00001 01 UNITED STATES DISTRICT COURT 02 FOR THE DISTRICT OF COLUMBIA 03 Elouise Cobelt, et al. Docket No. CA 96-1285 RCL 04 Plaintiffs 05 Washington, D.C. 06 vs. Friday, March 16, 2002 07 2:11 p.m. 08 Department of Interior, et al. 09 Defendants 10 Transcript of Status l 1 Before the Honorable Royce C. Lamberth 12 United States District Judge ! 3 APPEARANCES: 14 For the Plaintiff: Dennis Gingold, Esq. 15 Keith Harper, Esq. 16 Mark Brown, Esq. 17 For the Defendant: John Stemplewicz, Esq. t 8 John Warshawsky, Esq. 19 Reporter: WILLIAM D. MC ALLISTER, CVR-CM 20 Official Court Reporter 21 Room 4806-B 22 333 Constitution Avenue, N.W. 23 Washington, D.C. 20001-8306 24 (202) 371-6446 25 Reported by Stenomask and transcribed using SpeechCAT 26 Pages I through 23 00020 0 ! information for you as well, sir. 02 THE COURT: Anything else you wanted to say on the 03 payment to Indians issue? 04 MR. STEMPLEWICZ: No, Your Honor 05 THE COURT: I'll await your report and set further 06 proceedings after I get that report. I do have one other issue 07 that I wanted to raise. 08 You want to say something else about that? 09 MR. GINGOLD: One point, Your Honor. There are a t 0 number of accounts in IM trust that are not individual Indian 11 trust accounts. You've heard testimony with regard to special 12 deposit accounts. 13 THE COURT: Right. t4 MR. GINGOLD: Those are large accounts. What is 15 important here, Your Honor, is not that the account holders be 16 paid, it's that the trust beneficiaries get paid. t7 THE COURT: Right. 18 MR. GINGOLD: So whether or not there is an oil 19 company or whether or not there is an automobile company or 20 whether or not there is something else in the IM trust, the 21 priority is to pay the individual Indian trust beneficiaries 22 and not those other accounts that are improperly the IM trust, 23 Your Honor. 24 THE COURT: The other issue I wanted to raise was for 25 the plaintiffs. The court monitor indicated to me that he :< O0021 0t attended a hearing in the House yesterday where Mr. Griles 02 testified along with Mr. Slonaker and that in the course of 03 that hearing one of the congressman was questioning Mr. Griles 04 about the impact of the ongoing contempt motions and that Mr. 05 Griles indicated that progress was being thwarted because I had 06 not acted on the 39 motions for individual contempt and that he 07 had asked me to act on those and I had not yet acted. 08 What I would like to suggest to the plaintiffs is 09 that you start working on a memorandum to supplement your 10 orders to show cause where you layout individual defendant by 11 individual defendant specifications of what the contempt 12 proceedings would be for those 39 people so that they each have 13 an opportunity to address what the evidence is and what you are 14 citing against any of those 39. 15 Part of what they had raised and part of why I had 16 deferred acting on that was they thought there was not enough 17 evidence cited and individual charges made against individuals 18 and I think the time has come for the plaintiffs to lay it out. 19 You saw what I did in the order to show cause to the 20 Secretary and the Assistant Secretary where I laid out what the 21 specific charge they would have to defend against was and then 22 lay out what the, in your view, the evidence that would be 23 supporting that in your amended motion for order to show cause 24 or supplemental order or supplemental motion or however you 25 want to style it. C_e Management Coherence .:. October 30, 2002 W_hin_o_ D.C. Page 1 1 UNITED STATES DEPARTMENT OF JUSTICE 2 X 3 ELOUISE PEPION COBELL, et al.,: 4 Plaintiffs, : 5 v. : NO. 96-1285 6 GALE NORTON, et al., 7 Defendants. : 8 X 9 Washington, D.C. t0 Wednesday, October 30, 2002 11 CASE MANAGEMENT CONFERENCE, called for by 12 Special Master Alan Balaran, in the above-entitled 13 matter, pursuant to notice, taken at the offices 14 of McKenna, Long & Aldridge, LLP, 1900 K Street, 15 N.W., Washington, D.C., at t0:10 a.m., on 16 Wednesday, October 30, 2002, and the proceedings 17 being taken down by Stenotype by LORI G. 18 MACKENZIE, RPR, and transcribed under her 19 direction. 2O 21 22 23 24 25 Alderson Reporting Company, Inc. t 111 14th Street, N.W. Suite 400 1-800_FOR-DEPO Washington, DC 20005 C_e M_ageme_ _eren_ Oc_ber 30, 2002 Washing_n, D.C. s Page 48 1 Masters, or Court Monitors, and I will not 2 tolerate them. 3 And I want everyone to understand that I 4 will not tolerate them. 5 MASTER BALARAN: You raise actually a 6 valid point that I was going to address at the 7 end. This case, because of its inherit 8 sensitivity, has ratcheted up the level of vitriol 9 and rancor both in pleadings and orally. 10 I have to tell you, any pleadings which 11 contain ad hominem attacks, that call people 12 names, that just simply hurl rancor for its own 13 sake, are just not going to be listened to. 14 I am just going to disregard any such 15 pleading. This is going to be kept on a 16 professional level at all times. 17 If there are authorities of law to be 18 cited, the authorities of law will be cited, but 19 that will be it. Mr. Gingold. 20 MR. GINGOLD: We intend to cite the 21 record. Where fraud has been found, we will cite 22 the fraud that has been found. 23 Where there is evidence of documentation 24 destruction, we will cite the evidence of document 25 destruction. Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 C_e Management _n_rence October 30, 2002 Was_gtom D.C. v 3 Page 51 t MR. FIDELL: Mr. Balaran, I am Eugene 2 Fidell. I represent Jim Simon, your comments 3 before about the need for civility, I think, were 4 very well taken. 5 Anyone who has read more than the odd 6 page or two of the record, can't help but to be 7 struck by the tension, and at times, I am sure 8 frustration that underlies some of the writing 9 that has been submitted. 10 I wonder if you could comment on the 11 appropriateness of references to the named 12 individuals as Contemners. 13 MASTER BALARAN: I know there has been 14 some dispute about that whether it was used in 15 other reports. I was very measured, I believe, in 16 wanting, and deliberate in using the phrase named 17 individuals. 18 If that is offensive to some people, I 19 apologize, but I believe that it is generic enough 20 to allow us to identify, which is the whole 21 purpose of this, and I would prefer that the term 22 Contemners, putative Contemners, possible 23 Contemners, Contemners with a C, or a K, or 24 whatever else, disregard it. 25 Let's refer to them as named individuals. Aiderson Reporting Company, Inc. 1 l 11 14th Street, N.W. Suite 400 1-800_FOR-DEPO Washington, DC 20005 C_e Management Cofference October 30, 2002 W_gton, D.C. Page 52 1 If we can have a consensus on that, I would 2 appreciate it, for the purposes of pleadings, it 3 allows for simplicity. 4 And, again, the whole purpose of this is 5 to identify those people that have issue in this 6 case. 7 MR. GINGOLD: Mr. Bataran, when Mr. Nagle 8 did his closing argument in the second contempt 9 trial, he himself referred to Secretary Norton and 10 Assistant Secretary McCaleb, at that point, as 11 Contemnors and he adopted the conventional 12 Webster's dictionary, the same dictionary, by the 13 way, the Supreme Court uses in most of its 14 proceedings for determining a Contemnor is not 15 only a person who is held in contempt, but it is a 16 person who is charged with contempt. 17 And Mr. Nagle himself, on behalf of the 18 Secretary, adopted that same position. 19 Plaintiffs have, Plaintiffs have used 20 that term for almost the six and a half years of 21 this litigation. Plaintiffs will continue to use 22 that term. 23 It was proper in accordance with the law 24 of this case, and the dictionary definitions. 25 MASTER BALARAN: Well, I've got to tell Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 1-800-FOR_DEPO Washington, DC 20005 Case Management _erence _: October 30, 2002 Washington, D.C. Page 53 t you, you are not going to use it in front of me, 2 and I don't care what Mr. Nagle says. He is not 3 an authority I have to listen to. 4 As far as I am concerned, he is not my 5 higher calling, and the dictionary be damned. In 6 this situation, I'm going to ask for a uniformity 7 of procedure. 8 MR. GINGOLD: Mr. Balaran, that issue has 9 been briefed. 10 MASTER BALARAN: That is fine. 11 MR. GINGOLD: At what point, Mr. Balaran, 12 are we able to appeal your decisions with regard 13 to these proceedings? 14 MASTER BALARAN: You are obviously free 15 to do that at any point in time. 16 MR. GINGOLD: When is the time wrong, do 17 you know? 18 MASTER BALARAN: That I don't know, that 19 I don't know. Maybe you want to wait until I 20 actually issue my revised procedure. I don't want 21 to dictate a schedule for anybody appealing, you 22 can do as you see fit. 23 I would like to touch on a more 24 substantive issue, and I believe this is something 25 that everybody raised at one point or another. Alderson Repoaing Company, Inc. 1 t 11 14th S_eet, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 ec-_4-O_ 02:4? _rom-THE LAW OFFICE OF ALA_ DALARAN 202§888&? %2T§ P _2/0_ F-_43 LAW Omc_ ALAN L. B.A.L&R_a_N, P.L.I..C. ,7_* PENN_,YLVANIAA_L,N.W .q:>>,._ L', .,_ .,,.','D .v./> 'I'W_:LFI'H _kO0_. WASHINGTON, 1] C. 2[F,_'2_, T_P_ON'E i202} 466-5010 Dece:'nber :-h 2002 _-,u._.t :,_,,.::,,___,.:_,.,, VIA FACSIMILE Dennis M. Gingold, Esq. 1275 Pemass,'l',a_,ia Ave.: N.W. Ninth Floor Washington. DC 20004 RE: Cobell et al. v. Norton eT al., Civil .4.orlon No. 9fi-1285 Procedures and Schedule for Investigation Into Plaintiffs' 'Motions Gr Orders tr_ Show Cat!_e Deal' Mr. Gil,,gold: This letter responds To yo'_tr correspondence of:his date regarding the procedm'es that will govern the investigation into the conduck of the 39 Named L:xdivldua!s' ! Until tlac repots a.nd rccomn'_c_',,dzdon iss_,es :eeardin2 thc lzgal s_,fficicncy of Ge claims ]odeed ,'"":,'s _ each o fzt,._ Nan,ed T_dividuals. no discovecy ,yill cotnmence. 2. Any requests for addiriona[ t. ime :o file the second set of Bills of Pm-ticulars or to segregate_ the _ss'aes the:dh ,a'i!! ree, uire the couse:u of cottrsel for the Named Individuals or the inm_'enrion of the COURT.. Shnce':eb/. Alan L. 'Balaran SPECLAL MAS'[ ER cc.: Sardra Spoone. r, Esq. ,-\uached Disrr?c,-mon List r will assume, for the las1 r{n'_o., _ha_ my direction ccncemi2g '_hs mann.er in ,._hich tlne_,e :_,:cY. vi4zz] _, _c io be. addressed ,,,.'as not clear alld that your felon-al _o Ihen't as "pu'tative conlemnors" was an over-sight. United States Department of the Interior OFF[CI_ OF THE SEC_AJ_Y Wlslliagtoa, D.C_.. 2O24O BULLE'n_ NO. t999-001 To: Heads of Offices From: Dary I W. White I _L/vt,,-,, ChlefLuformation Offic_ I ] - ' kd subject: Transifioning to Lotus lqtoes-Electrome' Mm'l - Records Management Guidance The purpfse of this Infdrmafioa Resources Management BuUettu is to provide records management guidance to all Offices of the Secretary (OS) that are or will transition from cc:Mail to Lotus Notes. This guidance is based on current poliw/issued by the National -' Archives and P..ecords Administration ('NARA). NARA's regulations declare that depending ,,i . on the nature of the message, electronic mail (E-mai0 can be cousldervat a record (Record), und_ the Federal Records Act, 44 U.S.C. §3301. This means that an E.mail message · considered to be a Record mu,vt be filed in' an agency-approved recordkeeping system, along with associated atlachment_ and transmi_ion data. The OS's current recordkeeping wdstem is the existing paper records fi)ing system. Until a NARA-approw'd electronic recontkeeping system is selected, tested, and installed, all official E-mail messages and attachments that meet the definition ora Record must be addat to thc organization's flies by printing them out Oncl,dlng thc e._ntial h'aasmission dada) and filing them with all rdated paper records. II "_,,','_'_°_,"°'"'Y'°":" (44u...g.c.§331)l) __ · whether an E-mail message is a Record. ' _ ii! / 1. It contains unique, valuable information dcvelop_ in pr_aring position papcr_ reports, studies, etc., 2. It reflects significant actions taken in the course of conducting DOI busineSS; 3. It conw-ys unique, valuable information about DOI programs, policies, decisions, or essential actions; 4. It conveys statements ofpolicy or the rationale for decisions or actions; 5. It documents oral cxchan§es On person or by telephone), during which ' policy is formulated or other DOI activities arc planned or h aa_zactod; 6. It adds to the properund_ding of the formulation or cxccution of DOl actions or of DOI opcrations and responsib/litiea; 7. It documents important meetings; 8. it facilitates action by DOI officials and thcii' successors in office; f'] 9. It makes possible a proper scrutiny by the Congress or other duly authorized .... agcnci_ of thc C-ovcrmnent; IO. It protects thc financial, legal, and other rights ofti,e Govcmm_t and ofpcrsons directly affected by the Government's actions. · Appropriate Use ofElcctronfc Mm'L Governmcnt-prov4dcd clcctronic mail is inumded for Official ed authorized p_1xules. H-insi! _ must cxc_c common sense, good judgmeat, - and propriety in thc use oftl_ Clovemment reso_ While short pcrsonal messages _'c acceptable, parallcl to thc wzy Govcmmcat telephones arc sometimes used, other nonofficial uses arc prolu'bite& '.Mcssages and loose language could be taken out of context amd I_d to inappropriate or potentially damaging conclusions. The use of profanity, racial or ethnic slurs, sexually harassing language, alamtea', arid othcr such languagc is aa inapproprialc in E-mail as in any oth_ medium. Unless authorlz_d to do so, avoid thc usc of E-_mail to si:nd m____ges that contain confid_tial md/or sem'ilive information or pdvat¢ information about an individual or employc_. To ensure that wc follow Federal records managem_t policy, thc transition from cc:Mail to Lotus Notes will require some adjustments in our E-mail r_..ords managcment business practices due to the soRware constraints and improvo-n_nts. Following ate changes which will affect E-mail Rewords; 2 1. Retention oflK-mail Messag_ - Cm'rc_ policy'(formulated to support cC:Ma_ dictates that Local Area Network (LAN) Adminish-atots delete mail from individual crnploycc E-mail boxes after 30 days. Lotus Notes docs not function based on a time limit, Instead, each employee's E-mail box is limited to approximalcly 40 megabytes of storage for mail. This CClUa(es to approximately 200 m¢___ages (poss_!y more, depmding upon the length of the messages), including messages received, sent, and drafts (saved but not scat). Alter m mailbox has reached thc 40 megabyte limit, an employee will be able to receive messages hut not send additional messages until his or her E-mail box is cleaned out. Therefore, OS LAN Administrators will no ionlier perfo rm "automatic" deletions orB-mail messages. This new space limitation will require _ lo be vicUant In managing the number of messages In their mail box, copying aud llllng E,,mnii Records Into the appropriate paper . filing system, and deleting those messages that do not constitute Records. 2. Arcblvfng Archivtn_ (or storing E-mall messages on your hard drive) is not an acceptable Records storage method because the recolxis are not easily _:cesm'bi¢ to other employees. The Lotus Notes s_hi_ing feature should only be used for storing "pet_onal"' copies of reference documents, not for the storage of official B-mail Records. Official E-m_l Records must bc printed in paper and filed in th.e agcnoT paper filing system. Until an electronic recordkceping system is implemented, i_e have no means tb electronically store and. manage E-mail Records in accordance with Fcdt_'al rccordlcr_ping rr.qu_ents. Ernployccs may also store E-mail Records, for unoflqeinl -se, with their word processing filc_ locatod on a _ shared (public) directory for easier rctricval and usc. ' 3. Maintenance of Message Reclpleu_ts - In cc:Mail, the information screen containing the complete transmission data (c.g., full mailing lists) was sometimes separate from the m_Ssage, 'requiring cmployees to print this sept/rate _rc-_n for rccordlceeping purposes. In most cases, ' Lotus Notes includes thc transmission data directly on the message. While this arranscmcnt may appcar to make thc me_a§e cluttered, it is an important part c(thc message and must bc copied and retained as part of all E-mail ]Records. However, i£all of the transmission data (c.g., complete list of message recipients) does not appear on thc m_ssage, a complete llst of thc message t_ipients must be printed sad filed with tho paper copy E-mail message. An example of this is umally found in mcssa&cs s,mt to addre_ #8Ioup_ (e.g., OS_PIg). 4. Return Receipt - The smtnmatlc m_:na_e sclcetnwled_,_ r_.elnt of sa E-mall me_._e i'_ ,_nt ne_rily a Retard, but may bc helpful or required for reco_ccping by the reb,ulatious of a particular program. Contact your Lotus Notea System Administrator for assistance in developing a standard return receipt for your mc_sa_. 5. Saved DraFt Messages - Lotus Notes perrnits the user to save a draft message and send or delete it !aler at the w:er's convc_nience. Plea.se be aware that thcso savocl draft messages, or portions o£thcm, may be rcleasablc under the Freedom of'Information Act ('FOIA) or under an order to produce thc documents as a part of litigation (sec paragraph 9). 6. Replication on Lmptops - E-mail systems and documert(s are ot_cn rcpllcatcd on an employee's laptop computer. Please be aware that _1 documents ('P.,-mai!, word processing, 3 !i; ": separate documents from s'unil_ documents rp__irttaincd on thc computer in thc employee's office until they arc _mchroniz_d and idcnti_L This means that a search for Records pUrSuant to thc FOIA or discovery must include z search for documents ors laptops used for government 7.- Forwarding Prevention Optic= - Under Lotus Hotcr_ an E-mail sender may sen d thc message in a way to prevent further forwarding. When mail is sent u__ng this optiOn.'the recipient may not forward or copy.thc E_a_il, but thc mSs_-agc can sial[ b_ printed by uSing thc print screen command. Thi._ feature is most often used when sending official messages that may couta[u coufidcntial, sensitive, or private information (see reference in the paragraph on thc Appropriate Usc orE-mail). 8.. Attachments aud Links to other Documents - Tran.m_ssion orE-mail messages 'containing atia:hments and/or direct links to Web.pages/s a function of Lotus Notes. If thc E- mail is'conSidered a Record, the Sender and the recipient(s) must print a copy of any attachments and certain linked document(s) and file it with thc E-mail message:. Links to documents that arc publicly acccsdblc (Interact sites) do not nccd to bc printed. Links to nonpublic (Intr.anct sites) or significant links that contribute to thc context of thc mcasage must bc printed and fil_d with thc E-mail mer.._gc. 9. FOIA Considerations - E-mail messages may contain information that must bc disclosed to thc public, upon request. E-mail mcasagcz that arc the subject of active FOLA. requests or . appeals procedur_ may not be deleted or otherwise disposed of even if they COnstitute Records and a:c authorized for destruction by an apprOved records schedule. · -An electronic copy of'this bulletin and additional information regarding basic records management is available at thc following DOI Websitc wNrw. EoLgow'olrm/r¢¢or_. Click on "Managing Your Elcctwnic Mail Records, an Employee Guide' for detailed guidance regarding E-mail Records. I/you have any questions about managing your P__mail _, please contact Sam Saunders. thc OS Records Officer, at (202) 208-6637 or Sha.,'ou l_fichcl, the I_artmental Records Officer, at (202) 208-3321. Reference: IRM Bullclin No. 96-06, luly 25, 1996, Policy and Guidance for Managing thc Creation. Retention, and Disposition of Electronic Mail Documents _ 4 CHIVES AND RECORDS N ';'_,_!._-__i_'_,_-_ ':: r yr_..-;_ e",_,:a-',".'?:. _'_._.';_,*,>'_ electronicklly-geEeiafed ad_inlstritiYb.", 'ex,ruSset spreadsheets and other admtmstiative ' ehan_e .... roe ,,_ T- ,1._: '0a-_-0n _e · --. - ._ -. .... -... -,- · .Il __t%,._r.o ,_u._m _=_ p_., ,_v_O .- n.of Electronic Reco_s, ' ._' 2' records that are mcluded m -.- .-- - . ,- aQth0fization for-deletiOn o_electronic_ - :: ..- National Ar_ves:_u_t Reco_ra T 'rec°_keePing'systems _iat haw been Versions _f'mc0ras'that I_d been '/:; [:_ · .. u'ation.. '; _ _:" J. '/._:-'.. J.'. _ authorized for disposal byNARA. All' - converted tO paper Or mi'crbform_ouldT_ '.; ' Notice ofissuance..ofCeneral '_ ' electronic records not' covered byGRS be inappropriate. Theystres-.sed'thal -_,....-. 20 or other General. Records Schedules h_rd copy records are not atisfactor3[ '- ,' Schedule. :' - '.-i '_ ,.. "'_'--: mUSt be scheduled individually_ _-" replacements for records in electronic ' : General Records $checlules ' -_.For Convenience of reference, the '" format and cited the welMmown. · .' .'. are issued by the Archivist of the revised GRS 20 and GRS 23 are printed ' advantages.of el 'ect_nic records for. ' ' States to provide disposal ·" ' - at the end of this. notice.. "' ....... future research. They believe that the .. .." _" on for temporary _cords -' '- Comments and Respons es ' '-.' substitution ofha_d Copy:records would several or all agencies of the NARA received 37 written responses _ hamper the work of future researchers, oral GovernnlexlL N A_' is obliged ' " after_ublicati0nc of the proposed : ... so agenci_ shouldbe r_1'uired to . ..'.. - , the Federal Records Act to issue, such changes to GRS 20 and.23 in the Federal preserve electronically the. records that '-'- and Federal agencies are. l_qulrsd {o follow their proirisions (44 :': ' Rel_ster on October 17/-1994. Fourteen they create on computers, Reslao_dents ". ' · 'O.S.C. 3303a{d)). On O_ober 7, 1994, of the comments were submitted by · - cited several e_nmples of the feasibility Federal agencies and 23 were submitted of preserving electronic records, .,....: NARA published a notice in the Federal by members of the public: The including the State Department's .- comment on' a : . responses from Federal agencms.were . '. Foreign.Affairs Information System_'a .};_ mn o ' ' ' system in the CanadianTrade , I?,{ ....... v "f '. supportive of the changes; two wrote "- The r_wsmn recluses r_mo al o ' _ - ' Negotiations Office, and a pilot projec_ _ - ' ',_! .......... · ,- -.-. omy to provide conCUrrence. Comments ,_wral _tems Item _,_ z a, Ke_.cora! . . ' r_o_.O-_ F_,_e-o_ a_,_-_ fo_us_ o _' at the Navy Research Labo_tory as '.: ':_': ' ! t:i} Common to Moat um s. _ _ _.,.. ,. :,.: ,. 'the coverage and applicability of the' - examples'of the fe&ibilit_ of preserving. ' '. , l;i. Affencies ann consonaanon o_ mose Ge e ' Re r ..... .... .. .7' ....... rds in' ' ' n Iai co tls acneaules; ten - '. records electronically.. '[ :,' :..' ...... l'; Items w_m omer etectromc reco · - ' ' , b. Besponse.:NAR,A. has recoils, ed for · 1_[ --- -- e r- 'e 'o _' ' :' requested clarifications or suggested · · CPS 20 omer cnanges.w re mas _ ..... many ygars the advantages electronic . i:_ ' '" ' ..... v e '"so e * changes. One agency commented on the , t.lanq, aha exteno me co erag et m eve-o' c,,vero_,e ^_*_,- G_ _'e · records'have for searching.. ' - :'. 1. tithe items, The following is a ......._ ......... . _ comments'from twentY-one members of manipulating, end Storin¢ information. {i _nmary of the comments received and. the public and professional - . ' hx1968 NARA estahlish_(t, an .... ..-. response, The final GRS'20 was organizatioffs, two Federal agenCies,and organizational unitto..de'_elop policies . !i. ipproved on August 14, 1995.. two state archivists were ci'itical of the for.the selection and preservation of '. . il [_ofl FURTHER I_FOR_d_ COgrAC'r: proposal.' Except for the response from electronic records, Since that time, . James J. Hastings, Director. Records · one state'archivist, ail critical comments NARA's appia/sal guidelines have.. I' Appraisal and Disposition Division, · stressed the.added value brought by the N*_lor,al Archives at College Park. 86Ol were based on a belief that implementation' of the revised schedules z_anipulabfiity of automr, ted data. In ! AdetphiRoad, College Park, MD20740- would result in destruction 0f valuable additionto_in/tialfc_usonarchiva]'. .: 6001, (301) 713-7100, ext. 274. - .- Federal documentation: ... preservation of electronic records, ' . . i I#.IPI_.EMENTARY INFOI_MITION: -. :- Neither.the agencies nor the'public NARA concentrated on implementing commented on the revised CPS 23, its statutory obligation to .provide !ri_..B_ckgr°und ' .: Several agencies made general. - agencies.with the author:.tytodelete proposed consolidating . comments on, the GRS-or specifically on eleCtronic.records that have only .. .... for the disposition of generic GRS 20 that were not responsive to the temporary value, Accordingly; the first into General Records. notice in the Federal Register. - : " version of GRS 20 waS. published.in' ' . Schedule (GRS)'20, ElectrenicRecords,. Nevertheless, NARA will carefully I972 to provide cliSpdsal authority for ' i _p_mOving several items from. GRS 23, review these:domments and will specific categories'of temporary records ' rds Common to Most Offices ' - '- consider incorporating them in. future associated wi_t.m' 'amfx_me.applications..:.. _,gencies; to GRS 20..On_August changes to the GRS,'NARA handbooks Excluded fro/,! its coverage, and alt . ._ 1995, the Arc,h_ivist of the United or other gnidance; They will not be subsequent/_visi0 'ns, were the types df 8latas approved the revised GRS 20.'It ..- addressed in'this notice, -.. · -. -' records generated by large'data'systems' now in effect, -' ' _: .... The comments that were received. ': th'atmighthaYe'rardaival vMue.' "' ' ' ::"" The revised GRS 20 authorizes ":" .' 'included some thatwere general and ' -. A I988 revision 'of the'GRS ex/ended' deletion of certain.types of electronic- . applied to-mom than one of the items-." disposal author/ty't0 Spedfic categur/es records associated with large database', in the proposed GRS.'Otbers were- -' ofreconis §enerat&t by end-user: ,:._ _ystems, such as inputs, outputs, "'_ specifically directed to one particular' applicatimls on standralbne or-.'..'_ .' '. '; ' ...Procarssing files, speciaI format fil es, and item. The' comments and reSl_onses .' '" networked computers'used by ,' '" . ,_rtem documentation for systems that"- listed below pe 'rtain first to the Overall -' individuals, This new'GRS, General "t.:.":- · "" - comments and'thor/to'those that were Records Schedule 23, covered word- :-"-. · ' ;_ve been appraised by NAI_.· as _ ..!'-- 'temporary. To protect potentially - '- '-' -'_, addressed to specific'items. ._ :' ,c..._ processifig,'electr0fiic malL::.-': .... '"' '-/_'-':. ' : re'cords, several of these ':" .. :: - The full set of Comments on the .... ' '- spreadsheets; and"admlni_trative data-' '_ limited by specific exclusion/, revision to GRS 20 that was proposed on' bases. The items concerning these _ - · a result of the move of GRS 23 ftems October 17, 1994, is available forrpiablic applications'aUthOr/zed the deletion of ' . pertain to electronic ?ecords into ' inspectionat the Nat/onal Archives at the electronic versiofis of records · "'' 20, the revised GRS 20 also '. College Park, Records Appraisal and created after they were. printed to hard deletion of records on word Disposition'Division, Room 2100, 8601 copy. Use of word processing software .... PrOcessing and electronic mail systems Adelphi. Road, College Park, MD 20740, evolved from use of typewriters arid · ,=_1 II Il I [ {:::_'7_::-: . .. .networks were installed, aganmes Furthermore, ffelectmmc.records are - potation serve more as useful . ' -:::.: .':'.; ::.. ,' continued to maintain records produced stored in e]ectrord c.information systems' illustm.ti0ns of NARA's pesition. The . _._'_'" . ::_ ' organizedpaper'files, especi/iU_ since- "functionality; permallent records may Information System {now tile . · -." .with office automation applications in · , without records m..a.a.a.a_gement _ . Department of. State's Foreign Affairs end-user applications were 'not designed not be readily accessible for research. Automated Data System) is not a word ': ' _'. -_._ ..... to' claSSify, index, and maintain Unless the'records are adequately .. .processing or electronic · - . .:.'-_-::_ -.' documents for their authorized' : 'indexed, searches, effen full-text ' communications system.. It' is a ' .'" :: retenti0n period. - - . · " ' searches, may failto find all documents re¢ordkeeping system that stores, . ' _ · NARA's final standards for the relevant to the subject'ofthe query, In indexes, and retrieves the Department's" 'i_ .management of e-mail and'the revision addition, numerous irrelevant 'unp°r_ant program records. It is not ':-'_ .- t0 GRS'20 that has noW been approved temporary reCords, thatwonldbe' . related in any way td _RS 20. The ......_2 clarify the disposition authority for Segregable._u systems with records ':system.was alJpraisedas permanent by "'.ri .- electronic records produced-by end- management functio/_ality, may be ' NARA iii 1983 and consists of an .... '.- users. The GRS 23.that was approved in found. Agency records can be managed automated index, microfilm copies of" ... f_i 1988 authorized deletion 'of word · only if they _ in agency, recordkeeping, paper documents, computer outpu[ :._ ? · processing and e-mail records from the systems. ' . . - - microfilm of electronic message traffic, "- "live' system after they had been ' The respondents who expressed this . and digitally stored texts of electronic ' --_ · copied to paper.or microform. This ' concern mistakenly concluded that the messagetraffic. Thisis an excellent . '.- "':! -authority has now been moved to GRS propose d GRS 2O authorized the example of the benefits.of transferring :-i- :_ 20 and is extended tO authorizd'deletion deletion of valuable records. On the reco'rds from various formats' to a .. ' "_ · of electronic mail and word processing . contrary, GRS 20 requires the ,recordkeeping system to. ensure their': ' ;i records from the "live': system alter ': preservation of valuable records by .... ' ..... _* : : continued avmlability to staftand .. ,_- they have been copied to an electronic instructing agencies to transfer them-to Preservation for NARA. ' ' ' '" -'_ recordkeeping system. It also clearly - an appropriate recordkeeping -_ystem. .The Canadian Trade Negotiation - ..._ states the requirement to preserve Only after the records have been ' Office did not have an electronic ' ':'. ' -:_:: . . transmission data with.electronic mail properly preserved in a recordkeeping record.keeping System for its office · ',: records to ensure that their context as system will agencies be_antho.rized by. automation records. It maintained its --'. ''_ well as content are.preserved. GRS 20 GRS 20 to delete'the versions on the records ekher on-line, on paper, o r on "' ':_ does not authorize'the deletion bf the electronic mail and word processing backup tapes.'.The'backup tapes were: ' ':Z . versions of electronic mail or word systems: As indicate'd,'most agencies acquired in their entirety by the - · - -: processing records that have been ·. have .no viable alternative at the present National Archives of Canada. They - ' !'' '": placed in thc agency's recordkeeping time but to use their current paper files consisted of a complicated mixture of' . ' '':': system, as their record.keeping system. As the data, files, documents, directories, and The new GRS 20 recognizes that technology progresses, however, software and included records that had _. _: electronic mail and word processing agencies .will be able to consider , permanent value, records with no ' · .., applications are used to create' Federal converting to electronic recordkeeping archival value, and.duplicates, ff the: :: records, including some.permanent systems for their records, records had been maintained on a · . records. Separate NARA guidance and · The critical.point is that the revised . · recordkeeping system in the agency, the i. :' '.regulations instruct agencies to GRS does not authorize the destruction Canadian National Archives would have ' :_ · appropriately preserve records that are of the recordkeeping copy of the - been able to identify, app_se, and :...- 5, produced through office automation in electronic mail and word process/rig acquire only records with permanent_. -": "!'_ · the' form that they determine is best to .records. The unique program records value and allow the agency t 9 dispose · ._-: _complish theft' mission wittXin their that are produced with office of the remainder. Because of the great ._" '.(_ administrative and fiscal capabilities, automation will be maintained in value of the records and the significance' '_'i GRS 20, NAKA regulations, and - organized, managed office of the agency, the National Archives of . "._ NARA guidance instruct agenc/es to - recordkeeping systems. Federal agencies Canada undertook extraordinary ' ' :": _:_ .identify records created using office must have the authority to delete the measures to impose basic intellectual ....- · '_ :? automation and tc maintain them m a original version-from the ."five" t d _ . -order on the system da a, files, an ..... _. ,, recorflkeeping system.that preserves , electronic information system to avoid ' directories to make them retrievable.- .-'.",_.:i_ their content, structure, and context for system overload and to ensure effective Despite tbJ. s time Collsurning project, ": 'ri their required retention period. For records management. Program records information concerning the Trade . '._:'-_ - records to be useful they must be ,. that have been transferred to the Negotiation Office's functions, · ': !_ accessible to all authorized staff, and ' recordkeeping system wilt not be activities, and records management ::.:'_. mustbe maintained in recordkeeping _ . affected by GRS 20. Their disposition is practices was not'reCreated. The _.' ': :! ' systems that have the capability to .. controlled by other general or specific Canadian experience with this project _s. :j ' group similar records and p .rovida the records, schedules. _ - , a powerful example of the need for . ,_._ necessary context to connect the record NARA appraises and schedules records to be preserved by an agency on:i(i_ . . , with.the relevant agency fimction or . records in organized rec0rdkeeping a recordkeeping system.' . . . ·-'·'_",_ · . transaction. Storage of electronic mail or systems. It is essential' for'the The-pilot pro}ect by the Navy '. :;i'_ w. 0rd processing records . on'electronic, originatir/g agen_'y, for NAKA, and for Research Laboratory cited by . "-_; informat/on systems that do not have future researche rs that 'records, respondents als0 supports NARA's. ::-._! :- these attributes will not'satisfy the : _especially those appraised as position that records need {o be ' :' needs of the agency or the'needs of permanent, be maintained in ' maintained in a recordkeeping system, ,':_ future researchers. . recordkeepingsystems with records The Navy project was conducted by an !:),'_ Search capability and context wduld management functionality to' allow [or agency historian who in_/ested · '_' :_ be severely limited if records are stored appropriate maintenance and approximately one hour to categorize '.' in disparate electronic files maintained disposition. 100-t50 messages that were maintained '"ii_'_i:' /ri i ope/ati_ns; _a ,_:-: _ ::-:_: 'ai/otier ac _,_'f '_S_ st'ed:'th_[i_-'';::T' :/:_' .: would _i_¥o s./__,:'?!_ ,,'q:mt_duaion: dam. 0w!edge _C__u_. '_T_:'/-: . . . c. ::. 22._,_.__1_ _. T,^,:_n_,ll_ vnl_Dte' " . .' ' (lo_?uIXlem._ ucmL _ .v _l-: . ;-.. o]r(_ wel'e ] llla. Lu.Ltixt_ zuz k_t_j . ': .',,- · ,. - ,_-._,_ _ _'._ ._.';_a_ ;.; _,_dino baclmos: Two ether'agencies ques.ti0nea _ mana§edmarec_ E s,,. · ,'. ..... :_'__-_-r:._.levant .... · ' thi3me,mngof recorclcopy'- re,the. .... · a e' roporao_ ut,,_ -' '. ... ' .'. - '. ' ' · - .... . _a,_i_,_ied b'_NAR-&, sucx .... -: _-, ,._rg p: ., _-. ', .... "-' definition of system baclcups m tUe o_..v..::._::., ...... .. " '_ :": ' wM ":decument_,'aninemtnentuseol' . - _-_. . . . ._ .., . .' .-. - . =_+A_o_,,n time consumm_l work as .. · ". - , . '---.. · -.- .- _ ..... _ - 'i_*mdnction and recommended adding . ll._r,,_._?v? ....... . , _,. . . _ ., .,.,. · .. . . . - . , .' .. _ , . · .......... . , · _ . . done]nthe.Navy:p_flotprol'ectwot!!d_.,:..mse..'amh,.'_t_ne',/....-;_ .... ._.: ....-,:-:: svstem'backfipsas-anewSUb,temunder.. notbe necessary: Lt;°nthe°Llierz-h_"'_i_'_otme,-a 2.' Dtsposition.Instructio!is..,. . ....,:. - (.i :. 7 iiem 8. One agen cy requested'....that a , " : __' Federal ageficies were toaa p . ,,, .v_ · Z r,L .... _/nnn-a_encv and a '- '_-, .- subitem be idded to item 8 to cover ' · . · · · · ' .... aDe' a, _.._+.,,_._.s_:_.**_. _- o., _._ . - . · . · .' - , ' - , vile(prelect, as ?model!eY wo.t_ . .,. ,. ,_.,,_,,,+ _, the nublic expressed concern unscheduled records, and tlmtthe.. . .. _uired t0'am_ty,ze _cn message -.- · ..-- _,"_,".'7_ _f_oc'_.._._,_2t_nn -::"- · "disDositi0n.0f item 8 be-amenaea to .' . '. · -, ,. ' '. ' . aoourmeoro,-=_- ....... .- . - - .. .... _-_,_Ivi uallv; vrovxde.whatever context... - . _. ' ,-m.. "_ -_:.$ ;1._,',,,-1_1_to ' .... ' ,, vide that ffrecords with different . · __.,d . _: .... ... ....... :-" ctions.'_ne -:,eu_,_o, ...... ' rr0 ..... , ... -.-. · · ·. ." - Would be'necessaxy_ _and enter the data .:. mmmmmmmmm_.... · __':_ _-Y_a.:a,, was too vab_,e" ' mtentiori'neriods are on backup copras,. · · · ' ' "' ' ' 'has an '· - % · wl_en no IOIl_e£ lit:_u_;u _- . rD'_ ' . _ , i-· . . · · · into a database. If an agency -' ' ' ........... '---_-'--';st also' " the backUn should bekept for. the. . . " ' "' a" - wee]_ a""0rtoooroa(L..a'sta_uu-_'_u'v_ .. . , ,r , · .. ,. - .. , . . . ave e of 40,000 me_s_ ges per _.. ( , ._._o'ooa ,._,_-o_-n t the schedule - longest retention period. One s.._.te _ · . ..r_ .... , . .., ·v · ............tha · .. . . . , ., . - .. , . relatively' low average}, .th___, Wo_t a ...... w_d' autho'rlze deStrUction-of .... archivist stated that the d/sposluon.lor - hours .... - ' ' " r_luire approxxmatety 400 stalz -'" , _,,._,,,_, _/-n_d_ _nrl re "ted ' : -" item 8 is inconsmtent wxth accepted:.. ,· ..... ' "e"" '': '. = ............... Ia . · , · ..... theeqmvalent,°f!O .tiff! '.t_.n-..... "_'.:"_.' ._._,m'entationneeded';for'establishing processmgpracti?.s"" ':"-'; LL-_,._-i . emplo]?ees_.l_'.t to catego.r_, me ,'.L_: _u.._'f_._._;_o_, and 1,_at admissibility Of. ' .-'Some of the puD,c, re sponaen? win? :..' m as.. Tliis _s an expenmture m?,_ no... u u._.__?,.,.n,_7o/. ..... ·..... ..-. proposed GRS .ch?n_? aiso_o? _..ssu.e .' , _.e__'._;.,., _._gAl,d and'is ilo douDt, me'"i electruiil_; l_,._._.. '" - -- ' '" ' -,-'_' +_'e item on Dackuns m tnetr mew '- .' § _c_a._.,1.;.'_a_,,i-, did'_aot imnlement, b. Response. In respond.. ,, -' ·: ' ' 'an erroneous dlstinction reasou u_ ...... y , _ , r. ...... _;;_,_,-_'_ 'NARA has revlaced delete. NARA drew ...... . . the recommendations., otthe... pilot.:. ,..,':' ':" "_"_"_"e"C'--2-_wnenno wug_ _,_-,_-;';a_:"with' "delete _' between the backups mat mn-mt.me · · p_ject... - -_-:-tain'thei_ records '-when the:agency determines'that they ".logical" format.of .the system and th0se . .-/x c_e_ mu._ mas-_ .... '..... tire that mirror the "physical'* formal They -_ ;,_g_a_,,a _Ie_'that are designed for · are nol0nger needed for ad..mm_.,stra . , _,,," .................... · · al suggested that. all categories'o£backups .., '_' . ...... ·__.a'o A,,encie s that: :- legal audit, or otlaer_operauon . ._ :...- meir operauuud_ s_,_=. ,:_ .... _, . -o , ' ,, ,--: .... _ _. _htI! 3b_31 are records because they'serve the same'- · -,' '----_ ,_-ditional,,aner utes ' ' ' purposes xor _ _._ .... t_ ,,.. - -' fimction' of permitting re_oYery.o,f Cllrrenuy nuv_ u_ y z' , .. · 4, ,:?l. electronic record or file i[the recora or - --:-_ records, snreaasneets, aha . . rews_u _u= _..... ' "" '- d file is_damaged or. erased fr0m'the · P_a_areports s_l_l__t tht_tr_gleSmc_aare____'be ' _e°_/e __' °_°_e_'t_em'13t.ore ad dt el___da. '.n-_°_--lsff . 'l_Z°r beS'stleftem_mahanged.,'and1;ec omme nded... :that' item,.. b. Response. NARA h as revised item' d._ - 8 to reflect'some of the comments and' mustbe su 0rted by hard copy files,., disposition instruction for item ! 4 was _ even'wheanPs_P'me types of related record s changed- to read "delete fa'om. _;.?'man to clarify:its.coverage- Item 8a has been ' erated elec_onically 'Agencies ' system.wheh.n0 longer needed o .' retitled "BackuPs for Files" to eliminate. al_ n ' · · '. ' " ' '' n that_ecide to maintain their records m coneemence of reference.. In additio ,. the distinction that formerly was made i between system and security backups- . _ ' electronicrecordkeeping Systems'do so ' NARA ch an,,ged the disposition for item for-comPelling operational needs; not lia to read destroy or delete.when . Tiffs distinction brought about a great .: for future researchers. In'some Cases, i . . Sfiperseded or obsolete, or upon '... - deal of confusion that tended, to distract such as the State'Department . example: ". authorized de[etlon of the'related master from.the.purpose of the item. 'cited by'respondents; agencies &-eate' .. file or database, or upon the-destruction Consequently, the new item.ga covers . · :. automated indexes'to hard:copy records of the output of the system if the output backups, regardless 'of how.they are . ..... · .... · characterized, that are dete.rmine d by .rather than digitizing all of. tt_e .'.r_.o..rd s _. has legal.. value,........whichever.. is latest. ' ' the creating agency to be F.ede?l .... - · thenmelves..In'any case, the .oeo?mn ._:. 3. Irem 3 ' ' .........· . .': .... -' ":.i "..': :.i records. The reference to classmcauon must be bas'ed on an analysis'of the , of the format 6f backups ("logical" or needs'of and benefits to the agency, f':'. ' :'a. C°'nament. An agen cy suggested.that ,, h 'sic.al") was als0 deleted.' . :' balanced against available, resoumes.' '. - ttem 3, Electromc Vermons of Records p. Y ...... .: · . ..... · .... -, - The role bfNARA'is'to provide ' "'," .:' Scheduled f?rDisp, o. sal,_xtended to.. 5. Itein I3 :...'.'., ;' '"" .;.' '.' "::-'"'" mtidance _dd:regulations thht, when . :: GRS' 17, .'_-t. o.grapm, c, .Aen , .. 'a. Commehts, One a_ency stated that _mno.rlv imblemented: will result in :' '.:":Photographic,' .Axv_t_2ana :; ...'. item i3, Word.Processing Files, is _e'-n_-redo_clkeeoing. sysiemh that ' :' ..: '.. '. :. En§ineering Records. ; aUo_ t_no .'!. .' -.:. inlfppiopriatebecause'disposition',_ .,_ p°mt:a re.c6rds t.o'r _e?. auth0nzednt :,:L '.A_di°_fi spo_lsRe_°c_Su'se '0 f'the lack of':" AnotherSh°uldbeagency.su,estedbaSedOn dontent;thatnOtitemineaia.'-'13 retention Period, ana,-ior perman . "' .'.: * _ · ......... ' ' ' 'should provide authorization for" .... i"' recOrds,'in.a format that _a]!.ows .transfer_' ' .st.an.d?d s f°rsuc_ di'ngi0?_x_:IS_.t _ - ia ,_.; _,T..x_.I Amhives .:_ ._.-'-y..?:r._--:'.-. tins ume, L'_._.--_ =_? _,,'. *e. . , _ .' r. deletion Ofsuperseded drafts. ' : · .':v uUage'_Ii_(_S "_ere [0 'm 'aiilt'ain rthe'£r :' _ tz".--.item- _'sug_ested.'. 'y ,.4-'-':. ,.. :, :..'; :-- ' b. Response. NAKA believes that this- electronic mail and.word processing:' '/""/4. neon _': '·-: - · "'.ii:'...' ,.':' i -2_ ,. :..: ,.-. item responds to a real need. As . records on electronic information,,.- _,.:: '.. ai'Conun'en'ts. Four agencies raised , indicated earlier, the GRS has covered :- systems that do not provide the -, ..... ,neCessary records '/n-anageme n{ '- ' _ questions about the coverage of the. original version of word processing [unctions just for the sake Of _: ' ' backups. Two agerfcies found the records since 1988. Over the years many maJntalning them in electronic format distinction between system and se 'cu_ity agencies have to'Id NARA that it has. ' ' asmany respondents.advocate, the · ' backups to. be confusing, One agenq proven'very usefixl to them in · NARA .has not _ddecl provisions t_o expressed concern that item 14 would .and experience, IN .AI_..oeneves mat ._ _i'._n_ -'this item concerning.draft documents. - require electronic maintenance of nnpl.ementation of this G..RS cnang,e, ._, _ _ In most cases, drafts-are imnrecord.' electronic mail. Many public . . along with revlsed regulations and ,:::_'_ tu,_ · materials so'no'disposition authority is' respondents objected to item i4 because NARA guidance, will significantly '_ rocor& · - _ record: required_ In those'instances Where drafts it permitted hard copy records to be improve the quality of Federal -":. schedu ·create& on wo_ processing systems are 'substituted for electronic Versions {see documentation by'appropriate ' '_ - records, as'desei-ibed in NARA .. comments and response number 1)._ preservation of'electronic mail records. -_ covere regulations (36 CFR 1222_4)_ the' ' ." 'b. Response. NARA has modified, the'. NARA has given authority under the "_ agenci_ Tev/sed GRS. 20 will cover the m as it item and the_introduction to GRS 20 to" Federal Records Act to the Federal _ resoun .covers other.reCords generated ' ' provide more information on agencies to delete electronic mail '_ Appro* electronically· No'further authorization transmission and receipt 'data.. records from their electronic mail allow ! is needed in the GRS. NARA will be Item 14 also has been modified to systems only after a copy of the full attenti_ · issuing' guidance on agency drop its prior reference (item 14bi to - message with-names of senders and _ endur_ recordkeeping/dquirements that records maintained on. the electronic - addresses and date of transmission, and '"_ propor includes a discussion of drafts and '_ mail system itself.. Just as with word- "" receipts when req'uired, have Been .!!'_ from fl .provides criteria for' determ_nlng (eh en processing records, e-mail rec0rds must preserved elsewhere, i._ Dated they are record. ' . , A... . be maintained-in-recordkeeping systems lorn W. : lqARA did modify item 13 as a restilt that'allow accessibility and pr0per 7. Item 15 of numerous meetings and discussions records 'management. See the responSe a. Comments: The pubtic comments ii_ Archivi_. '. with records officers and other- ' ;. to comments on item 13, above, for - included a concern that item I5,. -_lg Folk interested partlY, and further analysis further explanation of this change. Spreadsheets, could authorize the ::_'[ ; GRS 23 of recordkeeping requirements. Records Otherwise, NARA has not adopted the destruction of critical information that Genera mus_ be.available to all authorized'users suggestions concerning this item. is in the electronic version of a 'and properly managed to-ensure their Blanket atithorization for deletion of spreadsheet that would not be in e _._ Electro. authorized, timely, and appropriate recipients' copies o[messages would be paper printout, The printout would only ilil [_ This disposition. Documents meting the inappropriate. Sometimes such c'opies contain the results of the/:omputation, ' .'_ autheri definition of record, that are 0nly in. ' ' are unique Federal records. For not the formula_s.'or other information, records Individuals' word processing. .. example, messages.received through that was used to reach the results.. Such or' micr directories,'rather than agency . efxternal .systems 'would not be ' computational information should be related - recordkeeping systems, are not ·. duplicated elsewhere/n the agency, preserved_with the electronic This accessible to other staff members, Even Also, to ensure file integrity, recipients', spreadsheet, particularly when it · ,.' electro_ accessible network word Process_ug. copies Of messages Often need to be concerns important budgetary, funding,: Federal directories are inadequate if they.are "incorporated into a record-keeping or other analysis. ". -.. manage . part of information systems that lack . system in the recipient's office- b;Resp°nse:Thec°verage°fiteml5*_ i:_[ covers] records management functionality. It is Agencies are responsible for issuing as proposed in October 1994, was not :i operato critical that agencies instruct their staff, instructions on _dentifying recor d " clear. It was not intended to apply · to all' .i._' I system., members to'copy Or transfer any word .coPies of documents, consistent with program-related spreadsheets that were _ [ persons processing· documents that ,am Federal . :. NARA regulations and guidance. . .' 'developed for agency use. As the Disposi · records' to paper or'electronic . Because the GRS is a records disposition respondents correctly indicated, if this - certain · recordkeeping systems. ConseqUent!y_ schedule, it is not the'appropriate item Were to apply to program records ' \._1 tables ti NARA deleted Subitem 13_. This '-mechanism for addressing records generaUy its application could have:. _!._ [ manage _ubitem would have authorized deletion ' creation issues.. NARA will address - resulted in the toss of potentially · i_ I created · of records that were maintained only' on these issues in standards or guidance valuable information that Was used tO purpos_ the word ]_rOCessing system until the dealing with records Creation and produce a spreadsheet, Consequently, · .. covers c expiration of the retention.period" -maintenance. As indicated in the' ' ' . item 15 has been rewritten tO clarify the ' "'q_! records authorized by another GRS item or . response number 1, GRS 20 does not limitation of its coverage. It now ...... :_ [ ' automa! ' ' . -authorizes the deletion of electronic -.: i_[ disposit agenCY schedule. The deletion of item ' require maintefiance of electronic mail · ' Spreadsheets only if they support ".','"_ [ categori 13h from GRS. 20 reinforces' the .:'... .records in electronic form. Item 14 · ' . . .. than pro,am'...; ti ! necessity for agencies to properly' · specifically covers electronic mail" administrative, rather ' describ( maintain'Federal' records in. ' .: records, converted to paper or · 'functions or if they were generated by' _.-_'_[ type of i microform,' as welt as those copied for an individual only for background iii thG_s; .recordkeeping sYStems. : '!." maintenance in'electronic .... purposes, - · . . . - ' recordkeeping systems .... "' ' records. -a. comments. One agency suggested During th_-past two years NARA has Conclusion ', by GRS . that item 14, Electronic Mail Records, worked closely with Federal agencies on The Federal Government generates an authori2 should authorize deletion of recipients' the development of records management incalculable number of paper, . has bee_ copies of messages unless the recipient*s guidance concerning electronic mail. electronic, and audiovisual records Archive copy has been designated by the agency NARA staff members have consulted every day. The vast majority (95-98%) (NARA). · _. _ deleti&rt when'tlie, agimc_ · · . .' ," :. ':rr ...., ' ·" - ..... : ' ' -. · ' roviae ' oslnon &Utllonnes:': .i: .,,u_,_ct_-u xoL . . _ , _o . . - . . : -.. - .... : _..' ,.-; .- · lawto.p ,: .alsP. . . '.-. ,, - .. · - - · · - to. assess es for stem use. . . . ', &.-_,-omm0ntemn0r_rvrecorcls ,'-, orotheropemtional.purposes. NARA .... ..used,.., e_ch_..._i . ,,____.___. , ...... .ior_u_,- ... r .--f · .. " '_ ' -' ' ' c '- - ijemre/cteswoywnenuzeagum;y '. ;'- -:.: .: GRS 20 is deigned to pmwde authonty cannot establish a more specifi .... - - for'the'deletionof, common'tempor_'_] ,-' retenti0nthatw0uldbeappr_priatein. · dete_rminestheyaren°l°ngerneeded' '"'7""'f -- _" 's-., - M ',.., (1' 0 _ c= _,o m. .--* ,.Q LZ _i m ;I-,' m _ n. _. m ct'ii_ _' i-- .i-," _' _ I_! '*-*- Ct m m i,--] m t.,- · (D' _I I-4 . _'l il-, _ _ . ri. '._ _ _ _ .,., 0 _ 0 '. 0 u._ _ , _ . r? , *i · ID ' ¢_ i ', *,o i= I i g-- :'"' ; _ -I-' ..1 ,-_ ;_ I_ _._ , .__ _ m. ,-I ._ _r _ 0" .-e.- , _ 0 · _ ,. _ _, _:_ ,._ ,.. c_r _ ct - ,) _. . __. rd_ *. I 0 0 o 0 o o o 0 0 0 0 Io ,-3 el' 0 '_ I I I I ! I L,_ 1 I I I I i_ _ _ u ..j _ _ _ ; I,,,._ I,-* -.,41' I,-* _' ! _ i I ' 08/1_/00 14:01 P_ _0282_00_ H_ DC ......... yl;.eraA._urrl ' 'U .... I : _o15 ........ United States Department of the interior O_'_']CE OF'l'/,-ll_ SOUCI'i'O9. w_s_:on, D.C. _40 June 17, 1996 Menuar_d_ J ! To: Special Trustee, Office of the'Spec!al Trustee for American Indians - . A_ststaz_t Secretary/IA Assistant Secre=ary/PMB Deputy Commissi0ner/IA epucy soli=i=or Subject: IIH Litigation ._ As you know, we are now involve& in litiTa=ion inV°lvln_ the ,_ Department' -_ mmn__gement of individual I_dtan Mozley account $. _'_:"_C_%11; e6 al. v. Babbitt_, eta!_, No. l:96CV-0128S._-D_--DvC.) . Thl%s ...... -_s'-a reminder :ha= _i'1 d0cuments, including e-,mai--_,_:i_lat_d _o .... ..... _-"mana_ement of =rust funds and IIM accounts 'should continue =o be . re=aimed. In ad_/tion, if any doc_ment_ are ever s_bje'=t to disposal [such as the automatic periodic aeletion of e-mails), you ' mhould be sure to re=aim hard copies for potential use in the litigation. We rea!izs tha_ many of these documenus and communications may contain privileged communications. We will work closely with the Justice Department to prouect _uch =ommunic&tions from disclosure .. pursuant to the r_les govern/_ disco=ery in litigation. Please _ee that this guidance ks provi_e_ to a_upropria_e staff in your respective offices. ., -- i ? w I J_W-_-2_Os 17: 0S ...........::' ............ _-' ................. _ ..... _ _- ........................... ::' .............. _ L 202 514 ?Egl P.02 No_ 10, 1991_ TO: Associate Solicitors Regio_ Solicitors Field Soli_ors, FI_OM: D_xtty Solicitor . , SUBJECT: Docalment Collection for CobeU v. B ab'b_ " We have been ordered to collcbt certain Solicitor docttme_ for production or identification for a privile,ge log in Cobell v, Bah_birr. the IIM trust fund class action litigation. Below is a list of document requests thai _k documents you or your office may hay,e. Pt_.se note that these requests are vory broad and include all docttments, memos, dm__, and e-mails, and some are not !imit_ in tine. Unfortunately, wu arc under a vcqr short deadline to collect th_. documents and prepare a privilege log. "' + Accordingly, please provide copies of ill responsive documents by NO LA._ THAN FRIDAY, NOVEMBER 20, 1998 to: Comic Lund_en,.Esq. ' ..: - Department of the I_terior . . Office of the Solicitor . .:...__. ,. Division of ladian AtFalrs 1849 'C" Strut, N.W., Mail Stop 6450 -' Washington, DC 20240 (202) 2o8-6 P.ie_:se _tc_orize your re_o_ by request number as indicated below. Also, please note where the o'nsh_ of'your document may I_ found in the event we am required t.o product odginals at a later date. .' Your imrncdiats atlealiou W this is appreciaed. REQUESTS: 2. All documents prepared or signed by past or pr_ent _tom_rs ia the SOL office which express legal advice, condusioos, opinions, assessmen_ instruc_ons, or directions to DOI Personnel relm_tt to the transfer or assignment in any way what_cr, by contract or compact, of individual Indian trust asats and the c_stody and control of're,la.ted records to tn'bes or tribal entities for management and administration, including but not limited to any such Wansf'm-s which are currently pending (c.$-., Quinaul0.' ,: t '_ JAN-03-200_ 17: 0S E ' "C I U .......... _-_-: :_l__._' ................. -_=-:f, __ .......... ,-_;= .................................................... 202 S14 7361 P.03 I 3. All documents prepared or signot by past or present utorn_y_ in thc SO[, ofSce whidi _pr_s legal advice, conclusions, opinions, _sessments; instructions, or'directlons to 13OI Pe_onne,I relevant to thc 1990 dclegatioti' of IilVf trust fund disbursement authority to DOI personnel at the Area Offic_ and Agio'7 levels. 4. All docummts prepared or signed since Amc 10, 1996, by past or pre_e_t attdrn_/s ia the SOL ': office which express legal advice, conclusions, opinions, a_sossments, instructions, or directions to. DOI PersooneJ relevant to tko proposed Iegislatiou introduced _ HR 3782, Tribal Trust Fund Scttlemcnt Act of 1998, in the second s_ssion of the 10$th Con_e_s. 5. All docum_.s prepared or signed by past or preseot attom_rs ia the SOL office which express legal mivic_, conclusions, opinions, asscssmeat_ instructions, or dire_;tions to DO! PersonneI rcl_'_nt to "int6re.st overdrafts" DR thc approximate amount of $42 million] "which d_prive c_u-rent m_ aeeour_ holders 6fincome_" descn'bod by the Special Truste6 PmiI Homan in his Iun_ 26, 1_97, deposition in'thh case. ( _ United StateSomcEDepartmentovmEsoucrroRof the Interior w_in_ou. D.C. 2O24O MEMORANDUM To: Bob Anderson, Bureau of Land Management John Berry, Assistant Secretary for Policy, Ma/mgemeat and Budget Charles Brc_e, Office of He_uings & Appeals Kevin Oover, Assistant Secretary: roi' indian Affairs Joan Killgore, Minerals Maia.agement Service loire Leshy, Solicitor's Office · Anne Shields, Chief of Staff Tom Thompson, Office Of_e Speci al Trustee From: Ed Cohen ).P-fi/ Deputy Solicitor Date: Septembe r I 5, t999 4 Re: Electronic Mail Retention Involving Trust Reform or the Cobell Litigation This memorandum is to clarify the Department's obligations on the retention of electronic mail Which relaxes to the ._obel[ v. Babbi_ litigation, the High Level Implementation Plan and its sub-projects, ilM trust administration, and trust reform. These instructions are separate from the Deparhnent's general policy on retend0n of electronic mail and other documents, and are · specifically tailored to respond to the unique requirements placed upon the Deparanen_ by this litigation. The reason for sending this memorandum at this time is that in recent discussions regarding our on-going duty to retain documents, questions were raised regarding how electronic mail should be preserved. As you know, all personnel should print and properly file a paper copy of all electronic mail messages (including all mission data in the message) and attachments, whether sent or received, which discuss: 1) the Cot>ell litigation, 2) the High Level Implementation Plan or any of its sub-projects, 3) IIM trust administration, or 4) trust reform. This includes all e-mails, regardless of whether the substance of a particular message is con!ained in subsequent messages. Adopting this approach ensures that transmission and recipient information is preserved to the greatest extent possible. This also includes electronic messages which may_not be considereg E_era! rem. ids. such as messages received for infoi'matio0al __ses only. arran_mmz m_eed,,v& and other norl-reco_. Also, until instructed otherwise, once messages and attachments have been copied and filed properly, personnel should not delete email messages until they have remained on their computer overnight in order to ensure they are captured on non-archival back- up tapes. .. . , ......... _ _ -,. ......... '_ W ..... ' '_-": ': i, -";_ ?7 - ._ '. :'--- _ :_i,'_ · r:' _ .. 4_- _ _ ..,._ · i These insu-actions apply to all Department personnel. If electronic mail is sent to or received from individuals outside the Deparunent. departmental employees are also required to print and file _ messages. Each individual is responsible for filing and storing the printed copies of these electronic messases. The Court may require you to produce copies of_c. messages to supplement existing discovery requeSts or to comply with furore discovery requests. Wc will be working with your senior contact for document production should we need to collect these documents for production. Please ensure that this memo is distributed to all_personnel in your office who may have el_tronic mail relating to the subjects mentioned above. If you have any questions, please do ,.._ not hesitate to contact Steve Swanson at 219-1660 or Sabrina McCarthy at 219-2139 in Room "_ 6040. J :*,. 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 012B5 (RCL) BRUCE BABBITT, Secretary of the ) Interior, et al., ) ) Defendant s . ) ) PLAINTIFPS' THIRD FO RM;u_ REQUEST POR 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., B00 West, Washington, D.C. 2000S--3333, the following documents and information_ The Definitions and General Instructions contained in Plaintiffs' First Set of interrogatorie s , served December 24, 1997, are incorporated herein by reference and are applicable to this Request. 1. All documents prepared or signed by Ed Cohen, Willa Perlmutteror Anne Shields which express legal advice, concla_ions, opinions, assessments, instruction_, ur 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 T_stee Paul Homan (individually and 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.a. L Quinault). 3. Ail documents prepared or signed by past or present attorneys in the Solicitor's Office and relating to the {/_'< admlnistration 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 _o Interior Personnel at the Area Office and Agency levels. 4. Ail documents prepared or signed since J_ne 10, 1996, by past or present attorneys in the Solicitor's Office and relating to the administration of the IIM trust which express legal .% advide, conclusions, opinions, assessmentS, instructions, or directions' to Interior Personnel relevant to the prop'osed ' .... legislation3 introduced as HR 3782, Tribai Trust Fund Settlement' '_ Act of 1998, tn the .second session of the 105th congress,.. .' i .- . ,. · . .. · . ... ' · . . .' . .. . · .. · _ .. , . , . · - q · t 5. Ali 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 legaI advice, conclusions, opinion_, assessments, instructions, or directions to Interior Personnel relevant to "interest overdrafts" [in the approximate amount $42 million] which deprive current [riM] account holdGrs of income," described by Special Trustee Paul Koman 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 the Office of the General Counsel, Department of · _reasury, 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 coIlectively "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 W AgenCies. 8. All'work papers used by Arthur Andersen in the preparation o f its December 31, 1995., "Tribal Trust-Funds ReconciliatiOn, : , . . -. . ·. .,. · . . · . ·. _ Agreed-Upon Procedures and Findings Report for July 1, 1972 through September 30, 1992," including but not limited to lists of errors and unsupported documents. · // / of counsel: ROSEaT PE_C,qY_/ O.C. Bar "04 _77Z JOHN ECHOHAWK KEITH HARPER%J Native A_erican Rights Fund O.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) 854-2644 D.C. Bar No. 101998 1275 Pennsylvania Avenue N.W. 9th Floo= Washington, D.C. 20004 (202) 662-6775 i _ttorllevs for Plaintiffs June .1_)_ 1998 ½ J i Z: CERTIFICATE OF SERVICE [ hereby certify that on this r "day of June, 1998 a copy of Plaintiffs' Third Formal Request for Productioa of Documents was _nt via facsimile to the following: Lewis Wiener. Esq. Andrew M. Eschen, Esq. .. Environment and Natural Resources Division 601 Pennsylvania Avenue, N.W. Room 5616 Wazhin_on, D.C. 20044-0663 LORNA K. BABBY ,r d · · · . . ·' · .- . .. . . . . . . Cobell v. Babbi_ ) CA 96-1285 ; 1/2_1999 Page 1251 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., : Civil Action 96-1285 Plaintiffs, v. . : Washington, D.C. : Friday, January 22, 1999 BRUCE BABBITT, Secretary of : 8:36 a.m. the Interior, et al., Defendants. ............. - - -- X TRANSCRIPT OF CONTEMPT HEARING BEFORE THE HONORABLE ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE DAY 8 APPEARANCES: For the Plaintiffs: DENNIS MARC GINGOLD, ESQUIRE AUKAMP & G_NGOLD 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 (202) 662-6775 ROBERT MEYER PEREGOY, ESQUIRE KEITH HARPER, ESQUIRE LORNA BABBY, ESQUIRE NATIVE AMERICAN RIGHTS· FUND 2025 I Street, N.W. Washington, D.C. 20006 (202) 785-4166 For the Defendants: LEWIS STEVEN WIENER, ESQUIRE ANDREW M. ESCHEN, ESQUIRE PETER COPPLEMAN, ESQUIRE PHILLIP A. BROOKS, ESQUIRE U.S. DEPARTMENT OF JUSTICE Environmental & Natural Resources Division Ben Franklin Station P.O. Box 561 Washington, D.C. 20044-0663 (202) 305-047.2 & 305-0237 Pages 1251 through 1443 THERESA M. SORENSEN, OFFICIAL COURT REPORTER U.S. Dis_ictCourt Theresa M. Sore_e_ CVR-CM, OfficialCourtReponer VotumeCH012299 Cobell v. Babbitt ::: CA 96-I285 !:!/ 1/22/1999 Page 12_2 Page 1254 tu*P_l_&'qc-_ (Continued): t Connecticut, where I was employed for nine years. For _he Defendants: SUSAN V. COOK, ESQUIRE U.S. DEPARTMENT OF JUSTICE 2 Q. Okay. And after that? Emirotnm_ & Natma Resources 3 A. I left New Haven in 1992 and moved to Juno, Alaska, Division General Li_ion Section 4 where I took a job as supervising attorney of Alaska Legal P.O. Box 663 5 Services, Southeast Alaska Office in Junol Alaska. Washingt_ D.C. 2OO44 6 Q. What was the nature of that work? (202) 305-o470 7 A. Well, it was a legal services office. It was providing Ex>tm _ BLaCk'WIa& ESQUIRE 8 civil assistance to low income Alaskans. Most of my work- · CONNm tXn'4DGP,EN. ES(ZJU_ D_AR_ OF nqTimiog 9 or I should say for the last two years that I was there, it 1849c Slreet, N.W. 10 was almost all Indian cases, a great number of native Washington, D.C. 2O24O (202) 2084474 1 1 allotment eases, challenges against the government, and I DANmLM_HA, ESQUmE 12 spent about-- well, at least spent six weeks on trial in mgm F_t,_GN& ESQUIRE 13 tribal court in an artifacts repatriation case in a village DEPARTMENT OF THE _Y 14 about 100 miles north of Juno, and that was a big focus of the co_ Repoam nmRV_.SA _t SOlm,_SEN. CVR-CM 15 three years that I spent there. omcial ca_ P.evom_ Room4808-B,U.S._use 16 Q. Okay. Was that case successful? Washingmn, D.C 2o0o1 17 A. Yes, it was. (202)273-0745 18 Q. And-- t9 MR. PEREGOY: tho having a little difficult time 20 hearing. If everybody could just speak up a little bit, I'd 21 appreciate it. 22 MR. BROOKS: Sure. 23 MR. PEREGOY: Thank you very much. 24 BY MR. BROOKS: THERESA M. SORENSEN, Omct_COtmTI_PORTER 25 Q. Where did you go to work affer Alaskan Legal Services? Page 1253 Page t255 I P R O C E E D I N G S I A. I came to Washingtori, D.C. to the Solicitor's Office, 2 THE DEPLrFY CLERK: Civil Action 96-1285, Cobetl v. 2 Division of Indian Affairs here at the Department of the 3 Brace Babbi_ 3 Interior, 4 THE COURT: All fight. You can call your next 4 Q. Approximately what year was that? 5 witness. 5 A. That Was in April of 1995. + 6 MR. BROOKS: Thank you, Your Honor. The defendants 6 Q. You recall being assigned to a case, Cobetl v. Babbitt? 7 will call Ms. WiUa Perlmutter. 7 A. Yes, I do. 8 WII.LA BETH PERLMUTI_R, DEFENDANT'S WITNESS, SWORN 8 Q. How did you come to be assigned to that case? 9 DIRECT EXAMINATION 9 A. I actually wanted to be assigned to that case. When Mr. 10 BY MR_ BROOKS: 10 Homan was initially appointed, they looked at several of us 11 Q. Good morning, Ms. Perlmutter. Could you please state 11 from the Division of Indian Affairs, and assigned another 12 your full name for the record and spell your last name? 12 woman to the tribal side, although we stayed in touch about 13 A. My name is Willa Beth PerlmUtter, P as in peter, e-r-t - 13 it, andlhetpedher, I assisted her a little bit through the 14 rrvu-t-t-e-r. 14 tribal side. About six or seven months later when Cobell was 15 Q. Ms. Perlmutter, where are you currently employed? 15 filed, I was actually assigned as the primary agency counsel 16 A. Ihn employed with the law firm of Patton Boggs in 16 onthecase. 17 Washington, D.C. 17 Q. In your capacity as an attorney for the Solicitor's 18 Q. It might help if you move your microphone down just a 18 Office at the Department of the Interior, were you involved in 19 little bit Thank you. t 9 -- or aware of an order issued by this Court on November 27, 20 Could you briefly describe your educational 20 1996 regarding the production of documents? 21 background for the Court? 21 A. Yes, I was. 22 A. Yes. I graduated from Mount Holyoke College in 1980. 22 Q. Tell us about your involvement in that. 23 and from the University of Connecticut Law School in 1983. 23 A. We had been involved indialogue with the plaintiffs 24 Q. After graduation where did you go to work? 24 before the issuance of the order, and 1 would say for maybe a 25 A. My first job was with a small firm in New Haven, 25 couple of weeks leading up to the issuance of the order, and 2 (Pages 1252 to 1255) U.S. District Court Theresa M. Sorensen, CVR-CM, Official Court Reporter Volume CH012299 L Cobell v. Babbitt . CA 96-1285 i. 1/22/1999 Page 1272 Page 1274 I Q. And you left the department in when? I requests that just required long lengthy letter responses to 2 A. July of'97. 2 point-by-point questions that we were getting. 3 Q. Approximately what percentage of your time would you say 3 Q. And you were the point person for that as well? 4 that you spent dealing with either doctanent production or 4 A. Yes, I was. 5 inforrnation requests by the plaintiffs, between the time ofi 5 Q. During alt ofthis work, do you reeall Mr. Christie ever 6 say, entryoftheorderinNovemberoft996andthefimethat 6 telling you that there was going to be a problem in produeing 7 youleft? 7 all of the documents that would be responsive to paragraph 19 8 A. I would say at the time that the Court's order was 8 ofthe November 27,1996 order? 9 entered, itwasabout75percentofmytime. 9 A. Joe never said that. He never told me that. 10 By the time I left the department, and t would even 10 Q. Would you be surprised ifI told you that Mr. Christie 1 t say before then, maybe from February on, it was 98 percent of 11 has testified to the contrary and that, in fact, he - he t2 myfime. And any of my other elients woutd be happy to vouch 12 recalls it differently, that he recatls that, infact, hetold 13 for that. 13 you that it would be a horrific effort and that it should be 14 Q. What w_e you spending ail that time trying to round up? 14 done only in conjunction with the - the PUlled documents for 15 The documents for paragraph 197 15 the statistical sampling? 16 A. No. 16 A. I'm not surprised to hear it now, as I sit here. In 17 Q. What were you doing? 17 May, certainly the first time I heard that, I was - I was t8 A. We were - it wasn'tjust- I mean, it wa.m't just the 18 flabbergasted to hear that he thought that he had told me 19 Court order that we were dealing with. During this whole 19 that. 20 _ period, we were also getting informal requests, mainly by 20 Q. Do you recall that in December of 1996 this Court 21 letter, also telephonic, from plaintiffs - some from 21 instructed the defendants to either produce all of the 22 plaintiffs' counsel, but far more from the expert witnesses 22 documents that were responsive to the Court's November 27th 23 that the plaintiffs had on board, from the folks at Price 23 order, on or about December 27, or else report on when they 24 Waterhou,se. I was getting letters from them, certainly on a 24 would be supplied? 25 weekly basis, and often more frequently than that, with lists 25 A. Yes, I recall that. Page 1273 Page 1275 I of questions that they wanted us to respond to. I spent all I Q. Okay. Did you have any role in preparing the 2 of my time dealing with those. 2 defendants' response to that direction from the Court? 3 Q. Well, tell us how you dealt with those kinds of 3 A. Yes, I did. 4 questions. 4 Q. What was your role? 5 A. It depended upon the nature of the request. In SOme 5 A. Well at that point, of course, we believed that the OTFM 6 cases, it involved going to the folks -- at this point, the 6 documents had ali been produced, and that was our absolute 7 requests were almost all OTFM requests, ill recall correctly. 7 understanding. 8 Q. What does that mean? 8 What I did at that point was contact Larry at the 9 A. These were requests that needed to be -- these were 9 Bilk - Larry Scrivner - and I sent him this rmmo and I said, 10 requests for information that l/ad to come from the Office of 10 "We need to have information from you as to when we can 11 Trust Funds Management, as opposed to - as opposed to the 1 t provide this to the plaintiffs." 12 Bureau of Indian Affairs. Although there were also requests 12 And I remember telling him in writing and also 13 - we were also working very closely with Minerals Management l 3 personally that the ans'wer itself wasn't as important as the 14 Service at that time, and less, but also just touching base 14 fact that the answer was correct, that I would rather have him 15 with the Bureau of Land Management. 15 - well, that it was important that we be able to provide the 16 With many of these requests, it would involve 16 Court with an accurate Understanding of when those documents, 17 herding the people together, getting information. In many 17 in fact, would be ready. That we had to give the Court our t8 instances, setting up conference calls directly with 18 absolute best estimate of when that would be. 19 plaintiffs' expert wimesses, with the folks at OTFM. 19 Q. And did Mr. Scr/vner give you an estimate? 20 We took several trips out west with plaintiffs and 20 A. Yes, he did. That's when he told rte 60 days is what he 21 with their counsel and with their wimesses to get the 21 thought would be -- would be workable for the areas. 22 information together. 22 Q. Did you provide that information to the Department of 23 We arranged presentations for the plaintiffs. And I 23 Justice? 24 was the point person on all of that. 24 A. Yes, I did. 25 And [et me also just say that there were also many 25 Q. To your knowledge, did the Depmt of Justice rely 7 (Pages 1272 to t275) U.S. District Court Theresa M. Sorensen, CVR-CM, Official Court Reporter Volume CH012299 Cobell v. Babbitt CA 96-1285 1/22/1999 Page I304 Page 1306 1 there? 1 limiting the search to ina l_ediate predecessors in interest of 2 A. Not until I Contacted Larry scrivner to talk about 2 the named plaintiffs? 3 paragraphl9. 3 A. No, Idon'tremernberthat- 4 Q. And that was in December of'967 4 Q. And do you again recall that this was at the same time 5 Al Tha_s correct. 5 that we were going through, I think, simultaneously, the 6 Q. So your testimony is - did you ask Mr. Christie what 6 sampling discussions and trying to arrive at something there, 7 kinds of processes or documents would be involved in the 7 too? These would go on at the same time; right? 8 docun,amt production process for OTFM's part ofthe 8 A. Yes. 9 responsibility?. 9 Q. Did you ever make any notes or e-mail to the file t0 A. No, I didn't. To be honest, aswe got into the 10 regarding your discussions with plaintiffs' counsel regarding 11 eompliancewiththecoartorderofNovemberof'96, we=i tl the document production under paragraph 197 12 don't think anybody had any kind of sense oftbe magnitude of 12 A. I don't remember. Certainly that wouldn't have been on 13 this lawsuit. I mean, obviously, there's sort of biographical 13 the notes that I kept after the order was entered or even !4 facts about it, but I don't think anybody had any sense as to 14 beginning longer after the order was entered, 15 the complexity of the document production, and the complexity 15 My usual practice is to keep notes, but I don't 16 of the record keeping, at the federal govemmmt. 16 remember specifically. I may have just been tmnuscripting on t 7 So I - again, I wish I had handled it differently. 17 the draft orders. 18 But at the tin_ in context, it seemed the appropriate thing t 8 Q. Are there notes or other ldnds of recorded information 19 todo was the way I had handled any other litigation in my 19 that you kept at one time that - that you no longer have? 20 career. I turned to my client and I said, "Here's an order. 20 A. Well certainly when I left the govemwrmt, I lef_ my 21 You need to comply with it Let's get these dooJments 21 files with the government. 22 together." 22 Q. Was any e-mail ever destroyed? 23 Q. Did you review any BIAM - BIA manuals or OTFM manuals 23 A. I never destroyed an e-mail, other_ than deleting things 24 that would have given you an indication of what kind of 24 that were no longer - I mean, I would delete e-mails in the 25 docmmmts could have been involved in this production effort? 25 course of my business, just to keep my hard drive clean. But Page 1305 Page 1307 1 A. No, I did not. I I never destroyed anything to speak of. 2 Q. And you are aware that those manuals exist, are you not? 2 Q. Related to this. And I don't mean that to be a -- to be 3 A. Well, to this minute, I'm not aware that there is an 3 a mean question, because there is -- there is --just so you 40TFM manual. And, Mr. Peregoy, if you have ever worked with 4 should know, Ms. Pefimutter, evidence in this case that e-mall 5 the BIA manual, you also understand that that's - 5 in Interior has been destroyed and stuff. And so I just -- I 6 Q. Anightmare? 6 just needed to ask you -- 7 A. Well, it's very likely an impossible -- an impossible 7 MR. BROOKS: I want to object to that, Your Honor. 8 thing to do. 8 MR. PEREGOY: -- that question. 9 Q. But, nevertheless, did you - did you ask Mr. Cohen, or 9 THE COURT: Sustained. I0 anybody, if there were sources - written sources or materials 10 BY MR. PEREGOY: 11 in the depmment that you could consult that would help to 1 l Q. It's my understanding that that's the way that it was. 12 get you a handle on the paran_ers of this document production 12 So I take it then that you didn't provide any kind 13 request? l 3 of a estimate of the cost of the production for the documents t4 A. Not w/th regard to paragraph 19. I did look at the t4 for the five named plaintiffs, either before or after the 15 Bureau of Indian Affairs manual with regard to some of the 15 order was issued; is that correct? 16 questions about probate codes. I don't remember which item of 16 A. That's correct. 17 the order that was, but that was part of the review that I did 17 Q. Were there any discussions before the order was entered 18 atthetime. 18 about the potential cost of document producfion for the 19 Q. Okay. You talked a little bit earlier-- I think you 19 sample? 20 told Mr. Brooks that prior- during this negotiation that we 20 A. Not that I recall. 2I all went through, that resulted in the November 27th, '96 21 Q. How about afterwards? Do you recall? 22 order, that you had some specific discussions with - with 22 A. Not that I recall. 23 plaintiffs' counsel on this. Do you recall that7 23 Q. And do you understand that the current IIM account 24 A. Yes, 1 do. 24 holders, as part of the Cobell class, inherited their 25 Q Do you recall any of those discussions relating to 25 interests from their predecessors, do you? 15 (Pages 1304 to 1307) U.S. District Court Theresa M. Sorensen, CVR-CM, Official Court Reporter Volume CH012299 ·' U.S. Department of Justice Environment and Natural Resources Division P.O. Bax 7611 F_c_buiit (200 $14-4110 Wa_&_tgton, DC 211_4 4-7611 May 28, 1999 V_!A FACSIMILE AND REGULAR .MAIL Alan L. Balaran, Special Master Suite 225 1666 Connecticut Ave., N.W. Washington, D.C. 20009 Re: Cobell v. Babbitt z Dear Mr. Balaran: , o Pursuant t° your instruction I am providing a description of the methodolog y being used to search for e-mail on the approximately 205 computer system backup tapes that are subject to your · recent ruling. This search relates to Plaintiffs' Third Request for Production of Documents, requests number I - 5. The remaining requests are not directed at the SoliCitor's Office. As you know, DOI commenced the process for searching the backuptapes the day after the'issuance of the denial of Defendants' Motion for Reconsideration. After an initial meeting to discuss the project, DOI began the planning process for the search. As of May 27, when the parties met with the Special Master to discuss this matter, DOI had already searched over 40 backup tapes. The search process continues. Below, are each individual Request and the search methodology being used for that Request. All searches will be of individuals' e-mail "mailboxes." These mailboxes include both messages sent· and messages received.. In each case, DOI has chosen what it believes are the broadest search terms that would cover each Request without generating an extraordinary amount of irrelevant hits.' t RFP Number I: All do. cuments prepared or signed ·bY Ed Cohen, Willa Perlmutter Or Ann e Shields which express legal advice, conclusions, opinions, _sessments, instructions, or directions to the · Secretary O r any and all Other Department of Interiorpersonnel not employed in the O_ce of the So!icitor, included by not limited, to Spec!al TrUStee Paul Homan (individually and ' collec!ively '_Interior Personnel"), pertaining to _/: administration 'of the IndiVidual Indian Moriey (nM)trust _ .. .... , .-_ -. : t 2 -- ' .-. DOI Search Lo_gic: DOI is searching the mailboxes of Mr. Cohen and Ms. Shields for the following terms: "TI:AS,"" ' ' TAAMS, "Special Trustee," "OST," "Homan," "IIM," "I-[LIP," and "trust funds." Ms. Pertmutter came to the Solicitor's Offi ce after the April 1995-tape and left before the November 1998 tape and thus would have no e-mails on these tapes. RFP Number 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, conclusion, 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..._.. Quinault.) DOI is using a Boolean search for this question using the following four searches: text that contains "contracts" OR "COmpact" AND "trust". text that cx3ntains "contracts" OR "compact" AND "records." subjects that contains "contracts" OR "compact" AND "mast". subjects that contains "contracts" OR "compact"AND "records". _;i_)_?: DOI is searching the mailboxes of the following attorneys in the Division of Indian Affairs: Derril Jordan, Edith Blackwell, Chris K ams, and patti Jamison. Mr. Jordan is the Associate Solicitor fo r the Division of Indian Affairs. Mr. Karns provided legal advice regarding the self- determination act for the period November, 1997 through September, 1998. His pos!tion was vacant between September 1998 and December 1998. Although Ms. Blackwell's primary duties have been the Cobell litigation, she came to the Solicitor's Office with COnsiderable Self-Determination Act expertise and duririg the period of this' Vacancy, she covered this workload. In addition.' Ms. Jamison took over this work in December 1998. For the other Divisions, DOI proposes to search the mailboxes of Pat Patterson, Division of General Law, Barry Roth, Division of Conservation and Wildlife, Lou Mauro, Division of Land and' water, and Dennis Daugherty, Division of Minerals Resources. DOI believes that these " are the'o(fiy persons (and Divisions), that deal with the so called "638 Program," which authorizes a "contract" or"compact" with a Tribe for' "the transfer or assignment in any way whatsoever, by contrac t O r compact, of individual Indian'mast assets and the custody and ' Control of related reCOrds to tribes Or tribal entities for management and administration,. .. .L including 'but not limi.t.ed to.any such transfer Which are eurr.ently pending (e._g_. QUinault )" '_ ."RFP' iqlumber 3i 'Ali"documents Prepared or sighed by past or present attorneys in the' _- Solicitor's Office and .relating to the administration of the IIM mast which express legal . : .advice, conclUSion, opinions, assessments, instructions or directions to InteriOr Personnel relevant to the ! 990 delegation of nM trust fund disburSement authority to il; _3- m : Interior Personnel at the Area Office and Agency levels. When DOI conducted the search of paper documents in November and December 1998, we found no responsive documents. It appears that there was never a delegation oflIM trust funds disbursement authority in 1990. Thus, it appears that Plaintiffs seek documents that do not exist. DOI is not presently planning on searching the backup tapes for these documents for a response to this Request. RFP Number 4: All documents prepared or signed since June 10, 1996, by past or present attorneys in the Solicitor's Office and relating to the administration of the IIM mt which express legal advice, conclusion, opinions, assessments, instructions or directions to Interior Personnel relevant to theProposed legislation ina'oduced as HR 3782, Tribal Trust Fund Settlement Act of 1998, in the second session ofthe 105th Congress. For this Request DOI is searching the mailboxes of all of th e attorneys that have been identified as ,potentially having on this issue: Suzanne Schaffer, David Moran, Ed Cohen, David Etheridge, and Monica Burke. The search term selected is: "tribal trust." While this is an extremely broad search and will take some time to review the e-mails, DOI cannot narrow this because the question does not appear to be looking for a specific section of the proposed bill. This is problematic because the majority of the bill addresses Tribal trusts only, but there are a t_c_'_::.; few provisions that deal with IIM issues. The term I-t2R 3782 is of no use because that number _,":_ was assigned only after the bill reached the House of Representatives for introduction.' Thus, this term would be redundant of the term Trust fund, but would be likely not catch any of the e-- mails that this Request seeks, since the analysis would have preceded transfer to Congress (the legislation was never signed into law, and appears not to have ever gotten out of Committee). Defendants respectfully request that the Special Master require Plaintiffs t° narrow their request to information that is demonstrably relevant to this action (or at least reasonably calculated to lead to the. discovery of admissible, evidence) by explainig what they arerlooking for. This would allow a more focused Search and a more prompt production of any responsive documents. It would also minimize waste of time and resources. Question NUmber .5_: All documents prepared or signed by past or present attomeys in the Solicitor's Office and relating to the administration of the IIM trust which express legal advice, conclusion, opinions, assessments, instructions or directions to Interior Personnel relevant to "interest overdrafts" [in the approximate amount Of $42 million] whichdepdve current [IIM].account holders of income_ '' described by Special TrUstee Paul Homan in his lune 26, 1997 deposition in this Case. (H0man deposition at 98- 102.) ' .' · · · , ... .- L' · . , .' · .. . . . For this request, DOt is searching the e-mail files of Ed Cohen, David Moran, Suzanne r' Seh_k_Ter, and David Etheridge, 'The proposed search terms for this search will be "intereSt 'overdraft." - .. , · · _. . e · ? ··? · .'_ We trust this information is sufficient to explain the search methodology. If the Special Master has any additional questions, we will provide the answers to the best of our ability. In our May 27 meeting, you also asked that we determine whether any of the relevant persons saved e-mails to discs or to their hard drives (of any machine used for work purposes, regardless of whether it is government property or a home computer). We have issued the inquiry and hope to be able to provide this information next week. 'n_ j ' ' Senior Counsel cc: By Fax Dennis Gingold, Esq. Thaddeus Holt, Esq.. Keith Harper, Esq. Elliott Levitas, Esq. # ' _ U.S. Departmen f Justice - Environment and Natural Resources Division WMC: MC Urie 90-2-4-1834 Ge,_,_t uat,ao,, s, eao_, ............................. r,t,rho ,_ (2oz) $o$-o$_ P.O. Box 663 Facsimlle a029 305-0506 Washington, DC 20044-0663 , November 19, 1999 · ..... -::'. _ :-:_Z;:: By facsimile and by regular mail Keith Harper, Esq. Native American Rights Fund 1712 N Street, N.W. Washington, D.C. ·20036-2976 Re: Cobell, et al. v. United States, I:CV1285 RCL Dear Mr. Harper: Thank you for your letter of'October i6, 1999, regarding the search of'the Solicitor's Office backups using the search terms specified in the June 14, 1999, letter from the Special Master. Of the'206 backups, 75 tapes were searched using the terms speCified in the May 28, 1999, letter, to the Special Master from Phil Brooks; 131 were searched using those terms plus (:!:ii._. the terms added by the SpeCial Master in his letter of June l 4, 1999. The Department of the :. · Interior's Management Information Systems ("MIS") team reports that, as a result of the search · of the 206 backups, it forwarded to attorneys in the headquarters section of the Office of the Solicitor over 250,600 e-mail messages for review. Because many of the messages contained more than one search term most of the messages were, of course duplicates. This search effort required the expenditure of approximately 700 hours of staff time restoring and searching the tapes at an approximate cost of over $20,000. These figures do not include the time and expense associated with the review efforts by the various attorneys who. reviewed the e-mail messages produced by the MIS search, As a result of this effort, only 26 e-mail messages were found to be responSive to Plaintiffs' Third Request for Production of DocUmentS. The Office of the Solicitor reports that . . all but three of the e-mail messages that were provided to you as a result of the search would have been identified by the search terms stated in the May 28, 1999, letter. These three messages (refer to bates nUmbered pages RPD3000006 through RPD3000010) relate to question two of the Plaintiffs' Third Request for Production, and would have been identified by the first search had. . · the words "contract(s)" or :'compact(s)" appeared' in the messagewith theword "record(s)." Based on the high cost of re-examining the 75 tapes using the Special Master's search terms and the Iow probability that the search would produce anything ofvalUe reiated to trial 6,vo (involving retrospective relief), we believe that an additional search would be an inappropriate expenditure of funds, and unduly.burdensome in light of any-benefits resulting fi-om the-search.". · Similarly, based' on the information supplied to:us by the Departini:nt'ofthe'Interior, 'the .. ' ' time and'expense associated with searching the e-mail backup tapes for the Field and Regional Solicitor's 9ffices is not juSt!fled. Like the.headquarterS offices of the Solicitor, all regional and "' _ 2. - . · . . · · - ..· *. . ·,. L. , :_! ii _ field offices were Under the requirement to print and produce e-mail messages responsive to the Plaintiffs' Third Request for Production of Documents during the period of time in question. Fourteen e-mail messages were produced to you from these offices. A smaller volume of responsive e-mail mkssages from these offices would be expected, since the headquarters offices of the Solicitor's Office have the primary responsibility for advising Department of the interior client bureaus in the area of trust reform. Of the eighteen Field and Regional Solicitor's offices, I am told that certain members of seven of those offices may have prepared e-mail messages potentially responsive to the Plaintiffs' Third Request for Production of Documents. These seven offices are, the Southwest Regional Solicitor's office in Albuquerque, New MexiCo, the Tulsa Field office in Tulsa, --_ Oklahoma, the Alaska Regional office in Anchorage, Alaska, the Phoenix Field office in Phoenix, Arizona, the Twin Cities Field office in Minneapolis, Minnesota, the Billings Field office in Billings, Montana, and the Pacific Northwest Regional office in Portland, Oregon. I am informed that, unlike the headquarters office of the Solicitor, some of the Regional and Field offices use client,operated servers (e.g., the Billings and Phoenix Field Office servers are operated bY the Bureau of Reclamation) for managing their e-mail systems. I am also told that the MIS team would have to obtain different searching and restoring hardware and software to retrieve e-mail messages from those offices. The process of restoring and_earching those tapes would likely take longer than the search of the headquarters office tapes. In addition, I am informed that itis likely that some of the e-mail soRware used for these systems may not be Y2K compliant, thus potentially complicating any search'of these tapes after January i. Considering the burdensome nature of a continued search ore-mail backup tapes in light of what is expected to be a low probability of locating significant nmnbers of documents relevant to the issues to be litigated in the next phase of this case, we believe that the time and expense of continuing the search is unjustified. Please call me to discuss this matter further. _::i,: _:!:- Sincerely, Matthew C. Urie Trial Attorney cc: Alan L. Balaran, Esq., also byfacsimile ½ # ,_ .. · . . . . . . . 2 - ' ' '' · . .r · : .. . . - . ..- -. · IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al,, ) ) Plaintiffs, ) v. ) ) BRUCE BABBYI'F, Secretary of the ) No. I:96CV01285 RCL Interior, et al., ) (Hon. Alan L. Balaran, Special Master) Defendants. ) : ) UNITED STATES' STATUS REPORT TO SPECIAL MASTER OF APRIL 19, 2000 The United States submits this status report every other Tuesday pursuant to the Special Master's instruction. On Tuesday April 18, 2000, the Special Master granted a one-day extension for the filing of this report. I. RECENT EVENTS A. Fire at the Washington National Records Center in Suitlan& Maryland A fire occurred at the Washington National Records Center on April 5, 2000, at approximately 4:30 p.m. Alan Kramer, the director of the Suitland facility, indicates that the fire occurred in Stack 13, not far from the location of the fire that occurred on February 29, 2000. The documents that were damaged included approximately twenty-eight cubic feet of Department of interior documents in Record Group 48, accession number 0330 (Office of the Secretary, Assistant Secretary for Fish and Wildlife and Parks). The materials were retired to the records center in 1993 and have now been moved into freezer trailers, awaiting a restoration process. Marlon Mason, a NARA employee, was arrested on April 12, 2000. He is charged with _:_ arson in the April 5 fire, and is being held in the Prince George's County jail. B Issues Regarding Solicitor's Office E-mail Backr_up Tapes As reported to the Special Master by letter dated April 12, 2000, the Solicitor's Office discovered on April 11 that certain e-mail back-up tapes at its Billings Field Office were mistakenly overwritten by personnel at the Bureau of Reclamation, which maintains the e-mail server for the Solicitor's Field Office in Billings. It appears the error occurred because the Bureau mistakenly interpreted a December 14, 1999 written reminder from the Solicitor's Office (concerning the need to save e-mail back-up tapes) to mean that only tapes created before that date should be saved. By letter dated April 19, 2000, the government reported to the Special Master that the Bureau of Reclamation, which also provides e-mail service to Solicitor's Field Office in Phoenix, did not make e-mail back-up tapes for that office from approximately April 1 26, 1999 to January 21, 2000 because of an incompatibility between software and hardware. The Solicitor's Office is preparing a report on back-up tapes for the seven regional and field offices in which e-mails relevant to Indian trust matters and this litigation may be found. ii. DOCUMENT SEARCH AND PRODUCTION FOR FIVE NAMED PLAINTIFFS AND THEIR PREDECESSORS IN INTEREST A. Department of th.e Interior. The Depa_nent of thc Interior is conducting its search for documents _ ..... dated up to and including August 12, 1999, associated with the five named plaintiffs and the 31 agreed predecessors-in-interest, for purposes of coming into compliance with Paragraph 19 of the November 27, 1996, First Order for the Production of Information ("Paragraph 19"). See 2 i.!i: 5 · : Attachment A, April 18, 2000, memorandum from Richard L. Ortiz, Deputy Project Coordinator, Department of Interior, to Fay Iudicello, Project Coordinator, Department of Interior. The Bureau of Indian Affairs ("BIA") Team commenced its search for records relating to plaintiffLaRose and his predecessors at the Ft. Hall Agency office on April 3, 2000 and completed it on April 7, 2000. The search produced three boxes of materials which have been forwarded to the government's contractor for imaging and indexing. On April 13, 2000, the search was completed for records relating to plaintiff LaRose and his predecessors at BIA's Uintah and Ouray Agency in Fort Duehesne, Utah. The search, which required 2,800 person hours, produced eight boxes of materials which have been forwarded to the contractor for imaging and indexing. WiS the completion of its search and collection effort at the Vernal, Utah Field Office on April 14, 2000, the Bureau of Land Management ("BLM") Team marked the completion of its search and collection efforts, as identified in the November 24, 1999 Document Research and Collection Plans. The search encompassed 28 sitesat an estimated cost of $300,000, and produced approximately 7,000 documents, or about 14,000 pages of materials.. The Minerals Management Service ("MMS") Team continued its search for ptaintiffLaRose and his agreed predecessors at its field offices in Tulsa and Oklahoma City, Oklahoma and in Houston and Dallas, Texas. To date, MMS has identified 197 boxes from Denver FRC related to plaintiff LaRose containing potentially responsive documents. The Office of Hearings and Appeals ("OHA") completed its search of records at the interior Board of Land Appeals and found one file containing responsive 3 ZZ. '} documents, which will be forwarded to the contractor for imaging and indexing. B. Department of the Treasury. The Department of the Treasury reports that its document Production activities are proceeding according to its November 24, 1999, Revised Document Production Protocol and Search Plan. See Attachment B, April 18, 2000, memorandum from Lachlan W. Seward, Project Manager, to Donald V. Hammond, Fiscal Assistant Secretary. The Department of the Treasury and its contractor, Arthur Andersen, are nearing completion of their effort to identify responsive documents in record group 217 at the National Archives in College Park, Maryland. · In total, 2,465 settled accounts were identified as relevant. Approximately 2,115 have now been reviewed. The other approximately 350 settled accounts, having been checked out-by the Indian Trust Accounting Division of the ? General Services Administration, are currently being reviewed at GSA's Lanham, Maryland facility by Treasury staff. Researchers have turned over documents containing the names or aliases of the five named plaintiffs or their 31 predecessors to NARA's on-site photocopy contractor. As copies are made, they are provided to the Department of the Treasury for review by both Treasury and Justice attorneys to determine whether they are responsive to Paragraph 19. Documents will then be imaged and indexed and produced on a rolling basis to the plaintiffs. Treasury and its contractor continue to review documents in the three other relevant record groups at the National Archives: Record Groups 39, 56 and 101. To date, five entries in these Record Group 217 is identified in NARA finding aids as "Records of the Accounting Officers of the Department of the Treasury, t775 - 1927"). 4 '; record groups have been identified as requiring further review. In addition, Treasury and Arthur is Andersen are working together to determine the volume and content of Treasury materials stored at various Federal Records Centers that may require investigation. Among other things, Arthur Andersen is reviewing certain listings of documents sent by Treasury to the FRCs. The Bureau of the Public Debt has completed its search for responsive savings bond records. None were found. The Bureau continues to search its non-automated records pertaining to marketable securities in accordance with the November 24, 1999 Search Plan. To date, one potentially responsive document has been found. Treasury's Departmental Offices, the Bureau of the Public Debt, and the Financial Management Service have completed their searches of the general office files and executed appropriate certifications. A small number of potentially responsive documents were located, have been determined by counsel to be responsive, and are in the process of being imaged and indexed. Respectfully Submitted, LOIS J. SCHIFFER Assistant Attorney General PHILLIP A. BROOKS BRIAN L. FERRELL DAVID F. SHUEY SARAH HIMMELHOCH 5 '_:- U.S. Department oflustice ? Environment & Natural Resources Division P.O. Box 633 Washington, D.C. 20004-633 (202) 305-0447 OF COUNSEL: Edith R. Blackwell Walter Eceard · Department of the Interior Department of the Treasury Office of the Solicitor Office of General Counsel } \ 6 United States Department of the Interior OFFICE OF _ SECRETARY o.c. 2024o 'g3g]g) April 19, 2000 To F , ce.lo o .tco°rdin..r 6,'/' Subject: Status Report #26 On April 5, 2000, a second fire occtaxe,cl at the Washington Federal Records Center, Suitland, Maryland. It was believed to be the result of arson with a similar MO to the earlier fire. Although initially reported that USGS records were involved, Allen Kram_r, Director of the SuiUartd facility, recently reported that the fire involved approximately 28 cubic feet of Office of the Sr.,cretary, Assistant Secretary, Fish and Wildlife and Parks records retired in 1993. The outside of the boxes were btaned and there was some charring of the edges of the documents inside; however, Mr. Kramer bdieves that there was no loss of information. The Department of the Interior's Bureau Team leaders report the following for the subject referenced. " BUREAU OF INDIAN AFFAIRS On April 3, 2000, the BIA team held an orientation session for the FL Hall BIA Agency staff and began the search for records related to PIs.intiff LaRose and his predecessors that aftemooxt. On_ tract, No. 647, is encompassed by administrative appeals from two separate parties, involving two different federal agencies and now two separate court filings. After telephone consultation (Solicitor's, D.C. and Portland, OR and BIA, Ft. Hall and Portland) it was decided that the BIA will produce the various "legal" files which had been accumulated by a number of Agency employees. This category represents a little over 2,000 pages. The search and collection effort at Ft. Hall was completed at 7:30 p.m., April 7, 2000, resulting in approximately three boxes of documents being shipped to thc contractor for imaging and indexing on April 8, 2000, Agenoy staff devotexi 240.30 hours of regular time and 49.15 hours of overtime to the production effort. The search for records related to Plaintiff LaRose and his predecessors continued at the Uiatah & Ouray BIA Agency (U&O Agency) in Fort Duchesne, Utah, and was completed on April 13, 2000. A total of eight boxes of records were collected at the U&O BIA Agency and sent to the contractor for imaging and indexing. The search and collection effort at the U&O BIA Agency required approximately 1800 BIA person hours and 1000 contractor hoars and resulted in shutting down public access to the Branches of Real Estate Services and Minerals and Mining at the U&O Agency for four weeks. Attachment A I BUREAU OF LAND MANAGEIv_NT BLM completed the document search and collection activities in the Vernal, Utah, Field Office on April 14. This completes the search and collection efforts identified in DOi's Search, Collection and Production Plan, dated November 24, 1999. BLM searched for records at 28 sites, involving 76BLM bureau and state field staff, and collected approximately 7,000 documents comprising approximately t4,000 pages for a cost of approximately $300,000. MINERALS MANAGi_MENT SERVICE The MMS search for Plaintiff LaRose and predecessor records continues at the Denver Record ·_ Center and MMS fiold offices in Tulsa and Oklahoma City, Oklahoma, and Houston. md Dallas, Texas. To date, MMS has identified approximately 197 boxes at the Denver Federal R.ccords Center containing potentially responsive doeumeats. OFFICE OF HEARINGS AND APPEALS OHA completed its -_earch of the Interior Board of Land Appeals records and found one file containing responsive documents. The file is being prepped and will b_ sent to the contractor for imaging and indexing. OFFICE(IF THE SPECIAL TRUSTEE No new activity to report. UNITED ST, AT_ES GEOLOGICAL SURVEY No new activity to report. 2 'L f4 ,_ DEPARTMENT OF THE TREASURY ; WASHINGTON, D.C. 202[20 "} April 1_, 20OO Memorandum To: Donald V. Hammond Fiscal Assistant Secretary From: Lacldan W. S_rard_ Proje._t Manager U Subject:. Special Master Report Apn2 18, 2000 This report is a ..i_ed document representing the combined input of thc l_._.cial M.._emeat Service (E_), thc Bureau of thc Public Debt (BPD) and Deparlmental 0aic_s Coo) GENERAL '% ! On November 24, I999, Trcazury mbmitted the Revised Document Production Protocol ("Revised Protocol") (PLE001 000070). The Revised Protocol addresses Treasury's (including BPD, FM$ and DO) iclent_caIion and production of doaimenrs responsive to Paragraph 19 of thc Court's F_-,_t Order for Production of Information. A deta_ed Departm=nt of Treasury Paragraph 19 Document Production Plan or "Search Plan" was submitted contemporaneously with the Revised Protocol on November 24, 1999 (PI.E001 0000gl). The following status report tracks the Search Plan_ PRODUCTION On April 3, 2000, Treasury through the Deparanent of Iustice, produced bctrer-qualhy imagea of 149 of the 166 checks produced on December 20, 1999. Copies of the I0 checks located as a result of_e restoration of the CP&R system md_; fi'om 1987 to 1991 (see discussion in 002 below) wfil be prodnccd m the neet future, lrmally. Tm_._ is continuing to receive fram the photocopy contractor at the National Archives II batches of copies of documems located by Treasury at that fadliry (t_ discussion in 00I below). These doaml_t_ arc being reviewed by anomeys to determine whether any are responsive to Paragraph 19. Treasmy is making arrangements with a contractor to scan the responsive documents in digital image format. Treasury will produce copies of those documents that are determined to be responsive. Attachment B · ..... · 4. _' SEARCH PLANS 001 RECORDS STORED AT THE NATIONAL ARCHIVES AND FEDERAL RECORDS CENTERS As indicated in prior status reports, Arthur Andersen has reviewed finding aids for ail 521 Record Groups at thc National Archives and determined that only RGs 217, 39, 56 and 101 required further review. With regard to RG 217 (Records of the Accounting Officers of the Department of the Treasury (1775-1927)), Arthur Andersen h_s identified 2 entries that required further revicw, Entry 717 (Settled Acr_unts of Indian Agents, October 3, 1894 to March I3, 1923) and Entry 525 (Settled Indian Accom_ and Claims, lanuary · 1794 to February 1894). FMS staff has completed its review of the 2,465 settled accounts in Entries 717 mad 525 ofg.O 217 identified by Arthur Andersen as requiting manual review. Documents identified in thc review as conta;nlng thc names and AKAs of the pi 'dntiffs and predecessors in inter_t are being photocopied by a contractor at the National Archives and reviewed by Treasury and justice momeys to determine whether they are responsive to Paragraph 19. Of the 2,465 settled ac.r_ounts in Record Group 217, approximately 350 settlement packages identified by Arthur Andersen as requiting manual review have been checked out from the National Archive, to the indian Trust Accounting Division 0TAD) of the ,_ .. General Services Ad '_fion in Lmha.m, Maryland. Review by FMS and Ar*Aur ·* Andersen of the approximately 350 settlement packages commenced on April 5, 2000 and is approximately 50Ye complete as of April 14, 2000. Arthur Andersen ia reviewing those settlement packages that FMS has identified as containing the names and AKAs of the plaintiffs and predecessors in interest. Upon completion of this review, Arthur Andersen will photocopy the documents and forward them for review by Treasury and Justice attorneys to determine wh_ther they are responsive to Paragraph 19. Arthur Andersen is continuing to use available finding aids to review Record Groups 39, 56 and 101 and, where appropriate, is conducting detailed box reviews, Their review to date has identified 5 entries in these three record groups that may cont_n potentially ' responsive documents. FMS has begun a review of records in these entries. One document th_.t appears to reference a predecessor in interest has been located and will be forwarded for review by Treasury and Justice attorneys to determine whether it is responsive to Paragraph 19. Arthur Andersen is continuing to work with the Treasury team to determine the volume and content of records at the Federal Record Centers (FRCs) that may require investigation. A meeting was held with Arthur Andersen and representatives from BPD on April t I to discuss records stored at the FRCs and begin the process of determining which files stored at the FRCs require searching. Arthur Andersen is reviewing copies of listings describing records that FMS and BPD have transferred to FRCs. ) 2 Z. /. + ! 002 _CHE. CKS AND CHE_-__D RECORDS The third tape of predicate information from Interior was seut to the Federal _e Bank of Richmond on March 27, 2000 to be compare! with the database of relevant transactions listed in the Hyatts'_e basement boxes. Tho search resulted in the discovery of 3 matching check numbers; however there were no corresponding maxches of dollar amounts, payee names and dales. These negative results were confirmed through an examination of the three relevant Disbursing Officer files. Therefore, the search r_sultext in no documents responsive to Paragraph I9. · Arthur Andersen is reviewing the steps that Treasury took in creating the database of : relevant tra_aelions listed in the Hyatts_e basem_ files. Based on its current knowledge of Indian Disbursing Officers, Arthur Andersen has suggested adding _a_agtions listed in 30 addilional files to the d31ab_e. These _es have beell seat to tile F_craI Rcsea_ Bank of Riclunond and h_e been cmcrrd into thc a_,_t,_basc. During this week, the three tapes of predicate information will again be compared _th the database to sec if any additional documents responsive to Paragraph 19 can be located. 003 SAVINGS BONDS BPD has completed its searches of_e accrual and current income savings bonds issued in '* Utcst forms of regi_ation that contain e name of an office or official tistc_ in the Search Plan irt combination _ith a name or Alia of a pl_tiff or predecessor in interest. No responsive documents were found. 004 MARKETABLE SECURITIES BPD continues to search non-auIomated marketable sec_ities records as provided for in the Search Plan. One potentially responsive document was found which will be produced in the future. Bcc_____e the search is ongoing, certifications v,;gl not be executed until all smrch_ have been completed_ 005 GENERAL OFFICE FILES DO, BPD and FMS each havc complc-led scamhes of general office _es and executed appropriate certifications. A small number of potentially rcspomivc documents have now been reviewed by counsel, who have determined that some of tho documents have already been produced. Those that Mve not yet been produced are in the process ofbci_ imbed so tha_ they can be produced to the plairai_, ? 3 :_ CERTIFICATE OF SERViCE ? The undersigned hereby certifies that on this I9 th day of April, 2000, a copy of the foregoing United States' Status Report to Special Master of April 19, 2000, was served on the following counsel by placing a copy in the United States mail, first-class postage prepaid, addressed as follows: Dennis M. Gingold, Esq. Also by facsimile 1275 Pennsylvania Avenue, N.W. 9 th Floor Washington, D.C. 20004 Fax: (202) 637-0497 Keith Harper, Esq. Also by facsimile Native American Rights Fund 1712 N Street NW Washington, D.C. 20036-2976 Fax: (202) 8224)068 Thaddeus Holt, Esq. P.O. Box 440 Point Clear, AL 36564 Elliott Levitas, Esq. I 100 Peachtree Street Suite 2800 Atlanta, GA 30309-4530 Paula Clinedinst i. U.S. Department of/ustice · . Environment and Natural Resources Division Gcnerol t._atlan $eation Td.ephont (202) $05-0447 FO, Bat _6J Fa_dl_ tTO2) SO.$-O$Ot_ Washington, DC 10044-0465 · June 27, 2000 VIA FACSIMILE AND. MESSENGER 'Al an L. Balaran, Ezq. SPecial Master 1773 T Sweet, N.W. Washing,ton, D.C. 20009 'Re: Cohen v. Babbitt, No.i:CVI285 KCL Dear Mr. B alaran: '. Enclosed is a table provided to me by Glenn Schumaker, Team Leader of Management :"_!k_ Information Systems (MIS), Office of the Solicitor. MIS is responsible for managing the _:_'_ computer systems for the Solicitor s Office nationwide. The table is an inventory of e-mail backup tapes saved in the Solicitor's headquarters, regional and field offices where e-mail messages responsive to requests for production of documents are apt to be sent or received. You should be aware that the inventory shows different information for the Solicitor's Billings Field Office than I reported ia my letter of April 12, 2000. At that time, the Solicitor's Office reported to me that an instruction to the Billings Office on December 10, 1999, to save backup tapes had been misunderstood aa au instruction to discontinue saving them. The e-mail system in the Billings Office is managed by the Bureau of Reclamation (BOP.) and, as I indicated, the Solicitor's Office was continuing to examine the matter. Further information now shows that.the Billings Office has backup tapes prior to that instruction loc only December 1998, January 1999, October 1999, and November 1999. (It has two tapes for November 1999 because it changed systems in November 1999 and saved a tape for each system.) However, after the instruction, the Billings Office has better backup tape coverage than I reported. It has monthly tapes beginning in $anuary 2000, as well as dailY, weekly and monthly tapes beginning Ot_ February 2_,'2000. ' ' MIS staff is taking measures to determine whether backup tapes show informati'on ' previously believed to have been overwritten. For example, they are examining whether the Billings backup tape for November . 1999 on the current system contains, e-mail messages 'for _: earlier periods in .1999. They .are likewise examining .whether· an Albuquerque backup tape for · August 1999 contains information that would be On the 12 tapes Io$_t in the mail. as I reported to you on June 22, 2000. It. is taking similar me'asures with backup'tapes for the Phoenix Offic e to "' -' " · determine, whether they containin£ormation from. the period when BQK was un abletg, perform ."' periodic backups, as repbrted on April 19, 2000.-The Solicitor s Office will report'the results O f these continuing exam'inations. , . . While the Solicitor's Office has instructed its regional and field offices to save backup tapes, this should not be construed as acknowledgment of an obligation to do so. Backup tapes are not archival and, as experienced in this case, it is very expensive and time,consuming to restore the tapes and retrieve e-mails from them. The Solicitor's Office requires its employees to [print and save e-mail messages related to this case and IIM trust management. The Office rehes on these paper copies for its record keeping and discovery responses. We intend to seek a protective order during the week of July 3, clarifying the acceptability of this method of production Sinc_elY. .' ; Charles W/Findlay Enclosures cc: Dennis Gingold, Esq. .';::3:{."_:': ::_:?::? ½ r . , · , - +.. . .. l . · . .- . . . · . . , . , ._ United States Depmtment of the Interior OFFICE OF THE SOLICITOR ': Washington, D.C. 20240 June 27, 2000 Charles W. Findlay U.S. Department of Justice - P.O. Box 663 Wasbln_on, DC 20044-0663 _, :. Dear Mr. Findlay This is my report on the status of an effort bythe Office of the Solicitor to identify and report On coverage of backup tapes in our Headquarters Office and seven field and regional offices. Team Leader Management Informations Systems Team ,,_:,,,, Attachment 'rD:r;-',5 'r .. , . , _ .. · _ · -. . _ ·. .· 4·. '_ . .· : , , . . [.. · ., ..' Computer Data Backup Coverage Office of the Solicitor · . · M inagement Information· Systems ("MIS") Estimates Through May 1, 2000 (except as noted for Phoenix) ?. . . The in formati.on in the attached table is limited by the definitions below, and by the general considerations stated on the last page of this update, It is · important to note that tape backup processes axe not infallible. There are several variables that can contribute to failures in the backup process. Failures can be caused by software and hardware problems, and bY difficulties with the magnetic tape media as well, Even brand new tapes fail ...... .. · occasionally for ;carious reasons. Definitions: Backup Set - A single back:up run which typically is performed daily, weekly or monthly · · Tape - A physical object on which data is saved. Not designed for archival purposes. Used on a rotating basis for backup in case of a crash of a random access storage device, such as a hard drive, or diskette Cataloguing - Proces_ of identifying the sets on a tape ar/d the dates thereof, by actually reading certain data on the tape (as distinct from manually keeping a log of backups performed). Recovery - PTOCeS'S of making an unreadabl_ tape readable, requiring a contractor Restoration - Taking data from a back-up tape and restoring it to a network server in preparation for reading or searching .:... Search - A procoss performed by ¢orrrguters wherein a given search term is compared to the subject and text of a message or messages. R_view - Search results are provided to the mailbox owner or designee who reviews the results to determine responsiveness of individual ema[l messages 'Purge - A maintenance {ask performed by system administrators resulting in the deletion of all email messages older than a certain date ,lung 26, 2000 Page I of 4 ? ' Tape Backup Sta..._, Office of the Solicitor .' · . ..',.' I.:?¢_,clC._:_ :t_.!. ' ' ' ..... '" ":' '-' ';'_:' .................. " ' ' "l i;'_';_ii_,:: ' :..'.. ' ' ' .. : . ,-'': _'/- ':_';_.*::::?; :..',::.'h :: . *.',' '-.. . :' ' : ' ! I Alaska 6/30197 to !/I $/98 24 tapes (24 sets ! Weekly 2 tapes unreadable, external labeling inaccurate. $2.000 Regional . c__(__logued) ! Office, ........................... i 'Anchorage I/I id98 to 6t99 none not appL No backup tapes exisl for this period. m ". 6/99 !hrough .5/i)00 ? tapeS/5 CD.ROMS Weekly Backups made on weekly basis by Office of Secretary since December t999. At the cad of · -, (3 [ sets according to each month weekly backups arc consolidated on a monthly CD-ROM and forwarded to SOL, · logs) Alaska office, Email system changed from cc:Mail to Lotus Notes in December 1999. ..,... 2 Southwest 6/99 through 5/1/00 23 tapes (opprox. 100 daily Tapes are in two formaLS. Thc two formats result from equipment upgrade. The old format is Regional sets*} and still readable. · Office, ' weekly Albuquerque , iheaa are hot catalogued; {his Note: Twelve of the 23 tapes were mailed from Albuquerque to.MIS but have not been is · roush galimal, based On received. MIS is still searching for these tapes. These tapes arc believed to cover the period ¢).cte _d pcri_ oreoverqe June through August 20, 1999. On August 20, 1999, a new email server was deployed. The ¢mail messages from the old server were copied over onto the new server and within about two days, a new backup was performed. The MIS team will examine ibis iapc for i information contained in the 12 missing tapes. I ....... . ...... . ..................... i .... i J, ,. 3 BilLings Field 12/98, 1t99, L0/99, 9 monthly tapes (9 sets ! Monthly This office ii enlir¢iy supported by thc Bureau of Reclamation ("BOP,") and alt backups ate $4,000 OffiCe ! 11199, 11199', 1/00, according to logs) performed on their Local Area Network (LAN). The equipment which created the first 4 of 9 .2/00, 3/00, 4/00 monthly rapes is broken and neither BOR nor Iht Office of the Solicitor has the capability to read these tapes. In June 1999, BOR was instructed to save all backup tapes. On December · 'l'we lupus fol' I 1/99 14, ] 999, BOP,. was reminded to save and not recycle email backup tapes, when it was ......... discovered by HQ personnel that BOP. was still recycling some ofiL_ tapes (i.e., dailies and · weeklies). However, BOR misinterpreted the reminder and did not begin saving the daily 2/2:S/00 - 5/I/00 27 tapes (27 sets Daily, and weekly tapes until a follow-up inquiry, although BOP. did retain monthly backup tapes : according to logs) ' Weekly for October and November, 1999 and from January, 2000 forward. The MIS team will examine ihe November 1999 tape on the current system and all subsequent monthly tapes for inform.anon in earher periods In 1999. BOR iS now saving atl:backup_ until further notice. PTwo monihty backups of Nov t 999 exist, one raade under the old avatars. {ate made un,ct t_r n¢w system. ! ! · Jane 26,'2000 _ `[ Page 2 of 4 · . . ....... .,,: ...... .:...., ............... ... ........... ... ...... 4 Phocnix _Fi¢[d* I Iapc dated 1 I/4/96:, 72 tapes no Period of coverage includes,time when Solicitor's Office did its own backups, For tapes prior $72,000 O£_ce 52 tapes between record of to May 2{, 1999, wc do not know how many dlta acts appear on the tapes becausc we have 9/18/98.and 5/20/99; this been unab{e to catalogue thcs, due co hardware and so,ware problems. and {9 tapes between infor. $/24/99 end 6/[ 8/99 motion Since 5/26/99, backup services have been provided by tocal Bureau of Reclamation wh!ch · experienced tcchnlcal problems rcsultingin no backups being made for period $unc 19, 1999 Ihrough ]_nuary 2000, except as noted bctow. '_, Because lhe {9 tapes between $f24/99 and 5/18/99, have not been catalogued, it is unknown whether _hg backups on these tapes cxccuted successfuUy. I tape liibe/ed _o ! _apc Fuh_ In September t999, a new cmai{'scrver wu deployed in Phoenix, {_ appears _ha_ there hay;: · · indicate full backups backup been no croat{ lJurgcs from this server by system administrators since the time it was first ' on ! t119/99, ] 2;3/99, on dates deployed. We are confirming this. If no purges have occurred, wc may find that this tape 12110/99 and al noted contains omni[ data back to September 1999. As cmail messages arc deleted by users from uncertain intervals their "s_nt" and "received" folders, they are placed in a "trash" folder where they remain until , .. between 1/21/2000 and purged or until individual users affirrnativcly empty their own "trash" fotdcrs. 2/9/2000 ...... Hi.. ., · - 1/21/00 thr;3ugh 10 tapes various Five tapes contain daily backups for thc period 1/21/2000 through 4/20/2000, Four tapes 6/17/00 contain backups done on a weekly basis during thc period 2/10/2000 _hrough 4/20/2000. An '* additional backup was created on ,Tune 17, 2000, That tape captures ali email mcssages sent and received since September 1999, assuming no purges occurred (_cc description abovc) and assuming no users emptied their own "trash" folders, ,,, .... . ,, , , ........ , ,, .... ,, , ,,, , .5 Pacific 1994' through 5/1/00 44 tapes, three formats daily, 30 of the original tapes are in a very o{d format. We have found an old tape drive of the $30,000 Northw_t (approximately. 500 weekly correct format, but thus far have been unable lo make it work. Regional sets*) and Office, monthly 6 other tapes arc in a newer format with no documentation. Cost has bccn estimated on the · .Portland , the_e Itl not cal{d'oau¢_; t_ts assumption that we will t]nd equfpment to read ihesc tapes, is I_ toultb estimate b&scd on cycle ,nd _iod of_ov_rale Remaining g tapes are in the newest format which we can read, but wh'ich have not been ' . I · · catalogued. 6 Tulsa Field 10/2/98.through 9/7/99 44 tapes (60 sclc daily, '-, Office catalogued) weekly t JUne, 2&, 200G ,., Page J Of 4 I _tie ............. , .......... . I '_nluitint IEzpen,t Tulsa 9t7/99 through 20 tape_ ( 170 sets*) (continued) 5t I/00 * these art riel eitOtBSued; this ' is i rough estimate bi_d _t cycle and period of coverlEt [ w _ .,, , ,, .... t ................... : 7 Twin Cities 8/I 1/94 through 99 tapes (72'7 sets daily, These tapes are all at MIS and have been catalogued. I Field Office 7/8/98 catalogued) weekly I 718/98 through 18 i. apes These tapes are still in Twin Cities and have not been catalogued. " 5t1/00 (approximately, 400 t i SetS*) ! . 1 ' Ih¢$e I,ve _Ot CattJosl_d; Ihls · _ ti a rOulh eSdl:lli_ bi. led on cy_lc end period ofcovcra¥l 8 Headquarters Late 1997 through 206 tapes (206 sets daily. First 206 Backups have been searched and responsive documents produced. 5/1999 catalogued and weekly sear_ i I . 5/99 through 5/1/00 172 tapes (206 set_) ........................ ..... , ............ . .... , ........ t t ! Totals $1o8,ooo I _=_ · .._....] .... l ...... 71 i L t I [ t t[ Jt_J ...... _._ . Jltl_K[ t · I General Considerations: . I. The estimates of costs are based on available information. n. i "' 2. In many instances, obtaining additional information necessary to increase the level of detail in this report would require cataloguing of the data on the tapes to determine how many sets areon each tape and which dates are covered by a'givt,n set. 3. Some Offices have not labeled tapes or kupt logs to indicate the date and time when the tapes were inserted in the backup drives, 4l. Different offices have upgraded equipment and software yielding a variety of tape formats. The MIS Team no longer has the capability to read some of these formats. The team has attempted to describe som_ of those format changes and tape reading challenges, but tMre may be, additional instances where data cannot be recovered. , · June 26, 2000 Pitge 4 of 4 : IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL ) et al., ) Plaintiffs,') v. ) No. 1:96CV01285 RCL BRUCE BABBITT, Secretary of the ) Interior, et al., ) Defendants. ) DECLARATION OF GLENN W. SCHUMAKER I. I am the Management Information Systems ("MIS") Team Leader for the Office of the Solicitor, U.S. Department of the Interior ("Office"). Use of the phrase "the '::J:::.!:i:-. Office" throughout this declaration refers to the headquarters, regional, and field _¥?? offices of the Office of the Solicitor. I direct the operations of the local area networks /' and computer systems for the Office nationwide. In addition to me, the MIS Team consists of four senior technicians and one junior technician. The Office comprises a headquarters office in Washington, D.C., seven regional offices, and eleven field offices, with approximately 290 attorneys and 100 support personnel. I have held this position in the Office since 1983. I previously submitted two declarations in this case, dated November 20, 1998 and May 20, I999. The information in this declaration is based on my personal knowledge and experience obtained in the performance of my official duties and upon information furnished to me in my official capacity. EXHIBIT 7 Y 2. This declaration follows my experience leading a search of 206 backup tapes which was performed at the direction of the Special Master in this case. All of these tapes were generated in headquarters by the Solicitor's Office. As a result of these efforts my office expended approximately 700 hours searching the,so tapes for terms suggested by the Solicitor's Office and the Special Master. (In addition, four damaged tapes were Conveyed to the Department of Sustice which employed outside consultants to estimate the costs of putting the data in readable form.) 3. My declaration of November 20, 1998, describes generally the computer system backup procedures in the Office and the routine backup practices of the Office. Some of the information in that declaration is repeated herein to provide a complete explanation of the task ofr_overing and searching responsive emaiI messages from backup tapes. '?i':: :¥ 4. As IYeported in my November 20, 1998 declaration, the office headquarters dispensed with its regular tape rotation between February and November 1998 and began saving tapes for purposes unrelated to the present litigation. This exception to routine tape rotation (overwriting) occurred only for backup tapes for the headquarters office. The 185 backup sets (a "set" is the data stored on a tape for one backup nm) dating from November 21, 1997 to November 20, 1998, and the one tape dated April 1, 1995, which I referred to in my November 20, 1998 declaration, were backups solely for the headquarters office. 'i 5. The Office, over time, has used three versions of email software to operate its 'email :' system. The three are: Lotus cc:Mail (prc-Y2K-compliant); Lotus cc:Mail (Y2K- compliant); and Lotus Notes (Alaska Regional Office since December, 1999). The MIS Team must develop different search routines for each email sof_ware version. For instance, the specific procedures I referred to in my November 20, 1998 declaration, were developed for one email software version. But, because the headquarters office use d two email software versions during the relevant time period, the MIS Team developed two different search procedures, in December of 1999, the Alaska Regional Office converted from Lotus cc:Mail to Lotus Notes, which means that a third email software version must be considered for purposes°f developing any future search routines. 6. The Office's electronic mai! system must be managed to control the explosivc growth '_'-'::_: of data thatresults from ordinary use, and which would render the system inoperable if not checked. Consistent with industry practices, the headquarters office has adopted a policy of erasing messages older than thirty days from its current email database. At the field and regional offices, messages older than thirty days axe erased periodically as maintenance and space limitations require. However, email systems throughout thc Office are routinely backed up on tape, on varying cycles including daily, weekly, or monthly. Ordinarily, these tapes would be recycled (i.e., overwritten) periodically; at present, personnel have bccn instructed that the backups axe not to be overwritten. 3 7. The backup systems are intended te help reCover from a catastrophic failure of the · computer systems. The tape backup systems are designed only for this purpose and not for storage, searching, and retrieval of electronic mail messages. The message data are encrypted by the system's software into a composite database, which renders the message data unsearchable unless the entire database is restored and accessed with the original software. 8. In addition to the three different versions of emaiI software, each site, ov er time, has used more than one different tape drive, backup software, and baekup tape (hereinafter called "backup systems") for its servers. This is significant bemuse it introduces various complexities in the tape restoration process. For instance, during the backup process, the data is recorded on the tapes in a compressed, encoded, proprietary format. As such, the tapes can only be read by a process 0fcataloguing _-/-27,r, and restoration that is performed by the original type of backup hardware and ,' software, unless the tapes are submitted to a specialist with special equipment and software. This would entail setting up a specific system for each tape format including the appropriate type of hardware and backup software. If the MIS team cannot obtain appropriate equipment for reading data o n a tape, that tape would have to be sent to a contractor who could convert the data into a format which may be read by our own equipment and staff. 9. Since May of 1999, when the coverage of the original 206 tapes ended, to the present, the headquarters office has preserved all of its completed tapes. It has also instructed 4 ,.... that tapes be saved in the Alaska Regional Office in Anchorage, Pacific Northwest Regional Office in Portland, Southwest Regional Office in Albuquerque, Billings Field Office, Phoenix Field Office, Tulsa Field Office, and Twin Cities Field Office. The Billings and PhocnL3_ Field Offices use servers owned by the Bureau of Reclamation ("BOR."). BOR also maintains and owns the tape backup systems for those field offices. The MIS Team has limited information on the backup systems employed by client agencies Such as BOIL If the clients use backup systems different from the headquarters office, the MIS Team would have to: (1) obtain additional restoring equipment't ° :restore the clients' backup tapes; (2) travel 'to the sites to restore and search the clients' backup data, with the clients' cooperation; or (3) arrange for the clients to restore and search the backup data ,Ci_:i::_i ' 10. The procedures for restoring and searching the original 206 backup tapes, which have ..-.:::..:-: been searched in compliance wi/h the Special Master's directives, were developed and refined by the MIS team in consultation with the Solicitor's Office· attorneys and technicians in the Office of the Secretary in 1999.. Based on that experience, the following is an explanation of the methods used for restoring and searching backup ta_s for email: a. Tape Preservation - First, the tapes must be preserved rather than recycled. Sometimes, the backup 'faits to mn for reasons such as equipment failure, power outages, improper scheduling and tape errors. 5 b. Temporary Server - Before restoring backup tapes, the MIS Te am would have to build or purchase a file server to create a separate place to restore the recovered backup data off-line. This procedure would be necessary to avoid' shutting down the normal office routine which depends on the _' production file servers for activities such as word processing and electronic mail. Building a file server would consist of assembling hardware and loading operating system soRware. This step would be essential, and the restoration and search'could not be performed without it. c. Cataloguing - Re/stomtion of backup tapes would necessitate that they first be catalogued which is a process of in_rting a tape in a tape drive and reading the tape headers to determine the actual coverage of the tape. Obviously, if we do not have the correct hardware or software to d'; ' '_ 3. '_:: :' catalogue, then restoring would not be possible without acquiring such hardware or software (if available) or hiring a contractor. In headquarters, continually maintained logs show the dates in which the tapes were in the tape drives, and the dates when backups were executed successfully; however, to ensure accuracy in a tape inventory, the tapes must be catalogued. The field and regional offices have sent approximately 260 tapes to headquarters. All backup tapes sent to headquarters for which the MiS Team has operational backup software and hardware, have been catalogued. Tapes continue to be saved throughout the Office mad would also need to be catalogued ifa search were required. 6 d. Data Organization - The MIS Tearn would then create a file and directory structure on the temporary server for storage of those "hits" identified by the search routine (a "hit" is an email meSSage where the body of the message or its subject line contains one or more of the search terms). e. Search Preparation - The MIS Team would have to determine whether the data could be searched using one of two existing search murines (based on the two different cc:Mail versions), or whether new search procxxlures would need to be developed. New search procedures would have to be developed for some of the Alaska Regional Office. backup sets because of the upgrade to Lotus Notes. While'SOme of the previous search routines might be reusable, testing and revision of thc routines might be necessary. :.:?!:: If new routines are required (due to ne w search terms or conditional operators, such as;. "and" or "not".), then the MIS Te am would have to enlist the services of a programmer fro m another office within the Department or procure those services by contract. In the case of the Alaska Office, the team would have to enlist such services regardless. In my previous experience, composing the search routines took one outside programmer approximately two to three days per version. fi Restoration - In the actual restoration process, a member of the MIS Team would insert each tape, one at a time, in the appropriate tape drive, 7 . and initiate the restoration process using the tape backup software. I estimate the restoration of the electronic mail database from the baclcap tapes took approximately 0ne-half hour for each of the original 206 tapes (one set per tape). However, this mount of restoration time cannot, based.iI on tape counts, be extrapolated to future restorations throughout the Office, because, at present, most tapes contain multiple sets. Having multiple sets on each tape complicates the restoration process because a member of the team would .have to identify 'and isolate each set before it is restored. g. Search Execution - The restoration process results in a "mailbox" on the ' temporary server for each user. Only a subset of these mailboxes would ,::;¢._.. contain hits (specifically, the mailboxes of those individuals targeted in the searches). Because users have passwords restricting access to their mailboxes, a memb er of the MIS Team Would have to manually override the passwords for each user, Once the password protection is lifted, a member of the Team would be required to open each mailbox and execute the searches. 'The search routine would be able to accommodate only a limited amber of search terms at one time depending on the length in characters of each term and on the number of conditional operators (such as "and' or "not"). Searching the original 206 tapes required three or more searches to accommodate all of the search terms and conditional operators. Based on my experience, I estimate that miming the search routine one 8 · iii' time could take one half-hour per set. This process can overlap at least partly with the restoration process, using separate staff employees. iL Distribution of Da/a for Review - Based on an extrapolation from the tot/final search of 206 tapes, it is reason_le to expect a massive number of hits if an Office-wide search were to be required (i.e., Headquarters and the seven previously mentioned field and regional offices). Such a search could yield as many as one to two million hits. The MIS Team would then copy to a temporary storage area alt such hits. Previously, this entire process added approximately one full work day to the effort, using one staff employee for the original 206 backup tapes. i. Administration - Extensive documentation and monitoring Ofeach step of ·'.:_;-:.> the entire effort would be necessary to maintain integrity. This documentation and monitoring process would involve creating spreadsheets to ti'ack the process of cataloguing, inventorying, and restoration as well as to track each computer user whose records were being searched, the date of each set searched, progres S of the search and review, thc movement of responsive records to appropriate electronic directory structures, and the maintenance of security protocols to ensure that electronic files are not commingled, omitted or improperly disseminated. j. Review for Responsiveness - The number of mailboxes (i.e., individual 9 'i email users) to be searched would directly affect how long searching would take (La the case ofthe original search of 206 backup tapes, thirteen mailboxes were searched in the Solicitor's Headquarters Office). The messages derived from the search would be made available to the reviewers designated by the Solicitor's Office who are responsible for reading those messages for content and responsiveness, Many messages would be duplicates because successive backups could capture the same message repeatedly. I have no estimate of the amount of time necessary to perform this last task because the task is not performed by my team. 11. The description above of procedures to Ix: used in cataloguing, restoring, searching and distributing emait from backups assumes that the procedures will go well. In reality, the process of recovering messages from the backup system is subject to ..... numerous problemsincluding equipment failures and incompatibilities of new ,.' equipment and soRware. As:with- alt magnetic media, backup tapes can develop flaws at any time,_rendering them unreadable. 12. The MIS Team faces additional difficulties because some email sofb,vare versions and some of the software used to create email backup tapes are not Y2K.,compliant. For example, the earlier version of cc:Mail used in the Office is not Y2K-compliant, nor is the backup software used to create the backup tapes during that period. At this point, I cannot quantify the difficulties the team would encounter attempting to run software that is not Y2K-compliant, but in at least one instance, the team discovered 10 i;_ ?:· that older backup software failed to mn in the newer Y2K-compliant Network Operating System environment. 13. The restoration and search efforts with re.speet to the original 206 headquarters tapes were unprecedented for the Solicitor's Office and MIS Team, and were seriously disruptive to ongoing efforts to upgrade and maintain the Office's computer systems . These efforts produced approximately 250,000 hits, which then had to be reviewed by the owners of the mailboxes or designees. The MIS Team spent approximately 700 hours restoring headquarters backup tapes and running searches, at a cost of over $20,000 in stafftime. This effort was the equivalent of having one staff person work full time for about four months on the headquarters backup search although sometimes two or three staff members worked i:oncurrenfiy. The team was · authorized to work overtime in order to maintain project momentum, if a search of .'; :.2-;.' the headquarters backup sets aeemulated since the original search were required, I estimate that it would take an _additional 700 hours of MIS stafftime at a cost of over $20,000 (assuming the same targeted individuals and search terms as in the original search). I base this estimate on the fact that from the conclusion of the original search through May I, 2000, an additional 206 sets have been created. 14. If an Office-wide email search were to be required, it would involve a massive effort. It is difficult to estimate how long the cataloguing, restoration and search of the Office backup tapes would take, but the effort almost certainly would take ten times as long as the original effort at headquarters, for three reasons: first, the rough estimate of backup sets exceeds 2,100 (compared to 206 in the original search); 11 ii second, some of the older backup hardware units used by the field and regional offices axe slower than the backup hardware units used at the headquarters office; and third, because of the uncertainties noted inparagraphs 8, 10(a), 11, and 12. The attached table includes estimated inventories of backup tapes saved in the headquarters, regional and field offices and the estimated cost of$108,000 for · out.sourcing tape recovery efforts in those instances where it would be necessary. This table haz been updated hazed on information acquired by me since the June 27, 2000 submission of this table to the Special Master and counsel for the plaintiffs and explains improved coverage for Albuquerque and Billings. In accordance with 28 U.S.C. §1746, i declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief. d f::i'. Date GLENN W. SCHUMAKER 12 . ., ... OOO_ "_/_ ,(In.r jo I _d uo.l::_el_a(I ;i_wmnq_s ooo_ '61 _lnf al_p u{.mJao · ueql _oplo ;agassom t!etuo lie jo uo)$olap aq) U! _U!_lnsa_ s_o_s!ul._upe uJa_s_ls _Cq pauno}zad _ts_U aoueu=lmetu ¥ - o'S, nj sa_vssom l)_tua {enp!nlpu!jo _sauon{suodsoJ ou{uuolap o_ sllns_, oql sA_o!^a, oq_ oaug]sop Jo _ou_o xoqH_m arO ol paplno_d o_ sllnsa_ qo_oS - *_o!AaH · sogessam zo a_ess_ut e jo lXal pure ;oarqns o_ o) pa_dutoo st tu.tal qo._as uan!_ e u!a._oq_ _alndmoo Aq pau.uojJad ssa_o,d V - q:_a_aS' :)u{qox_as _o :Su!.pe_u ioj uo[le.tedazd u! ,_OAJaS X_OnUaU · Ol l{ 2U{aO),SOi pue adtq dn->loeq e tuo_j _lep i)ul_e,I. - uo!_olsaH _o{ue.Uuoo { g u!.n..nba_ 'alqepeo_ odel olqepeomn ue 9 .u!-_u_ jo ss',:,o.: d - _aAoomH ' '(pouuo_Ltod sdrup_q jo 801 _ gu!.daa,,I ,(llenuetu tuo.g lou){slp s_) od_'l oq{ uo elep meuou gu{pea, _(llen.loe _(q 'JoaJoq{ saiep aql puc ode1 e uo s'las aq'i _u!/_{_uap{ .{o ssooo, d - lluin_olel_ _ '. atlo:!_p _o 'aA,up p_q;. qons 'oO{Aop a_eJo_s ssoooe tuopuea e jo qsedo e jo oseo u{ da:fo; q _oJ s!_q. gul_elo_ _ uo posfl 's_odJnd Ien{t[O-'_ _OJ paug{$ap lo N 'pOnes s! eilep qo!q_ uo {oafqo [eoi;Xt[d ¥ - ode£ " XItllUOm .o Xplaont 'XI!_p pouuo{,od ;! ,(lIm:){d/,4 tl_!qAl ufa drupeq ;iguls ¥ - la S dn)io_8 .... :suo!l!uyaCl .... .... suo_._ snot.reA _oj XiWUOlS_Ooo t}_J sade), nt:)u ptmaq uu^_t 'lIo*_ s_ _!patu odel op,aui{etu aql qlu_ s_!lin_lp/iq pue 'stuolqo.td arentpxeq ptre axentl_os _[q pasn_o _q ueo s_xnl._g · ssaooad dmio; q oql u) saxrtl_t o) alnq.umoo treo leq; soiq_.t_^ I_,a,t_s a_e a_oud_ 'Olqlll_JU ) lou axe sassa:)o_d dn_ioeq ode{ ),eq{ alou o{ ltrelaodtu! si ,ti 'al_pdn S.nl),lo al)_d lse I aql uo p_lms suope_aplsuo:) le_auai{ a,,ll ,iq puc ',tOlO q suo!l)utjap atp _q pal.tOil s ! alqm paqo_lle _q_ u! uo)luuuoju) atLL (xluootlJ purl ;nb.tanbnqlg',tofpalou sa Idaoxa) 000_' '[ AaH tl'_noa¥.I soIvut!lsJt (,'SI/N.) stuolstis uo!l m. ojuI luamo eu IAl S aql jo aot.jjO a tuanoD dnqu. . aIndmoD . .-:,. ,. . ' b;<,'-:-:.F. tl ;:;:S: :.. i Tape Backup· Status, office of the Solicitor ....... - " q ..... ' ....... ' " ' - ......... _ :: - .......... ' "'L ri" I'L_ .,. ' I ..... I t ' 1T ''' Ofllc_ Period ofCeverlp Tapem or CD-ROMS Back-up Spatial Coadderafioas ..... C6_b_(bmt : I Alaska ! 6/30/97 to 1/15/98 24 tapes (24 sets Weekly .2 tapes unrcadable, external labeling inaccurate. $2,000 Regional catalogued) O_ce, ................ ; ........... .... Anchorage . 1/15/98 to 6/99 none not appl. ' No backup tapes exist for this period. i t_ _ i i mi · m,_ t _J, _,! t tm ........ *, t, 6/99 through 5fl/00 7 repeat5 CD-ROMS Weekly Backups made on weekly basis by Office of Secretary since December 1999. At the end of (31 sets according to each month weeklybackups are consolidated on a monthly CD-ROM and forwarded to SOL, logs) Alaska office.. Err,ail system changed from ce:Mail to Lotus Notes in December 1999. ' '_ Southwe_ 6/99 through 6/l 2/130 3 taPes containing daily These figures have been adjusted from th'ese rcpened fn the.tune 26 version of this report Regional approximately 22 sets and (provided to the Special Master by loller dated June 27, 2000), based on a re-examination of Omce, (catalogued) and [2 weekly tape holdings since J'une 27. The earlier report of 23 tapes and 100 sets wes inaccurate, Albuquerque tapes missing in mail with approx. 40 sets* The three moro recent tapes are in one format and have been catalogued. The 12 missing tapes are in an older format but should still be readable if found (these tapes, believed to ! t * _ m nat caulol_ued: _t COVer the period June through August 20, 1999, were mailed from Albuquerque to MIS but · is s rou_ _ti_,- bases on ' have not been receiv'ed; MIS is'still scotching for these tapes), ·' cy_l¢ _d peffod orcovcnlc ' i I During the cataloguing of the .3 tapea, a total of 22 sets were identified. Th_ earliest of thane · ' sets, dated August 17, 1999, was restored to a hard drive _d examined.to determine actual dates of messages in that scl. MIS found that this Set contains 6,837 messages dating from 1995 to August, 1999 with appmximatdy 2,582 messages in the period May. 1999 through Augus L 1999. =z _ _ , m . J m I ....... - mm mm 7 mm'. Schumaker Declaration $ullt 19.20_ July 24, 2000 · Page 2 of $ ..... O_lice' - _" ' '"' ' ' " " ' ' "? '''''':'_ ?'"?'"': ":"" "" :'''':'· ':'_'-';':i'";::":::i:*;" :'v'" ', ;.,.-'.:.'-.Y.;:--:,::;'.::i:::,.,..,.,...'""';':it;:"":,......'.: Z'F'F-?:_':'::;. T,:.,':::.:-'"_'.;';''_· ...,". ......._. "?'":"_..._.,..,.:'_.,:": .:.' 'i .'.'. ':',..'"'.' .:,".................."..... · · '":"'.--." :' "iv_.l .,.;:: .:¥'..,' . . :. I .......... , ,, I.. ....... ,. . t,,. ........ I ...... ....- ...............................,..,.... .................. :...- ...... _-...: .... ,, __; ........ 3 Billings Field 12/98, 1/99, 10/99, 11 monthly [apes (1 t Monthly This office is entirely supported by thc Bureau of Reclamation ("DER") and afl backups arc $4,000 ' Office ! 1/99, I l;99', 1/00, sets, based on:logs) performed on their Local Area Network (LAN). The cquipmc_t which created ibc firs_ 4 of9 I 2/00, 3/00, 4f00, '5/00, monthly tapes is broken and neither BOR nor thc Ol_.ec of the Solicitor has the capability to 6/00 read these tapes, i · 'two ,me., r., ll/_ As reported by tetlcr to thc Special Master on April 12, 2000, and in the June 26, 2000 . _ . .. version of'his rej_orl, o'vcrwriting ofcmail backup tapes in Billings occurred bctwccn May ,. i and December 1999, as a result of confusion over the requirement of saving tapes, This 2/25/00 - 5[1/00 27 tapes (27 sets Daily, suggested the possibility of_ substantial loss of emeil message dai_ during this p_riod. In the .' according to logs) . Weekly June 26 report, the .MIS team Jndicazed its intention to cx_'nine the November 1999* and Janu*.ry 2000 backup tapes, in thc hope that cmalt mess*ge data for May 1999 to January 2000 would b_ found. This examination has _ complete, n:vealing the existence of 1,257 email.massages for the period May 1999 through January 2000. Since ,fanuaty 2000, all monthly backup tapes have be_n pa:served. BOR Indicates that since April 2000, ail daily and weekly tapes have been and continue to bc preserved, ' Two mo. lhly b_c;kup_ of _ov 1999 _x_.t. ee_ made under _s old iyzte,m, one mnSe eudet lb,_ new system. ! ... ? I Schumaker Declaration July 24, 2000 july _9, 2_0 _ge _ Of -' :.C'::'." ._ I _ _b.. _ '-.. I I m I _ - :z -- I m Immllll_ .... . I I i :.. ,,,.m '_ ::: ::!:i :' ::.'> .:i=.,==:!p_rt',_t,:c_,,;t'_,',,g_;::; _. ' ............. ' ...... ' .................. ........ ' ::' ....... " ,'' '"":_: .... ' ....... """ '"'_'"_""'_'"'¥_'"'?' ......._:_':_%'":: "' ' '=":'?_'::':'?:'_":' ........... - i[, i i' .,l'I '[ ,,i ")_ . =. '. , _2_...., ....... ''..... i · ]11 "--....,., 4._ . %-.., · i-i. ,]u_ ..... .... %, - ... ,, - i 4 Phoenix Field I tape dated I 1/4f96; 72 tapes no ' Period of coverage iacludcs lime when Solicitor's Office did it_ own backups. For tapes prior $72,000 Office 52 tapes b_tweeo record of to May 21, 1999, we do not know how many data sets appear on thc tapes because we have 9/18t98 and 5/20/99; this been u nab lc to catalogue them, duc to hardware and soQware problems. and t9 tapes between infor- 5/24199 and 6/18/99 motion Since 5/26/99, backup services have been provided by local Bun:au of Reclamation which , experienced technical problems rosulting in no backups being made for period 3uno 19, I999 through J_muary 2000, except as noted below, Because the 19 tapes between 5/24199 and 6/! 8/99, have not been catalogued, it is unknown i whether thc backups on Lhes¢ tapes _ecut_ successfully. I tape labeled to I tap_ Full tn September 1999, a new credit server was deployed tn Phoenix. It appears that there have indicate full backups backup been no email purges from Ibis server by system administrators since the time it was fin1 on I i/t9/99, 12/3/99, on dales _eployed. Wc are attempting to confirm this. ]fno such purges have occurred, wc may find 12ti 0/99 and at noted that this tape contains emmit data back to September 1999. As cmail messages arc deleted by unccrtsis intervals ' users from their "sent" and "rcceivcd_' folders, they arc placed in a 'trash' folder where they '. between 1/21/2000 and I roma.in until purged or until individu"i users afru'mativcly empty their own "trash" folders. 2/9/2000 .... ' ' ..... . .., .............. _ , _ ......... , ..... s,, i i/2 !/00 through ] 0 tapes various Five tapes contain daily backups for the period !/21/2000 through 4/20/2000, Four tapes 6/I 7/00 i contain backups done on a weekly basis during the period 2/10/2000 through 4/20/'2000. An , additional backup was created on June I?, 2000. That tape captur_ ail em.il messages sent and roc¢ived since September 1999, assmning.no purges occurred (see description above) :' and assuming no users emptied their own "trash" folders. ! 5 Pacific 1994 through 5tlt00 44 tapes, three formats daily, 30 of the original tapes m'e in a very old format. We have found an old tape drive of the $30,000 Northwest (approximately. 500 weekly correct format, but thus far have been unable to make it work. : Rcgiona_ set.s e ) and OQq_:e, -. monthly 6 othcr tapes ate in n newer format with no documentation. Cost has been estimated on thc Ponlanc; · ,I,,j4 M, nm caUdOlilUed.; _i_ _sumption that we will find equipment to read _cse t_pes. I : b aro_ ¢_mm b_d ua = cycls lu_ pedo4 ofcovale RcmninJn§ 8 tapes are tn the ncwcst format which we can read, but which have not been catalogued. _ , ..... , .............. , ..... .. , ......... .,., L .... 6 TuLsa Field 10/2/98 through 9/7t99 44 tapcs (60 sets daily, :O_cc , catalogued) weekly i ..,, [ ....... . , ,. , ....... , , · .......... , ,.., . $chumaker Declaration July 24,' 2000 July 19, 2000 Paso4 of 5 : ;2;!:i:i_!_ · .... ' ......... '. - -_ ':._ ......... C_de .... _ ._,; _-: . _$:.-._..,.,_,:_t;.-: _o...,': f:.-'." .-'. -* ..'_'._',"+ ................',",-.'*.'-'.'.',..-. · ........ * .'_pens41 . l ....... I ........ , . I .......... . _.. I. t ......... _ '_:_r,,,-, ,::: .4 Tulsa 9/7/99 ea'ough 20 lapes (170 sets*) J i (continued) 5/I/00 I · _e_ _ not catalOlpmd; _h is e mull?& et. titanic hatsed on cycle and period of covcn_e ! 7 Twin Cities 8/t 1/94 through 99 lapes (727 ,:eLS daily, These tapes are ail at MIS and have been catalogued. Field Office 7/8/98 catalogued) weekly I 7/8/9 g through 18 tal:m s These tapes ar_ st itl in Twin Cities and have not been catalogued. 5/I/O0 (approximately. 400 Sets e) ,. : · these ate not candolu,ed; Ihi, . · .. - b. In _,_ e_llmm bemi on j cycle md peaiod of aeventse 8 H_dquarlers Late 1997 through 206 tapes (206 sets daily, First 206 Backups have been searched ind responsive documents produced. 5/1999 catalogued and weekty i searched) i I I J/99 through 5/I/00 172 tap. (206 sets) General Considerations: - 1. Thc estimates of costs ate based on available information, 2. In m_y instances, obiaining _ditiomq information necessary to increase the level of detail in this report'would require cataloguing of the d_,t_ on thc tapes to determine how many sets arc On each tape and which dates are covered by a given set. 3. Some offices have not labeled tapes or kept logs to indicate the datcand time when the tape_ were insert_ in the bnckup drives. 4. Different offices have upgraded equipment and software yielding a variety of tape formats. The MIS Team no longer has the capability Io read some of these formats. The team has altempted to describe some of those format changes and tape reading challenges, but there may bo additional instances where data cannot bc recovered. Schumaker Declaration lulytg, 2ooo · July 26, 2000 pageSof5 -} . TRANSCRIPT OF PROCEEDINGS J ELOUiSE PEPION COBELL, ET AL ) ) - Plai'ntiff-q, ' )- 'Civil' Action No. :' ) 96CV01285 v. ) BRUCE BABBITT, SECRETARY ) OF THE INTERIOR, ET AL ) ) Defendant. ) ? I Pages: 1 through 61. Place: Washington, DC Date: Oct6ber 27, .. 2000 · · ..._.' I_F_RITAGE REPORTING CORPORATION Official Reporters - ' 'I220 L Street, N.W., Suite 600 ' ·. . , -Washington:, D.C..20005-:40.1.8 " (202) 6284888 hrc@concentric, net ,i :: ..: 44 t a cost of the actual tapes themselves. Can I assume that 2 actually having tapes is fairly diminimus, and popping a new 3 tape every 30 days or whatever it is is fairly diminimus? 4 MR. FINDLAY: I'm told that they -- they cost 5 approximately $10 a piece. 6 SPECIAL MASTER BALARAN: Okay. So, as an interim 7 measure, until the issue as to whether or not the Rule 26 8 motion -- until that's decided, you will keep all tapes, 9 correct? You will advise the Solicitor's Office and all its 10 regional offices, whether the servers are being kept by the 11 Bureau of Reclamation or any other agencies, that they will 12 keep tapes of all e-mail correspondence until the issue is 13 -- seems to me it would be a waste of everybody's time if we 14 decide they have to be searched only not to have those tapes 15 available for search. ]6 MR. FINDLAY: Yes, we will do that -- and get a 17 clarification. And this is consistent with what we have 18 reported to the Court so far. We have given instructions 19 both to the headquarters, people who are in charge of saving 20 backup tapes, and instructions have been given to the field 21 and regional offices which are most likely to have documents 22 related to trust reform or trust administration. 23 The Solicitor's Office does have other offices 24 which are not ordinarily engaged in that work. But we have 25 issued orders to save backup tapes in the offices that Heritage Reporting Corporation (202) 628-4888