IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. Case No. 1:96CV01285 
(Judge Lamberth) 
)
)
)
)
) 
GALE A. NORTON, Secretary of the Interior, ) 
et al., ) 
Defendants. 
)
) 
__________________________________________) 
DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO 
DEFENDANTS' MOTION FOR CONFIRMATION OF REAL-TIME 
CAPTURE AND ARCHIVE OF E-MAIL IN THE BUREAU 
OF INDIAN AFFAIRS AND BUREAU OF LAND MANAGEMENT 
In filing their Opposition to Defendants' Motion for Confirmation of Real-Time Capture 
and Archive of E-Mail in the Bureau of Indian Affairs and Bureau of Land Management 
("Opposition"), Plaintiffs' counsel inexplicably turn a previously uncontested issue into a 
contentious one. As noted in Defendants' Motion for Confirmation of Real-Time Capture and 
Archive of E-Mail in the Bureau of Indian Affairs and Bureau of Land Management ("Motion"), 
Plaintiffs' counsel filed objections neither to the Court's adoption of the Special Master's 2002 
ZANTAZ Opinion and Order,1 nor to either 2003 Interior submission2 seeking similar 
confirmation for five other bureaus. Despite their reversal of course, Plaintiffs' counsel are 
1 Special Master's September 25, 2002 Opinion ("SM Sept. 25, 2002 Opinion") (Exhibit 1) 
and accompanying Order ("SM Sept. 25, 2002 Order") (Exhibit 2), as adopted without objection by 
the Court on February 7, 2003 (Dkt. No. 1793) ("Feb. 7, 2003 Order") (Exhibit 3). 
2 Letter from Siemietkowski to Balaran of 8/15/03 (Exhibit 4, without attachments; Letter 
from Siemietkowski to Balaran of 12/10/03 (Exhibit 5, without attachments). 
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unable to overcome the straightforward and incontrovertible facts that support confirmation of 
real-time capture and archive of e-mail at the Bureau of Indian Affairs ("BIA") and the Bureau of 
Land Management ("BLM"). Choosing to ignore the substance contained in fifty-five pages of 
attachments to Defendants' Motion, Plaintiffs' counsel instead litter their Opposition with 
unsupported arguments, false statements, and accusations lacking evidentiary support. 
I. The Facts Support Confirmation of Real-Time Capture and Archive of E-Mail at 
BIA and BLM. 
As chronicled in Defendants' Motion,3 the facts surrounding the implementation of the 
ZANTAZ program are not difficult to understand. On August 8, 2002, the Special Master held 
an on-the-record meeting with counsel for Plaintiffs, counsel for Defendants, Interior, and 
Interior's e-mail project contractor (ZANTAZ).4 On August 14, 2002, Interior filed its motion 
with the Special Master seeking approval to implement its ZANTAZ proposal.5 Plaintiffs filed 
their opposition brief with the Special Master on August 28, 2002,6 and Interior filed its reply on 
3 Motion at 2-4. 
4 See Tr., Briefing on Proposed Department of the Interior EMail Backup and Recovery 
Program, Aug. 8, 2002. 
5 Interior Defendants' Motion and Memorandum Regarding Proposal to (1) Restore and 
Search Retained Backup Tapes Containing E-Mail; (2) Implement Real-Time Capture of E-Mail 
Traffic and Incorporation of E-Mail into a Searchable Archive; and (3) Replace Indefinite Retention 
of Backup Tapes Containing E-Mail with Backup of Searchable E-Mail Archive ("Defendants' EMail 
Motion") (Dkt. No. 1421, filed with the Special Master on August 14, 2002), approved by SM 
Sept. 25, 2002 Order, granted by Feb. 7, 2003 Order. 
6 Plaintiffs' Opposition to Interior Defendants' Motion and Memorandum Regarding Proposal 
to (1) Restore and Search Retained Backup Tapes Containing E-Mail; (2) Implement Real-Time 
Capture of E-Mail Traffic and (3) Replace Indefinite Retention of Backup Tapes Containing E-Mail 
with Backup of Searchable E-Mail Archive ("Plaintiffs' Opposition to Defendants' E-Mail Motion") 
(Dkt. No. 1441, filed with the Special Master on August 28, 2002). 
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September 9, 2002.7 On September 25, 2002, the Special Master "ORDERED that the E-Mail 
Proposal is APPROVED for implementation by the Department of the Interior and ZANTAZ . . . 
." SM Sept. 25, 2002 Order at 1. On February 7, 2003, the Court adopted the Special Master's 
September 25, 2002 Opinion and accompanying Order without objection, thus granting 
Defendants' motion "in accordance with the terms set forth in the Order of the Special Master 
. . . ." Feb. 7, 2003 Order at 1. 
In accordance with Defendants' E-Mail Motion, as approved by the Special Master and 
the Court, Interior notified the Special Master, copying Plaintiffs' counsel, on August 15, 2003 
that Interior and ZANTAZ had certified the successful implementation of real-time capture and 
archive of e-mail in the Office of the Special Trustee (OST), the National Business Center (NBC) 
and the Solicitor's Office (SOL). Letter from Siemietkowski to Balaran of 8/15/03, at 1. 
Similarly, on December 10, 2003, Interior notified the Special Master, copying Plaintiffs' 
counsel, that Interior and ZANTAZ had certified the successful implementation of real-time 
capture and archive of e-mail in the Office of Hearings and Appeals (OHA) and the Minerals 
Management Service (MMS). Letter from Siemietkowski to Balaran of 12/10/03, at 1. On both 
7 Interior Defendants' Reply in Further Support of Motion and Memorandum Regarding 
Proposal to (1) Restore and Search Retained Backup Tapes Containing E-Mail; (2) Implement Real- 
Time Capture of E-Mail Traffic and Incorporation of E-Mail into a Searchable Archive; and (3) 
Replace Indefinite Retention of Backup Tapes Containing E-Mail with Backup of Searchable E-Mail 
Archive (Dkt. No. 1467, filed with the Special Master on September 9, 2002). 
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occasions,8 and in accordance with the approved E-Mail Motion,9 Interior notified the Special 
Master that it would assume his confirmation of real-time capture and archive of e-mail at these 
five designated offices if it did not receive a response from him within the approved two-week 
review period. No objection was made by either the Special Master or Plaintiffs' counsel. 
Just as they did not challenge any assertions in Interior's August 15 and December 10, 
2003 submissions to the Special Master, Plaintiffs' counsel likewise offer no protest to any of the 
substance contained in the fifty-five pages of attachments to Defendants' current Motion. In 
essence, Plaintiffs' counsel concede the substance of those attachments, choosing instead to trot 
out10 their hackneyed "purple prose."11 In reversing their prior position, however, Plaintiffs' 
8 See Letter from Siemietkowski to Balaran of 8/15/03 (Exhibit 4), at 2: 
Per your September 25 Order, please confirm for us the "implementation of the realtime 
capture and archive of e-mail traffic" by August 29. If we do not receive a 
response from you by August 29, Interior will assume your confirmation of this 
"implementation of the real-time capture and archive of e-mail traffic." 
See Letter from Siemietkowski to Balaran of 12/10/03 (Exhibit 5), at 2: 
Per your September 25 Order, please confirm for us the "implementation of the realtime 
capture and archive of e-mail traffic" by December 24. If we do not receive a 
response from you by December 24, Interior will assume your confirmation of this 
"implementation of the real-time capture and archive of e-mail traffic." 
9 See Interior Defendants' E-Mail Motion at 18 (Exhibit 6). 
10 Continuing their recidivist use of intemperate language, Plaintiffs' counsel litter their 
Opposition with several baseless and base accusations. See, e.g., Opposition at 1 ("text book 
example of a Rule 11 violation;" "long on deception and intellectual dishonesty;" "the unprincipled 
trustee-delegate and her unethical counsel"). Those are quotes from just the first two sentences of 
Plaintiffs' counsel's Opposition. The invective continues throughout their brief. Such schoolyard 
name-calling in a legal pleading should not be tolerated. Plaintiffs' counsel used similar intemperate 
language in their Opposition to Interior Defendants' E-Mail Motion, filed with the Special Master 
on August 28, 2002. See, e.g., Plaintiffs' Opposition to Defendants' E-Mail Motion at 6 n.7 ("trust- 
(continued...) 
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counsel do not, and cannot, explain why they object to confirmation of real-time capture and 
archiving at the Bureau of Indian Affairs ("BIA") and the Bureau of Land Management ("BLM") 
when they did not object to similar confirmation packages filed on behalf of OST, NBC, SOL, 
OHA and MMS. Established facts simply do not support the claims they advance. 
Plaintiffs' Claims Are Not Supported by Established Facts. II. 
Struggling to justify their first opposition to an Interior submission under the ZANTAZ 
program, Plaintiffs' counsel accuse "the unprincipled trustee-delegate and her unethical counsel" 
of "retroactively seek[ing] to recast the Special Master's September 25, 2002 Opinion as 
something that it is not . . . ." Opposition at 1. However, these claims fall short when measured 
against fact: 
FACT CLAIM 
Defendants' Motion is "short on 
substance." Opposition at 1. 
A fifty-five page attachment accompanies Defendants' 
Motion. Plaintiffs' counsel do not reference any claims in 
the attachment, much less attack those claims. 
Plaintiffs cite no authority for the astonishing proposition 
that the beneficiaries own the actual backup tapes or the 
data on them. 
"[E]-mail backup tapes - trust 
records and data . . . are . . . the 
property of individual Indian 
trust beneficiaries." Id. at 1-2. 
10(...continued) 
delegates who routinely lie about everything material in this litigation;" "contemnors who are 
inclined to commit fraud and evade accountability;" "there is no reason to believe that contemnors 
will not do anything to continue to conceal their frauds"). Just as such vituperation did not sway the 
Special Master in 2002, neither should it persuade the Court today. 
11 Order, Apr. 8, 2003 (Dkt. No. 1961), at 2 n.1. 
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The Special Master's "findings 
speak only to the capability of 
ZANTAZ, not . . . Norton's 
implementation of ZANTAZ's 
proposal . . . ." Id. at 2-3 
(original emphasis). 
Interior has not submitted 
certifications in accordance with 
federal and local jurat 
requirements. Id. at 3 n.4, 4 n.6. 
The Special Master granted 
Interior Defendants' E-Mail 
Motion in accordance with his 
attached order, and the attached 
order "makes no mention - noneof 
a ticking clock provision . . . 
." Id. at 5 (original emphasis). 
Both block quotes in Plaintiffs' Opposition from the 
Special Master's Opinion and Order reference 
implementation of the e-mail proposal. The Special 
Master made no distinction between ZANTAZ and Interior 
in terms of implementation of the e-mail proposal. 
Moreover, the Special Master ordered that "the [Interior 
Defendants'] E-Mail Proposal is APPROVED for 
implementation by the Department of the Interior and 
ZANTAZ . . . ." SM Sept. 25, 2002 Order, at 1 (emphasis 
added). 
Interior's attachments are memoranda within Interior and 
between Interior and ZANTAZ. Neither Interior nor 
ZANTAZ require any type of "jurat" when communicating 
internally or between each other. Moreover, when Interior 
submitted similar certifications to the Special Master and 
Plaintiffs' counsel on behalf of OST/NBC/SOL and 
OHA/MMS, neither the Special Master nor Plaintiffs' 
counsel raised any objections to any of the attachments, 
much less to their form. Plaintiffs already had raised 
similar jurat objections prior to Interior's submissions on 
behalf of OST/NBC/SOL and OHA/MMS, see Plaintiffs' 
Reply to Defendants' Opposition to Plaintiffs' Motion for 
Order to Show Cause Why Defendants and Their 
Employees and Counsel Should Not Be Held in Contempt 
(Feb. 14, 2001) (Dkt. No. 660), at 12, 13; Tr., Bench Trial, 
at 3167:6-14 (Jan. 31, 2002), yet did not raise such 
objections later in the context of implementing the 
ZANTAZ project. 
Interior's E-Mail Motion contained the two-week 
provision. See Defendants' E-Mail Motion at 18, Exhibit 
6. The Special Master's Order approved Interior's E-Mail 
Proposal in the first "ORDERED" paragraph. SM Sept. 
25, 2002 Order at 1, Exhibit 2. The Special Master did not 
in any way excise or modify this two-week provision in his 
Order. Moreover, Plaintiffs never opposed this two-week 
provision in their Opposition to Defendants' E-Mail 
Motion, filed August 28, 2002. 
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The January 27, 2003 Special 
Master Report and the July 27, 
2001 Special Master Opinion 
and Recommendation cited by 
Plaintiffs' counsel provide 
background support for their 
current claim that Interior, 
through the ZANTAZ program, 
is destroying trust documents in 
willful violation of court orders. 
Id. at 6 n.9, 7. 
If Interior was so confident of 
the "ticking clock" provision, 
there was no need to ask the 
court for express confirmation 
for BIA and BLM. Id. at 7. 
III. Plaintiffs Are Inconsistent in Arguing that Interior Has Violated Court Orders and 
Destroyed Trust Records in Implementing the ZANTAZ Proposal Because 
Plaintiffs, Having Knowledge of the ZANTAZ Proposal and Its Corresponding 
Implementation at Five Other Bureaus, Were Fully Aware of Interior's Actions and 
Acquiesced in Them. 
Plaintiffs, through their counsel, claim that Interior has "been in gross violation of Court 
orders . . . law and federal rules" because it has, in accordance with the Special Master's 
September 25, 2002 Opinion and Order, presumed confirmation of real-time capture and archive 
at OST, NBC, SOL, OHA and MMS. Opposition at 5. Their counsel's own actions, however, 
belie this claim. Interior copied Plaintiffs' counsel on both the August 15 and December 10, 
2003 letters to the Special Master regarding confirmation of real-time capture and archiving at 
These quotes from the Special Master's writings indicate 
that the Special Master was not reticent about criticizing 
Interior's e-mail practice; yet the Special Master not only 
approved Interior Defendants' E-Mail Motion, but also 
uttered not one word of disapproval when Interior filed the 
two confirmation packages in 2003 on behalf of 
OST/NBC/SOL and OHA/MMS. 
The Special Master's September 25, 2002 Opinion and 
Order, as approved by the Court, allowed Interior to 
presume confirmation by the Special Master after not 
hearing an objection from him in fourteen days. Interior 
does not presume such confirmation from the Court 
because the Special Master's September 25, 2002 Opinion 
and Order did not provide for confirmation from the 
Court, much less a presumption of confirmation from the 
Court after a two-week review period. 
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OST/NBC/SOL and OHA/MMS, respectively. Both letters clearly notified the Special Master 
and Plaintiffs' counsel of the results of confirmation for these bureaus: 
After ZANTAZ has completed its restoration and archiving of the 
backup tapes, it will return those tapes to Interior for recycling as 
part of the normal backup procedures. 
In that regard, Interior Defendants also notify you, in 
accordance with your September 25 Order, of their intent to return 
to normal e-mail system backup and tape retention procedures for 
all e-mail tapes generated for SOL, OST, and NBC on August 29, 
2003. Thus, the ZANTAZ archive will replace the indefinite 
retention of backup tapes, as provided in your September 25 Order. 
Letter from Siemietkowski to Balaran of 8/15/03 (Exhibit 4), at 2 (footnotes omitted); 
After ZANTAZ has completed its restoration and archiving of the 
backup tapes, it will return those tapes to Interior for recycling as 
part of the normal backup procedures. 
In that regard, Interior Defendants also notify you, in 
accordance with your September 25 Order, of their intent to return 
to normal e-mail system backup and tape retention procedures for 
all e-mail tapes generated for OHA and MMS after their respective 
live capture implementation dates. Interior will return to its normal 
backup and retention procedures for OHA and MMS on December 
24, 2003. Thus, the ZANTAZ archive will replace the indefinite 
retention of backup tapes, as provided in your September 25 Order. 
Letter from Siemietkowski to Balaran of 12/10/03 (Exhibit 5), at 2 (footnotes omitted). 
Upon receipt of these letters, Plaintiffs' counsel did nothing. Even if they somehow 
believed, however wrongly, that Interior did not have the Special Master's permission to 
implement the ZANTAZ project,12 Plaintiffs' counsel nonetheless knew that "[a]fter ZANTAZ 
has completed its restoration and archiving of the backup tapes, it will return those tapes to 
Interior for recycling as part of the normal backup procedures." Letter from Siemietkowski to 
12 Opposition at 3-4. 
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Balaran of 8/15/03 (Exhibit 4), at 2 (footnotes omitted). Even if they somehow believed, 
however wrongly, that Interior's submissions to the Special Master did not constitute 
"certifications,"13 Plaintiffs' counsel nonetheless knew of Interior's "intent to return to normal email 
system backup and tape retention procedures for all e-mail tapes generated for 
[OST/NBC/SOL and OHA/MMS] after their respective live capture implementation dates." Id.; 
Letter from Siemietkowski to Balaran of 12/10/03 (Exhibit 5), at 2 (footnotes omitted). Despite 
their current protests, they did nothing at the time despite having full knowledge of Interior's 
intentions. Had Plaintiffs seen problems with Interior's actions, their counsel surely would have 
raised them at that time. 
Plaintiffs' Opposition Contains Numerous False Statements. IV. 
In their effort to justify their first opposition to an Interior submission under the ZANTAZ 
program, Plaintiffs make several false statements to the Court: 
TRUTH FALSE STATEMENT 
of the SM Sept. 25, 2002 Order. This citation 
references the Special Master's approval of Interior's 
Defendants' Motion refers "generally" Page 2 of Defendants' Motion specifically cites page 1 
to the Special Master's September 25, 
2002 Opinion and Order, but does 
"so without reference to any page or ZANTAZ proposal. 
specific citation." Opposition at 2. 
13 Id. 
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"In their entirety, the Master's 
findings are as follows:" (followed by 
one paragraph from the SM Sept. 25, 
2002 Opinion.) Id. (emphasis 
added). 
"[T]he Master in his order did not 
approve implementation of the 
ZANTAZ proposal . . . ." Id. at 3 
(original emphasis). 
Interior never moved the Master for 
permission to "discontinue the 
practice of creating and preserving email 
backup tapes." Id. at 4. 
Not only did the Master not deem that section of his 
Opinion "Findings," but also Plaintiffs' counsel omit 
two sentences that immediately precede, in the same 
paragraph, their quoted language. Those sentences 
read: "The Special Master credits the representations 
of the Associate Deputy Secretary and finds Interior's 
proposal to be sound. Interior is prepared to spend 
millions of dollars and retain a firm with considerable 
credentials to assist with implementation of a proposal 
that responds directly to concerns raised by the 
Special Master." SM Sept. 25, 2002 Opinion at 6 
(footnotes omitted). 
The Order reads, "ORDERED that the E-Mail 
Proposal is APPROVED for implementation by the 
Department of the Interior and ZANTAZ . . . ." SM 
Sept. 25, 2002 Order at 1 (emphasis added). 
Interior moved for such relief in its original motion to 
the Special Master. See Defendants' E-Mail Motion at 
18, Exhibit 6. Additionally, Interior sought such relief 
from the Special Master on August 15, 2003, on 
behalf of OST, NBC, and SOL. Interior sought the 
same relief from the Master on December 10, 2003, 
on behalf of OHA and MMS. Both letters to the 
Special Master expressly notified him and Plaintiffs' 
counsel that the respective bureaus would recycle the 
backup tapes and that the ZANTAZ archive would 
replace the indefinite retention of backup tapes. See 
Letter from Siemietkowski to Balaran of 8/15/03 
(Exhibit 4), at 2; Letter from Siemietkowski to 
Balaran of 12/10/03 (Exhibit 5), at 2. 
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"Norton and her counsel argue 
disingenuously that plaintiffs had 
never objected to the e-mail proposal 
. . . . [footnote 7]: Norton and her 
counsel seem to be suffering from 
selective amnesia; plaintiffs filed a 
vigorous opposition to the relief 
sought in Defendants' Motion to 
Restore and Capture E-mail." Id. 
"[T]here is no record of any 
certification ever being provided to 
the Master, this Court, or plaintiffs." 
Id. 
"[T]he trustee-delegates never moved 
the Special Master or the Court to 
implement their ZANTAZ 
proposal." "Indeed, the instant 
motion is the first motion filed by 
defendants to implement the 
ZANTAZ proposal." Id.; id. n.8 
(original emphasis). 
Not only do Defendants never make this claim in their 
Motion, but also Defendants specifically cite the 
portion of the SM Sept. 25, 2002 Order that precisely 
notes the Special Master's consideration of Plaintiffs' 
Opposition to Defendants' E-Mail Motion. Motion at 
2. The only lack of opposition Defendants note is 
Plaintiffs' counsel's lack of written objections to the 
Court's adoption of the SM Sept. 25, 2002 Opinion 
and SM Sept. 25, 2002 Order, and their lack of written 
objections to Defendants' specific confirmation 
notices to the Special Master for OST/NBC/SOL and 
OHA/MMS. Motion at 3; 4 nn.4, 5. 
Interior filed real-time capture and archive 
certifications from Interior and ZANTAZ with the 
Special Master and Plaintiffs' counsel on August 15, 
2003, for OST/NBC/SOL, and on December 10, 2003, 
for OHA/MMS. Both filings contain the following 
language in the first paragraph: "Interior Defendants 
provide the attached certifications from Interior and 
ZANTAZ . . . ." See Letter from Siemietkowski to 
Balaran of 8/15/03 (Exhibit 4), at 1; Letter from 
Siemietkowski to Balaran of 12/10/03 (Exhibit 5), 
at 1. 
The very title of Defendants' E-Mail Motion, filed 
with the Special Master on August 14, 2002, reads in 
pertinent part: "Interior Defendants' Motion and 
Memorandum Regarding Proposal to . . . (2) 
Implement Real-Time Capture of E-Mail Traffic and 
Incorporation of E-Mail into a Searchable Archive . . . 
." Defendant's E-Mail Motion at 1 (emphasis added). 
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To the extent it has overwritten email 
backup tapes, Interior has done 
so in "secret" and "surreptitiously." 
Id. at 6, 8. 
Interior sought such relief from the Special Master on 
August 15, 2003, on behalf of OST, NBC, and SOL. 
Interior sought such relief from the Special Master on 
December 10, 2003, on behalf of OHA and MMS. 
Both letters to the Special Master expressly notified 
him and Plaintiffs' counsel that the respective bureaus 
would recycle the backup tapes and that the ZANTAZ 
archive would replace the indefinite retention of 
backup tapes. See Letter from Siemietkowski to 
Balaran of 8/15/03 (Exhibit 4), at 2; Letter from 
Siemietkowski to Balaran of 12/10/03 (Exhibit 5), 
at 2. 
CONCLUSION 
The facts support confirmation of real-time capture and archive of e-mail at BIA and 
BLM. Plaintiffs' counsel cannot explain why they now oppose Court confirmation for BIA and 
BLM when they did not oppose Special Master confirmation for five other bureaus on two 
previous occasions. For these reasons, for all the other reasons stated above, and for the reasons 
stated in Defendants' Motion, the Court should expressly confirm the real-time capture and 
archive of e-mail at BIA and BLM.14 
Respectfully submitted, Dated: November 22, 2004 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
14 Though Defendants have no objection to the Court deciding Plaintiffs' Motion for 
Order to Show Cause Why Interior Defendants and Their Counsel, [sic] Should Not Be Held in 
Contempt for Destroying E-Mail, Dkt No. 1203 (Mar. 20, 2002), referenced by Plaintiffs, 
Opposition at 8, Defendants do not believe it necessary for the Court to decide that motion in 
conjunction with this motion. 
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J. CHRISTOPHER KOHN 
Director 
/s/ John J. Siemietkowski 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
JOHN J. SIEMIETKOWSKI 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-3368 
(202) 514-9163 (fax) 
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CERTIFICATE OF SERVICE 
I hereby certify that, on November 22, 2004 the foregoing Defendants' Reply to Plaintiffs' 
Opposition to Defendants' Motion for Confirmation of Real-Time Capture and Archive of 
E-Mail in the Bureau of Indian Affairs and Bureau of Land Management was served by 
Electronic Case Filing, and on the following who is not registered for Electronic Case Filing, by 
facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
/s/ Kevin P. Kingston 
Kevin P. Kingston
Sep-25-02 03:OO From-THE LAW OFFICE OF ALAN BALAPAN 
ELOUISE PEPION COBELL, er al., 
V. 
Plaintiffs, 
Defendants. 
GALE NORTON, Secretary of the 
Interior, et al. 
BACKGROUND 
IN THE UNITED STATES DISTMCT COURT 
FOR THE DISTRICT OF COLUMBIA 
1 
) 
1 
J 
OPINION 
This mrirter conies before the Speciai hifaster on Inrerior Defendants’ Mocion and 
Memorandum Regardins Proposal to ( 1) Resrore and Search Retained Backup Tapes Containing 
E-mail; (2) Implement R e a l - h e Capture of E-mail Traffic and Incorporation of E-mail into a 
Searchable Archive; and (3) Replxe Indefini:e Retention of Backup Tapes Containing E-mail 
wirh Backup of Searchable E-mail k c h i k e , (“Motion to Resrore and Capture E-mails”), 
Plaintiffs’ opposirion and Defendants’ reply therero. For the reasons stared below, Interior’s 
Motion to Resrore and Capwe E-mails IS GRPSJTED 
On June 11, 1998, plainriffs requested “all documenrs prepared or signed by past or 
present artorneys in the Solicitor’s Office and relaring 10 &is administration of the LIM Trusr 
which express legal advice, conclusions, opinions, assessments, instructions or directions. . .” 
Third Request for Production of Documents (“Third Request”) at 71 2, 3, and 5. Defendants 
responded on July 2, 1938 by filing a Motion for Protective Order in which they arped rhat the 
requested docmenrs should be shielded &om disclosure pursumr to the attorney-client and 
) Civil Action No. 1:96CV01285 (RCL) 
1 
1 
1 
) 
1 
EXHIBIT 1 
Defendants’ Reply to Plaintiffs’ Opposition to 
Defendants’ Motion for Confirmation of Real-Time 
Capture and Archive of E-Mail in the Bureau of Indian 
Affairs and Bureau of Land Management 
2 0 2 9 e 6 e m T-107 P 02/12 F-731 2 0 2 g a 6 ~ Sep-25-02 03:OO From-THE LAW OFFICE OF ALAN BALAPAN 
deliberative process privileges as well as the work product doctrine. 
tapes. Motion for Reconsidsrarion at 4. 
18 (May 11, 1999). 
T-ID7 P 03/12 F-731 
Motion for Protective 
Order at 1-2. On November 9, I998 the Court denied defendanrs’ Motion wirhour opinion- 
On November 20, 1998, Intcrior fired irs Motion for Reconsideration asking the SpeciaI 
Master to revisit thar portion ofthe Court’s order implicating the production of e-mail messages 
remeved from backup tapes. Ciring the unduly burdensome nature of searchin2 the backup rapes 
for electronic mail messa2es, Interior maintained rhar producrion of paper printouts of the 
elecronic messages rendered LLmnreasonable and duplicative” the need to search the backup 
The Special Master disagreed and, on May 1 I, 1999, ordaed defendanrs ro produce those 
e-mail documents responsive to Plaintiffs’ Third Request forrhwirh. Special Master Opinion and 
Order ar 5 (May 11, 1999).’ More than one year later, on August 3,2000, defendants sought 
“clarificarion” of rhe May 1 1 opinion, questioning: (1) whether the Special Master Order required 
defendants to search only the cache or 206 backup tapes rerained by rhe agency for use in 3 
separare independent investigarion or wherher it imposed a broader, ongoing obligation that 
includes ail tapes - even rhose produced at Deparrrnent of lnrenor Regional and Area Offices; (2) 
whether rhe Special iMsrh Order should be revisited in light of rhe Court’s December 2 1, 1999 
ruling; and (2) whether the burden of searcling backup rapes was weasonable in light of the 
procedural posture of the case and in lighr of defendants’ policy of maintaining the idenrical e- 
mail information in hard copy. Special Master Opinion at 2 (July 37,2001). The Special Master, 
By separare opiiiion issued the s a n e date, the Special Master ganted pIainriffs’ motion 
to compel production of cerrain documents after finding that they were no1 prolected by either the 
artorney-client or deliberarive-process privilege. See CobeII v. Babbitt, Opinion and Order at 7- Sap-25-02 03:Ol 2 0 2 ~ 6 8 4 7 7 From-THE LAW OFFICE OF ALAN PALARAN 
on July 27,2001, held that defendants were obhgared to retain and search alJ 
transmissions. See generally Special Master Opinion (July 27, 200 1). 
NTERIOR’S E-MAIL PROPOSAL 
archive. Motion to Resrore and Caprure E-mails at 10. (“€-Mail Proposal”). 
T-107 P 04/12 F-731 
e-mail backup tapes 
generated by the Office of the Solicitor and that rhis obligarion was neither mitigared by the 
underlying litigaiion posture or by Interior’s policy of generating paper copies of its electronic 
In response to the July 27,2001 Opinion, Interior filed the instant motion in which it 
proposes: (1) eo conduct a physical inventory of backup tapes in rhe possession of the Office of 
the Solicitor, Bureau of Indian Affairs, Office of the Special Trustee, Office of rhe Secretary, 
Office of Historical Trust Accomring, Office of Policy, Management and Budget, Office of the 
Assistant Secrerary for Indian Affairs, Minerals Management Semice, Bureau of Land 
Managenienr and Office of Hearings and Appeals - collectively referred to as the “Designated 
Offices” (Morion 10 Resrore and Capture E-mails at 4-5); (2) to restore e-mails &om those tapes, 
reduce mulriple occurrences of an identical e-mail 10 a single unique document (“de-dupe”), 
upload all unique e-mails to a searchable srorage medium and then search those transmissions 
(Motion ro Restore and Copme E-mails ar 9); and (3) to caprure all e-mail traffic generated and 
received by the Designated Offices and roure those transmissions to an off-site searchable e-mail 
Phase 1 of Lnrerior’s endeavor has already been completed by Ernst & Young who 
determined that the Dssignated Offices housed a [oral of 7,068 e-mail backup tapes generated 
between May 1,1999 and November 30,2001. To implement the remaining two phases, Intenor 
proposes to retain the services of ZA2VTAZ h c . (“ZANTA2”) - “the largesr oursourced service 
provider rhat deIivers secure storage, archiving and instantaneous retrieval solutions for 
-5- 2 0 z g e 6 e m Sap-25-02 03:Ol From-THE LAW OFFICE OF ALAN PALARAN 
and irs own backup procedures.” Motion to Restore and Capture E-mails ar 6. 
modification dares and orher “embedded” data. 
T-107 P 05/12 F-731 
electronic messages and all related attachments.” hfotion to Restore and Capture E-mails, Ex. 1 
(DEF00433 18). Given the estimared $5 million cosr of this effort (February 20,2002 Lsrter fiom 
United Stares Departnient of Justice Attorney Peter B. Miller to Special Master Alan L. Balaran 
and Plaintiffs’ counsel Dennis M. Gingold at 2), Interior, before entering into a final contract 
with ZAXTAZ, seeks advance concurrence from the Special Master rhat the E-Mail Proposd 
“addresses the July 2001 Opinion and rclated orders regarding the search and production of e- 
inails from retained e-mail backup rapes and from future e-mail traffic” and “relieves the InLenor 
Defendana of the finmcial and adminisnative burden of indefinitely generating and retaining e- 
mail backup tapes a-s soon 3s ZANTAZ has implemented irs real-time capture of e-mail traffic 
Plaintiffs oppose Interior’s efforts on the grounds that the E-Mail Proposal constitutes a 
transparent attempt by Inrerior to avoid complying with the July 27,2001 Opinion of the Special 
Master. Plaintiffs objxt specifically to the exclusion of certain key offices md bureaus from the 
list of Designated Offices, ro the proposed “periodic” appnsal of the Special Master, to the use of 
search terns and to the methodology involved in &-duping the responsive e-mails - that they 
contend Nil1 result in “massive spoliation’’ of key information such as nansmission receipt times, 
The Special Master conveyed similx concerns to fnrcrior and requesred confirmarion: (l} 
that the National Business Cenrer (“NBC”), the Bureau of Reclamation (“BOR’) and the Office 
of Surface Mining (“OSM’) would be included in rhe list of Designated Offices; (2) that c-mail 
n a c captured from rhe Designated Offices would contain information residing on the servers of 
rhese offices operated by Interior employees as well as third parries and contraclors; (3) that there 
-4- 2029060477 From-THE LAW OFFICE OF ALAN PALARAN 
those residing on e-mail servers to verify complete arid accurate capture.2 
digital safe, Wirh originals rerumed to Interior; (6) that aJ 
between the two.’ 
Sep-25-02 03:OJ 
prog-iess. 
T-107 P 06/12 F-731 
exist no other collections of e-mails that should be incorporated into the E-Mail Proposal; (4) that 
e-mails generated by official laptops would be captured aid archived for storage and retrieval; 
(5) that no information contained on Interior’s e-mails would be lost or ovenvririen; (6) that all e- 
mails on servers would be caprured on backup tapes for restoration or caprured in real time and 
housed on ZANTAZ’ archival sysrenl; and (7) that archived transmissions would be compared to 
By lerter dared Septeniber 20, 2002, Interior Associate Deputy Secretary James Cason 
assured the Special Mster: ( l j that hBC, BOR and OSM would be included among the 
Designated Offices (and that the Office of the Chief Information Officer would aniend the recent 
Federal Regisrer notice accordingly); (2) that all Designared Office s-mail servers had been 
identified and a lisr of these servers would be provided ro the Special Master; (3) Their rhere are no 
other e-mail collections to be incorporated into rhe E-Mail Proposal; (4) that e-mails generated or 
received by official laprops assigned to Designated Offices would be transmitted through a server 
identified as part of the E-Mail Proposal; (5) that e-mails would be copied to the 2A”A.Z 
e-mails traveling on the server would 
be captured for caralog-ing and storing; and ( 7 ) thar resrored and capwed e-mails would be 
checked against existing back-up tapes during the srmup period when there is an overlap 
The Special Master also inquired into the deadlines for obligatii1,o fmds for the E-Mail 
Proposal and into the procedures Interior would employ to update the Special Master of its 
Zn response 10 the Special Masier’s inquiry regarding deadIines for obiisping funds a i d 
the method by which Interior would repon to the Special Master, Interior stated that Special 
Master concurrence with the E-Mail Proposal must be received by 5:OO p.m. on Seprember 25, 
-5- 2029868477 From-THE LAW OFFICE OF ALAN PALAPAN 
% 
1-107 P 07/12 F-731 
The Special Master credirs the representations of the Associate Deputy Secretary and 
finds Interior’s proposal to be sound.4 Interior is prepared to spend millions of d011m and rerain 
a firm with considerable credentials to assist with implenienrarion of a proposal that responds 
direcrly to concerns raised by the Special Maser.’ After reviewing ZANTAZ’ Sratenient of 
Work and other relevant documentation and attending the August 8,3002 presenrarion, the 
Special Master finds that ZANTAZ possesses the technology and skill necessary to cspture, 
archive and search Interior’s e-moil lransmissions. ZAVTAZ’ ability to iniriare multiple search 
capture all sender and recipient 
information, and archive all information in a secure environment render it an appropriate 
2002 in order to ‘reasonably ensure [Xnrerior’s] abiliry 10 obligate fwids” from the Fiscal Year 
2002 budget and thar Interior would provide ZALNTAZ’ monthly repons in che biweekly sratus 
The Special Master’s endorsement of Interior’s plan should not be construed as one that 
relieves the agency of its obligations 10 produce ro plainriffs, once and for 311, all responsive 
information contained on these backup tapes (as well as all relevant information captured and 
searched in the future). Plaintiffs have been seeking access to this informarion since June 1 1, 
1998. Nor does this opinion have any impact on whatever consequences may flow fram 
ZANTAZ’ credentials and proposed merhodology are set out in hterior’s Motion to 
Restore and Capture E-mails ar Exhibit 1 B (DEF0043338); Exhibit 2, pp. 7 and 13; and Exhibit 
ZANTAZ Statement of Work (“The Contractor shall implement Live E-Mail 
Capture for additional DO1 bureaus not included in the original scope of this contract.”) 
’ Usinterneworking (YJSi”), at the direction of the Special Master, conducted a battery 
of tests ro assess ZANTU’ security conrrols. In a repon to the Special Masrer dated September 
Sep-25-02 0 3 : 0 2 
DISCUSS ION 
variarions, accommodate additional bureaus and 
candidate for implementing the E-Mail Pr~posal.~ 
repom already prepared for rhe Special Masrer. 
Interior’s past failure to do so. 
3, pp. 1-2 and will not be repeared here. 
Sralernenr of Work at 10, 4 6.4 Option 3. 
-6- 2029868477 T-107 P 08/12 F-731 
For these reasons, htenor’s Motion ro Resrore and Capture E-mails is GRANTED in 
From-THE LAW OFF ICE OF ALAN BALAPAN 
accordance with rhe terms of the attached Order. 
Respect folly submitted, 
Sep-25-02 03:02 
- 
, 
AIan Balaran 
SPECIAL MASTER 
17,2002, US1 confirmed ZANTAZ’ ability to securely archive hten‘or’s e-mail transmissions. 
See also Motion to Resrore and Capture E-mails at Exhibit 1 Attachment B oEF0043341 - 
DEF0043343) and Exhibit 1 Attachment C (DEF0043344 - DEF0043393). 
-7- 20 Zg868477 Sap-25-02 03:23 
V. 
T-109 P 02/03 F-733 
Case No. 1 :96CV01285 RCL 
(Special Masrer .41an Balmn) 
From-THE LAW OFFICE OF A L A N F A L A R A N 
fir THE UXTTED ST-ATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, gt &, 
Plaintiffs, 
GALE A. NORTON, Secrerary of rhe Interior, d.,) g 
Defendants. 
1 
) 
) 
) 
f 
1 
) 
ORDER REGARDING INTENOR DEFENDAETS’ E-MAIL PROPOSAL 
Upon consideration of the Interior Defendants’ Morion and Memorandum Regarding 
Proposal to (1) Restore and Search Retained Backup Tapes Containing E-Mail; (2) Implement 
Real-Time Caprure of E-Mail Traffic and Incorporxion of E-Mail into a Searchable Archive; and 
(3) Replace Indefinjre Retention of Backup Tapes Containing E-Mail with Back-Vp of 
Searchable E-Mail Archive and artachments thereto (collectively, ”E-Mail Proposal”), rhe 
Plaintiffs’ response, the August 8 presentation by the Inrenor Dcfendms 2nd ZANT.42 TO the 
Special Master and to counsel for the Plaintiffs, and the enrire record herein, it is hereby 
ORDEFED that the E-Mail Proposal is APPROVED for iniplemenraTion by the 
Depmment of the Inrerior and ZANTAZ, and it is furrher 
ORDERED that the foIlowing offices and bureaus wirhh the Depmment ofrhe lnrerior 
shall be ‘‘Designated Offices” for pwposss of implementing rhe E-Mail Proposal: Office of the 
Soliciror; Bureau of Indian Affairs; Office of the Special Trustee; Office of Historical Tnisr 
Accomrin:; Minerals Managemenr Service, Bureau of Land Management, Office of .- rhc 
Secretary; Office of the Assistant Secretary for Indian Affairs; Office of Hearings and Appeals; 
EXHIBIT 2 
Defendants’ Reply to Plaintiffs’ Opposition to 
Defendants Motion for Confirmation of Real-Time 
Capture and Archive of E-Mail in the Bureau of 
Indian Affairs and Bureau of Land Management 2029868477 Sep-25-02 03:23 T-109 P 03/03 F-733 
furrher 
F rom-THE LAY/ OFF ICE OF ALAN PALARAN 
and Office of the Assistant Secrerary for Policy, Manasement and Budget, Bureau of 
Reclamation, Natioiial Business Cenrer, Office of Surface Minins and m y other office or bureau 
determined by rhe Special Masrer to warrant inclusion in the list of Designated Offices; it is 
ORDERED that the Iixerior Defendants shalI notify the Special Masrer inmiediatcly of 
any delay or circumstance that adversely affects implenienrarion of rhe E-Mail Proposal; shall 
notify the Special Master immediately when rhe Department of the Interior enters into a final 
contract with ZANTAZ for services relared to rhe E-Mail Proposal; shall keep the Special Master 
informed on a moorhly basis, via a written repon, of the status of the restorarion, archive, and 
search of retained backup tapes for the Designated Offices, of the status of irnp1mcnt;ition of 
real-time capture of e-mail traffic within the Designated Offices and of the incorporation of that 
e-mail traffic into the searchable e-mail archive backed up, maintained, and adminisrered by 
ZANTAZ; and shall forward to rhe Special Masrer a copy of all progress reports senerased by 
ZANTA2; and it is finher 
ORDERED that implementation ofthe real-time caplure ,and archive of e-mail traffic, 
when cenified by the Department of the Interior and ZANTAZ and confirmed by thc Special 
Master, will relieve rhe Departmenr of rhe Interior of .my obiigation to indefinitely retain backup 
tapes conraining e-mail traffic a i d will allow the Dzpmment of the Interior to follow its normal 
system backup and rape retention procedures a s long as b e real-time capture and archive of 
e-mail traffic rmiains in effect. 
-2- UNITED STATES DISTFUCT COURT 
FOR THE DISTRJCT OF COLUMBIA 
ELOUXSE PEPTON COBELL, $., 
Plaiotiffs, 
V. 
) 
1 
1 
) 1 
) 
1 
1 
ORDER 
For the reasons stated in the opinion of the Special Master on defendants' motion to 
restore m d capture e-mails 11421-1'], which opinion was filed on January 17,2003, it is hereby 
ORDERED that defendants' motion be, and hereby is, GUVTED in accordance with the terms 
sct forth in the Order ol: the Special Master [l734]. 
GALE NORTON, Secretary of the 
Interior, g &., 
Defendants. 
SO ORDERED. 
c . 
RMce C. Lamberth 
United States Dismct Judge 
Civil Action Nnmber 96-1285 (13CL) 
FILE 
c 
EXHIBIT 3 
Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion 
for Confirmation of Real-Time Capture and Archive of E-Mail in 
the Bureau of Indian Affairs and Bureau of Land Management Bv Hand Delivery 
U.S. Department of Justice 
Civil Division 
Express Delivery: 
1100 L Street, N.W. 
Regular Mail: 
P.O. Box 875 
Ben Franklin Station 
Washington, DC 20044-0875 
Room 100.50 
Washington, DC 20005 
Tel.: (202) 514-3368 
Facsimile: (202) 5 14-9163 
John J. Siemietkowski 
Trial Attorney 
August 15,2003 
Mr. Alan Balaran 
Special Master 
17 17 Pennsylvania Avenue, N. W. 
Thirteenth Floor 
Washington, D.C. 20006 
OST, and NEC 
Dear Mr. Balaran: 
E-mail: john.Siemietkowski@usdoj.gov 
Re: Notification and Certifications fiom Interior and ZANTAZ that Real-Time 
Capture and Archive of E-Mail Has Been Successfully Implemented in SOL, 
In accordance with your September 25, 2002 Opinion and Order,' filed by the Court on 
January 17, 2003,* Jnterior Defendants provide the attached certifications from Interior and 
ZANTAZ regarding the successful implementation of real-time capture and archive of e-mail in 
SOL, OST, and NBC. In addition, Interior Defendants also provide the attached presentation 
package describing ZANTAZ's process for verifymg the real-time capture and archive of e-mail. 
Interior seeks your confirmation that SOL, OST, and NBC need no longer indefinitely retain 
backup tapes of these captured and archived e-mails. 
You will note that each section of the certification package (SOL, OST, NBC) contains 
ZANTAZ's certification, a two-page overview of the certification process provided by ZANTAZ 
(identical for each of the three bureaus), and a short print-out or spread sheet from Interior 
identifying which code word each bureau randomly chose to dse in its test message to ZANTAZ 
(i.e., "Aardvark"). Please note that ZANTAZ has marked its presentation slides as "Confidential 
This Opinion and Ordcr approved Interior Defendants' Motion and Memorandum 
regarding their proposal to (1) restore and search retained backup tapes containing e-rnail; (2) 
implement real-time capture of e-mail traffic and incorporate e-mail into a searchable archive; 
and (3) replace indcfinite retention of backup tapes containing e-mail with backup of a searchable 
e-ma1 archive. 
Neither party filed objections to your September 25 Opinion and Order. 
EXHIBIT 4 
Defendants' Reply to Plaintiffs' Opposition to 
Defendants' Motion for Confirmation of Real-Time 
Capture and Archive of E-Mail in the Bureau of Indian 
Affairs and Bureau of Land Management and Propriety Information." Interior asks that you treat the presentation slides as confidential and 
therefore not for release to the public, either by you or by plaintiffs. Please note too that Interior 
has redacted the IP addresses identified by each bureau's OCIO. 
The process of restoring and archiving e-mail fiom backup tapes into the ZANTAZ 
archive is continuing for e-mail backup tapes generated for the designated offices, including 
SOL, OST, and NBC, for which confirmation is now sought. This restoration and archiving will 
continue for backup tapes generated before live capture was implemented on February 22 (OST), 
May 22 (SOL), and June 27 (NBC). Interior Defendants have reported, and will continue to 
report, the status of the restoration and archiving though the status reports attached to Intenor's 
portion of the biweekly report. AAer ZANTAZ has completed its restoration and archiving of the 
backup tapes, it will return those tapes to Interior for recycling as part of the normal backup 
procedures. 
In that regard, Interior Defendants also notify you, in accordance with your September 25 
Order, of their intent to return to normal e-mail system backup and tape retention procedures for 
all e-mail tapes generated for SOL, OST, and NBC after their respective live capture 
implementation dates. Interior will return to its normal backup and retention procedures for 
SOL, OST, and NBC on August 29,2003 .3 Thus, the ZANTAZ archive will replace the 
indefinite retention of backup tapes, as provided in your September 25 Order.4 Per your 
September 25 Order, please confirm for us the "implementation of the real-time capture and 
archive of e-mail traffic" by August 29. If we do not receive a response from you by August 29, 
Interior will assume your confirmation of this "implementation of the real-time capture and 
archive of e-mail traffic." 
Thank you for your assistance in this matter. 
- See Interior Defendants' Motion and Memorandum regarding the ZANTAZ proposal, 
filed February 14,2002, at 18 (specifjmg two-week review period for Special Master). 
4 [Ilmplernentation of the real-time capture and archive of e-mail 
traffic, when certified by the Department of thi Interior and 
ZANTAZ and confirmed by the Special Master, will relieve the 
Department of the Interior of any obligation to indefinitely retain 
backup tapes containing e-mail traffic and will allow the 
Department of the Interior to follow its normal systcm backup and 
tape retention procedures as long as the real-time capture and 
archive of e-rnail traffic reniains in effect. 
Special Master Order of Sept. 25, 2002, at 2. 
2 n Sincerely, n 
John J. Siemietkowski 
Trial Attorney 
Commercial Litigation Branch 
Enclosures 
cc: 
f / . 
Civil Division 
Dennis M. Gingold, Esquire (by hand delivery, with enclosures) 
Brenda Riel, Esquire (by hand delivery, with enclosures) 
3 U.S. Department of Justice 
Civil Division 
Express Delivery: 
I 100 L Street, N.W. 
Regular Mail: 
P.O. Box 875 
Ben Franklin Station Room 10050 
Washington, DC 20005 
Tel.: (202) 5143368 
Facsimile: (202) 5 14-9 I63 
December 10,2003 
Bv Han d Deliverv 
Mr. Alan Balaran 
Special Master 
Washington, DC 200460875 
John J. Siemietkowski 
Trial Attomcy 
1 7 1 7 Pennsylvania Avenue, N. W 
Thirteenth Floor 
Washington, D.C. 20006 
Re: Notification and Certifications from Interior and ZANTAZ that Real-Time 
Capture and Archive of E-Mail Has Been Successfully Implemented in OHA and 
MMS 
Dear Mr. Balaran: 
In accordance with your September 25,2002 Opinion and Order,' filed by the Court on 
January 17,2003,* Interior Defendants provide the attached certifications from Interior and 
ZANTAZ regarding the successful implementation of real-time capture and archive of e-mail in 
OHA and MMS. In addition, Interior Defendants also provide the attached presentation package 
describing ZANTAZ's process for veritjlng the real-time capture and archive of e-mail. Interior 
seeks your confirmation that OHA and MMS need no longer indefinitely retain backup tapes of 
these captured and archived e-mails. 
You will note that Tabs 5 and 7 contain ZANTAZ's certification, a two-page overview of 
the certification process provided by ZANTAZ (identical for each of the two bureaus), and a 
short print-out or spread sheet from Interior identifying which code word each bureau randomly 
chose to use in its test message to ZANTAZ (i.e., "outterbanks"). Please note that ZANTAZ has 
marked its presentation slides as "Confidential and Propriety Information." Interior asks that you 
This Opinion and Order approved Interior Defendants' Motion and Memorandum 
regarding their proposal to (I) restore and search retained backup tapes containing e-mail; (2) 
implement real-time capture of e-mail traffic and incorporate e-mail into a searchable archive; 
and (3) replace indefinite retention of backup tapes containing e-mail with backup of a searchable 
e-ma1 archive. 
Neither party filed objections to your September 25 Opinion and Order. 
E-mail: John.Sicmietkowski@usdoj.gov 
EXHIBIT 5 
Defendants' Reply to Plaintiffs' Opposition to 
Defendants' Motion for Confirmation of Real-Time 
Capture and Archive of E-Mail in the Bureau of Inman 
Affairs and Bureau of Land Management treat the presentation slides as confidential and therefore not for release to the public, either by 
you or by plaintiffs. Please note too that Interior has redacted the TP addresses identified by each 
bureau's OCIO. 
The process of restoring and archiving e-mail From backup tapes into the ZANTAZ 
archive is continuing for e-mail backup tapes generated for the designated offices, including 
OHA and MMS, for which confirmation is now sought. This restoration and archiving will 
continue for backup tapes generated before live capture was implemented on June 9,2003 
(OHA) and August 5,2003 (MMS). Interior Defendants have reported, and will continue to 
report, the status of the restoration and archiving through the status reports attached to Interior's 
portion of the biweekly report. After ZANTAZ has completed its restoration and archiving of the 
backup tapes, it will return those tapes to Interior for recycling as part of the normal backup 
procedures. 
In that regard, Interior Defendants also notify you, in accordance with your September 25 
Order, of their intent to return to normal e-mail system backup and tape retention procedures for 
all e-mail tapes generated for OHA and MMS after their respective live capture implementation 
dates. Interior will return to its normal backup and retention procedures for OHA and MMS on 
December 24,2003.' Thus, the ZANTAZ archive will replace the indefinite retention of backup 
tapes, as provided in your September 25 Order.* Per your September 25 Order, please confirm 
for us the "implementation of the real-time capture and archive of e-mail traffic" by December 
24. If we do not receive a response from you by December 24, Interior will assume your 
confirmation of this "implementation of the real-time capture and archive of e-mail traffic." 
Thank you for your assistance in this matter 
- See Interior Defendants' Motion and Memorandum regarding the ZANTAZ proposal, 
filed August 14, 2002, at 18 (specifying two-week review period for Special Master). 
4 [Ilmplementation of the real-time capture and archive of e-mail 
traffic, when certified by the Department of the Interior and 
ZANTAZ and confirmed by the Special Master, will relieve the 
Department of the Interior of any obligation to indefinitely retain 
backup tapes containing e-mail traffic and will allow the 
Department of the Interior to follow its normal system backup and 
tape retention procedures as long as the real-time capture and 
archive of e-mail traffic remains in effect. 
Special Master Order of Sept. 25, 2002, at 2. 
2 Sincerely, 
I. Siemietkowski 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
Enclosures 
cc: Dennis M. Gingold, Esquire (by hand delivery, with enclosures) 
Keith Harper, Esquire (by fax, without enclosures) 
3 IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., 
V. 
Plaintiffs, 
GALE NORTON, SECRETARY OF 
THE INTERIOR 
) 
1 
) 
1 
) 
) 
No. 1:96CVO1285 RCL 
(Hon. Alan L. Balaran, Special Master) 
et aI., 
) 
Defendants. ) 
INTERIOR DEFENDANTS’ MOTION AND MEMORANDUM 
REGARDING PROPOSAL TO 
(1) RESTORE AND SEARCH RETAINED BACKUP TAPES CONTAINING E-MAIL; 
(2) IMPLEMENT REAL-TIME CAPTURE OF E-MAIL TRAFFIC AND 
INCORPORATION OF E-MAIL INTO A SEARCHABLE ARCHIVE; AND 
(3) REPLACE INDEFINITE RETENTION OF BACKUP TAPES CONTAINING 
E-MAIL WITH BACKUP OF SEARCHABLE E-MAIL ARCHIVE 
The United States, on behalf of the Interior Defendants, respectfully submits to the 
Special Master this consolidated motion and memorandum, with accompanying proposed order, 
regarding (1) restoration and search of retained backup tapes containing e-mail, 
(2) implementation of real-time capture of e-mail traffic and incorporation into a searchable 
archive; and (3) replacement of the indefinite retention of backup tapes containing e-mail with 
backup of the searchable e-mail archive (items 1-3 collectively, “E-Mail Proposal”). 
As described preliminarily in the February 20,2002 letter to the Special Master and 
Counsel for the Plaintiffs and accompanying attachments, attached and incorporated by reference 
(“February 20 Letter”; ~ e e Exhibit l}, the Interior Defendants have been working to address 
discovery-related issues involving the search and potential production of e-mail from system 
backup tapes containing e-mail (”e-mail backup tapes”), as addressed in the Special Master’s July 
EXHIBIT 6 
Defendants’ Reply to Plaintiffs’ Opposition to 
Defendants’ Motion for Confirmation of Real-Time 
Capture and Archive of E-Mail in the Bureau of Indian 
Affairs and Bureau of Land Management indefinitely retaining e-mail backup tapes and allowing them to return to standard system backup 
and tape retention procedures according to the following process: 
The Interior Defendants will provide the Special Master with two 
documents to confirm that e-mail capture has been implemented: 
(a) a letter from Interior declaring that it identified to ZANTAZ all 
mail servers providing e-mail to a particular Designated Office, 
and 
(b) a letter from ZANTAZ confirming that the real-time capture and 
archive of e-mail traffic has been implemented for all identified 
mail servers providing e-rnail to a particular Designated Office and 
has operated for two weeks in accordance with ZANTAZ’s 
standards for monitoring and documenting e-mail capture; 
The Special Master will have two weeks from receipt of that letter from 
the Interior Defendants to verify or otherwise follow-up with the Interior 
Defendants and/or ZANTAZ regarding operation of the real-time capture 
and archive of e-mail traffic for .that particular Designated Office; 
Upon the earlier of the Special Master’s approval or passage of the two- 
week period without any response from the Special Master, unless 
extended by order of the Special Master for a particular Designated Office, 
that office will be released from any further obligation to indefinitely 
retain e-mail backup tapes and may return to its standard system backup 
and tape retention procedures; and 
Compliance with these procedures will relieve Interior from indefinitely 
retaining e-mail backup tapes, and Interior will have no further e-mail 
backup and retention obligations relating to this case - apart from those 
performed by ZANTAZ - unless and until the contract with ZANTAZ is 
terminated or ZANTAZ otherwise notifies Interior that it is unable or 
unwilling to perform e-rnail backup and retention on behalf of Interior. 
18