UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLU_,IBIA ) ELOUISE PEPION COBF_,LL, et al., ) ) Plaintiffs, ) Civil Action No. 96-1285 (RCL) ) v. ) ) GALE A. NORTON, et al., ) ) Defendants. ) ) THE GOVERNMENT'S RESPONSE TO PLAINTIFFS' BILL OF PARTICULARS AND SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR AN ORDER TO SHOW CAUSE WHY EDITH BLACKWELL SHOULD NOT BE HELD IN CONTEMPT IN CONNECTION WITH THE OVERWRITING OF BACKUP TAPES On behalf of Edith Blackwell, in her official capacity, the United States hereby responds to and moves tb dismiss the "Bill of Particulars for Edith Blackwell in Support of Plaintiffs' Motion for Order to Show Cause Why Interior Defendants and Their Counsel Should Not Be Held in Civil and Criminal Contempt for Destroying E-Mail (3/20/02) and Supplemental Memorandum of Points and Authorities in Support of Criminal Contempt " (hereinafter "Supplemental Memorandum"), filed July 29, 2002.1 Ms. Blackwell, who is not a party to this case, is a Deputy Associate Solicitor of the Department of the Interior. The Supplemental Memorandum purports to be filed "[i]n accordance with this Court's instruction on March 15, 2002," as the "second in a series of civil, and criminal contempt bills of particulars, clarifying and referencing specifications and evidence" against Ms. Blackwell and others who are the subject of plaintiffs' numerous contempt motions. Supplemental Memorandum i Ms. Blackwell is separately represented in her personal capacity. at 1 n. 1. The Supplemental Memorandum is directed toward allegations concerning overwriting of backup e-mail tapes which were the subject of the March 20, 2002 contempt motion, and plaintiffs represent that another memorandum addressing other allegations against Ms. Blackwell will be forthcoming. The Supplemental Memorandum, and the request that ]Ms. Blackwell be held in contempt, should be dismissed for several reasons. First, sovereign immunity precludes the imposition of criminal penalties against Ms. Blackwell in her official capacity. 2 Second, issues concerning the backup e-mail tapes have been fully briefed; plaintiffs have not sought nor been granted leave to file a supplemental brief on that issue; and the current filing does not set forth any basis tbr doing so. 3 Third, the Supplemental Memorandum, despite the title, is not a "bill of particulars" and does not comply with the Court's directive at the hearing of March 15, 2002, that the plaintiffs state "individual defendant by individual defendant" specific contempt charges and evidence supporting 4' those charges. Cobell v. Norton, Civ. Action No. 96-1285(RCL), Transcript of March 15, 2002 Status Hearing, at 21"10-1,4 ("3/15/02 Tr."). Instead, the Supplemental Memorandum is, if possible, even less focused and more discursive than plaintiffs' earlier attempts on the backup tapes. Fourth, despite their repeated attempts to do so, plaintiffs have not presented aprimafacie case of contempt, let alone', made the heightened showing necessary to establish criminal contempt. 2 It is not clear from the Supplemental Memorandum whether plaintiffs are seeking civil contempt against Ms. Blackwell in relation to the backup tapes, though the draft order suggests that they are. 3 The Supplemental Memorandum purports to incorporate by reference the plaintiffs' initial motion filed March 20, 2002 and the reply brief filed April 15, 2002. Supplemental Memorandum at 1 n. 1. The United States moved to strike the reply brief. Plaintiffs did not respond to the motion to strike the reply brief, even though the, Court did not rule on their motion to extend indefinitely the July 8, 2002 deadline for their response. Accordingly, the motion to strike the reply brief may be treated as conceded. Local Rule 7.1 (b). -2- ARGUMENT A. Sovereign Immunity Precludes the Imposition of Criminal Penalties Against Ms. Blackwell in Her Official Capacity Plaintiffs request that Ms. Blackwell be referred for a prosecution for criminal contempt. Supplemental Memorandum at 1 n. 1. As the government pointed out in "Government's Opposition to Plaintiffs' March 20, 2002 Motion for Orders to Show Cause Why Interior Defendants and their Employees and Counsel Should Not be Held in Contempt" filed April 3, 2002 (the "Government's Opposition"), at 13-16, sovereign immunity bars criminal contempt sanctions against Ms. Blackwell in her official capacity. Since the government has received notice and anopportunity to respond to the contempt claim against Ms. Blackwell, the claim against her in her official capacity is to be treated as a claim against the government. Coleman v. Espy, 986 F.2d 1184, 1189 (8th Cir.), cert. denied sub nom. Dye v. Espy, 510 U.S. 913 (1993), citing Kentucky v. Graham, 473 U.S. 159 (1985). See also Wyoming v. United States, 279 F.3d 1214, 1225 (10th Ciii 2002), and cases cited therein. The doctrine of sovereign immunity bars the imposition of fines or penalties against the government, except to the extent that the United States has explicitly consented to such sanctions. United States v. Horn, 29 F.3d 754, 761 (lst Cir. 1994). A waiver of sovereign immunity must be definitively and unequivocally expressed and must appear in the text of the statute itself. In re Sealed Case, 192 F.3d 995, 1000 (D.C. Cir. 1999), citingLane v. Pena, 518 U.S. 187, 192 (1996); United States v. Horn, 29 F.3d at 762, citing United States v. Mitchell, 445 U.S. 535, 538 (1980), and United States v. Nordic Village, Inc., 503 U.S. 30 (1992). The United States ihas not waived sovereign immunity from citations for criminal contempt. Coleman v. Espy, 986 F.2d at 1191; United States v. Horn, 29 F.3d at 763; see also In re Sealed Case, 192 F.3d 995,999-1000 (D.C. Cir. 1999) ("...it is far from clear that Congress has waived -3 - federal sovereign immunity in the context of chminal contempt .... We know of no statutory provision expressly waiving federal sovereign immunity from criminal contempt proceedings."). 4 Similarly, the court in In re Newlin, 29 B.R. 781,785 (E.D. Pa. 1983), held that a criminal contempt citation by a bankruptcy court against a federal agency violated sovereign immunity because the government had not expressly waived its immunity from citation for criminal contempt. Consequently, to the extent that plaintiffs now are attempting 1:o have Ms. Blackwell in her official capacity prosecuted for criminal contempt, the plaintiffs' motion must be denied. B. Plaintiffs' Repetitive Filing of Specious Contempt lVlotions is Improper. 1. Plaintiffs Should Not Be Permitted Multiple Bites at the Apple. Plaintiffs are now on their third attempt to seek sanctions for overwriting of some backup tapes, a fully-disclosed ewmt that occurred years ago and as to which plaintiffs have never proven 4 that they suffered any material harm. Due:_rocess forbids such multiple and belated efforts to impose criminal sanctions upon an individual. Plaintiffs sought sanctions based on the e-mail backup tape issue in their September 12, 2000 Motion for Leave and Request for Sanctions in Response to Defendants' Motion for a Protective Order. Plaintiffs did not, however, seek a recommendation for contempt as part of their request for sanctions in that motion. Nor did plaintiffs object within 10 days to the Special Master's July 27, 2001 recommendation regarding sanctions, which was limited to attorney's fees. On March 20, 2002 - eight months after the Special Master's July 27, 2001 ruling - the plaintiffs filed yet another request for sanctions in connection with the e-mail backup tape issue, 4 In re Sealed Case, 192 F.3d 995 (D.C. Cir 1999), was not decided on the issue of whether sovereign immunity precluded criminal contempt against the United States, since the Court determined that a primafacie case of criminal contempt had not been alleged. 192 F.3d at 1000. -4- this time seeking civil and criminal contempt sanctions as to Ms. Blackwell and others. At the time plaintiffs filed their March 20 motion, they were fully aware of the legal and factual standards their motion must meet in order to present a colorable basis for a contempt finding. The legal standards had been fully briefed as part of the second contempt trial, and the Court had clearly stated the evidentiary standards their show cause motions must meet in the March 15, 2002 status call, at which the Court directed the plaintiffs to particularize their evidence as to each individual respondent. Yet plaintiffs ignored this directive in filing their March 20, 2002 motion just four days after the hearing. As demonstrated by the Government's Opposition and the oppositions to the March 20 motion filed by the individual respondents, plaintiffs had made no effort to tie any individual respondent to the violation of any "clear and reasonably specific" court order. Indeed, several of the respondents were no longer in Government service at the time some or all of the orders cited by plaintiff as the basis for that motion had been issued, and some of the "orders" themselves did not even-qualify as a possible basis for a contempt motion. See Government's Opposition at 9-12. Plaintiffs' March 20 motion was inexcusably sloppy and fell so far short of the Court's March 15, 2002 directive that it should never have been filed. The Supplemental Memorandum is an obvious attempt by plaintiffs to clean up the failings of their March 20, 2002 motion. However, as discussed below, the Supplemental Memorandum is even less coherent than the March 20, 2002 filing and the September 12, 2000 motion before it. Plaintiffs now appear to have limited their focus to the Court's November 9, 1998 Order. 5 However, the Supplemental Memorandum is based entirely on information that was available to plaintiffs when they filed their March 20 show cause motion and, indeed, even earlier when 5 Thus, plaintiffs ihave dropped their claims that Ms. Blackwell was involved in the violation of any of the other five "orders" cited by plaintiffs in their March 20, 2002 motion. -5 - plaintiffs filed their September 12, 2000 Motion for Leave and Request for Sanctions in Response to Defendants' Motion for a Protective Order and the accompanying "Factual Appendix." Thus, plaintiffs have already had two bites at this apple, and in fairness to Ms. Blackwell and the other respondents, they should not be permitted yet another. Further, there is no question that plaintiffs have known for more than three years that Solicitor's Office e-mail backup tapes were reused and not saved for a period of several months in late 1998 and early 1999. The Government disclosed this information to the Court, the Special Master, and the plaintiffs in May 1999. The Court has not given plaintiffs a license to file specious allegations of contempt with the promise of unlimited opportunities to repackage and refile the same material multiple times. Such license would be inconsistent with due process because it would subject individuals like Ms. Blackwell to continual uncertainty regarding the nature of the charges against them. 2. Plaintiffs Did Not Seek Leave of Court Nor Did They Confer With Any Government Counsel Before Filing This "Supplemental Memorandum" The Court's March 15, 2002 directive that plaintiffs file supplemental memoranda:_n support of their contempt charges obviously pertained to the contempt charges then pending before the Court. The directive, therefore, did not apply to the March 20, 2002 motion. Not only should the plaintiffs have adhered to the clear factual standards set forth by the Court in the March 15 status conference (as well as in the substantial body of existing caselaw), but they violated the rules in failing to seek the Court's leave before supplementing their March 20 motion. Likewise, plaintiffs did not confer with counsel for the Government before filing this supplemental brief, in violation of Local Rule 7. ]i (m). For these reasons, too, the supplemental memorandum should be dismissed. -6- _ C. The Supplemental Memorandum Does Not Comply with the Court's March 15, 2002 Directive that Plaintiffs' Specify Charges and Evidence in Contempt Motions. At the status hearing on March 15, 2002, the Court directed plaintiffs to lay out "individual defendant by individual defendant specifications of what the contempt proceedings would be for those 39 people so that they each have an opportunity to address what the evidence is and what you are citing against any of those 39." 3/15/02 Tr. at 21:10-14. The Court reiterated that plaintiffs should state the specific charges a respondent would have to defend against and also "lay out what the, in your view, the evidence that would be supporting" the specific charges. Id. at 21:21-23. Finally, the court concluded that "you need to specify by person so that each of them can respond to what the specifications would be and what the evidence would be so each of them can have an opportunity to have due process." Id. at 23:7-10. Plaintiffs claim that the Supplemental Memorandum is filed to carry out the March 15, 2002 directive. A document fulfilling those directive would state the specific charges against Ms. Blackwell and the evidence supporting each of those specific charges. For example, if plaintiffs charge that Ms. Blackwell violated a Court order, a filing compliant with the March 15, 2002 directive would, at a minimum, identify the specific order she allegedly violated, her conduct or action which allegedly violated the obligations imposed by the, order, the evidence supporting the allegation that she violated the order, and, if plaintiffs are requesting a finding of criminal contempt, evidence supporting the allegation that violation of the order was willful. Instead, the Supplemental Memorandum continues the almost studied imprecision and blizzard of misstatements which characterized the March 20, 2002 motion. -7- 1. The Contempt Motions Concerning Backup Tapes Are Based Upon Plaintiffs' Third Formal Request for the Production of Documents As set forth in the Government's Opposition at 3, plaintiffs' March 20, 2002 motion was premised upon the Special Master's Opinion of July 27, 2001 ("the July 27, 2001 Opinion") which the Court adopted on March 29, 2002. In the July 27, 2001 Opinion, the Special Master denied a motion for a protective order concerning the Department of the Interior's duty to produce information responsive to plaintiffs' Third Formal Request for the Production of Documents, served June 11, 1998 ("Third Document Request"), which was stored on e-mail backup tapes; recommended sanctions since he found that the motion for a p/otective order was not substantially justified6; and found that the Department had engaged in a practice of overwriting backup tapes which should have been retained so they could be searched for copies of e-mails response to the Third Document Request. See Government's Opposition at 3-5. Item one of the Third Document Request requested production of "all documents prepared or signed "by three attorneys in the Solicitor's Office "which express legal advice, conclusions, opinions, assessments, instructions or directions to the Secretary or any and all otherDepartment of Interior personnel not employed in the Office of the Solicitor,... pertaining to the administration of the Individual Indian Money (IIM) trust. ''7 The Third Document Request also asked for "All documents prepared or signed by past or present attorneys in the Solicitor's Office and relating to the administration of the IIM Trust which express legal advice, conclusions, opinions, assessments, instructions or directions to Interior personnel" regarding the transfer of G Plaintiffs' suggestion (Supplemental Memorandum at 17, n. 16) that the Special Master found that the overwriting of the backup tapes justified "the invocation of all relevant adverse inferences against defendants and their counsel" is untrue. The Special Master did not make any such finding. 7 The Third Document Request is Exhibit 1 to this Memorandum. -8 - trust assets to tribes (Item 2), the 1990 delegation of IIM trust fund disbursement authority to Interior area office and agency personnel (Item 3), proposed legislation referred to as the Tribal Trust Fund Settlement Act of t 998 (Item 4), or "interest overdrafts" described by the then Special Trustee in a deposition (Item 5). Id. The Third Document Request incorporated by reference definitions set forth in Plaintiffs' First Set of Interrogatories, and those definitions defined "documents" as including e-mails and information contained on tapes. In the course of motion practice over the Third Document Request, defendants contended, among other things, that it was not necessary to produce both paper printouts and taped backup copies of e-mails responsive to the Third Document Request, arguing that the same information is depicted in the two media and that requiring defendants to review the increasing masses of backup tapes to find responsive copies was unduly burdensome and expensive. See July 27, 2001 Opinion at 3, 9. On November 9, 1998, the Court denied defendants' motion for a protective order (the "November 9, 1998 Order"), and on May 11, 1999, the Special Master entered an order denying a motion for reconsideration of the November 9, 1998 Order. 2. Plaintiffs have Not Alleged Specific Charges to Support a Referral for Criminal Contempt or a Show Cause Order for Civil Contempt. (a) Legal Standards Plaintiffs ask that the Court refer Ms. Blackwell for prosecution under 18 U.S.C. § 401(3), which permits the court "to punish by fine or imprisonment, at its discretion, such contempt of its authority ... as ... [d]isobedience or resistance to its lawful ... order." To convict a defendant of criminal contempt under this statute, the Court must find, beyond a reasonable doubt, that Ms. Blackwell willfully violated a "clear and reasonably specific" order of the court. United States v. Roach, 108 F. 3d 1477, 1481 (D.C. Cir. 1997), citing UnitedS,_ates v. NYNEXCorp., 8 F.3d 52, 54 (D.C. Cir.1993), and United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987). For a -9- violation to be "willful," the defendant must have acted with deliberate or reckless disregard of the obligations created by the court order. United States v. Roach, 108 F.3d at 1481, citing In re Holloway, 995 F.2d 1080, 1082 (D.C. Cir.1993), cert. denied, 511 U.S. 1030 (1994), and United States v. Greyhound Corp., 508 F.2d 529 (7th Cir.1974). Thu,;, in order to support a referral for criminal contempt, plaintiffs must initially show, by clear and convincing evidence, that (1) a clear and reasonably specific court order was in effect, (2) the order required certain conduct by Ms. Blackwell, and (3) that Ms',. Blackwell willfully violated the court's order. (b) Plaiintiffs Have Not Specifically Alleged That Ms. Blackwell Violated Any Order Pertaining to Backup E-Mail Tapes. Plaintiffs have fallen far short of meeting the March 15, 2002 directive to present specific charges justifying a referr_tl for criminal contempt or, if they are still seeking one, a show cause order for civil contempt as to Ms. Blackwell. The Supplemental Memorandum rehashes allegations against Ms. Blackwelt which were contained in the March 20, 2002 motion. As -- v_ demonstrated by the Government's Opposition, as well as the "Opposition of Edith R. Blackwell to Plaintiffs Motion for Order to Show Cause Why Interior Defendants and Their Counsel Should Not be Held in Contempt :for Destroying E-Mail" filed April 4, 2002 (the "Blackwell Response"), that motion failed to meet the lesser standard of presenting a claim for civil contempt against Ms. Blackwell or against any of the other respondents. The Supplemental Memorandum asserts that Ms. Blackwell willfully violated the November 9, 1998 Order, but does not specify why plaintiffs think she did so. As pointed out in the Government's Opposition, at 12, neither the November 9, i[ 998 Order nor the transcript of the November 6, 1998 hearing before the Court "definite[ly] and specific[ally]" required the government to retain newly created tapes. See SECv. Life Partners, Inc., 912 F. Supp. 4, 11 -10- (D.D.C. 1996). Plaintiffs apparently claim that Ms. Blackwell allowed backup tapes to-be overwritten and concealed the continued overwriting of backup tapes, but, as discussed below, even if such actions would have violated the November 9, 1998 Order, plaintiffs have not presented aprimafacie case supporting these assertions. Plaintiffs have not otherwise articulated a theory of contempt fulfilling the first part of the March 15, 2002 directive. Plaintiffs repeatedly refer to Ms. Blackwell's declaration of July 22, 1998, Supplemental Memorandum at 7-8, 23-2.4. However, plaintiffs do not specify what, if anything, they believe is wrong with that declaration, andthey do not appear to be asserting that the declaration itself constitutes contempt. 8 If they are claiming that the declaration relates to the November 9, 1998 Order, they do not set forth how a declaration made in July 1998 could constitute or evidence a violation of an order entered four months later. Plaintiffs also make the puzzling charge that Ms. Black:well "refused" to submit a privilege log in regards to the Third Document Request and that this alleged failure to file a privilege log somehow violated the November 9, 1998 Order. Supplemental Memorandum at 25. While the Court specified deadlines for defendants to file privilege logs if defendants decided to claim privilege as to responsive documents, the Court did not require: defendants, let alone Ms. Blackwell personally, to file such logs. The consequence for not filing a privilege log is the risk that the Court will find that claims of privilege have been waived, not a risk that a party or its counsel will be held in contempt. 8 Plaintiffs do allege that Ms. Blackwell "falsely declm:ed under oath that she was gathering documents responsive to the [Third Document Request]." Supplemental Memorandum at 7. Actually, Ms. BlackweIl stated that she had "taken the preliminary steps to gather responsive documents," and detailed what those preliminary steps were. See Exhibit 16 to the Supplemental Memorandum. -11- 3. Plaintiffs ttave Not Made a Prima Facie Showing That Ms. Blackwell Violated Any Order Pertaining to Backup E-Mail Tapes. To the extent that plaintiffs attempt to comply with the Court's March 15, 2002 directive to set forth evidence supporting allegations that Ms. Blackwell has committed contempt, their efforts are purely rhetorical and rest upon repeated misstatements and mischaracterizations. While plaintiffs apparently recognize that the allegedly missing data at issue are solely those copies of Solicitor's Office e-mails that had been transferred to backup tapes which were periodically overwritten (Supplemental Memorandum at 2 n.2), and which were responsive to items one through five of the Third Document Request, plaintiffs repeate, dly and misleadingly mischaracterize the data at: issue generally as "e-mails" (-Supplemental Memorandum at 2 n.2; 3 n.4; 7; 19; 21; 22 n.26; 2311, "trust records" (Supplemental Memorandum at 2 n.2; 18; 19; 21 n.24), "records" (Supplemental Memorandum at 11), "official records" (Supplemental Memorandum at 15, 18.19), or "official trust records" (Supplemental Memorandum at 21). Plaintiffs also fling around charges th_ Ms. Blackwell and others engaged in "massive destruction of records," records that were of critical importance to numerous issues in this litigation. Supplemental Memorandum at 2 n.2; 17; 25. Plaintiffs' characterizations of the allegedly missing data and the importance of the data are not supported by the record in this case and are belied by their own actions. Department of the Interior policy required Ms. Blackwell and other employees to print out hard copies of all e-mails which met the definition of a "record." See _ ._ Exhibit 11 to the Supplemental Memorandum; Government's Opposition at 3, 12. Plaintiffs' loose charges that Ms. Blackwall or others have destroyed "e-mails" are unsubstantiated and are not supported by the July 27, 2001 Opinion. 9 The Special Master found only that e-mail backup tapes 9 Plaintiffs claim that Ms. Blackwell "knowingly permitted the routine deletion of e-mails from her own computer in violation of this Court's orders." Supplemental Memorandum at 23. E- -12- = -- had been erased, not that e.-mails generally had not been printed out. Plaintiffs have not contended, nor cited any evidence, that Ms. Blackwell and other employees of the Solicitor's Office have not substantially complied with Department of the Interior's policies to print out e-mails, and plaintiffs have not alleged or shown that paper copies of e-mails responsive to the Third Production Request have not been retained. Accordingly, the loss is limited to backup copies of printed e-mails that are potentially responsive to the Third Document Request. As the government pointed out in response to the March 20, 2002 motion (Government's Opposition at 17-18), the data on backup tapes are not "records;" or "official records" under regulations established by the National Archives and Administration ("NARA") pursuant to its authority under the Federa]L Records Act, 44 U.S.C. §§ 3101-24. As to assertions that the data on backup tapes are "trust records" or "official trust records," the government also pointed out in opposition to the March 20, 2002 motion that documents and data maintained by the Solicitor's Office, either on back uphtapes or any other media, were not listed among the categories of documents identified as "IIM Records" in the attachments to the August 12, 1999 Order Regarding Interior Department IIM Records Retention. Government's Opposition at 11 }0 The Special Master found that defendants should have :retained backup tapes made after service of the Third Document Request because they potentially contained information responsive mails older than 30 days were automatically deleted from computers under programs administered by the computer staffofthe Department of the Interior. See Exhibit 11 to the Supplemental Memorandum. Plaintiffs have not identified any order which required Ms. Blackwell to attempt to override the system program. Again, plaintiffs have not asserted that Ms. Blackwell did not comply with Department policy on printing out e-mails. _0 On November 20, 2000, in the context of motion practice on the Third Production Request, the Special Master directed retention of all Solicitor's Office backup tapes. See July 27, 2001 Opinion at 15. Plaintiffs have not alleged that Ms. Blackwell, or anyone else, has violated that order. -13- to that request. See July 27, 2001 Opinion at 5, 18. The importance plaintiffs place on data of the Solicitor's Office should be measured by the scope of the Third Document Request, not by plaintiffs' rhetoric in contempt motions. The Third Document Request did not request production of backup tapes. The Third Document Request did not request production of Solicitor's Office e- mails generally. The Third Document Request did not even request production of all Solicitor's Office documents or e-mails pertaining to the administration of the IIM trust. Interpreted broadly, item one of the Third Document Request asked for documents prepared or signed by three identified employees which pertained to administration of the IIM trust, while items two through five were limited to documents prepared or signed by other Solicitor's Office attorneys which addressed one or more of :Four specific topics. The scope of the requests directed to the Department of the Interior was far more limited than plaintiffs have represented in the March 20, 2002 motion and the Supplemental Memorandum. -- Ms. Blackwell explained both in her July 22, 1998 Declaration (Exhibit 16 to the i' Supplemental Memorandum) and her letter of December 5, 2000 (Exhibit 2 hereto, and also included in Exhibit 31 to the Supplemental Memorandum), the basis for retention of backup tapes by the various offices of the Solicitor's Office. As stated in the December 5, 2000 letter: [A]fter the Special Master's May 11, 1999 decision, the Solicitor's Office began retaining backup tapes in those offices which would likely have documents relating to the [Third Document Request]. The first question in the [Third Document Request] related solely to three Interior Headquarters employees. The second request related to legal advice regarding, among other things, tribes compacting and contracting for trust functions. The remainder of the questions that applied to the Solicitor's office were narrow questions regarding specific issues in which I could identify the attomey who had worked on the issue. Other than the second question, no question implicated an attorney from the Field or Region. -14- December 5, 2000 letter from Edith Blackwell to Charles Findlay (Exhibit 2 hereto) at 2. Thus, after May 11, 1999, the Solicitor's Office maintained backup tapes from offices which might generate documents responsive to the Third Document Request, but did not order retention of backup tapes from offices which did not have responsive documents, until the Special Master on November 20, 2000 directed that backup tapes be retained from those offices also. Plaintiffs also repeatedly allege that Ms. Blackwell and others concealed, or failed to disclose, the practice of periodically overwriting backup tapes. Supplemental Memorandum at 11-13, 16, 17, 20, 23, 25. These charges are also inconsistent with the record. On November 20, 1998, defendants moved for reconsideration of the November 9, 1998 Order. An exhibit to the November 20, 1998 motion for reconsideration was a declaration, also dated November 20, 1998, by Glenn W. Schumaker, who was the Management Information System Team Leader of the Office of the Solicitor (the "Schumaker Declaration," attached hereto as Exhibit 3)._1 Mr. Schumaker explained that the Office had a policy of automatically erasing from computers e-mail messages older than thirty days from the current operating data base. Schumaker Declaration at ¶ 2. Mr. Schumaker also stated that, in order to recover from potential catastrophic failure of the computer system, data files, including e-mail, were transferred to backup tapes on daily and weekly bases. Id. at ¶¶ 3, 4. Mr. Schumaker also stated that "Under the routine backup policy of the Office, daily tapes are rotated (overwritten) every two weeks, and weekly backup tapes are rotated every four weeks. Id. at ¶ 6. Howew_r due to a possible Independent Counsel investigation, the Office had retained, by November 30, 1998, 185 backup "sets" dating from November 21, 1997, with a few 11 As plaintiffs note (Supplemental Memorandum at 10-11), Ms. Blackwell was "Of counsel" on the November 20, 1998 motion. -15- missing dates, as well as one tape dated April 1, 1995. kt. Mr. Schumaker's declaration disclosed what backup tapes the Solicitor's Office had as of November 20, 1998. Further, on May 20, 1999, defendants filed with the Special Master the "Motion for Establishment of Time Frame for Production of Certain Electronic Records and Notice to the Court Regarding Retention of Such Records" (the "May 20, lC)99 Memorandum"). Defendants disclosed that they did not have backup tapes created from November 23, 1998 through March 21, 1999. May 20, 1999 Memorandum at 3 n.3; 4-5. See Exhibit 4 hereto. Attached to the May 20, 1999 Memorandum was a declaration of Ms. Blackwell (attached hereto as Exhibit 5), which also stated that backup tapes had not been retained from November 23, 1998 to March 19, 1999. Exhibit 5 at 4-5.12 Thus, contrary to plaintiffs' charges of concealment and coverup, Ms. Blackwell and the defendants did inform the Court, the Special Master and plaintiffs as to the status of backup tapes. In sum, the Supplemental Memorandum is little more than a mass of unfocused, generalized mischaracterizations and invectives which cannot survive close analysis. The Supplemental Memorandum does not come close to complying with the March 15, 2002 directive. On the record put forward by the plaintiffs, there simply is no basis for concluding that Ms. Blackwell acted "willfully" or in bad faith to disobey a Court order or to deceive the Special Master or the Court regarding the e-mail backup tapes. CONCLUSION For the foregoing reasons, the government respectfully requests that the Court enter an order denying plaintiffs' motion to refer Edith Blackwell for criminal contempt, and, if plaintiffs 12 While plaintiffs mention the May 20, 1999 Memorandum (Supplemental Memorandum at 14), their discussion misleadingly omits the fact that the Memorandum disclosed overwriting of e- mail tapes and completely ignores Ms. Blackwells' declaration.. -16- are requesting an order to show cause why she-should not be held in civil contempt, denying that motion also. Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director h9o_2 Dodge Wells Senior Trial Counsel D.C. Bar No. 425194 Tracy L. Hilmer D.C. Bar No. 421219 Trial Attorney Commercial Litigation Branch q Civil Division P.O. Box 261 Ben Franklin Station Washington, D.C. 20044 (202) 307-0474 DATED: August 12, 2002 -17- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) Civil Action No. 96-1285 (RCL) ) v. ) ) GALE A. NORTON, et al., ) ) Defendants. ) ) ORDER Upon consideration of Plaintiffs' Bill of Particulars for Edith Blackwell in Support of Plaintiffs' Motion for Order to Show Cause Why Interior Defendants and Their Counsel Should Not be Held in Criminal Contempt for Destroying E-Mail (3/20/02) and Supplemental Memorandum of Poi_its and Authorities in Support of Criminal Contempt, the Government's response in opposition thereto, and the entire record in this case, it is hereby ORDERED that Plaintiffs' motion is DENIED. UNITED STATES DISTRICT JUDGE Date: CC: Sandra P. Spooner John T. Stemplewicz Cynthia L. Alexander Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202) 514-9163 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 Fax (202) 318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 Fax (202) 822-0068 0.' "- El?iott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 Joseph S. Kieffer, III Court Monitor 420 - 7 th Street, N.W. Apartment 705 Washington, D.C. 20004 Amy Berman Jackson Trout & Richards 1100 Connecticut Avenue, N.W. Suite 730 Washington, D.C. 20036 ,.,b CERTIFICATE OF SERVICE I declare under penalty of perjury that, on August 12, 2002 1 served the foregoing The Government's Response to Plaintiffs' Bill of Particulars and Supplemental Memorandum in Support of Plaintiffs' Motion for an Order to Show Cause Why Edith Blackwell Should Not Be Held in Contempt in Connection with the Overwriting of Backup Tapes by hand upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark Kester Brown, Esq. 1712 N Street, N.W. 1275 Pennsylvania Avenue, N.W. Washington, D.C. 20036-12976 Ninth Floor Washington, D.C. 20004 and by U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Copy of the Response, without attachments, served by facsimile on August 12, 2002; a complete copy to be delivered by hand the morning of August 13, 2002 upon: Alan L. Balaran, Esq. - Special Master 1717 Pennsylvania Avenue, N.W. _ 12th Floor Washington, D.C. 20006 Courtesy Copy by U.S. Mail upon: Joseph S. Kieffer, III Court Monitor 420 - 7 th Street, N.W. Apartment 705 Washington, D.C. 20004 By Facsimile and U.S. Mail upon: Amy Berman Jackson Trout & Richards 1100 Connecticut Avenue, N.W,. Suite 730 Washington, D.C. 20036 //,/'3//,/)/)/C' 202-463-1925 ' ' C' -_____ -_- ----., Kevin P. Kingsto IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., on ) their own behalf and on behalf ) of all persons similarly ) situated ) ) Plaintiffs, ) ) v. ) Civil Action ) No. 1:96 CV 01285 (RCL) BRUCE BABBITT, Secretary of the ) Interior, et al., ) ) Defendants. ) ) PLAINTIFFS" THIRD FORMAL REQUEST FOR PRODUCTION OF'DOCUMENTS Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiffs hereby request Defendants to produce within 30 days of the service hereof, at the offices of Price Waterhouse LLP, 1301 K Street, N.W., 800 West, Washington, D.C. 20005-3333, the following documents and information. The Definitions and General Instructions contained in Plaintiffs' First Set of Interrogatories, served December 24, 1997, are incorporated herein by reference and are applicable to this Request. I. All documents prepared or signed by Ed Cohen, Willa Perlmutter or Anne Shields which express legal advice, conclusions, opinions, assessments, instructions, or directions to the Secretary or any and all other Department of Interior personnel not employed in the Office of the Solicitor, including but not limited to Special Trustee Paul Homan (individually and i i Exhibit 1 Govt's Resp to PItffs' Bill of Particu|ars and Supph. Motion to Show Cause Why Edith Blackwell Should Not Be Held in Contempt collectively "Interior Personnel"), pertaining to the administration of the Individual Indian Money (IIM) trust. 2. All documents prepared or signed by past or present attorneys in the Solicitor's Office and relating to the administration of the IIM trust which express legal advice, conclusions, opinions, assessments, instructions, or directions to Interior Personnel relevant to the transfer or assignment in any way whatsoever, by contract or compact, of individual Indian trust assets and the custody and control of related records to tribes or tribal entities for management and administration, including but not limited to any such transfers which are currently pending (e.q., Quinault). 3. All documents prepared or signed by past or present .... attorneys in the Solicitor's Office and relating to the 2 administration of the IIM trust which express legal advice, conclusions, opinions, assessments, instructions, or directions to Interior Personnel relevant to the 1990 delegation of IIM trust fund disbursement authority to Interior Personnel at the Area Office and Agency levels. 4. All documents prepared or signed since June i0, 1996, by past or present attorneys in the Solicitor's Office and relating to the administration of the IIM trust which express legal advice, conclusions, opinions, assessments, instructions, or directions to Interior Personnelrelevant to the proposed legislation introduced as HR 3782, Tribal Trust Fund Settlement Act of 1998, in the second session of the 105th Congress. 2 5. All documents prepared or signed by past or present attorneys in the Solicitor's Office and relating to the administration of the IIM trust which express legal advice, conclusions, opinions, assessments, instructions, or directions to Interior Personnel relevant to "interest overdrafts" [in the approximate amount $42 million] which deprive current [IIM] account holders of income," described by Special Trustee Paul Homan in his June 26, 1997 deposition in this case. (Homan deposition at 98-102.) 6. All documents prepared Or signed by past or present attorneys in 1_he Office of the General Counsel, Department of Treasury_ including but not limited to attorneys in the Office of the Chief Counsel, Financial Management Service, to the Secretary or any and all other Department of Treasury personnel (individually and collectively "Treasury Personnel"), pertaining to the administration of the IIM trust which express legal advice, conclusions, opinions, assessments, instructions, or directions to Treasury Personnel. 7. All work papers used by Arthur Andersen in the preparation of its January 28, 1992, "Bureau of Indian Affairs Trust Funds Reconciliation Project Overview Presentation," including but not limited to any work papers relating to the reconciliation of IIM accounts at the Uintah & Ouray, Fort Peck, and Olympic Peninsula Agencies. 8. All work papers used by Arthur Andersen in the preparation of its December 31, 1995, "Tribal Trust Funds Reconciliation, Agreed-Upon Procedures and Findings Report for July l, 1972 through September 30, 1992," including but not limited to lists of errors and unsupported documents. /I Of Counsel: _i_i_TB_; /i__17/2 JOHN ECHOHAWK Native American Rights Fund D.C. Bar No. 451956 1506 Broadway LORNA BABBY Boulder, Colorado 80302 Native American Rights Fund (303) 447-8760 1712 N Street, N.W. Washington, D.C. 20036-2976 (202) 785-4166 HENRY PAUL MONAGHAN DENNIS M. GINGOLD 435 West ll6th Street D.C. Bar No. 417748 New York, New York 10027 THADDEUS HOLT (212) 854-26.44 D.C. Bar No. 101998 1275 Pennsylvania Avenue N.W. 9th Floor Washington, D.C. 20004 (202) 662-6775 Attorneys for Plaintiffs June ]_;_, 1998 4 CERTIFICATE OF SERVICE I hereby certify that on this I "day of June, 1998 a copy of Plaintiffs' Third Formal Request for Production of Documents was sent via facsimile to the following: Lewis Wiener, Esq. Andrew M. Eschen, Esq. .. Environment and Natural Resources Division 601 Pennsylvania Avenue, N.W. Room 5616 Washington, D.C. 20044-0663 LORNA K. BABg_I( United States Department of the Interior OFFICE 'OF THE SOLICITOR Washington, D_C. 20240 VIA FACSIMILE December 5, 2000 Mr. Charles Findlay Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 RE: Cobell et al. v. Babbitt et.al. Civil Action No. 96-1285 Solicitor's Office E-mail Backup Tapes Dear Spinner: Pursuant to the Special Master's request, this letter explains how the Office of the Solicitor determined which of its offices were required to retain backup tapes. I apologize for any delay in this response, I was out on sick leave last week and I have the institutional knowledge on this issue. I think it would be helpful to provide some background in order to better understand how we reached the decision we did. On June 11, 1998, the Interior Department and the Treasury Department were served with Plaintiffs' Third Request for the Production of Documents. In this request, plaintiffs asked for documents in which attorneys provided legal advice regarding the administration of the IIM trust. There were several ple.adings filed in relation to the Third Formal Request for Production of Documents, including a request for extension of time and a Motion for a Protective Order. On November 9, 1999 the Court, as part of an Order covering many issues, denied Defendants' Motion for a Protective Order. The November 9, 1999 Order was silent regarding the issue of backup tapes; therefore, on November 20, 1998, defendants filed a "Consolidated Motion for Reconsideration of the Court's November 9, 1998 Order Relating to the Scope of Defendants' Obligations in Responding to Plaintiffs' ya Request for Production of Documents and Request for Enlargement of Time to Respond to Plaintiffs' ya Request for Production of Documents and Memorandum of Points and Authorities in Support Thereof" ("Reconsideration Motion"). In the Reconsideration Motion, Defendants discussed again that the only reason the Department had saved backup tapes was related to the Independent Counsel investigation. Consequently, at the time of filing the Reconsideration Motion, the only Solicitor's Office backup tapes that were being saved were from Headquarters and the Minneapolis Field Office. Exhibit 2 Govt's Resp. to Pltffs' Bill of particulars and Supplt. Motion to Show Cause Why Edith Blackwell Should Not Be Held in Comempt In response to the Reconsideration Motion, on May 11, 1999, the Special Master ordered the Solicitor's Office to "produce those e-mail documents responsive to Plaintiffs' Third Request for Production of Documents[.]" Thus, after the Special Master's May 11, 1999 decision, the Solicitor's Office began retaining backup tapes in those office which would likely have documents relating to the Third Request. The ftrst question in the Third Request related solely to three Interior Headquarters employees. The second reqr,est related to legal advice regarding, among other things, tribes compacting and contracting for trust functions. The remainder of the questions that applied to the Solicitor's office were narrow questions regarding specific issues in which I could identify the attorney who had worked on the issue. Other than the second question, no question implicated an attorney from the Field or Region. On July 22, 1998 1 filed a declaration which declared that the only question that would implicate field and regional offices was question numbe.r 2. That request reads: 2. All documents prepared or signed by past or present attorneys in the Solicitor's Office and relating to the administration of the IIM trust which express legal advice, conclr_sions, opinions, assessments, instructions or directions to Interior personnel relevant to the transfer or assignment in any way whatsoever, by contract or compact, of individual Indian trust assets and the custody and control of related records to tribes or tribal entities for management and administration, including but not limited to any such transfer which are currently pending (e.g. Quinault.) Therefore, the offices engaged in work related to the Indian Self-Determination and Education Assistance Act, P.L. 93-638, as amended, 25 U.S.C. 450 et seq., _ ("638") could have responsive documents. In July 1998, I made a preliminary estimate that approximately 13 offices might have responsive documents. However, after the Special Master's ruling on May 11, 1999, it was determined that only seven Field and Regional offices conduct such work. z 1 These laws provide for the contracting or compacting of government functions, including records functions, to Indian tribes. Also, it should be understood that some offices do 638 work which is unrelated to the IIM trust, and on behalf of clients other than the BIA since a tribe may contract or compact for functions in other DOI Bureaus and Offices. z In my July 1998 declaration my preliminary findings were that thirteen offices could have Self-Determination activities out of 19 offices. These preliminary findings were incorrect in two respects. First there are 18 and not 19 Field and Regional Offices. Second, I surmised that any office in a geographic location that had a BIA Area office, could do self-determination contracting work. In addition;, I included the Pittsburgh Regional Office since Minneapolis was a Field office of the Pittsburgh Office. I believe, but am not certain, that this is how I arrived at the 13 offices. Sometime in the late Winter of 1998 or the Early Spring of 1999, the Division of Indian Affairs began sponsoring a regular conference call with all attorneys in the Solicitor's Office who worked on 638 issues. The calls were to discuss various aspects of 63g. In arriving at the seven offices that worked on 638 issues, we only counted those office that had attorneys who participated in the 638 conference call. These conferences calls werenot in existence when I drafted my July 1998 declaration but provide a more accurate list of those offices that may have As my July 1998 decJlaration made clear, no other offices were implicated by Plaintiffs' Third Request for Production of Documents. There are eighteen Field and Regional Offices in the Solicitor's Office. Not all of these offices provide legal counsel that touches on Indian issues. As you know, the Solicitor's office as a whole provides representation to all Bureau's and Offices within the Department. This includes the National Park Service, the Fish and Wildlife Service, the Bureau of Reclarnation, the Minerals Management Service, the Bureau of Land Management, and the U.S. Geological Service. In many parts of the country, there is no Indian land (tribal or individual) but only Federal land which is managed by these DOI entities. Recently we began a survey to better determine which offÉces may have responsive materials to any Cobell discovery request. In the survey we asked the following questions. A yes response to any question would require the retention of backup tapes. The questions were: (1) Does any attorney in your office provide legal advice regarding IIM accounts? (2) Does any attorney in your office provide legal advice regarding any aspect of managing individual ]hadian trust assets (including land, natural resources, and funds)? (3) Does any attorney in your office provide legal advice regarding any aspect of American Indian trust: reform? (4) Does any individual in YOur office respond to requests concerning the Cobell litigation? (5) Does any attorney in your office provide legal advice regarding tribes contracting or compacting to manage individual Indian trust assets (including land, natural resources, or funds)? (6) Does any attorney in your office provide legal advice regarding any aspect of individual Indian truslt assets or rights, including but not limited to probate, appraisals, trespass, rights-of-way, easements, water rights, etc.? (7) Does any attorney in your office provide legal advice regarding proceeds (e.g., royalties for minerals, timber sales, etc.) derived from individual Indian trust lands? (8) If you answer "No" to all questions and you can certify that they only American Indian trust issues in your office pertain to tribal land into trust applications, tribal trust land boundary issues and/or tribal trust jurisdiction issues, then you do not have to retain backup tapes. The preliminary resullts of the survey are that twelve offices answered "no" to questions numbered 1-7. However, we are following up the survey with calls to a couple of offices to confirm their responses. We will provide you with more information when our survey is completed. Finally, as you know, Trial I concluded in July 2000, and on December 2 l, 2000, Judge Lamberth imposed restrictions on Trial I discovery. Therefore, on February t g, 2000, we notified plaintiffs that the Solicitor's Office was no longer actively searching for documents responsive to specific requests pertaining to Trial I. documents responsive to ques,_ion two. ih. If you any further que;stions on this matter, please feel free to call me at (202) 208-3401. Edith R. Blackwell Deputy Associate Solicitor Division of Indian Affairs IN THE UNITED STATES DISTRICT COURT FOR TI_rK DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL ) eta]., ) No. 1:96CV01255 R_ PIsint/fl's, ) v. ) ) BRUCE BABBITT, Secretary of the ) Interior, et aL, ) ) ) DECLARATION OF GLENN W. SCHUMAKER I. I am the Max_emem Information Systems (MIS) Team Leader for the Office ofthe _ Solicitor (Office). I direct the operations of the local area networks and computer systems for the Office nationwide. In addition to mysel_ the MIS Team consi_ ofthr_ _.mor techni_ and v,vo junior techn/c/ans. The Offir_ hu nincte.m locations nationwide, with approxL-_te.ly 260 atlorneys and 100 support personnel. I have held this portion ;n the Office since 1983. The information in this declaration is based on my personal knowledge and cxperien_ obtained in the rfornmn of my official duties. 2. The Office's ,electronic mail system must be _ to control the explosive growth of data that results fi_m ordinary use, and which would render the system inoperable if not checked. Cons_tem with industry practices, the Oitce has adopted • policy of autonurtically erasing messages older than thirty days from its current operatins database. As a result, employees have access only to messages created in the last O_rt_ dt_ or less. 3. To recovm- flora • potenthd catastrophic _ of ks cemput= systems (word ) Exhibit 3 Gov_'s Resp. to pltffs' Bill of Particulars and Supph. Motion to Show Cause Why Edith Blackwell Should Not Be Held in Contempt ..... !_ processins, electron/c marl, database mz,'_zgement systems and all attendant software) the Office employs routine procedures for backing up those systems so as to prov/de for the re.I/able recovery of data and software. The backup procedures are des/Shed to capture the m/nknum amount of information necessary to accomplish the recovery wi_ the Icut burdensome effect on the systetn and Office stsff. The tape backup system is designed only for these purposes and not for storage and re_eval of electronic mail messages. The message data are encrypted by tho system's soft_'_e into s large compos/te database, which renders the message data unsearchable unless the enrkc da_basc is restored and accessed with tlw original soE'warc. 4. The computer system backup procedures mcorpori_ uq_ backups ofthe system data and program files on • daily and weekly bas/s. The daily backups consist of copies ofaU files t}m have bc-lm crez.;ed or modified since the last backup, provided they have not been deleted in the meantime. The weekly backups ax¢ run _ midnight on Friday nigh_ and consist of"snapshots" _. of all data (not program) files in the system at the _me the backup is performed. ! 5. After the backup process is run, the data is coma/ned on the tapes in • compressed, encoded, proprietary format. As such, the tapes can only bc read siler a process of re._n,xion performed by the original backup soflwm-e. 6. Under +,he routi_ backup policy ofthe Omce, daily tapes are rotated (ova) cvccy two weeks, and weekly backup uq_es are rotsted every four weeks. However, the O/rice dispensed with the routine tape rotal/on between February and November, 199S, dus to chans_ in the backup taps forma_ and due to the possibility that an Independent Counsel would be tppoi_tcd to investiga_ • request thaZ the Secretmy of the hncrior csks land into trust for Indian gamins purposes. Whereas on • #yen day the Oftce normally would have tm daily and four 2 m • -, weekly backup sets (each sct corresponds to a backup date), as of the date of this declaration the O_cc h_s approximately Ig$ backup sets dating from November 21, 1997 to _)cfay. Because of occasional problems w/th the backup system herdwarc or so_ware_ there are t few dates during this period on which the backup system was unable to oporate and for which no backup dats exists. Addi_onaUy. the O_ce has one tape dazed April I, 1995, which hsa been mi_ed and was not overwritten in the normal _pe rotation cycle. 7. The pro_ for restoring and searching backup tapes were developed and mfincd by the MIS Branch in con.sult_on with attorneys eazfier this year to assist the Office in responding to the OIC subpoenl and criminal investigation of the Secretary. The restoration and scss'ch was unprecedented in the Of_ce and in the _v£1S Branch, and was scriously dis_ptive to our ongoing c_ons to upg_-sdz and msint_Lin the O_cc's computer systems. g. The process for' restoring and searching barkup tapes is set forth below: s. Before rcstoring b_knp tapes, wc mu_ build a file scrver to creste a separstc place to i restore the recovered backup data off-fine. This is necessary to avoid having to shut down the norms] o_ce routine, which depcnds on The production file servers for _es such as word processing and electronic mail. This consists ot'mtse_bling hardware and loading opaadnS _ystem so/_wsrc. This step is essential, and the restoratioa and setrch cm-mm be performed v/Thout k. I estimate that tbi_ procedurc win take two to.three work days w/th two techmcisns _-om my b. The nex_ step is to set up the tape drive to read bsclmp tapes. Depead_ on time rage of'tapes covered by _the requcs_ the uJpe Formau may bc dMazaC For thc period for which :ckup tapes exist, ",.he Office has used two d_a'em formsts. To restore tspes in 3 forma_ we must s_ up a sepa_e tape cL_v¢ for __,'h Cormat. I es_.Lu_e tkis nep would t_e one ally _o set up _.d _ _ oue e_up|oyee. c. Wu next _.a_,, a file and dh'ec_ry su_cmru oa the tem_ serv_ for s_r_gz of d_euU _en_d by _ sa._ routine u c_ut_i_ oa. or more of_ search _c_ns. This process w_ ",ske app_ro_tte_ two _ days _",S two _loyees. d. Nc:_ wz rcvisw the _s period cover_ by request, which w_ compsre to the inventory of _.sckql uq_s. T1u'oush _s step wc ver_ _, edsumce ot'LU _pes, uodnz m'_rs in logs and ock_ rclat_ clocumas_ou. I est_na_ _ proccduru would tsk'c one sta_memb_- one full cl_ _ complctL e. A List of szarch _'ms _ be identified to be used in _ au_o_ szazc_ rout_m. The search t_'au must be _rrnu_ m obtain s broad nmlia of _r_'__rds _ sru most U.ludy to b_ responsive to _e _vea rm_ues_. _ ch_ _ of_ectroaic mail, this includes not oaly a,_q,_,g key substsndv_ tscms, _ also dct_,,,,,_dnZ which anp_ _ most Ixqu_ _ hzw commsmic,_ed wic_ sctorn_s whose mz//b_ wa are sesrch_l. These names are used u scxrch tin-ms. As • result, th© list i_ dm,_.loped in clom_ co_u with the _-c._c-e'js luuufl_Z the _ In my most rcr.znt exparieuce., in respo:_ m • mblx_zm ismmd to xh, I)zpzrtnmm tim Offxc_ of ttm Indspendcr_ Couns_ (OIC). dds stop took sx lessz rw_ w**____ t We _ must c_tpo_ an autom_ed sazcb r_s_ _ incm_o_tc_ _m'ms choue to racovzr do,cumm_ moz h'k_ m be rzspon._vu. The numb_ of'szuch uu'nu ct -t Nzchm be bow each surch udce. The surch m_ requh'_ so_v_u'c mad zxp,za"t/_ not _ possessed by the O_c,e. In m'da¢ to compos_ sad run the _ _ Ct_ C_ca must _ "d_ sm'vic_ of a prosrsm_ 4 another o_cc wi_ the Depafoneat or procure those se_c_ by contract. In my prcwious experience, composing the search routine took one outside programmer approximately two to three days While some of the previous search routine might be useable ag,;,. I estimate that the necessary te_ng ,-_ revision of the rominc using new search terms would take the same period oft_me. g. We then identify those individual computer us¢_ whose mailboxes must be searched. The mlmber of n_tilboxes directly affects how long each search will take. I understand th_ in tl-ds case, the mailboxes for the cnth-e staffof_he Division of Indian A_aks would have to be searched. This process takes a nominal amount oft_e. h. The a_,._tl restoration process follows, in wh/ch we mount each tape. one at • _e, in the appropriate tape drive, then initiate the restoration process using thc tape backup software. I *_i • estimate that the restoration of the clectronic mail database from the backup tapes will take appro_n,,tely one hour for each of the 18S backup sets. with one staff member. i. After the restoration is completed, the search routine is run on each restored tape set. This consists ofrunnJng the automated u,trch proBram agtinst each user mailbox previously identified. Because use_3 have passwords restricting access to their mailboxes, we must manually override the passwords for each us_. In my previous experience respondin8 to the 01C subpoena, the setmh routine was able to accommodate only fifteen terms at time; because we used forty.two search terms to gaXher responsive dooJmeats, we bad to run the search routine three times for each user mailbox. Based on my experience, I estimate that running the search routine one time (for up to f_ecn search _-ms) would take a half-hour per tape set, or approxim_dy ninety hours. This process can overlap at least partly with the restoration process, usin8 • scpar_e staff $ employee. j. We then copy to the temporary storage area all messages containing one or more of the search terms that are ident/_ed through the search romines. This entire process would add approximately one £_11 work day to the process, using one sutffcmployee. k. Ex-tensive doc'_zntstion and monkoriag of each step of this process are necessary to maintain the inte_Fity of the process. This inwlves creazi_ spread sheets and logging each computer user whose r_corcls were _ searched, each da_ ofbacknp set searched, status of each res'torat/on and'search and review, movement of responsive records to appropri_e elsclronic dkecxory stna_res, n_fi_enance of secu,"ity protocols xo e_are that electronic files xre nm ¢omm/ngied, orni_ted or improperly disseminated. The documentation ,rod monitoring process would add approximawJy two days with one employee. I. Once the automated search of each mailbox is complz'_, the documents identi_ed _n the automited search are reviewed by _he compute_ user m whose n_box the m ,es.,es.,es.,es.,es_ge was stored. This review is for respomivcness to The request and for ide_ification of any applicable privileges. The process by which this review',_kes place must be designed and tzsu_d prior to use. The lensth of this process will vary based on the volume of responsive records and the ability of the a_rneys to complcm thck review. While I did not participste directly in the review by artorn_s of backup clcctronk; mail mzssaScs that wzrs respons/ve to the OIC subpoena, I was fi-cqueady cslled upon to resolve technical questions during _ review. I believe the review process took several weeks with only |3 backup sets. 9. Based on the est/rnztzs above, I estialate that the m_tire process ofrestorin8 and searching the backup tapes for electronic _ mcsseSes for the Division of ln_*_ Affairs, prior to 6 .! review by "_ _c_l _u'_r_-.ys, will take _y.sJx _ fz_-eiSJ:t work days _L _ _olve • twenty percent to fifty perczm, of the _S Branch scttE _.n zcc:orcl_ce wi_ 28 U.S,C. § 1746, I dedare unda" peztzl_ of_ th_ _ foregoiag is true and cor'r_-'c. .f IN THE UNITED STATES DISTRICT COURT M[_T Z0 3 29 _fl *Sg FOR THE DISTRICT OF COLUMBIA ii .... U.$. Oi':', i:,l .: t: 'i: L+:J :i..r ) DI3TRt.",I _......_ ,,+ :'._:'_t, ELOUISE PEPION COBELL ) " et al., ) No. 1:96CV01285 RCL Plaintiffs, ) v. ) Before Alan Balaran Special Master _- ) .- BRUCE BABBITT, Secretary of the ) Interior, et aL, ) Defendants ) ) MOTION FOR ESTABLISHMENT OF TIME FRAME FOR PRODUCTION OF CERTAIN ELECTRONIC RECORDS AND NOTICE TO THE COURT REGARDING RETENTION OF, SI_ICH RECORD,_ On May 11, 1999, the Special Master issued an Opinion and Order denying Defendants' Motion for Reconsideration of the Court's November 9, 1998, Order relating to the '7 production of documents responsive to Plaintiffs' Third Request for Production of Documents. By this Motion is, Defendants request 65 working days from May 17, 1999, to and including August 17, 1999, to conduct the review of the backup tapes, identify responsive documents, produce non-privileged documents, and submit a privilege log for any documents subject to a claim of privilege. As grounds for this Motion, Defendants rely upon the accompanying Memorandum in Support. By this filing, as elaborated in the accompanying memorandum, 7_ Defendants also disclose an inadvertent overwrite of certain system backup tapes created after the filing of the Motion to Reconsider. "i Exhibit 4 Govt's R¢sp. to Pltffs' Bill of Particulam and Supplt. Motion to Show Cause Why Edith Blackwel! Should Not Bc Held in Contempt , \ WHEREFORE, for the reasons stated in the Memorandum in Support, Defendants request entry of the attached proposed Order. Respectfully submitted, LOIS J. SCHIFFER . KS - - VA Bar # 25749 U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044-0663 (202) 514-3637 ., ' Attorneys for the United States Of Counsel: Edith R. Blackwell Connie Lundgren Michael S. Cart United States Department of the Interior Office of the Solicitor _ 2 _ , IN TIIE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL ) " et al., ) No. 1:96CV01285 RCL Plaintiffs, ) v. ) Before Alan Balaran Special Master _- ) -- BRUCE BABBITT, Secretary of the ) Interior, et ai., ) Defendants ) ) [proposed] ORDER ESTABLISHING OF TIME FRAME FOR PRODUCTION OF CERTAIN ELECTRONIC RECORDS Upon consideration of Defendants' Motion for Order Establishment of a Time i Frame for Production of Certain Electronic Records and Notice to the Court Regarding the Retention of Such Records_, the response thereto, and the entire record herein, IT IS HEREBY ORDERED THAT: Defendants shall have to and including August 17, 1999, to (l) review the electronic backup tapes identified in the Opinion and Order of the Special Master issued May 11, 1999, for responsiveness to Plaintiffs' Third Request for Production_ (2) prepare a log of all such documents for which a claim of privilege is asserted; and (3) produce all responsive documents for which no privilege is asserted. Dated: Special Master ! IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL ) .. et al., ) No. 1:96CV01285 RCL Plaintiffs, ) v. ) Before Alan Balaran Special Master ' ) .. BRUCE BABBITT, Secretary of the ) Interior, et al., ) Defendants ) ) MEMORANDUM IN SUPPORT OF MOTION FOR ESTABLISHMENT OF TIME FRAME FOR PRODUCTION OF CERTAIN ELECTRONIC RECORDS AND NOTICE TO THE COURT REGARDING RETENTION OF SUCH RECORD._: On May 11, 1999, the Special Master issued an Opinion and Order denying Defendants' Motion for Reconsideration of the Court's November 9, 1998, Order relating to the production of documents responsive to Plaintiffs' Third Request for Production of Documents. At issue in that motion was whether the Department of the Interior ("DOI") was required to review e-mail messages of the Office of the Solicitor that were on certain "'backup" tapes that had been preserved in connection with an unrelated investigation by the Office of the Independent Counsel. As of the time of the motion for reconsideration, DOI had in its possession approximately 185 system backup tapes covering the period of November 21, 1997 through November 20, 1998. These tapes were not archival records, but rather system maintenance tapes that had captured, among other things, e-mail messages of the Office of the Solicitor. One ground for the motion for reconsideration was the time and expense involved in reviewing these backup tapes. i_ As a consequence of the Special Master's denial of the Motion for Reconsideration, DOI must review these backup tapes to determine whether they contain any documents responsive to Plaintiffs' Third Request for Production and determine whether to assert a claim of privilege over them. As the Special Master noted in his opinion and order, that process was previously estimated to take 56 to 58 working days. As there are some additional tapes created since November 20, 1998, the process will take siightly longer. One purpose of this Motion is, therefore, to request 65 working days from May 17, 1999, to and including August 17, 1999, to conduct the review of the backup tapes, identify responsive documents, produce non-privileged documents, and submit a privilege log for any documents subject to a t ' claim of privilege. Defendants could begin production of documents for which no privilege is i!" claimed once the retrieval system is up and running and documents have been identified, printed, and reviewed for possible assertion of privilege. DOI has already written the search program and has begun searching tapes. It is expected that actual production of e-mails or the privilege logs could begin by mid-June, assuming responsive non-PriVileged documents are being found. The second purpose of this filing is to formally report an inadvertent overwrite of certain system backup tapes', created after the filing of the Motion to'Reconsider. In the Special Master's May 11, 1999, Opinion and Order the Special Master noted that backup tapes had been maintained for the period November 21, 1997 to the present. This is not correct, m-t It is, of course, what we indicated in prior filings with the Court. J - 2 - i_ While DOI believed until last week that all of the Solicitor's Office backup tapes to the present had been retained, Blackweli Deci. at ¶ 12, as explainedbelow, the only complete set of backup tapes are those for the period November 21, 1997 through November 20, i 998. Although DOI has backup tapes that were created after November 20, 1998, as the inadvertent result of a directive in an unrelated matter, DOI does not have a comprehensive collection of such tapes through the present.?_ Therefore, production of responsive e-mails generated or received by the Office of" the Solicitor for the period of November 2 !, 1998, through the present, DOI must rely primarily upon copies of e-mails retained by each system user, though the existing backup tapes for this period will also be searched. 3-/ By November 20, 1998, Solicitor Office attorneys had been advised of the document sought by Plaintiffs'Third Request for Production and had been instructed to retain all responsive e-mails. As the Special Master is aware, the Office of the Solicitor does not have an electronic e-mail archival system. It does have a system backup that periodically takes a "snap shot" of existing data on the entire system for use in system reconstruction in the event of a 2 Despite the discontinuance of routine preservation of backup tapes by MIS, however, there are eleven daily and five weekly tapes created after November 20, 1998.; that have not been overwritten in the normal course of business. Hall Dec. at ¶ 6. The tape created March 22, 1999, contains many e-mail messages, the oldest of which date back to January 11, 1999. Id_ at ¶ 8. There are also ten other daily and five weekly backup tapes created since March 22, 1999, that may provide coverage for that period since that date that provide substantial coverage for the period April 19, 1999, through the present. Id_ These tapes will also be searched for responsive e-mails. MIS has now been instructed to retain all new backup tapes from now until the Special Master indicates that MIS can resume routine overwriting practices. 3 As explained below, DOll does not have backup tapes that were created from November 23, 1998, through March 2 i, 1999. There is, however, one tape made on March 22, 1999, that contains data from a significant portion of this time. -3- _! system failure. Declaration of Glen W. Schumaker, dated November :20, I998 ("Schumaker Nov. 1998, Dec."), attached hereto as Exhibit A_ The backup tape system is operated by the Management Information Systems ("MIS") group, ld__. As a general rule, this backup system reuses the backup tapes. Id. at ¶ 6. Moreover, the backup system is not readily searchable. Id.._, at ¶ 3. To locate relevant documents, key words are identified and searched for in the base of thousands of e-mails on the backup tapes. Thus the archival utility of the backup system is quite limited. Because of some system changes and instructions received by the Office of Independent Counsel for an investigation unrelated to this ease, as of November 20, 1998, when DOI moved for reconsideration of the Court's denial of an earlier motion for a protective order, DOI had in its possession approximately 185 backup tapes, ld...., at ¶ 6. These backup tapes dated from November 21, 1997 to November 20, 1998, with a single additional tape dated April 1, 1995. Id. at ¶ 6. DOI still has these tapes. Declarations of Glenn Schumaker, dated May 18, 1999 ("Schumaker May 1999 Dec.") at ¶ 3 (attached hereto as Exhibit B); and Alexander Daniel Hall, III at ¶ 4 (attached hereto as Exhibit C). Pursuant to the Special Master's order, these tapes will be searched. -_ 4 Mr. Schumaker's November 1998 declaration was originally submitted as Exhibit A to Defendants" Consolidated Motion for Reconsideration of the Court's November 9, 1998, Order relating to the scope of Defendants' Obligations in Responding to Plaintiffs' 3 'd Request for Production, etc., filed November 20, 1998. s Because the backup tap_; are "snap shots" of e-mails on the system as ofthe day the backup tape was made, e-mail deleted by the user prior to the date of the backup would not be captured. Schumaker November 1998 Dec. at ¶ 4. .!: '_'i In late November 1998, DOI was informed by the Office of the Independent Counsel that, although DOI must continue to retain the backup tapes created and retained to date, the Department could return to its usual practice of overwriting backup tapes from that time forward. Schumaker May 1999 Dec. at ¶ 2. Backup tape overwrite resumed as of November 23, 1998. Id. As a consequence, although MIS retained the backup tapes previously identified to X, this Court as being retained, not all of the backup tapes created after November 23, 1998 have been retained. Hall Dec. at ¶ 4. We acknowledge that it was a mistake not to have either provided explicit instructions to MIS to continue the practice of preserving all newly created backup tapes after the release of the Office of the Independent Counsel, or to have petitioned the Court to allow DOI to resume normal overwriting practices. Fortunately, the Solicitor's Office had in place since at least November 20, 1998, an appropriate mechanism for retaining responsive e-mails. While we apologize for the mistake, the failure to maintain all system backup tapes for a limited period of time, this is unlikely to have prejudiced Plaintiffs in any way. Aside from the fact that all of the electronic backups should have been retained until the Court authorized resumption of routine overwriting practices, 6-t the backup tapes are not the method used by the Office of the Solicitor for the routine preservation of e-mails meeting the 6 DOI will separately make such request at an appropriate time. In that request DOI will demonstrate that not reusing backup tapes is an expensive redundancy that is not necessary in the context of this litigation. For the time being, however, newly created backup tapes for the Solicitor's Office system will be retained. .° definition of"federai records. ''_ See Declaration of Edith R. Blackweil, dated May 19, 1999 ("Blackwell Dec.") at ¶¶ 3-8 (attached hereto as Exhibit D). Instead, DOl's record retention policies require e-mail records to be saved by each system user, usually by printing them out in hard copy and filing in the normal course of business with the matters to which they relate, ld_ Given the limitations of the computer system used by the Solicitor's Office, this is the practical - ' solution to this record management issue. -_ DOI's e-mail retention policy was the specific focus of a session at the October 28-30, 1998, Solicitor's Office Conference. Declaration of Edith Blackwell at ¶ 2. (Exhibit D). At this conference, the policy regarding retention of e-mails that meet the definition of"federal records" was distributed to all attendees, and the obligation of each individual to retain e-mail records was emphasized to all attendees, ld. at ¶¶ 4-6. On November 10, 1998, the day after the Court denied Defendants' Motion for Protective Order, the Deputy Solicitor issued a written directive to all Solicitor's Office attorneys (including Headquarters, Regional and Field Offices) requiring production of documents identified in Plaintiffs' Third Request for Production. ld_ at 7 In our Motion for Reconsideration, we argued that the burden of searching for e-mails on the system backup tapes outweighed the utility of such documents since.the facts needed by Plaintiffs were contained in other readily available hard copy documents. The Special Master rejected this argument requiring production of the e-mails themselves because they may contain unique information. Opinion and Order at 4. We note here that the production of e-mails retained in hard copy is production of the e-mail and that we are not re-arguing the position rejected by the Special Master. s In the normal course of events, all backup tapes are routinely overwritten in the course of system maintenance. As the Special Master is aware, the existence of a collection of backup tapes was the result of a demand by the Independent Counsel. We note that this command to retain backup tapes covered more systems than just the one used by the Office of the Solicitor. Those systems also resumed normal operations in November 1998. -6- ¶ 9. This directive specifically required tile production of copies of e-mail messages. Id_.: On or about November 17, 1998, Ms. Blackwell convened a meeting of the Office of the Solicitor, Division of Indian Affairs, to discuss e-mail retention specifically. Id_ at ¶¶ 7 and 8. At that meeting attorneys within the Division of Indian Affairs were again specifically instructed that DOI policy requires retaining either hard copy printouts of substantive e-mails that are federal records or saving such e-mails on discs, ld. at 8. The relian,_ upon individuals to save copies of e-mails is a practical approach to retention of such documents given the limitations of DOrs system. As discussed in the attached November 1998 declaration of Mr. Schumaker, the system used by the Office of the Solicitor does not provide for archiving e-mails system-wide. The backup tapes are used only to restore the system in the event of a crash. These tapes would be a poor method for archiving because of the difficulty of searching them for particular e-mails. Therefore, retention of hard copy or individually saved and labeled e-mails by system users (i.e. the attomeys) is a practical way to preserve such documents. In fact; this system of document retention and retrieval already has been utilized for document production in this action. For example, in December 1998, DOI responded to Plaintiffs' Second, Third, Fourth, and/or Fifth Request for Production. As part of the search for responsive documents, the Office of the Solicitor attorneys were instructed to produce hard copies of responsive e-mail messages by either photocopying existing hard copy printouts of such messages, or by printing out those responsive e-mail messages that had been saved electronically by individual attorneys. Biackwell Dec. at ¶¶ 9 and 10. A number of responsive e- mail messages were collected and either produced, or listed on a privilege log. Id_ at ¶ 10. DOI, : including the Office of the Solicitor, must rely upon this method of production as the primary approach to supplementing its production in connection with the Special Master's Order of May 11, 1999. Notwithstanding the reliance upon the e-mail retention policy, DOI will of course search all of the existing backup tapes for this production (including the approximately 185 identified in the Schumaker declaration of November 20, 1998, plus the eleven daily and five weekly tapes identified in the attached declaration of Mr. Hallil Though the Solicitor's Office must rely upon its system users to create copies of e-mail records, we recognize that this is inconsistent with both the implication of the declaration of Mr. Schumaker, filed with the Court on November 20, 1998, and the statement in footnote 2 of our February 12, 1999, opposition to Plaintiffs motion to compel. There we indicated that newly created backup tapes would also be kept. The fact that these representations were " incorrect was not learned until May 12, 1999. The error came to light in a meeting that was held to discuss a timetable for complying with the Special Master's May 11, 1999, Opinion and Order that required the search of the e-mails retained on backup tapes. Schumaker May 1999 Dec. at ¶ 5; and, Blackwell Dec at 12. At this meeting, personnel from the Office of the Solicitor and the Department of Justice first learned that system backup tapes had not been routinely made and kept since November 20, 1998. Blackwell Dec. at ¶ 12. The inforr_ation was relayed to the undersigned counsel who then made sufficient inquiry to allow for informed notice to the Special Master. This notice was provided orally by telephone to the Special Master on May 17, 1999, and this brief is a further explanation of the matter. -8- _ CONCLUSION For the reasons stated above, Defendants respectfully request to and including August 17, ! 999, to (I) review backup tapes for the Office of Solicitor computer system to retrieve any e-mails covered by Plaintiffs' Third Request for Production; and (2) to either produce responsive documents or to identify them on a privilege log. . ' Respectfully submitted, Lo!s J SC FE = U.S. Department of Justice Environment & Natural Resources Division , P.O. Box 7611 }. Washington, D.C. 20044-0663 (202) 514-3637 Attorneys for the United States Of Counsel: Edith R. Blackwell Connie Lundgren Michael S. Can" United States Department of the Interior Office of the Solicitor ?_ -- 9 - IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ELOUISE PEPION COBELL ) et al., ) No. 1:96CV01285 RCL " Plaintiffs, ) v. ) ) BRUCE BABBITT, Secretary of the ) - Interior, et al., ) Defendants. ) ) DECLARATION OF EDITH R. BLACKWELI, • t • I, Edith R. Blackwell, dechn'e: ). 1. I am the Deputy Associate Solicitor, Division of Indian Affairs, Office of the Solicitor, Department of the Interior. I have held this position since October 1998. I have been with the Department of the Interior since August 1997 and for my entire tenure part of my duties have included working on the Cobell v. Babbitt litigation. 2. In July 1998, shortly after receiving Plaintiffs 3 '0 Request for Production of Documents, I convened a meeting with Division of Indian Affairs attorne,js. At this meeting I circulated a copy of the 3 '0 Request and put these attorneys on notice that we may have to gather responsive documents. I also informed the attorneys that responsive documents included drafts and e-mails. 3. On October 28 -30, 1998, I attended the Solicitor's Conference in Solomons, Maryland. The attendees were supervisory and management attorneys from throughout the 1 Exhibit 5 Govl's Resp. to Pltffs' B_l of Particulars and Supplt. Motion to Show Cause Why Edith Blackwell Should Not Be Held in Contempt Solicitor's Office: including Regional and Field Offices. Attached at Attachment ! is a list of the attendees. 4. On Thursday, October 29, 1998, the attendees discussed "Records management issues." Subtopics included record creation, retention, and disposition; electronic records - searching for documents, status of NARA litigation/regulations, E-FOIA, etc.; and _ document requests from litigants, Congress, and FOIA requesters. The issue of government's ability to retain electronic data is the subject of ongoing litigation in Publie Citizen v. Carlin. Copies of recent decisions in that case as well as National Archives and Records Administration (NARA) Bulletins were provided to the attendees. 5. Circulated as one of the hand-outs for this discussion was a July 25, 1996, Memorandum from Gayle Gordon, Acting Director, Office of Information Resources Management. ,1. This memorandum states that: Until new records software is developed, piloted, and installed, all E-Mail messages or attachments that meet the definition of a Federal record must be added to the organizations files by printing them out (including the essential transmission data) and filing them with all related paper records. A true and correct copy of the entire memorandum I received at the conference is at Attachment 2. 6. At the conference we discussed the recent time--consuming task of reviewing the backup tapes for the Independent Counsel. It was agreed at the Solicitor's Conference that each manager would be responsible for ensuring that his or her Division, Regional, or Field 2 Office was reminded that attomeys must print copies of all e-mails which are considered a Federal record. We also discussed saving e-mails to disk as an alternative. 7. It was my understanding from the conference that each Division, Regional, and Field Office manager should meet with his or her staffto discuss the importance of saving e-mails. On November 6, 1998, shortly after I returned from the conference, I sent an _" e-mail to all attorneys in the Division of Indian Affairs, for which I am the Deputy Associate Solicitor, calling a Division staff meeting. In the attached copy ofrny November 6 e-mail it states that one of the purposes of the Division meeting is to discuss "the requirements :for preserving electronic data, including e-mails." A, .copy of this e- mail is Attachment 3. 8. The Division of Indian Affairs meeting was held on November 17, 1998. At this meeting the Associate Solic, itor, Derril Jordan, and I relayed the issues discussed at the Solicitor's Conference. We instructed all Division of Indian Affairs attorneys that the Department's policy was that all e-mails which are Federal records should be printed. I discussed that our existing system had the limited ability to save e-mails to disks. We also circulated the March 13, 1996, instructions from the Department of Justice which provided additional information on what is a Federal record. It is atlaehed as Attachment 4. 9. On November 9, 1998, the Court denied Defendants' Motion for a Protective Order to block certain discovery including discovery of records created by the Office of the Solicitor which provided legal advice. In response to this decision, on November 10, 1998, the Deputy Solicitor, Ed Cohen, sent an e-mail to all Associate, Regional, and Field Solicitors requesting that they produce all documents responsive to the Plaintiffs' Third :7 3 " Discovery Request. In this memorandum we included the document request. The beginning of the memorandum states: We have been ordered to collect certain Solicitor documents for production or identification for a privilege log in Cobell v. Babbitt, the IIM trust funds class action litigation. Below is a list of documents requests that seek documents you or your office may have. Please note that these requests are very broad and include all c documents, memos, drafts, and e-mails, and some are not limited in time. A copy of this e-mail with the attached memorandum is attached to this declaration at Attachment 5. 10. • The resulting document search of Solicitor's Office attorneys' files,f0und a number of documents that were identified as responsive, and placed on a privilege log. Among : these documents were paper copies of e-mails. See, for example, IIMP03IQ001D001, IIMP03IQ001D003, IIMP03IQ001D007, IIMP03IQ004D013, IIMP03jQ004D016, and IIMP03IQ006D001. 11. On May 6, 1999, the Deputy Solicitor e-mailed a copy of his November 10, 1998- memorandum to all Associate, Field, and Regional Solicitors. In the e-mail the Deputy Solicitor asked that the offices provide all supplemental documents by Tuesday, May I 1, 1999. 12. On May 12, 1999, Ed Cohen, Robert More, Glenn Schumaker, Susan Cook, David Knight, and I attended a meeting to discuss compliance with the Special Master's May 11, 1999, Decision regarding Solicitor's Office e-mails. It was at this meeting that I discovered for the tirst time that we had not retained backup tapes from November 23, 4 ",?, 1998, to March 19, 1999. Up until the meeting it had been my understanding that, although we were producing paper copies ore-mails, the MIS Team was nevertheless retaining all backup tapes and not overwriting those tapes. I did not receive a copy of the November 13, 1998, memorandum regarding backup tapes and was unaware of its existence until this; week. Therefore, I had no reason to believe that the backup tapes had c not been retained. Further, I believed that individual attorneys who were likely to have responsive documents were keeping copies of potentially responsive e-mails. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge information and belief. Executed on this _)V"day of May, 1999. Edith R. Blackwe_