<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL, et ~
		)
	Plaintiffs,	)
		)
	V.	)	CaseNo. l:96CV01285
)	(Special Master Balaran)
GALE A. NORTON, Secretary of the Interior et aL,)
		)
	Defendants.	)
__________________________________________________________________________________________)
REPLY IN SUPPORT OF MOTION FOR A PROTECTIVE ORDER AND OPPOSITION
TO PLAINTIFFS' REOUEST FOR SANCTIONS UNDER RULE 37
INTRODUCTION
	Interior Defendants respectfully submit this reply in support of their Motion for a
Protective Order and in opposition to Plaintiffs' Request for Sanctions Under Rule 37. Plaintiffs'
Opposition to Defendants' Motion for Protective Order and Memorandum of Points and
Authorities in Support Thereof and Plaintiffs' Request for Sanctions Under Rule 37 ("Plaintiffs'
Opposition and Rcquest for Sanctions") argues that defendants have failed to state any good
cause for the entry of a protective order. To make this argument, plaintiffs avoid any reference to
the arguments defendants made in their Motion for a Protective Order. Plaintiffs also argue that
defendants' allegations of harm are broad and unsubstantiated. To make this argument, plaintiffs
avoid any reference to the Special Master's review of documents produced in connection with the
Minerals Management Service ("MMS") proposal to reconnect to the Internet its information
technology systems, which house individual Indian trust data (the "MMS Proposal"), and
specifically the Special Master's proposed redactions to those documents, finding that release of
<< COB0000002 >>
the redacted information could crcate a security risk. Plaintiffs also argue that defendants ignore
the law of the case on whether blanket protective orders are permissible. To make this argument,
plaintiffs avoid any acknowledgment that the Special Master entered a protective order on
February 7, 2002, that is at least as restrictive as the one defendants seek here.
	As stated in their Motion for a Protective Order, defendants' request is based on their
experience in producing documents requested by the Special Master and his experts pursuant to
the Special Master's validation of the MMS Proposal. During that process, the need to agree
upon a protective order to cover sensitive and confidential materials relevant to the proposal
delayed the production of those materials. Because any delay in the process of validating Interior
proposals and, consequently, approving the proposals, is contrary to the interests of individual
Indians and others who rely on the services provided by Interior bureaus and offices,1 defendants
sought this protective order as a way to advance the process while still making available to
plaintiffs for their use in this litigation all of the documents produced. Moreover, because the
materials at issue are of the same type as those produced in connection with the Special Master's
review of the MMS Proposal, and the Special Master has found that substantial portions of those
documents should not be publicly available, defendants have shown good cause for the entry of a
protective order.
	To the extent that the Special Master has recently given preliminary approval to several
of Interior's proposals to reconnect to the Internet, pursuant to an established protocol, future
delays in consideration of such proposals would not have the same implications for the provision
of necessary services. lIowever, three proposals that have not received either final or preliminary
approval are currently pending before the Special Master, and Interior plans to submit additional
proposals in the future.
2
<< COB0000003 >>
ARGUMENT
1.	The Law, and the Law of the Case. Support Entry of this Form of Protective Order
	Contrary to plaintiffs' argument, although "umbrella" protective orders are sometimes
disfavored, as the Special Master has noted, they are a permissible and frequently used
mechanism in complex litigation. For example, the Manual for Complex Litigation describes
umbrella protective orders as one of two alternative forms of protection available for documents
that are considered sensitive. Manual for Complex Litigation § 2 1.432 ("Limited
Disclosure/Protective Orders") (3d ed. 1995). The manual provides the following discussion of
umbrella orders:
When the volume of potentially protected material is large, an
umbrella order will expedite production, reduce costs, and avoid the
burden on the court of document-by-document adjudication.
Umbrella orders provide that all assertedly confidential material
disclosed (and appropriately identified, usually by stamp) is
presumptively protected unless challenged. The orders are made
without a particularized showing to support the claim for protection,
but such a showing must be made whenever a claim under an order
is challenged.
id.2 Courts find such orders to be valid and uscful in spite of the lack of a determination as to
whether good cause exists for blocking public access to each individual document before the
protective order is entered. See Chicago Tribune Co. v. Bridgestone/Firestone. Inc., 263 F.3d
1304, 1316 (11th Cir. 2001) (Black, J., concurring) ("To facilitate prompt discovery and the
	2 Insofar as the Special Master and his experts are evaluating numerous Interior proposals
involving information technology security, an umbrella protective order is appropriate because
the volume of potentially protected material may be large. The alternative is for Interior and its
contractors to move for separate protective orders every time a sensitive security document is
sought. Such an effort, which would require separate consideration of each motion, would
require a considerable waste ofjudicial resources.
3
<< COB0000004 >>
timely resolution of disputes, this CoLirt has upheld the use of umbrella protective orders similar
to the one used in this case."); Pearson v. Miller, 211 F.3d 57, 73 (3d Cir. 2000) ("fUn
appropriate circumstances, a district court is empowered to issue umbrella protective orders
protecting classes of documents after a threshold showing by the party seeking protection.");
Citizens First Nat'l Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943, 946 (7th Cir.
1999) ( although broad umbrella orders are generally disfavored, "[w]e do not suggest that all
determinations of good cause must be made on a document-by-document basis."); San Jose
Mercury News. Inc. v. United States District Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (noting
that blanket protective order was "inherently subject to challenge and modification"); Public
Citizen v. Lig~ett Group. Inc., 858 F,2d 775, 790 (1st Cir. 1988) (recognizing usefulness of
blanket protective order without good cause showing for individual documents and noting that
such orders are subject to later modification), cert. denied, 488 U.S. 1030 (1989); FEC v.
Christian Coalition, 179 F.R.D. 22, 22 (D.D.C. 1998) (stating that although joint motions for
protective orders should not be routincly granted, they may be issued "if another public policy
favors non-disclosure").
	In arguing that it is the "law of this case" that umbrella protective orders are not
permitted, plaintiffs rely on the March 2, 2000 Report and Recommendation of the Special
Master Concerning Defendants' Motion for Protective Order for Defendants' Production of
Confidential Information ("March 2, 2000 Report and Recommendation"). In fact, the March 2,
2000 Report and Recommendation does not decide the issues raised in defendants' motion for
two reasons. First, although the Special Master concluded that blanket protective orders are
generally disfavored, his decision was based on a determination that defendants failed to
4
<< COB0000005 >>
demonstrate resultant harm from the potential disclosure at issue, but that defendants instead
relied on statutory prohibitions contained in the Trade Secrets Act and the Indian Mineral
Development Act of 1982 and various Interior regulations. March 2, 2000 Report and
Recommendation, at 11 (stating that defendants had not demonstrated "any resultant harm" from
disclosure). The Special Master found that defendants could not meet their burden of showing
good cause "by relying solely on statutory and regulatory authority." Id. at 12. The motion now
before the Special Master is not based on the Trade Secrets Act, the Indian Mineral Development
Act, or any other statutory or regulatory authority. Rather, it is based on the hanri that would
result from placing in the public arena information that a hacker could use to infiltrate or
manipulate Interior information technology systems. Thus, strong public policy favors non-
disclosure. See FEC 179 F.R.D. at 22. As discussed below, the record in this case recognizes
the probability of such resultant harm if the materials at issue are publicly released. The March
2, 2000 decision does not address the materials at issue or defendants' arguments regarding why
protection is necessary for documents discussing the security of information technology systems.
	Second, the March 2, 2000 Report and Recommendation supports the conclusion, also
reached by several federal courts of appeals, see supra at 4, that umbrella protective orders are
available upon a showing of good cause. The first section of that Report and Recommendation
explains that such protective orders are generally disfavored. If that discussion had resolved the
question of whether defendants' request for a protective order was permissible, the inquiry would
have ended there. However, the Special Master ~vent on to determine the merits of defendants'
asserted bases for a protective order and made his decision based on his finding that defendants'
bases did not constitute good cause. Id. ("[D]efendants have not met either the general 'good
5
<< COB0000006 >>
cause' requirement articulated in Fed. R. Civ. P. 26(c), much less the specific requirements set
out in Fed. R. Civ. P. 26(c)(7)."). Therefore, the Special Master's Report and Recommendation
recognized that such protective orders are available, but only upon a showing of good cause.
	Furthermore, in arguing that it is the law of the case that the protective order proposed by
defendants is not permissible, plaintiffs completely ignore the Special Master's February 7, 2002
protective order covering documents produced or generated in the course of his review of the
MMS Proposal. Similar to the protective order at issue here, the February 7, 2002 protective
order protects documents generated by Interior, MMS, and MMS contractors that are identified
on their face as "Confidential — Subject to Protective Order." Such protection is afforded "[i]n
recognition of the fact that these documents may contain security information, the public
disclosure of which would cause hanri to individual beneficiaries as xvell as third parties
unrelated to this litigation, and, in further recognition of the need for plaintiffs' counsel and their
experts to view this information."
	In some ways, the proposed protective order is even less burdensome than the February 7,
2002 protective order. For example, the proposed protective order sets out an explicit procedure
by which plaintiffs can object to any designation of protected material by defendants, with
defendants maintaining the burden of persuasion to demonstrate that the materials at issue merit
continued protection. If plaintiffs object to any designation of protected material, defendants
would identify with specificity the materials for which they seek continued protection. If the
parties are still unable to resolve the objection informally, plaintiffs can bring the dispute before
the Special Master, where defendants would have the burden of persuasion to demonstrate that
the materials at issue merit continued protection.
6
<< COB0000007 >>
Defendants' request for a protective order is not in violation of the law of this case.
Neither the Special Master's March 2, 2000 decision nor any other authority cited by plaintiffs
prohibits seeking or obtaining such orders. Moreover, the Special Master entered a protective
order substantially similar to the proposed protective order, covering the identical types of
documents, just over one month before plaintiffs filed their Response. Plaintiffs fail to even
mention, much less distinguish, this protective order in making their claim that defendants have
requested relief that is unavailable.
II.	Defendants Have Established Good Cause for Entry of a Protective Order
The basis for defendants' Motion for a Protective Order, which plaintiffs fail to
acknowledge, much less address, is two-fold: (1) It is important that the materials at issue be
available to be produced quickly upon request;3 and (2) the Special Master has already reviewed
documents of the same type as the relatively narrow set of documents that would be covered by
the proposed protective order and found that significant portions of those documents should not
~	In defendants' Motion for a Protective Order, defendants argued that
[i]f defendants are required to seek a new protective order to cover
such sensitive materials afler each request by the Special Master or
his experts and before the materials are produced, it is likely to result
in a delay in consideration of Interior's proposals to reconnect to the
Internet certain information technology systems and, consequently, a
delay in resumption of important services provided by Interior
bureaus and offices for individual Indians and for the rest of the
country.
Motion for a Protective Order, at 2.
7
<< COB0000008 >>
be made publicly available.4 It is important that the materials at issue be available to be produced
quickly upon request. in the process of validating the MMS Proposal, the Special Master and his
experts requested that defendants produce certain materials describing and discussing the security
of those systems. Many of these materials necessarily involve the details of the security in place
protecting the MMS systems and, therefore, would be valuable to anyone who wanted to
penetrate those systems. Although defendants have provided all of the materials requested, the
production was delayed by the need to obtain a protective order to ensure that the materials
would not be made publicly available. That protective order, entered on February 7, 2002,~
covered materials produced and generated in the course of the Special Master's review of MMS
systems, but not of other Interior bureaus and offices.6 Defendants' request for a protective order
is designed to eliminate any such delay in reviewing other Interior proposals.
Second, defendants have already provided the Special Master and plaintiffs with the
~	in defendants' Motion for a Protective Order, defendants argued that
[a]s has been thc case with the MiNIS System Security Documents,
Defendants and third parties are likely to have security and/or
proprietary concerns that could lead to hann, including weakening the
security of information technology systems protecting Indian trust
data, if the materials are publicly disclosed.
Motion for a Protective Order, at 2. The Special Master and plaintiffs were both provided copies
of these documents on February 8, 2002, one day after the Special Master entered a protective order
covering them.
	~	The Special Master also entered a protective order on January 24, 2002, covering a
subset of these documents containing information proprietary to Interior's contractors, Accenture
and USintemetworking.
	6 The Special Master's preliminary approval of several of defendants' proposals
subsequent to filing this motion for a protective order affects, but does not eliminate, this good
cause basis for a protective order. See footnote 1, supra.
8
<< COB0000009 >>
documcnts the Special Master requested as part of his review of the security of MMS's
information technology systems. 'F his is the same category of documents, along with materials
generated during the course of site visits, for which defendants seek protection with respect to
other bureaus and offices. The Special Master has already reviewed these documents for
precisely the purpose of determining whether material in them should be made public. ~
Report and Recommendation of the Special Master, dated February 28, 2002 (filed under seal).7
Therefore, the Special Master and plaintiffs already have examples of the types of materials that
would be subject to the protective order.
	Although it is not possible to produce copies of the materials at issue for review before
they are identified and requested, there are two factors that provide the Special Master with an
adequate opportunity to assess the need to protect the information at issue. First, the category of
documents covered is relatively narrow, limited to materials that are requested or generated
during the course of the Special Master's review of the security of Interior's information
technology systems. The protective order would not cover materials produced in the course of
discovery, g or materials requested by the Special Master in matters outside of his validation of
Interior's compliance with the terms of the Consent Order, including his review of Interior's
proposals to reconnect to the Internet. Second, as noted above, the Special Master already has
	Because the Special Master's Report and Recommendation, which is not yet final, was
filed under seal, defendants will not discuss the findings in it here. However, the Special Master
has specified categories of information that warrant protection though a protective order.
	~	The materials at issue have been requested by the Special Master and his experts, not by
plaintiffs. Nothing in the proposed protective order would prevent defendants from seeking
additional protections if such materials are sought by plaintiffs directly.
9
<< COB0000010 >>
access to the samc type of documents at issue with respect to the MMS Proposal.9
	As plaintiffs note, defendants bear the burden of establishing good cause for entry of a
protective order. See. e.g., Cipollone v. Liggett Group. Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
"[T]he party seeking the protective order must show good cause by demonstrating a particular
need for protection. Broad allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not satisfy the Rule 26(c) test." Id. Determining whether good cause
exists requires the court to balance "the potential harm to litigants' interests against the public's
right to obtain information concerning judicial proceedings." Hamilton v. State Farm Auto. Ins.
Co., 204 F.R.D. 420, 424 (S.D. md. 2001) (quoting Makar-Welibon v. Sony Electronics, Inc.,
187 F.RD. 576, 577 (E.D. Wis.1999)).
	Here, defendants have established good cause for the entry of a protective order. First,
defendants have provided specific examples of the type of information they seek to protect,
which were already before the Special Master for review at the time defendants filed the motion
	~	Although the Special Master's review of the MMS documents has provided an
opportunity for a review of the types of materials at issue, defendants note that good cause can be
established in the absence of a factual showing. See Lohrenz v. Donnelly, 187 F.R.D. 1, 9 n.4
(D.D.C. 1999). In Lohrenz, the Court stated:
In responding to plaintiffs arguments, defendants emphasize that
because plaintiff has relied upon conclusory allegations to support
good cause her motion must be denied. This contention has been
overruled, however, bywell settled case law. SeeNational Children's
~ 98 F.3d at 1411 ('[In re Halkin, 598 F.2d 176 (D.C. Cir.
1979),] was overruled by the Supreme Court in Seattle Times where
the Court considered and rejected the argument that protective orders
must be supported by factual showings.').... Thus, the arguments
presented by defendants have no ment.
10
<< COB0000011 >>
at issue.'0 Second, defendants have articulated the need for a speedier review than will normally
be possible if a new protective order needs to be negotiated with respect to each request for
information. Third, the Special Master himself articulated the reasons why information in the
materials at issue require protection from public disclosure in his Febniary 28, 2002 Report and
Recommendation." The potential risk to the security of data housed in defendants' information
technology systems by the release of the information at issue substantially outweighs the public's
right to obtain this specific, mostly technical security information.
	Although the factors enunciated by the Court of Appeals for determining whether to
unseal documents that have previously been filed under seal, Johnson v. Greater S.E. Community
Host~. Corn., 951 F.2d 1268, 1277 (D.C. Cir. 1991),12 are not directly applicable to this situation,
they afford a mechanism to balance the benefits against the harm of public disclosure and support
defendants' request for a protective order. First, the public need for access to mostly technical
information about the security of Interior's information technology systems, most of which are
	10 To the extent that some of the MMS materials originally designated as protected — as a
result of the speed of the production — did not include material requiring protection, defendants
agreed to make those materials available to be publicly filed when the issue was raised by
plaintiffs.
	"Although it is possible that a redacted version of many of these documents could be
publicly released, the requests of the Special Master and his experts are not for redacted versions
of the documents. Therefore, defendants do not have the option of only producing redacted
versions in response to the Special Master's requests.
	12 "These factors include: (1) the need for public access to the documents at issue; (2) the
extent to which the public had access to the documents prior to the sealing order; (3) the fact that
a party has objected to disclosure and the identity of that party; (4) the strength of the property
and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and
(6) the purposes for which the documents were introduced." Johnson, 951 F.2d at 1277 n.14.
11
<< COB0000012 >>
not involved in this litigation, is minimal at best. Second, the public has never had access to the
documents at issue. Third, based on the MMS documents requested by the Special Master and
his experts, it is expected that similar materials will contain similar sensitive information that
would be harmful if made public. Fourth, defendants' interest in the data it seeks to protect is
significant, as described above. Fifth, the Special Master has already found that release of
similar MMS materials could put at risk the information technology systems at issue. Sixth, the
materials are being provided for the purpose of demonstrating and/or identifying the level of
security maintained for defendants' information technology systems. Allowing this information
to become public in such a way as to make those systems less secure would be contrary to the
purpose for which the information is being sought and offered.
Ill.	The Proposed Protective Order
	In addition to arguing that defendants are not entitled to any protective order at all,
plaintiffs argue that the proposed protective order would improperly "shift the burden of
persuasion" to the plaintiffs, Plaintiffs' Opposition and Request for Sanctions, at 6, and that
specific provisions of the proposed order are unfair)3 Id. at 4-6. The Special Master should
reject these arguments for two reasons. First, the proposed protective order does not shift the
burden of persuasion. To the contrary, the burden of persuasion remains with the defendants at
	13 If the Special Master concludes that defendants have demonstrated good cause for the
entry of a protective order, but not for the precise terms in the proposed protective order, the
Special Master can recommend entry of a different order. See. e.g., Hamilton, 204 F.R.D. at
425-25.	Defendants have previously informed plaintiffs of their willingness to negotiate the
terms of a mutually acceptable protective order, in consultation with the Special Master, and
continue to be willing to discuss such an order.
12
<< COB0000013 >>
all times. In re Alexander Grant & Co. Litigation, 820 F.2d 352, 356 (11th Cir. 1987) ("Under
the provisions of umbrella orders, the burden of proofjustifying the need for the protective order
remains on the movant; only the burden of raising the issue of confidentiality with respect to
individual documents shifis to the other party."). Under the proposed protective order, plaintiffs
would bear only the minimal burden of stating an objection to a designation made by defendants,
upon which defendants would be required to identify with specificity the materials for which they
seek protection and the reasons for seeking such protection. If plaintiffs' objections cannot be
resolved informally, plaintiffs would again bear only the minimal b~urden of raising the issue
before the Special Master. Defendants would bear the burden of demonstrating that the materials
at issue merit protection.
	Second, plaintiffs' argument that they will be prohibited from using such documents for
various litigation purposes is meritless. The proposed protective order would make the materials
at issue available to plaintiffs for general use in this litigation. If materials covered by the
protective order should not he so covered, the protective order provides a simple procedure
involving only minimal burden to the plaintiffs to challenge the designation. If only certain
portions of such materials would create a security risk if made public, the parties, in conjunction
with the Special Master, could agree to redact those portions, as has occurred with some of the
MMS documents in the recent contempt trial. However, it is entirely appropriate to bar plaintiffs
from distributing unredacted materials more broadly than is necessary for the purposes of the
litigation where doing so would make the data in defendants' information technology systems
more vulnerable to attack.
13
<< COB0000014 >>
IV.	Plaintiffs' Reciuest for Sanctions
	Plaintiffs' request for sanctions is groundless. They base their request for sanctions on a
Report and Recommendation of the Special Master that found umbrella protective orders to be
disfavored, but not unavailable if based on good cause, and that rejected most, but not all, of
defendants' request for a protective order for reasons that arc entirely inapposite to the instant
request. In arguing that it is the law of this case that defendants are not entitled to the type of
protective order they are seeking, plaintiffs completely ignore the fact that the Special Master
entered a similar protective order less than a month before defendants' motion was filed. That,
by itself, demonstrates that defendants' motion is not frivolous. Moreover, for the reasons stated
above, defendants have shown good cause for the entry of a protective order, either in the form
proposed or in an alternative form. Because Plaintiffs' request is meritless, it should be rejected
summarily.
14
<< COB0000015 >>
CONCLUSION
	For the reasons stated above, defendants respectfully request that the Special Master find
that they are entitled to a protective order and that plaintiffs' request for sanctions should be
denied.
Dated: March 19, 2002	Respectfully submitted,
ROBERT D. MeCALLUM, JR.
	Assistant Attorney General
	STUART E. SCIIWFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOHN
Director
-~
SA RAP. POONER
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Attorney
	MATTHEW J. FADER
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
15
<< COB0000016 >>
CERTIFICATE OF SERVICE
	I declare under penalty of perjury that, on March 20, 2002 I served the foregoing
Reply in Support of Motion For a Protective Order And Opposition to Plaint ifs 'Request For
Sanctions Under Rule 37, by facsimile in accordance with their written request of October 31, 2001,
upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
202-822-0068	Washington, D.C. 20004
	202-318-2372
And by U.S. Mail upon:
Elliott Levitas, Esq.
II 00 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
by Facsimile and U.S. Mail upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
Courtesy Copy By Hand upon:
Joseph S. Kieffer, Ill
Court Monitor
420 - 7th Street, N.W.
Apartment 705
Washington, D.C. 20004
Kevin P. Kingston