The Executive Office of the President, the magistrate said, is limiting its search to offices subject to the requirements of the Federal Records Act, while sidestepping offices subject to the preservation requirements of the Presidential Records Act.
There is a profound societal interest as well as a legal obligation to preserve all records and "the importance of preserving the e-mails cannot be exaggerated," Facciola wrote.
The Bush White House has represented to the court that no records created in an office covered by the Presidential Records Act are transmitted to offices covered by the Federal Records Act.
But there is no factual record on which to base that conclusion, said Facciola.
He ordered the EOP to conduct a search of all offices regardless of which law covers a White House office.
The opinion is the third time in two days that a federal court has taken the Bush White House to task for its handling of missing e-mail, a problem first publicly disclosed three years ago by the federal prosecutor investigating the administration's leaking of Valerie Plame's CIA identity.
On Wednesday, U.S. District Judge Henry Kennedy issued a document preservation order, directing the White House to search employee workstations for e-mails created between March 2003 and October 2005.
At a hearing Wednesday afternoon, Facciola admonished the White House for not previously conducting a search of individual workstations as the magistrate had recommended in a report last April.