Let's meet the players
Let's start by understanding the players. Two "watchdog groups", the somewhat sanctimoniously-named Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive of George Washington University are together suing the White House, demanding disclosure of millions of email messages they allege are missing or incomplete. United States Magistrate Judge John M. Facciola is overseeing the case, and last week demanded the White House explain why it couldn't turn over the messages.

At the White House is Theresa Payton, Chief Information Officer, Office of Administration, Executive Office of the President and her IT team, who argue that the search project would be both a hardship and fruitless. They also argue the project would be a waste of time and taxpayer money.

Of note is this: Payton is relatively new to the White House, having taken over the CIO position in May of 2006. Her boss is Alan Swendiman, who serves as Special Assistant to the President and Director of the Office of Administration. He's only been in his job since November 27th, 2006.

This is important, because the people who are tasked with answering questions about what happened back in 2003-2005 weren't there back in 2003-2005. Any information they can provide Magistrate Judge Facciola must, therefore, either come from institutional memory or from hearsay.

Bottom line: Magistrate Judge Facciola is asking questions about what happened from people who weren't there when whatever happened, happened.

What's being asked for?
The White House declaration on March 21, 2008 neatly sums up what the Court ordered:

The Court has ordered the EOP to "show cause in writing...why it should not be ordered to create and preserve a forensic copy of any media that has been used or is being used by any former or current employee who was employed at any time between March 2003 and October 2005."

The Court states that "forensic copies" of workstations currently and formerly used by employees of EOP FRA components could capture (1) any email data that was not "properly archived between March 2003 and October 2003, during which time no back-up tapes exist"; or (2) any email data that was not properly archived between October 2003 and October 2005 "to the extent that those emails are not, as plaintiffs allege, contained on the back-up tapes."

In responding, the defendants have been directed to "describ[e] the costs that would be incurred and any other facts that would bear on the burden of such an obligation."

Remember, in this case, the White House is the defendent and CREW and the National Security Archive are the plaintiffs.

If you read the order carefully, Magistrate Judge Facciola is asking for a lot of data, whether it's in the form of backup tapes, hard drives, or even PCs. The idea is, somewhere in all that data, there must be some clues to the whereabouts of the missing email messages.