenty?
MS. SHERROD: Mm-hmm.
SECRETARY VILSACK: Twenty, almost 30 years.
MS. SHERROD: Yes.
SECRETARY VILSACK: It is trying to reopen cases that were, Joe, denied access andreview in previous years, is trying to engage in a cultural transformation, so that our workforce
is modernized and as diverse as the country is and is engaged in an effort to try to get the
programs of USDA to the people who are most in need, not necessarily the best connected people but the people who are most in need.
So, to me, if we're going to make anything out of this, apart from Shirley's circumstances,
that's what I have to do, and that's what I'm committed to doing. I am very serious about this. I
came into this office committed to trying to close the chapter of civil rights that has been adifficult chapter for USDA and a very sorted chapter. We want to create a new chapter, and thisunfortunate circumstance has at least given us the opportunity to have that conversation with
the nation, which, you know, if it's personal pain I have to endure for that, I'm happy to takethat if we get that message out.
QUESTION: I have a question for Shirley. A few weeks ago, you said you were going tosue Blogger Andrew Breitbart. What's the status of that lawsuit, and do you still think that
you're going to sue him?
MS. SHERROD: I really don't want to discuss that right now. I do think a suit will be
forthcoming, but I don't want to discuss it at this time.
The U.S. Department of Agriculture (USDA) proposes to conduct the following electronic searches for emailspertaining to Shirley Sherrod in response to the subpoenas issued to it in Sherrod v. Breitbart and all outstanding requestsunder the Freedom of Information and Privacy Acts. Please let me know if you have any questions or comments.
For the period June 1-October 31, 2010:
1. USDA proposes to search the Rural Development agency archive for emails of the following individuals:
Shirley SherrodDonnie D. Thomas, Assistant State Director, Georgia State Rural Development OfficeDonna I. Graves, Director, Administrative Programs, Georgia State Rural Development Office
using the following search terms (words in quotes will be searched as a phrase):
“Coffee County NAACP”banquetBreitbartvideoblog“Larry O’Connor”“Freedom Fund”
2. USDA proposes to search exchange server backups for emails of the following individuals:
Tom Vilsack, Secretary of AgricultureKaren Ross, Chief of StaffCarole Jett, Deputy Chief of StaffDavid Lazarus, Senior Advisor to the SecretaryRobert Bonnie, Senior Advisor to the SecretaryMax Holtzman, Senior Advisor to the SecretaryDoug O’Brien, Senior Advisor to the SecretaryJane Hipp, Senior Advisor to the SecretarySarah Bittleman, Senior Advisor to the SecretarySally Cluthe, Director of SchedulingKevin Washo, White House Liaison
Kathleen Merrigan, Deputy SecretarySuzanne Palmieri, Chief of Staff to the Deputy Secretary
Pearlie Reed, Assistant Secretary for Departmental Management Alma Hobbs, Deputy Assistant SecretaryRobin Heard, Deputy Assistant SecretaryBobbi Jeanquart, Chief of StaffW. Russ Ashworth, Director, Management ServicesKaren Messmore, Director, Office of Human Resource Management
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3. USDA proposes to search the Office of Executive Correspondence correspondence files for the term “Sherrod”excluding the terms “Sherrod Brown” and “Senator Sherrod” if technically feasible.
The estimated costs of these searches will be approximately $50,000-60,000 and take up to 45 days once thesearches begin. This time and cost is exclusive of review time.
Thanks, David
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PROTOCOL FOR SEARCH AND PRODUCTION OF E-MAIL RECORDS
OF THE UNITED STATES DEPARTMENT OF AGRICULTURE
1. Shirley Sherrod E-mails: For the dates July 25, 2009 through July 19, 2010, the USDA shallsearch and produce Shirley Sherrod’s e-mails (including inbox, outbox, drafts, and
attachments).
2. Headquarters (“HQ”) E-mails (Sherrod Only): For the dates January 1, 2009 through July
14, 2010, the USDA shall search and produce the e-mail (including inbox, outbox, and
attachments) of the individuals listed in Exhibit A to this Protocol for all documentscontaining the word “Sherrod” (excepting references to “Sherrod Brown,” “Sen. Brown,” and
“Senator Brown”).1
3. Rural Development (“RD”) E-mails (Sherrod Only): For the dates July 1, 2009 through July
14, 2010, the USDA shall search and produce the e-mail (including inbox, outbox, andattachments) of the individuals listed in Exhibit B to this Protocol for all documents
containing the word “Sherrod” (excepting references to “Sherrod Brown,” “Sen. Brown,” and“Senator Brown”).
2
4. HQ and RD E-mails (Search Term List): For the dates July 15, 2010 through July 30, 2010,the USDA shall search and produce the e-mail (including inbox, outbox, and attachments) of
the individuals listed in Exhibits A and B to this Protocol for all documents containing the
words or phrases listed in Exhibit C to this Protocol.
5. HQ and RD E-mails (Sherrod Only): For the dates July 31, 2010 through December 31,2012, the USDA shall search and produce the e-mail (including inbox, outbox, drafts, and
attachments) of the individuals listed in Exhibits A and B to this Protocol for all documents
containing the word “Sherrod” (excepting references to “Sherrod Brown,” “Sen. Brown,” and
“Senator Brown”).
1 Counsel for Mr. O’Connor understands, based on representations from counsel for the
Department of Justice, that the emails of Rural Development employees are organized separatefrom the e-mail for USDA headquarters staff. As a result, Exhibit A lists headquarters
employees and Exhibit B lists Rural Development employees.
2 Mr. O’Connor is not requesting e-mails for Rural Development employees prior to July 1, 2009
because counsel for Mr. O’Connor understands, based on representations from DOJ counsel, that
those e-mails are on inaccessible magnetic storage tapes.
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