There is already a court order that asks the administration to preserve emails, but it's now "pretty clear that the court seems concerned that in fact the original preservation order doesn't go far enough," Anne Weismann, CREW's Chief Counsel, told me this afternoon.

The White House has said it "fully intends to comply" with Facciola's order. That will likely mean submitting a reason why the administration thinks it would be unwise or too costly to make copies of every hard drive in the EOP. Both sides will probably bring in experts to argue over how much this will cost, and the judge will have to weigh the potential "irreparable harm" to the plaintiff's interests against the price tag of his proposed measure. "We still don't know what the court's going to do at the end of the day," Fuchs says.

Even if the court does end up following through and ordering copies made of every EOP hard drive, the lawsuit will not be over. In addition to seeking assurances that emails will be recovered, the plaintiffs are suing to make the White House implement a better archiving system. The current system, one National Archives official told the OA in November, "[H]ardly qualifies as a 'system' by the usual IT definition." An internal White House memo released by the House oversight committee said that "[S]tandard operating procedures for email management do not exist," and cautioned that "lost or misplaced email archives may result in an inability to meet statutory requirements."

With the Bush administration in its final year, there's little hope that the White House will replace the existing email archiving "system". During its first term, the Bush administration discarded the Clinton administration's Lotus-based system and started to work on a replacement, called the Electronic Communications Records Management System (ECRMS). But ECRMS was scrapped in 2006, and since then the current ad-hoc system, which relied for a long time on manual backups of data and the creation of extremely large, unstable .pst files, has been used in the absence of a dedicated archiving system. It's not clear that any replacement has been proposed or is in the works.

Another issue that will have to be resolved before this whole mess is wrapped up (something that the National Archives expects won't happen until the next administration takes office) is the constantly-changing White House line on the missing emails. After originally acknowledging that some emails could be missing, the White House claimed early this year that it didn't know if any messages are actually gone. Payton, the OA Chief Information Officer, gave apparently contradictory testimony to the House oversight committee and the court that is handling the NSA case. And documents and testimony that came to light during a February 28th oversight committee hearing make it clear that, despite its denials, the White House is likely aware of specific missing emails, some relating directly to the Valerie Plame case. One contradiction at issue is Payton's statement to the court on Jan. 16 that "substantially all" e-mails from 2003 to 2005 would be on backup tapes. The fact that tapes from March to October 2003 were recycled raises the possibility that Payton's statement may have been demonstrably false. CREW has asked that the court order the EOP to say why it should not be held in contempt of court, and submitted a motion detailing this and other contradictions in White House officials' sworn testimony (PDF).

"The White House has contradicted itself repeatedly, so they walked themselves into this," says Fuchs, the NSA's counsel. She argues that the administration's penchant for secrecy has made it hard for the plaintiffs to figure out if the White House was acting in good faith to try to preserve the emails. "For all we know they could be doing something reasonable, but we don't know."