<< COB0000001 >>
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELOULSE PEPION COBELL, et al.,	)
)
	Plaintiffs,	)	Civil Action No. 96-C V-I 285 (RCL)
)
	v.	)
)
GALE A. NORTON, et al.,	)
)
	Defendants.	)
GOVERNMENT'S OPPOSITION TO PLAINTIFFS'
MARCH 20, 2002 MOTION FOR ORDERS TO SHOW CAUSE
WHY INTERIOR DEFENDANTS AND THEIR EMPLOYEES
AND COUNSEL SHOULD NOT BE HELD IN CONTEMPT
	This brief is submitted on behalf of defendants Gale Norton and Neal McCaleb and the
seven non-party respondents named in plaintiffs' motion in their official capacities.' The present
contempt motion asks the Court to hold nine current or former Department of the Interior
("Interior") and Department of Justice ("DOJ") officials and employees in contempt of court,
requests monetary sanctions and, for the individual respondents, even suggests incarceration for
failure by the Interior Office of Solicitor to preserve all backup e-mail tapes. See Plaintiffs'
Motion for Order to Show Cause Why Interior Defendants and Their Counsel Should Not Be
Held in Contempt for Destroying E-Mail ("Plaintiffs' Motion"), at 9, 12, 21. In addition to the
show cause order, plaintiffs ask the Court to impose an adverse inference that would result in
conclusive evidentiary presumptions against the defendants on any topic that might have been the
	'The individual respondents are separately represented in their personal capacity.
<< COB0000002 >>
subject of e-mail communication-2 The government acknowledges — as it did some three years
ago before the Special Master and in open Court — that some e-mail backup tapes were
over-written. However, Plaintiffs' Motion does not establish an adequate basis for the extreme
measures they propose.
	Plaintiffs submitted with their motion a 104-paragraph "Factual Appendix "and 81
exhibits. Certain significant assertions in the "Factual Appendix" are not supported by plaintiffs'
exhibits, which themselves are too often misleading snippets of larger- documents2 Viewed as a
whole, Plaintiffs' Motion falls short of setting forth aprimafacie case showing, by clear and
convincing evidence, that the government or any of the individual respondents have violated a
definite and specific court order so as to justify holding the government or the individuals in
contempt. Further, civil contempt is not appropriate because neither the government nor the
individual respondents can restore the overwritten backup data, and civil money damages and
criminal penalties are barred by sovereign immunity.
	The facts as stated by the plaintiffs, as described by the Special Master in his July 27,
2001 Opinion, and a~ established by the record preclude a finding of contempt. There is no
evidence that the recycling of the backup e-mail tapes was anything more than a mistake. or that
	2Plaintiffs' Motion is not directed at defendant Department of the Treasury ("Treasury") or
at any Treasury official or employee. Accordingly, there is no basis for the Court to consider any
sanctions as to Treasury.
	30n March 26, 2002, the government filed a motion to enlarge the time to respond to
Plaintiffs' Motion from April 3, 2002 to May 3, 2002, and also filed a motion for expedited
review of the motion to enlarge. The Court has not yet acted on those motions, and accordingly,
the government has had insufficient time to conduct a thorough review of all the facts and
circumstances raised in the Plaintiffs' Motion or to adduce rebuttal evidence. This opposition
therefore addresses only the sufficiency of the allegations and the supporting materials contained
within Plaintiffs' Motion and does not constitute acceptance by the government of plaintiffs'
factual or legal assertions.
-2-
<< COB0000003 >>
any of the named respondents meant to destroy "evidence." Interior had in place a paper
recordkeeping system for retaining e-mail communications during all periods in which the
recycling occurred. Accordingly, plaintiffs have not established a basis for any of the relief they
seek, nor have they shown any actual prejudice to their case as a result of any overwriting.
The Special Master's July 27, 2001 Opinion
	Plaintiffs' Motion is premised upon the Special Master's Opinion of July 27, 2001 ("the
July 27, 2001 Opinion") (appended as Government Exhibit I), which the Court affirmed on
March 29, 2O02.~ In the July 27, 2001 Opinion, the Special Master declined to impose a
protective order concerning Interior's duty to produce records derived from e-mail backup tapes
in response to plaintiffs' Third Formal Request for the Production of Documents ("Third
Document Request"). The Third Document Request included a request to produce "'all
documents prepared or signed by past or present attorneys in the Solicitor's Office and relating to
the administration of the [Individual Indian Money] Trust which express legal advice,
conclusions, opinions, assessments, instructions or directions."' July 27, 2001 Opinion at 2, 3.
The Third Document Request defined "documents" as including e-mails. In the course of motion
practice over the Third Document Request, defendants contended that it was not necessary to
produce both paper printouts and taped backup copies of e-mails responsive to the Third
Document Request, arguing that the same information is depicted in the two media and that
requiring defendants to review the increasing masses of backup tapes to find responsive copies
	4Although plaintiffs assert that their motion covers conduct subsequent to that addressed
by the Special Master in the July 27, 2001 Opinion, plaintiffs' discussion of the "material facts..
[that] conclusively support this show cause motion and the remedies requested by plaintiffs"
includes events only up to December 5, 2000. Plaintiffs' Motion at 5-9. All of those "material
facts" were before the Special Master when he rendered the July 27, 2001 Opinion.
-3-
<< COB0000004 >>
was unduly burdensome and expensive. See July 27, 2001 Opinion at 3, 9. The Special Master
found that sofiware systems at the Solicitor's Office's headquarters office and 18 regional and
field offices are backed up on a daily and weekly basis on tape media used to recovcr lost data in
the event of a system crash. Id. at 4. Normally, the daily and weekly backup tapes generated by
those offices are kept for two and four weeks respectively, before they are recycled by
overwriting. Id.
	To ascertain whether information on the hard copy on an e-mail is materially identical to
that contained on the backup tape copy of the e-mail, the Special Master on November 20, 2000
directed Interior to produce examples of backup tapes from each Solicitor's office. Of these, four
tapes from two offices were then analyzed by a contractor specializing in the restoration and
recovery of electronic data. July 27, 2001 Opinion at 10, 11; see also Plaintiffs' Exhibit 63. The
contractor identified six categories of information that 'will be present on the electronic version
of the mail files that can differ from the paper copies": the bce field, deleted mail messages, the
modification date, conversation topic information, internet or gateway information, and
attachments. Id. at 11.
	The Special Master denied defendants' motion for a protective order and recommended
sanctions, finding that the motion was not substantially justifiedi The Special Master also
detennined that ". . . the Office of the Solicitor engaged in a pattern of overwriting (and thus
destroying the data embedded in) e-mail backup tapes generated at: (1) the main headquarters in
	~ Plaintiffs' suggestion (Plaintiffs' Motion at 1) that the Special Master recommended
sanctions for "spoliation" is incorrect. Plaintiffs in fact did not seek such sanctions, nor did the
Special Master make any recommendation regarding such sanctions. Plaintiffs do not explain
why they have waited for eight months to file this motion seeking additional relief on the same
matters addressed by the Special Master in the July 27, 2001 Opinion.
-4-
<< COB0000005 >>
Washington, D.C. as well as in its 18 field and regional offices between June 1998 and
November 1998; (2) 17 field and regional offices between November 1998 and May 1999; and
(3) 11 field and regional offices between May 1999 and November 20, 2000." Id. at 17. The
Special Master also noted three other instances afler May 1999 in which backup data from a
particular office had been overwritten or lost for periods up to seven months and a fourth
instance in which 12 tapes from a particular office had been lost in the mail. Id.
	There are certain discrepancies in the Special Master's statement of the periods and
locations in which the overwriting of some e-mail backup tapes occurred.6 It is important that
the Court have a clear record for purposes of putting the overwriting into the context of the
various orders on which the plaintiffs rely. However, these discrepancies do not alter the proper
disposition of the motion. Further, for each of the time periods and locations identified by the
Special Master's opinion as lacking e-mail backup data, it may be that some e-mail backup data
does in fact still exist and ~vas not overwritten. See Plaintiffs Exhibit 55.
ARGUMENT
I.	Civil Contempt is Not Warranted
A.	Legal Standards
	Standards for civil contempt have been set forth in the initial contempt hearing in this
case, Cobell v. Babbitt, 37 F. Supp. 2d 6 (D.D.C. 1999) ("Cobell 1"), and other cases in this
6 Special Master's identification of the first period of overwriting (June to November
1998) conflicts with an earlier finding in the opinion that the Solicitor's Office had begun saving
backup e-mail tapes between February and November 1998 as a result of the Independent
Counsel investigation. Id. at 4, citing Nov. 20, 1998 Declaration of Glenn Schumaker, ¶ 4.
During the second time period set forth in the Special Master's opinion (November 1998 to May
1999), the Solicitor's headquarters office had resumed the previous practice of recycling backup
e-mail tapes. May 20, 1999 Declaration of Glenn Schumaker, ¶ 4 (included in Government
Exhibit 2).
-5-
<< COB0000006 >>
circuit. The court's power to find a party in civil contempt for violation of discovery orders may
be based either on Federal Rule of Civil Procedure 37(b)(2) or the court's inherent power to
protect its integrity and prevent abuses of the judicial process. CobellI, 37 F. Supp. 2d at 9.
However, remedies drawn upon under the court's inherent power should be exercised only when
the rules do not provide the court with sufficient authority to protect its integrity and prevent
abuse of the judicial process; therefore, when a discovery order has been violated, the court
should turn to its inherent powers only as a secondary measurc. Id. at 11.
	A party seeking a finding of contempt must initially show, by clear and convincing
evidence, that (1) a court order was in effect, (2) the order required certain conduct by the
respondents, and (3) the respondents failed to comply with the court's order. SEC v. Bi/zerian,
112 F. Supp. 2d 12, 16 (D.D.C. 2000); Petties v. District of Columbia, 897 F. Supp. 626, 629
(D.D.C. 1995). Once the movant has made aprimafacie showing that the respondent did not
comply with the court's orders, the burden shills to respondent to produce evidence justi1~ing the
noncompliance. Bilzerian, 112 F. Supp. 2d at 16.
	As this Court has noted, "the 'extraordinary nature' of the remedy of civil contempt leads
courts to 'impose it with caution."' SEC v. L~fe Partners. Inc., 912 F. Supp. 4, 11 (D.D.C. 1996),
quoting Joshi v. Professional Health Services, Inc., 817 F.2d 877, 879 n.2 (D.C. Cir. 1987).
Further, in light of the severity of the contempt sanction, it should not be resorted to "if there are
any grounds for doubt as to the wrongfulness of the defendants' conduct." Life Partners, 912 F.
Supp. at 11, citing MAC Corp. v. Williams Patent Crusher & Pulverizer Co., 767 F.2d 882, 885
(Fed. Cir. 1985).
	A civil contempt action is "a remedial sanction used to obtain compliance with a court
order or to compensate for damages sustained as a result of noncompliance." Food Lion, Inc. v.
-6-
<< COB0000007 >>
United Food & Commercial Workers int'l Union, 103 F.3d 1007, 1016 (D.C. Cir. 1997), quoting
National Labor Relations Board v. Blevins Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981).
The goal of a civil contempt order is not to punish, but to exert only so much of the court's
authority as is required to assure compliance. Petties, 897 F. Supp. at 629. Finally, a party found
to be in contempt should be given an opportunity to purge itself of the contempt prior to the
imposition of any penalties. Bilzerian, 112 F. Supp. 2d at 16. This requirement stems from the
remedial nature of civil contempt. See Food Lion, 103 F.3d at 1016 (a civil contempt action is a
remedial sanction used to obtain compliance with a court order or to compensate for damage
sustained as a result of noncompliance"), quoting Blevins Popcorn, 659 F.2d at 1184. Thus, a
contempt order should be imposed, if at all, only at the conclusion of a three-stage proceeding
involving:
(I)	issuance of an order; (2) following disobedience of that order,
issuance of a conditional order finding the recalcitrant party in
contempt and threatening to impose a specified penalty unless the
recalcitrant party purges itself of contempt by complying with
prescribed purgation conditions; and (3) exaction of the threatened
penalty if the purgation conditions are not fulfilled.
Blevins Popcorn, 659 F.2d at 1184, citing Oil, Chemical & Atomic Workers mt '1 Union v. NLRB,
547 F.2d 575, 581 (D.C. Cir. 1977); Bilzerian, 112 F.Supp.2d at 16.
B.	Plaintiffs Have Not Made a Prima Facie Showing that the Respondents Did
Not Comply with Court Orders.
	As discussed above, plaintiffs must make a threshold showing, by clear and convincing
evidence, that a "definite and specific" court order was in effect, that the order required certain
conduct by the respondents, and that thc respondents failed to comply with the court's order. See
L~fe Partners, Inc., 912 F. Supp.at 11. Plaintiffs hardly attempt to address these threshold
-7-
<< COB0000008 >>
requirements. The motion fails to identify specific acts or omissions by specific respondents that
violated specific requirements of specific orders. Instead, Plaintiffs present in the motion,
without explanation, a list of non-party respondents against whom they seek a contempt order,
and set forth in the Factual Appendix numerous allegations, many of which have nothing to do
with the non-party respondents, but never attempt to explain what conduct of the non-party
respondents violates any specific court order.
	An individual accused of actions that might constitute contempt has a due process right to
know precisely the nature of the charges against him or her. See, e.g., Brotherhood of
Locomotive Firemen and Enginemen v. Bangor & AroostookR. Go., 380 F.2d 570, 581 (D.C.
Cir. 1967) ("Like any civil litigant, a civil contemnor is... clearly entitled to those due process
rights, applicable to every judicial proceeding, of proper notice and an impartial hearing with an
opportunity to present a defense."). At a minimum, this due process must include a specific
articulation of the order the person is alleged to have violated and the proof that he or she has
violated it. Wyatt By and Through Rawlins v. Rogers, 92 F.3 d 1074, 1078 n. 8 (11 ~h Cir. 1996)
("Precedent dictates that a plaintiff seeking to obtain the defendant's compliance with the
provisions of an injunctive order move the court to issue an order requiring the defendant to
show cause.. . . In his motion, the plaintiff cites the provision(s) of the injunction he wishes to
be enforced, alleges that the defendant has not complied with such provision(s) and asks the
court,... to order the defendant to show cause."). Thus, in order to initiate a contempt
proceeding, the movant must set forth specific and detailed factual allegations that would
constitute contempt of a court order if proven. See, e.g.. id. (court should examine moving
party's allegations to determine whether a case is sufficiently made out for an order to show
cause).
-8-
<< COB0000009 >>
	The government acknowledged on May 20, 1999 — nearly three years ago — that the
recycling of Solicitor's Office e-mail backup tapes had mistakenly resumed as of November 23,
1998. Specifically, the government told the Special Master:
We acknowledge that it was a mistake not to have either provided
explicit instructions to MIS to continue the practice of preserving
all newly created backup tapes after the release of the Office of the
Independent Counsel, or to have petitioned the Court to allow
Interior to resume normal overwriting practices.
Motion for Establishment of Time Frame for Production of Certain Electronic Records and
Notice to the Court Regarding Retention of Such Records, filed May 20, 1999, at 5 (Govenunent
Exhibit 2) (relevant portion also included in Plaintiffs' Exhibit 39).
	The government stands by its acknowledgment that newly-created backup tapes of
Solicitor's Office c-mails should have been retained. However, the government's failure to do so
did not violate any specific directive of the Court. The matter raised in the government's motion
for protective order regarding the Third Document Request was limited to the question of
whether defendants were required to search the stock of backup tapes that had been retained
(rather than recycled as normal) in connection with the Independent Counsel investigation.
Defendants' Consolidated Reply in Support of Defendants' Motion for Enlargement of Time, and
Memorandum in Support of Defendants' Motion for Protective Order Regarding Third Formal
Requests for Production, filed July 22, 1998, at 7, and July 22. 1998 Declaration of Edith
Blackwell, ¶¶ 5-7 (included in Government Exhibit 3); see also Defendants' Reply to Plaintiffs'
Response to Defendants' Motion for Protective Order Regarding Third Formal Requests for
Production, filed Aug. 11, 1998, at 5-7 (Government Exhibit 4). The Court's November 9, 1998
Order denying the government's motion for a protective order was silent on the question whether,
-9-
<< COB0000010 >>
on a going-forward basis, the Solicitor's Office had to continue to accumulate newly created
backup tapes and search through those for responsive e-mails.
	On Febmary 12, 1999, the government noted in a pleading that newly created tapes were
being retained. United States' Consolidated Response in Opposition to Plaintiffs' Motion to
Compel Production of Documents Responsive to Plaintiffs' Second, Third, Fourth, and Fifth
Formal Requests for Production of Documents, filed Feb. 12, 1999, at I n.2 (Government Exhibit
5).	This statement was, of course, in error. However, plaintiffs have offered no evidence that the
attorneys who filed the February 12, 1999 opposition actually knew that backup tape recycling
had resumed until a May 12, 1999 meeting with agency personnel to discuss the Special Master's
May 11, 1999 ruling. See Government Exhibit 2 and declarations included therein.
	As plaintiffs concede (Plaintiffs' Motion at 13), the overwriting of the backup e-mail
tapes can be the basis for civil contempt only if the failure to maintain the backup tapes violated
a clear and unambiguous court order. Plaintiffs identify six orders (listed chronologically) that
they contend the government and the individual respondents have violated: (1) the Court's
November 9, 1998 Order; (2) the Special Master's May 11, 1999 Order denying defendants'
motion for reconsideration; (3) the Court's August 12, 1999 Order Regarding Interior Department
IIM Records Retention; (4) the Court's December 21, 1999 Trial Opinion and Order; (5) the
October 27, 2000 oral order of the Special Master regarding e-mail backup tapes; and (6) the
Special Master's November 20, 2000 letter Order directing defendants to retain e-mail backup
tapes at all Solicitor's Offices. See Plaintiffs' Motion at 12.
	Two of these orders do not appear to cover Solicitor's Office e-mail records in any form.
The provision of this Court's December 21, 1999 Trial Opinion and Order that plaintiffs assert is
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<< COB0000011 >>
applicable (Plaintiffs' Motion at 15)~ is in fact a provision of the Declaratory Judgment, Cobeti v.
Babbitt, 91 F. Supp. 2d 1, 58 (D.D.C. 1999), and, as such, cannot be the basis of a contempt
order on a discovery matter. Armstrong v. Executive Office of the President, I Fid 1274, 1289
(D.C. Cir. 1993) (holding that noncompliance with a declaratory judgment is not contempt and
vacating a contempt order based in part of failure to comply with the declaratory judgment).
	The August 12, 1999 Order Regarding Interior Department hiM Records Retention
required that the Interior Department distribute appended memoranda "regarding retention of all
documents and data relating to Individual Money Trust funds and Individual Indian trust assets as
identified in Attachment A to the second memorandum ("LIM Records")... ." Documents and
data maintained by the Solicitor's Office are not listed among the categories identified in
Attachment A to the second memorandum, and therefore the overwriting of the backup e-mail
tapes did not violate this order either.
	The four other orders concern the Third Production Request, which sought documents
from the Solicitor's Office. Neither the Court's November 9,1998 Order nor the transcript of the
November 6, 1998 hearing before the Court "definite[ly] and specific[ally]" required the
government to retain newly created tapes. See Life Partners, 912 F. Supp. at 11. The Special
Master's oral order of October 27, 2000 required retention of backup e-mail tapes for the
Solicitor's offices that generated responsive e-inails. The Special Master's letter order of
November 20, 2000 expressly required retention of e-mail backup tapes for all Solicitor's offices,
regardless of whether they performed JIM work or not. Thus, plaintiffs have not shown that the
	~ "Further, the systemic destruction of e-mail is in clear violation of the December 21,
1999 Order in which the Court ordered "defendants to retrieve and retain all information
concerning the [IM trust that is necessary to render an accurate accounting of all money in the
JIM trust held in trust for the benefit of plaintiffs." Plaintiffs' Motion at 15.
—11—
<< COB0000012 >>
government has not substantially complied with these orders, which after all could only be
obeyed after they were issued.
	The government acknowledges that the May 11, 1999 Order required defendants to
produce copies of c-mails on backup tapes that are responsive to the Third Production Request.
However, the Special Master's order did not address whether offices that performed no JIM work
needed to retain their backup e-mail tapes, too, as well as continuing to print out hard copies of
their e-mails consistent with Interior's recordkeeping system. In any case, plaintiffs' loose
charges that defendants have destroyed "documents" and "e-mails" are unsubstantiated and are
not supported by the July 27, 2001 Opinion. The Special Master found only that e-mail backup
tapes had been erased, not that e-mails generally had not been printed out. Accordingly, the loss
is limited to backup copies of printed e-mails that are potentially responsive to the Third
Production Request.
C.	Even If Plaintiffs Could Show a Violation of a "Definite and Specific'1
Order, Imposing Coercive Civil Contempt Sanctions for Failure to
Retain E-Mail Backup Tapes Would Be Inappropriate Because None
of the Respondents Could Comply with Such an Order.
	Civil contempt sanctions are used either to obtain compliance with a court order or to
compensate for damages sustained as a result of noncompliance. Food Lion, Inc. 103 F.3d 1016.
Coercive contempt sanctions are intended to force the offending party to comply with the court's
order. Coleman v. Espy, 986 F.2d 1184, 1190 (8th Cir.), cert. denied sub nom. Dye v. Espy, 510
U.s. 913 (1993). Compensatory contempt sanctions compensate the plaintiff for damages that
the offending party has caused by its contempt. Id. Plaintiffs seek both coercive and
compensatory sanctions against the government and the individual respondents. Plaintiffs'
Motion at 21. Neither form of sanctions is appropriate against any of the respondents here.
- 12 -
<< COB0000013 >>
	Plainly, coercive sanctions could not force the government or any of the individual
respondents to produce e-mail backup data that was overwritten more than three years ago.
Accordingly, the remedial purpose of a contempt order cannot be served where, as here, the
allegedly violative act cannot be corrected. See In re Sealed Case, 250 F.3d 764, 770 (D.C. Cir.
2001) ("Because the Government could not undo the July 18 disclosure [of grand jury material],
holding the Government in civil contempt would serve no useful purpose..
	Moreover, the non-party individual respondents either no longer work for the government
(respondents Schiffer, Simon, Cohen and Perlmutter) or have been recused from working on the
case since last year (respondents Brooks, Findlay and Blackwell). Accordingly, these individuals
no longer have any ability to implement any corrective action in regard to this matter.
	Further, Secretary Norton, although named only in her official capacity, cannot properly
be held in contempt for matters that occurred months and even years before she even assumed
office, and which she therefore never had an opportunity to prevent or cure. See Defendant's
Proposed Conclusions of Law Following Contempt Trial, filed Feb. 28, 2002, at ¶¶ 57-67
(Government Exhibit 6). Likewise, Administrator MeCaleb should not be held in contempt both
because the alleged violations predated his tenure and because he has no authority over the
Solicitor's Office in any event.
B.	Sovereign Immunity Precludes the Imposition of Criminal Penalties or
Compensatory Sanctions for Civil Contempt Against the Government or the
Individual Respondents in Their Official Capacity.
	Plaintiffs suggest both criminal and civil penalties against the government and the
individual respondents. See Plaintiffs' Motion at 9, 12, 21. Because of sovereign immunity,
- 13 -
<< COB0000014 >>
these forms of sanctions are not available against the government or against the individual
respondents in their official capacity.8
	The doctrine of sovereign immunity bars the imposition of fines, penalties or monetary
damages against the government, except to the extent that the United States has explicitly
consented to such sanctions. "The doctrine of sovereign immunity stands as an obstacle to
virtually all direct assaults against the public fise, save only those incursions from time to time
authorized by Congress." United States v. Horn, 29 F.3d 754, 761 (1st Cir. 1994). A waiver of
sovereign immunity must be definitively and unequivocally expressed and must appear in the
text of the statute itself. Id., at 762, citing United States v. Mitchell, 445 U.S. 535, 538 (1980),
and United States v. Nordic Village, hic., 503 U.S. 30 (1992).
	The United States has not waived sovereign immunity from citation for criminal
contempt, nor for court-imposed fines for criminal contempt. Coleman i'. Espy, 986 F.2d 1184,
1191(8th Cir.), cert. denied sub nom. Dye v. Espy, 510 U.S. 913 (1993); United States v. Horn,
29 F.3d at 763; see also In re Sealed Case, 192 F.3d 995, 999-1000 (D.C. Cir. 1999) ("...it is far
from clear that Congress has waived federal sovereign immunity in the context of criminal
contempt... We know of no statutory provision expressly waiving federal sovereign inununity
from criminal contempt proceedings.").9 Similarly, the court in In re Newlin, 29 B.R. 781, 785
	8"As long as the government entity receives notice and an opportunity to respond, a suit
against a government employee in his official capacity is to be treated as a suit against the entity."
Coleman, 986 F.2d at 1189, citing Kentucky v. Graham, 473 U.S. 159 (1985). See also,
Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002), and cases cited therein.
	9The issue has not been decided by the Court of Appeals in this Circuit. The District
Court in United States v. Waksberg, 881 F.Supp. 36, 41 (D.D.C. 1995), vacated and remanded,
112 F.3d 1225 (D.C. Cir. 1997), held that sovereign immunity barred recovery of damages as
compensation for the government's violation of an injunctive order. The Court of Appeals
(continued...)
- 14 -
<< COB0000015 >>
(E.D. Pa. 1983), held that a criminal contempt citation by a bankruptcy court against a federal
agency violated sovereign immunity because the government had not expressly waived its
immunity from citation for criminal contempt.
	Plaintiffs' claims for compensatory damages are undefined. Their motion identifies no
out-of-pocket expenses that they claim to have suffered except, presumably, their attorneys' fees
and costs in filing the motion. To the extent that plaintiffs are seeking money damages other
than attorneys' fees and costs, their claims are barred because the United States has not waived
its immunity to the imposition of compensatory monetary damages based on contempt. Coleman
v. Espy, 986 F.2d at 1191; United States v. Horn, 29 F.3d at 763; McBride v. Coleman, 955 F.2d
571, 577-78 (8th Cir.), cert. denied sub nom. McBride v. Madigan, 506 U.S. 819 (1992); Barry v.
Bowen, 884 F.2d 442, 444 (9th Cir. 1989).
	The determinations in this case that sovereign immunity does not bar either plaintiffs'
claim for prospective action or their claim for retrospective relief in the form of an accounting'0
have no bearing on the separate issue of whether the government has waived sovereign immunity
for money damages for civil contempt arising from violations of discovery obligations. A waiver
of sovereign immunity as to one available remedy does not, by implication, waive sovereign
immunity as to other remedies. See Brown v. Secretary of the Army, 918 F. 2d 214 (D.C. Cir.
	'(...continued)
vacated and remanded with directions to withhold a ruling on the sovereign immunity issue
pending a determination on whether Waksberg had incurred damages. 112 F.3d at 1228.
	'0See Cobell v. Babbitt, 30 F. Supp. 2d. 24, 3 1-33, 38-42 (D.D.C. 1998) (denying
defendants' motion for judgment on the pleadings); Cobell v. Babbitt, 52 F. Supp. 2d 11, 21
(D.D.C. 1999) (denying defendants' motion for summary judgment); see also C~obell v.Norton,
240 F.3d 1081, 1094-95 (D.C. Cir. 2001) (agreeing that plaintiffs' action was not barred by
sovereign immunity).
- 15 -
<< COB0000016 >>
1990) (waiver of sovereign immunity as to back pay awards for discriminatory denial of
promotion did not waive sovereign immunity for prejudgment interest on such back pay awards),
cert. denied, 502 U.S. 810 (1991). Moreover, the holdings that sovereign immunity did not bar
plaintiffs' claims were based explicitly on the finding that plaintiffs were not seeking money
damages. See Cobell, 52 F. Supp. at 21 ("defendants' sovereign immunity in the context of this
case is simply not an issue as long as plaintiffs do not seek money damages.").
	Although this Court did not expressly address the issue of sovereign immunity in its
ruling in Cobell I, its Order did not impose monetary penalties against the government officials
whom the Court had cited for civil contempt. Under the la~v of sovereign immunity, plaintiffs
likewise cannot obtain monetary penalties through the present motion against the government or
any of the individual respondents in their official capacity.
E.	Plaintiffs Have Not Demonstrated "Willfulness", "Deceit" or "Cover Up" by
the Government or the Individual Respondents in Connection with the
Backup E-mail Tapes.
	To the extent that plaintiffs are suggesting that there has been some fraud upon the Court,
they have not demonstrated any intentional misrepresentations by the government or by any
individual respondent. Government Exhibit 6, at ¶¶ 17-24. While the government has
acknowledged that it was a mistake not to retain newly created backup tapes for Solicitor's
offices engaged in UM work between November 23, 1998 and May 12, 1999, the plaintiffs have
offered no evidence that this recycling was the product of bad faith. More specifically, plaintiffs
have not shown that any of the individual respondents intentionally withheld information or
intentionally misinformed the Special Master or the Court about thc c-mail backup tape retention
issues. The Special Master found that the defendants' August 2, 2000 motion was repetitive and
therefore warranted sanctions, and the defendants chose not to contest that finding. The Special
-16-
<< COB0000017 >>
Master did not find "willfulness" or deceit, as plaintiffs suggest. Moreover, plaintiffs have not
even attempted to establish their accusations of "rampant, pervasive, long-standing and total
destruction of defendants' and their counsel's e-mail over a period of five and one half years."
See Plaintiffs' Motion at 20. The Special Master's opinion pertains solely to the backup e-mail
tapes and says nothing about the adequacy of the defendants' paper e-mail production.
	In this context, it is significant that one of defendants' main arguments against searching
and producing from e-mail backup tapes was Interior's paper recordkeeping system for e-mail,
which required employees to print out hard copies of e-mail records. Def. Department of the
Interior's Motion for Protective Order Clarifying Duty to Produce E-Mail Records, filed August.
2, 2000, at 6-12 and exhibits referenced therein. Defendants observed that Interior's e-mail
recordkeeping system comported with the regulations established by the National Archives and
Records Administration ("NARA") pursuant to its authority under the Federal Records Act, 44
U.S.C. §§ 3 101-24 to set standards for records preservation and disposal for all agencies. Id. at
9-11.	Defendants also notcd that NARA's regulations "specifically direct that 'backup tapes
should not be used for recordkeeping purposes' because they do not have storage and retrieval
capabilities." Id. at 10, citing 36 C.F.R. § 1234.24(c). The regulations also authorize deletion of
the on-screen version of an e-mail record once the e-mail has been printed out, if the agency is
employing a paper recordkeeping system. 36 C.F.R. §§ 1234.24(d), 1234.32(d)(l).
	NARA's regulations concerning the proper manner for maintaining e-mail records were
directly addressed — and upheld — by the Court of Appeals in Public Citizen v. Carlin, 184
F.3d 900, 337 U.S. App. 320 (D.C. Cir. 1999), cert. denied, 529 U.S. 1003 (2000). As the Court
of Appeals concluded in Carlin:
-17-
<< COB0000018 >>
All agencies by now, we presume, use personal computers to
generate electronic mail and word processing documents, but not
all have taken the next step of establishing electronic
recordkeeping systems in which to preserve those records. It may
well be time for them to do so, but that is a question for Congress
or the Executive, not the Judiciary, to decide.
In sum, we do not think the Archivist must, under the RDA
[Records Disposal Act], require agencies to establish electronic
recordkeeping systems.
Id., 184 F.3d at 910, 337 U.S. App. at 330. The Special Master ultimately concluded in his July
27, 2001 opinion that Public Citizen v. Carlin was inapplicable to the e-mail backup tapes at
issue in Plaintiffs' Motion. July 27, 2001 Opinion at 11. For purposes of this opposition, the
government does not take issue with that holding, although it does respectfully note that the issue
has been preserved for appeal. Notwithstanding the Special Master's treatment of Public Citizen
v. Carlin, there can be no question that that ruling confirmed the reasonableness of respondents'
reliance upon Interior's paper recordkeeping system as the single source for producing responsive
c-mails to the plaintiffs until the Special Master, in May 1999, required the Solicitor's Office to
produce from backup tapes as well. Plaintiffs do not explain how government employees
following a duly promulgated recordkeeping regulation, in the absence of any court requirement
to the contrary, can be cited for contempt.
	Plaintiffs' Motion asserts a "cover-up" by "defendants and their counsel" because the
recycling of e-mail backup tapes was not disclosed to the Court or Special Master at various
hearings and in various pleadings filed between November 23, 1998 and May 13, 1999. See
Plaintiffs' Motion at 6-7. The government acknowledges that backup tape recycling resumed on
November 23, 1998 following the issuance of a November 13, 1998 memorandum by then-
- 18 -
<< COB0000019 >>
Deputy Solicitor Edward Cohen. See Plaintiffs' Exhibit 20.11 But the Plaintiffs' Motion cites no
evidence that any of the respondents who appeared before the Court or the Special Master or who
filed a declaration in this matter between November 20, 1998 and May 13, 1999 actually knew
about the Cohen memorandum or that e-mail backup tape recycling had in fact resumed.'2 On
February 12, 1999, the government did erroneously state, in a pleading signed by respondent
Phillip Brooks, that the goverrunent was continuing to retain newly-created backup tapes. As
explained above, however, plaintiffs have offered no evidence that Mr. Brooks' knew about the
recycling before May 12, 1999. Instead, the record shows that when Mr. Brooks learned about
the recycling, he promptly disclosed and corrected the erroneous statement before both the
Special Master and the Court. See Government Exhibit 2. These circumstances plainly do not
justify the imposition of any sanctions, much less establish a "cover-up."
	Likewise, the motion presents no basis for concluding that any of the respondents
"concealed" from the Special Master or the Court that until May 1999, e-mail backup tapes in the
Solicitor's regional and field offices were continuing to be recycled and thus overwritten in
accordance with the offices' usual practices. The July 22, 1998 declaration of Edith Blackwell,
	"Plaintiffs miseharacterize the November 13, 1998 Cohen memorandum as an instruction
to "destroy e-mail." Plaintiffs' Motion at 6. The memorandum, in fact, pertains only to e-mail
backup tapes. Plaintiffs' Exhibit 20. Plaintiffs' own Factual Appendix contradicts their attack on
Mr. Cohen and correctly quotes a November 10, 1998 memorandum by Mr. Cohen directing
collection of all Solicitor's Office e-mails, among other documents. Factual Appendix ¶ 27.
	'2Plaintiffs' Motion claims that defendants' April 12, 1999 pleading falsely informed the
Court that they had taken "reasonable steps to ensure that documents relevant to this litigation are
preserved," including "routine backup of electronic files." Plaintiffs' Motion at 7 and Factual
App. ¶ 44 and Plaintiffs' Exhibit 37. It is plain, however, from the excerpt of the pleading relied
upon by plaintiffs that the subject of that document was actual Trust records, and did not include
backup tapes of Solicitor's Office e-mail. Similarly, the August 12, 1999 Document Preservation
Order, which plaintiffs rely upon as a basis for seeking a show cause order (Plaintiffs' Motion at
12, 14), says nothing about the Solicitor's Office e-mail backup tapes.
-19-
<< COB0000020 >>
to which plaintiffs make frequent reference, simply noted that the Solicitor's Office had retained
a stock of backup tapes in connection with the Independent Counsel investigation. July 22, 1998
Declaration of Edith Blackwell, ¶¶ 5-8 (included in Government Exhibit 3). The declaration
acknowledged that certain of the tapes had e-mail records, but made no representations as to the
particular Solicitor's offices covered by the tapes, nor as to whether backup e-mail tapes were
being retained by the Solicitor's office other than in connection with the Independent Counsel
investigation. Id. Accordingly, it is difficult to comprehend how this declaration can be viewed
as a 'misrepresentation" regarding the Solicitor's Office's backup e-mail tape practices in the
regional and field offices.
	Plaintiffs also make much of Ms. Blackwell's survey of the regional and field offices
following the Special Master's early November 2000 request for defendant's reasons for limiting
the search of the e-mail backup tapes to the headquarters and seven regional and field offices.
Contrary to plaintiffs' assertions, however, the Special Master's oral October 27, 2000 order did
not direct the Solicitor's Office to "preserve all Solicitor's Office e-mail wherever, whenever or
however it may be maintained." Plaintiffs' Motion at 12. In fact, the Special Master's October
27, 2000 directive was explicitly a "stopgap measure until the issue that's before me is decided."
Government Exhibit 7, at 48:19-21. The Special Master's order was as follows:
(By DOJ attonley Findlayl: I understood — as you've explained
your order to me earlier, I've understood it to mean that it requires
the saving of backup tapes in Solicitor's Office.
[By the Special Master]: That a Solicitor's Office generated that
may be related to IIM information.
- 20 -
<< COB0000021 >>
Government Exhibit 7 and Plaintiffs' Exhibit 58, at 55:1-5 (emphasis added).'3 The Special
Master requested an immediate letter from government counsel "clarifying or explaining what the
responsibilities you're about to undertake ...... [J]ust so there is no mistake, and we don't go
two weeks down the road with a misapprehension." Id. at 58:24-59:1-4. On October 30, 2000,
Mr. Findlay provided the requested explanation, stating "you ordered that Interior save backup
tapes from the components of the Solicitor's Office likely to have documents responsive to the
discovery" and identifying those eight offices. Plaintiffs' Exhibit 59. Nothing in the Plaintiffs'
Motion demonstrates that the Special Master ordered retention of backup tapes at all Solicitor's
Offices, regardless of whether they performed IIM-related work, until November 20, 2000.
Plaintiffs' Exhibit 63.
	The plaintiffs' claims of a "cover-up" are undermined by the very documents they include
in their motion. These documents do not show any "cover-up" of lost e-mail backup data.
Rather, plaintiffs' exhibits show that the defendants took steps to retain responsive Solicitor's
Office e-mail backup tapes, and that they infonned the Special Master of lost e-mail backup data
— whether the loss was large or small, and whether due to human or technical error. See
Plaintiffs' Exhibits 39, 43, 50-54, 57, 71, 73, 75, 77~ 79)4
	'3The Special Master clarified that his order applied only to backup tapes for the scrvers
containing e-mails generated by the Solicitor's Office and that he was not concerned about
backup tapes for servers containing e-mails received from the Solicitor's Office. Government
Exhibit 7 and Plaintiffs' Exhibit 58, at 56:18-57:6.
	'4Plaintiffs make an unfounded assertion that DOJ attorney Charles Findlay "notified the
Master formally that the Solicitor's Office would not be preserving electronic records...
Plaintiffs' Motion at 8 and Factual App. ¶ 68 (referencing Plaintiffs' Exhibit 54). In fact,
Plaintiffs' Exhibit 54 shows just the opposite. There, Mr. Findlay stated that "the Solicitor's
Office has instructed its regional and field offices to save backup tapes. . . ." Plaintiffs' Exhibit
54, at 2. The specific offices saving backup tapes were listed on an inventory sent with the letter.
(continued...)
-21-
<< COB0000022 >>
	On the record put forward by the plaintiffs, there simply is no basis for concluding that
the government or any of the individual respondents acted "willfully" or in bad faith to deceive
the Special Master or the Court or to "cover-up" the retention issues regarding the e-mail backup
tapes.
	*	*	*
	In sum, whether or not plaintiffs have made a prima facie showing that the government
violated a court order in regard to the overwriting of backup tapes, civil contempt is not an
appropriate remedy and criminal contempt is not an available remedy.
II.	THE SANCTIONS PROPOSED BY PLAINTIFFS ARE GROSSLY
DISPROPORTIONATE.
A.	Sanctions for Overwriting the Tapes Must be Proportionate to the Harm
Resulting to Plaintiffs.
Parties have an obligation to preserve documents and other physical materials they know
or reasonably should know are relevant to litigation. Shepherd v. American Broadcasting
Companies, 151 F.R.D. 159, 198 (D.D.C. 1992), rev'don other grounds, 62 F.3d 1469 (D.C. Cir.
1995). The Special Master detennined that plaintiffs' filing of the Third Document Request on
June 11, 1998 triggered an obligation by defendants to maintain the backup tapes of the
Solicitor's Office, because defendants then had actual and constructive notice that the Solicitor's
Office backup tapes were relevant to this action. July 27, 2001 Opinion at ~•I5 Any sanction for
14( ..continued)
Plaintiffs' Exhibits 54 and 55. As noted below, there was no extant direction from the Special
Master or the Court at the time of this letter (June 27, 2000) that Solicitor's Offices that did not
generate e-mail responsive to plaintiffs' Third Document Request needed to retain their backup
tapes.
IS The Special Master stated that Linnen v. Robins Co. Inc., 1999 WL 462015 (Mass.
(continued...)
-22-
<< COB0000023 >>
failure to maintain backup tapes, either under Rule 37 or the inherent power of the court, must be
just and proportionate to the seriousness of the violation. Bonds v. District of Columbia, 93 F.3d
801, 808 (D.C. Cir. 1996).
	In particular, sanctions for failure to preserve the backup tapes in the form of a default
judgment, or sanctions which are the functional equivalent of default judgment, as plaintiffs'
proposed adverse inference appears to be, are permitted only in two instances: (1) if the
destroyed documents are dispositive of the case, so that a lesser sanction, such as an issue related
sanction, effectively disposes of the merits anyway, or (2) the guilty party has engaged in such
wholesale destruction of primary evidence regarding a number of issues that the court cannot
fashion an effective issue-related sanction. Webb v. District of Columbia, 146 F.3d 964, 972
(D.D.G. 1998); Shepherd v. American Broadcasting Companies, 62 F.3d 1469, 1479 (D.C. Cir.
1995). Because the system of justice strongly favors disposition of cases on the merits,
litigation-ending sanctions are a last resort to be applied only after less dire alternatives have
been explored without success or would obviously prove futile. Bonds, 93 F.3d at 809.
Moreover, sanctions that are fundamentally penal — such as default judgment, contempt orders,
awards of fees or Fines — must be grounded on clear and convincing evidence of the predicate
misconduct. Shepherd, 62 F. 3d at 1478.
15( .continued)
Super.), was "of compelling application to the instant issue," July 27 2001 Opinion at 18 n. 16.
That case did involve overwritten backup tapes of e-mails. However, in Linnen, the plaintiffs
explained why the overwritten material could have been pivotal to their case. Id. In this case,
plaintiffs have not attempted to show any prejudice from the overwriting.
- 23 -
<< COB0000024 >>
B.	The Sanctions Sought by Plaintiffs are Grossly Excessive and
Disproportionate to any Harm Suffered.
	As sanctions for overwriting backup e-mail tapes, plaintiffs have suggested fines,
imprisonment and a vaguely drafted adverse inference which apparently would assume that any
evidence offered by the government is contradicted by an undiscovered e-mail (including,
apparently, evidence about events occurring generations before e-mails existed). The proposed
sanctions are totally at odds with the applicable standards concerning failure to preserve evidence
and are plainly excessive for the violations found by the Special Master. As discussed above,
there is no basis for plaintiffst repeated claims that the government willfully or intentionally
destroyed evidence, and, absent evidence of bad faith or willfulness, even a carefully drawn
evidentiary inference is inappropriate. See Johnson v. Washington Metropolitan Area Transit
Authority, 764 F. Supp. 1568, 1579-80 (D.D.C. 1991) ("Normally such inferences are not drawn
unless there is evidence of'evil intent, bad faith or willfulness."') (citing Vick v. Texas
Employment Comm'n , 514 F. 2d 734, 737 (5th Cir. 1975), and Friends for All Children, inc. v.
Lockheed Aircraft Corp., 587 F. Supp. 180, 208 (D.D.C. 1984)). Plaintiffs' allegations of
violations are wildly exaggerated, and their showing of any resulting prejudice is essentially
rhetorical. The government suggests a more dispassionate examination of the matter.
	The Third Production Request did not seek the overwritten backup tapes themselves.
They are relevant to this case only to the extent that they may contain some e-mail records
responsive to the Third Document Request. The Solicitor's Office maintains e-mails, including
e-mail messages responsive to the Third Production Request, in paper form. The Special Master
has not found, and plaintiffs have not attempted to show, that defendants have not met their
obligation to produce the substance of e-mail messages responsive to the Third Production
- 24-
<< COB0000025 >>
Request in paper form. The Special Master's consultant found that the paper copies of the e-
mails differed from the copies on backup tapes in that the backup tapes could (not that they did
or would) contain six fields of information which might not be on the paper copy: the bcc field
in the case of a non-bcc'd recipient, deleted mail messages, the modification date, conversation
topic information, internet or gateway information, and attachments. While one could theorize
instances in which one of these fields could conceivably be relevant to some contested factual
issue in some case, plaintiffs have not articulated any issue in this case to which the information
might be relevant.
	Plaintiffs' actions belie any claim that information lost by the overwriting prejudices their
case. The backup tapes of the Solicitor's Officer were not among the categories of documents
that defendants were required to maintain under the terms of the Court's August 12, 1999 Order
Regarding Interior Department JIM Records Retention. As plaintiffs acknowledge (Plaintiffs'
Motion at 14), that order was a consent order resulting from negotiations between the parties
concerning the categories of documents defendants were required to retain.16 Neither plaintiffs
nor defendants considered information exclusively on the Solicitor's Office backup tapes relevant
then, and plaintiffs have not shown why that information is relevant now.
	Since the plaintiffs have not demonstrated how the overwriting of the backup tapes
prejudices their case, any evidentiary-related sanctions are premature. It would be more
appropriate for the court to consider evidentiary consequences for the overwriting, if any are
	16 The August 12, 1999 Order was negotiated more than a year after plaintiffs had been
informed that the backups for the computer system in the Solicitor's Office deleted e-mails after
ninety days, and that, except for a backup tape partially covering April 1995, the available tapes
did not include e-mails prior to December 31, 1997. See Plaintiffs' Exhibit 14 (July 22, 1998
Declaration of Edith Blackwell, ¶ 6) (also included in Government Exhibit 3).
- 25 -
<< COB0000026 >>
warranted, at trial, in the context of specific facts. For example, if plaintiffs establish at trial that
information overwritten on backup tapes is relevant to a contested factual matter, such as whether
a particular person received a bcc of a particular e-mail, and that information is not otherwise
available, the court could consider whether an inference is appropriate on that specific issue. On
the current state of the record, however, plaintiffs have not established an entitlement to any
adverse evidentiary inference or other issue-related sanction.
CONCLUSION
	For the foregoing reasons, the government respectfully requests that the Court enter an
order denying plaintiffs' motion.
Respcctfully submitted,
ROBERT D. MeCALLUM, JR.
Assistant Attorney General
STUART F. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
Director
D.C.B .425194
Tracy L. Hilmer
D.C. Bar No. 421219
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 261
Ben Franklin Station
Washington, D.C. 20044
(202) 307-0474
- 26 -
<< COB0000027 >>
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
DATED:	April 3, 2002
-27-.
<< COB0000028 >>
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELOUISE PEPION COI3ELL, et al.,	)
)
	Plaintiffs,	)	Civil Action No. 96-1285 (RCL)
)
	v.	)
)
GALE A. NORTON, et aL,	)
)
	Defendants.	)
ORDER
	Upon consideration of Plaintiffs' March 20, 2002 Motion for Order to Show Cause Why
Interior Defendants and Their Employees and Counsel Should Not Be Held in Contempt for
Destroying E-mail, the government's opposition thereto, and the entire record in this case, it is
hereby ORDERED that Plaintiffs' motion is DENIED.
UNITED STATES DISTRICT JUDGE
Date:
<< COB0000029 >>
cc:
Sandra P. Spooner
John T. Stemplewicz
Cynthia L. Alexander
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
Fax (202)514-9163
Dodge Wells
Tracy L. Hilmer
Commercial Litigation Branch
Civil Division
P.O. Box 261
Ben Franklin Station
Washington, D.C. 20044
Fax (202) 616-3085
Dennis M Gingold, Esq.
Mark Brown, Esq.
1275 Pennsylvania Avenue, N.W.
Ninth Floor
Washington, D.C. 20004
Fax (202) 318-2372
Keith Harper, Esq.
Native American Rights Fund
1712 N Street, NW
Washington, D.C. 20036-2976
Fax (202) 822-0068
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530