NEW: Judge Boasberg has GRANTED our Preservation Motion in our DOGE/FOIA Lawsuit

Remember when Sean Duffy and Republican Senators said that Elon Musk gave them his personal phone number? Our co-plaintiff asked the judge to preserve records from that number.

Earlier this year, the First Amendment Coalition (FAC) and my podcast media company MSW Media filed a joint Freedom of Information Act request for records related to DOGE. On March 10th, FAC propounded (added to) that request by moving the court to order DOGE to preserve communications related to the FOIA request on a phone number that Elon Musk gave to some Senators and Transportation Secretary Sean Duffy. That motion was just granted.

Here’s what Judge Boasberg said in his ruling today:

Begin with FAC’s likelihood of success on the merits. Plaintiff’s FOIA request does indeed raise serious issues, such as whether Musk was a USDS employee whose records would fall within the Service’s purview. At least one court has found a plausible inference that Musk was “the de facto Administrator of DOGE.”

He goes on to say:

USDS objects to a preservation order on the ground that “Musk was a member of the White House Office, not a USDS employee.” That argument, however, “go[es] to the underlying merits rather than DOGE’s obligations to preserve documents when litigation is reasonably anticipated or pending.”

Defendant further argues that a preservation order is unwarranted because USDS “has submitted sworn declarations in other litigation . . . recogniz[ing] its obligations to comply with the Presidential Records Act” and because the Service is “subject to broad preservation orders as a result of other litigation.”

That case is not a direct parallel, however. USDS’s declarations there, made in a nonFOIA case challenging adherence to recordkeeping requirements, stated that the Service would honor its PRA obligations writ large. Given that USDS disputes that Musk was an employee, it is not clear that the Service would consider his communications subject to their declared recordkeeping obligations. Preservation orders in other cases, moreover, require USDS to preserve records pertaining to communications between OMB and Musk as well as communications between Musk and “anyone communicating on behalf of Tesla, SpaceX, Starlink, The Boring Company, xAI, X, Neuralink, and several other external entities.” Since Plaintiff seeks different communications, it is also unclear how those preexisting orders would preserve the records sought here.

For the aforementioned reasons, the Court ORDERS that: 1. Plaintiff’s [42] Motion for Preservation Order is GRANTED; 2. Defendant United States DOGE Service shall make a good-faith effort to identify and preserve from destruction copies of all records potentially responsive to Count III of this suit; and 3. Defendant shall file a Notice by September 11, 2025, informing the Court of the steps it has taken.

You can read the full order here.

You can support our lawsuit by donating to National Security Counselors here.