"The day after Obama was sworn in as President, the Justice Department filed a motion to dismiss a case brought by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive. The two watchdogs want to force the administration to prove that it has recovered all missing emails and has taken steps to prevent any more emails from being lost. Last Friday, the Obama administration missed a deadline to withdraw its motion. "If they didn't want to litigate this, they would have withdrawn or asked to hold their motion," says Anne Weismann, CREW's chief counsel. "I would have taken that as a sign of good faith."

"It could be that the administration is working behind the scenes to settle the case, as the Clinton administration did when the NSA sued it in the early 1990s. The plaintiffs would certainly be open to the prospect: Weismann told Mother Jones that her organization "would be very open to an interest on their part to settle this lawsuit." But so far, Weismann says, she hasn't noticed "a difference" from the Bush administration's legal strategy. "When we approached them about the possibility of finding a non-litigation way to resolve this, the response so far has been opposition," she said.

"But the Obama team's moves in this case so far echo Bush administration's strategy. In its motion to dismiss, the White House claims that missing emails are already being recovered and the suit is no longer necessary—exactly the same claim the Bush White House made throughout the second half of 2008. But the plaintiffs say that the efforts the White House has taken are still insufficient. "The motion that they filed suggests some activity but it definitely doesn't suggest sufficient activity to save the emails," says Meredith Fuchs, the general counsel for the National Security Archive."