<< COB0000001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL, et al.,	)
)
Plaintiffs, )
v.	)
	)
GALE NORTON, SECRETARY OF	)	No. 1:96CV01285 RCL
THE INTERIOR	)	(Hon. Alan L. Balaran, Special Master)
et al.,	)
	)
Defendants.	)
INTERIOR DEFENDANTS' REPLY IN FURTHER SUPPORT OF
MOTION AND MEMORANDUM REGARDING PROPOSAL TO
(1) RESTORE AND SEARCH RETAINED BACKUP TAPES CONTAINING E-MAIL;
(2) IMPLEMENT REAL-TIME CAPTURE OF E-MAIL TRAFFIC AND
INCORPORATION OF E-MAIL INTO A SEARCHABLE ARCHIVE; AND
(3) REPLACE INDEFINITE RETENTION OF BACKUP TAPES CONTAINING
E-MAIL WITH BACKUP OF SEARCHABLE E-MAIL ARCHIVE
	The United States, on behalf of the Interior Defendants, respectfully submits to the
Special Master this reply in further support of its consolidated motion and memorandum
("Motion") regarding (1) restoration and search of retained backup tapes containing e-mail,
(2) implementation of real-time capture of e-mail traffic and incorporation into a searchable
archive; and (3) replacement of the indefinite retention of backup tapes containing e-mail with
backup of the searchable e-mail archive (items 1-3 collectively, "E-Mail Proposal") and in
response to the Plaintiffs' Opposition to the Motion ("Opposition").
	The Plaintiffs sought discovery of electronic as well as hard copy versions of e-mail, and
that process culminated with the Special Master's July 27, 2001 Opinion (entered July 30, 2001
and adopted by this Court on March 29, 2002) ("July 2001 Opinion"). The premise of the
B-Mail Proposal is that system backup tapes containing e-mail ("e-mail backup tapes") by
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themselves are essentially useless for discovery purposes and that e-mail contained on the
retained backup tapes needs to be isolated in some fashion from the e-mail backup tapes before
any search or other processing for production purposes can occur. See Motion at 3-4 see also
August 8 Briefing (Motion Ex. 2) at 8:2—8 (ZANTAZ notes that "email backups are great...
[b]ut you ask me to find something, it's a nightmare to do."). Nothing in the Opposition
challenges this premise.
	Given this premise, the remaining issue is the methodology used to isolate, search, and
store the e-mail contained on the retained e-mail backup tapes. The Interior Defendants chose
ZANTAZ to provide independent and objective assurance of the e-mail restoration, search, and
archive process and, in addition, to provide a tested and proven product that meets the standards
imposed on the financial services industry for handling, retaining, and searching e-mail. See
Motion at 5-6 and exhibits cited therein.
	The Opposition does not challenge ZANTAZ's credentials, criticize the standards with
which ZANTAZ's methodology complies, or suggest even the existence of a viable alternative
method for restoring e-mail from backup tapes, capturing future e-mail traffic electronically, and
searching and retaining all unique e-mail. Given the Plaintiffs' insistence that discovery extend
to electronic copies of e-mail, the Interior Defendants had no choice but to develop a feasible
method for addressing the requirements of the July 2001 Opinion. The Interior Defendants
believe that the E-Mail Proposal does so and that ZANTAZ provides a reasonable and workable
approach for resolving the very complicated issues associated with capturing, searching, and
retaining unique e-mails — both those on e-mail backup tapes and those captured real-time — in
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electronic format.'
1.	The Office of the Solicitor Is a "Designated Office" for the E-Mail Proposal
Although the isolated portion of the Motion cited by the Plaintiffs, Opposition at 2-3,
could be read to suggest that the Office of the Solicitor is excluded from the Motion and E-Mail
Proposal, that reading only works if one ignores the language of the Proposed Order, the
remainder of the Motion, and the supporting attachments, all of which make it abundantly clear
that the Office of the Solicitor is included in the E-Mail Proposal.2 To make sure there is no
confusion, the Interior Defendants reiterate that the following offices and bureaus are
"Designated Offices" for purposcs of the Motion and E-Mail Proposal: Office of the Solicitor;
	1The Motion and E-Mail Proposal address only the capture, search, and storage of e-mail
contained on retained e-mail backup tapes and of real-time e-mail traffic for purposes of
complying with discovery and production obligations as they relate to electronic retention of
e-mail. This Reply will not address the Opposition to the extent that it raises issues beyond the
scope of the E-Mail Proposal. £~, ~ Opposition at 4 ("all responsive electronic records"
(emphasis omitted)), j~. at 5 ("nature and scope of systems and computers that send, receive,
access, or house relevant electronic records").
	25~ ~ Proposed Order at 1-2 ("ORDERED that the following offices and bureaus
within the Department of the Interior shall be 'Designated Offices' for purposes of implementing
the E-Mail Proposal: Office of the Solicitor; Bureau of Indian Affairs; Office of the Special
Trustee; Office of Historical Trust Accounting; Minerals Management Service, Bureau of Land
Management, Office of the Secretary; Office of the Assistant Secretary for Indian Affairs; Office
of Hearings and Appeals; and Office of the Assistant Secretary for Policy, Management and
Budget" (emphasis added)); Motion at 4 (physical inventory of backup tapes containing e-mail
conducted in Designated Offices including the Office of the Solicitor), id. at 5 n.2 (Office of the
Solicitor not listed as one of the offices excluded from the E-Mail Proposal), j4. at 6 (pilot test of
real-time e-mail capture conducted in the Office of the Solicitor), j~. at 14 (restoration proposal:
"begin by restoring e-mail from backup tapes for the Office of the Solicitor, then continue in the
following order: [listing remaining Designated Offices as in the Proposed Order]" (emphasis
added)); February 20 Letter (Motion Ex. 1) at 2 (Office of the Solicitor included in proposal);
Transcript of August 8 Briefing (Motion Ex. 2) at 24:8—18 (same); Federal Register Notice of
Privacy Act System (Motion Ex. 4) at 2 (same); Draft Statement of Work (Motion Ex. 5) at 1
(same).
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Bureau of Indian Affairs; Office of the Special Trustee; Office of Historical Trust Accounting;
Minerals Management Service; Bureau of Land Management; Office of theSecretary; Office of
the Assistant Secretary for Jndian Affairs; Office of Hearings and Appeals; and Office of the
Assistant Secretary for Policy, Management and Budget.
	As noted, Motion at 6, the Interior Defendants selected the Designated Offices on the
basis of statutory trust responsibility, as well as the Interior Defendants' belief that those offices
and bureaus were likely to have e-mail traffic relating to Individual Indian Money accounts and
the Cobell litigation. The Plaintiffs cite no factual support to contradict the selection of the
Designated Offices, but instead refer to the absence of a definition of Individual Indian Trust
Data ("IITD") and the resulting effect on "systems — in any bureau or any office — [that] access
and house such data and other information." Opposition at 5. The Plaintiffs' Opposition misses
the point — the Motion and the E-Mail Proposal, like the July 2001 Opinion, arise in the context
of discovery and address only the retention and search of electronic (as opposed to hard copy)
versions of e-mail. Issues relating to the preservation of IITD and the systems housing IITD have
been and continue to be addressed separately in the context of the Special Master's IT-related
proceedings. The issue raised by this Motion is whether the e-mail traffic for a particular office
or bureau is sufficiently likely to be responsive to discovery and other production requests in the
Cobell litigation to merit the special handling of electronic versions of e-mail as described in the
Motion and E-Mail Proposal.3
	3The draft agreement with ZANTAZ includes an option that would expand the real-time
capture and archive of e-mail traffic to include, in addition to the Designated Offices, the
remaining offices and bureaus within Interior (with the exception of the Office of the Inspector
General). See Draft Statement of Work (Motion Ex. 5) at Ά 6.4. The Interior Defendants may
very well implement the real-time capture and archive of e-mail traffic in the remaining offices
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2.	Electronic Search of Electronically Archived E-Mails Is Entirely Appropriate
	The Plaintiffs suggest, absurdly, that searching electronically retained c-mails on the basis
of an agreed-upon list of search terms would somehow be improper and could lead to production
of responsive materials being evaded because "a sub-language or code could be developed and
used that would place critical records beyond the scope of the agreed-upon terms." Opposition at
6 n.7. More than anything else in the Opposition, this assertion demonstrates a fundamental
misunderstanding of the Motion and E-Mail Proposal and of the discovery process in general.
Furthermore, the assertion strongly suggests that any resolution proposed by the Interior
Defendants would not be acceptable and that the Plaintiffs are not interested in resolving
discovery issues relating to c-mail retained in electronic rather than hard copy format.
	Implementation of the e-mail archive discussed in the Motion and E-Mail Proposal will
result in all unique e-mail, with attachments, being captured automatically for each of the
Designated Offices and routed to ZANTAZ for archiving in a searchable electronic format,
without regard to the content of any individual e-mail. See August 8 Briefing (Motion Ex. 2) at
18:2—11 (capture at e-mail server doesn't affect users), j4. at 29:3—13 (attachments also captured),
id. at 32:17—25 ("[W]e don't evaluate the content. We just store the original"). Because the
capture is automatic, no one in the Designated Offices will be able to avoid having e-mail that
they send or receive captured and placed in ZAiNTAZ's searchable electronic archive. Similarly,
all unique c-mails, with attachments, from the retained e-mail backup tapes will be incorporated
and bureaus for reasons related to the Interior Defendants' goal of implementing a comprehensive
e-mail management system. Regardless of whether the e-mail capture and archive is later
implemented more broadly, the Designated Offices identified in the Motion and E-Mail Proposal
represent the Interior Defendants' prioritization for addressing discovery and production-related
aspects of electronic retention of e-mail as it relates to the Cobell litigation.
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into a searchable archive, regardless of content. Because the universe of e-mails captured and
incorporated into the archive will be much larger than the set of e-mails relating to Cobell, the
resulting e-mail archive will need to be searched for potentially responsive materials.
	The Interior Defendants have neither suggested that .a single set of search terms be used
for all searches nor placed any limitations on what searches of the electronically archived c-mails
might be performed. ZANTAZ's system will allow the Interior Defendants to conduct
objectively verifiable searches based on any of a large number of criteria See ~gL, August 8
Briefing (Motion Ex. 2) at 8:9—19 ("searching on any criteria, whether it's the header information
or any keywords within the body of the text"), id. at 16:17—24 ("we content-index . . . the To, the
From, the Subject, as well as the body of the email and the attachments. So any text that's
imported into the system is searchable. So you can do a content search, you can do time search
based on dates. We index both on receive dat[eJ and sent date."). Although some uncertainty is
inherent in any discovery process, the Interior Defendants are not aware of any more feasible or
more reliable basis for retrieving electronically archived e-mails than by conducting a verifiable
electronic search using specified terms — mutually agreeable search terms, if at all possible — to
identify potentially responsive e-mails. The Plaintiffs suggest none.
3.	No E-Mail Will be Destroyed When Back-up Tapes Are Restored and Real-Time
Capture of E-Mail Is Implemented
	The Plaintiffs cite no evidence to support their assertion that "De-duping Responsive
E-Mails Will Result in Massive Spoliation," much less the assertion that de-duping will "result in
the destruction or loss of at least the following information: (1) time of receipt, delivery,
transmission, (2) deleted mail messages, (3) the modification date, (4) conversation topic
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information, (5) Internet or gateway information, or (6) any and all other embedded information
in backup tapes." Opposition at 6. Both unsubstantiated assertions are inconsistent with the
information provided by ZANTAZ in the documentation supporting the Motion and with the
discussion at the August 8 briefing, which included a discussion on this very topic between
counsel for the Plaintiffs and ZANTAZ. See, ~ February 20 Letter (Motion Ex. 1) at Att. A,
DEF00433 19, 43321, 43326-28 (detailing information that ZANTAZ captures and retains);
August 8 Briefing (Motion Ex. 2) at 30:15-19 (ZAINTAZ "do[es]n't know of any [Lotus Notes]
fields that we don't capture")~ id. at 35:4 — 38:12 (discussion between Plaintiffs' counsel and
ZANTAZ personnel regarding information that ZANTAZ will isolate, archive, and retain from
e-mail backup tapes and real-time capture of e-mail traffic); August 8 Briefing Handout (Motion
Ex. 3) at 2—6 (detailing e-mail information that ZANTAZ captures and retains).
	As explained in the Motion, the E-Mail Proposal is premised on retaining an electronic
copy of all unique e-mails, with attachments, that are sent or received. $~ generally Motion at
9-17 and exhibits cited therein. In many cases, the retained backup tapes from which e-mail is to
be isolated will contain multiple copies of the same e-mail, and "de-duping" simply reduces
multiple occurrences of an identical e-mail to a single unique copy. No information is lost as a
result of de-duping, because all available information is contained in and associated with the
single unique copy of the e-mail that ZANTAZ incorporates into the searchable archive, whether
from e-mail backup tape or real-time capture of e-mail traffic. See August 8 Briefing (Motion
Ex. 2) at 15:14 — 16:4 ("daily backups typically run almost a 90 percent duplicate rate. There's
no reason to go store all of that because they are identical duplicates and the email environments
are very good about.keeping unique message ID's for the messages"), j~. at 15:23 — 16:1
7
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(ZANTAZ process creates master index against which c-mails are checked to determine if
unique), 14. at 21:20—25 (similar), hi. at 27:2 1 — 28:18 (ZANTAZ definition of"unique
message"). Thus, although oniy one copy of each unique e-mail will be captured and preserved
by ZANTAZ, that copy will contain all relevant information. If that e-mail is forwarded (with or
without alteration of the text or attachments) or if the recipient replies to the original e-mail, that
subsequent e-mail would also be identified as a unique c-mail, captured, and archived. See id. at
31:13 —32:9.
	Once all unique c-mails have been isolated and copied from a backup tape and placed into
ZANTAZ's searchable archive, the e-mail backup tapes contain no additional information
relevant to those c-mails that hasn't already been captured. Furthermore, no information is lost as
a result of isolating c-mails from backup tapes and dc-duping those c-mails before placing them
into ZANTAZ's archives.4 The same is true when real-time capture of e-mail traffic is
implemented at the e-mail server: the Interior Defendants will not need to generate and retain
e-mail backup tapes because ZANTAZ will be capturing and archiving all unique e-mail that is
sent or received. Once the unique c-mails have been captured and incorporated into the
searchable archive from the retained e-mail backup tapes and real-time capture of e-mail traffic
has been implemented, therefore, ZANTAZ assumes all of the maintenance, administration, and
preservation functions that were previously performed by Interior with regard to its e-mail traffic.
Finally, if ZANTAZ and the Interior Defendants were to decide at some point after implementing
	4The one possible exception occurs if a particular backup tape is compromised or if
ZANTAZ is otherwise unable to isolate and copy e-mail from a particular backup tape. In those
instances, the backup tape will be quarantined see, ~g, August 8 Briefing (Motion Ex. 2) at
35:4—23, and the Interior Defendants, in consultation with the Special Master, will determine
how to proceed.
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the E-Mail Proposal to terminate the contract, no e-mail information would be lost or destroyed,
because the electronic data necessary to allow recreation of the archived e-mails would be
returned to the Inteijor Defendants. See August 8 Briefing (Motion Ex. 2) at 47:17 — 49:7, id. at
50:22—24.
	The Interior Defendants are aware of no requirements — and the Plaintiffs cite none — that
would require the Interior Defendants to retain, search, and produce multiple electronic copies of
an identical e-mail where that e-mail has been captured in its "as sent" form, complete with
related data and any attachments, and verifiably retained in a searchable electronic archive.
Similarly, the Plaintiffs cite no factual basis for concluding that ZANTAZ cannot or will not
capture all operative information accompanying the e-mail. The Motion and supporting
documentation regarding the ZANTAZ process make clear that the E-Mail Proposal, if
implemented, will result in the preservation and capture of all e-mail — related information that is
available, either from the retained e-mail backup tapes or from the real-time capture of e-mail
traffic, and thus that no e-mail — related data would be destroyed.5
	5Although the Plaintiffs do not raise any facts to support their allegations that
implementing the E-Mail Proposal would result in the destruction of e-mail — related data, if any
questions remain regarding the integrity of the ZANTAZ process, the Special Master and his
technical experts are free to consult directly with ZANTAZ. Similarly, any questions about
whether all e-mail—related data have been captured from the e-mail backup tapes can be
addressed by ZANTAZ. Finally, the Interior Defendants are willing to consult with the Special
Master regarding the disposition of the retained e-mail backup tapes after they have been
processed by ZANTAZ.
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4.	The Funds to Implement the E-Mail Proposal Are Currently Available
	The Plaintiffs' suggestion that the E-Mail Proposal is "speculative," Opposition at 4 n5 is,
at best, disingenuous. The Interior Defendants' commitment to implementing the E-Mail
Proposal — if it is approved — is real. As is true with any government contract, however, issues of
funding, timing, and compliance with legal requirements affect the Interior Defendants' ability to
implement the E-Mail Proposal and to finalize the contract with ZANTAZ. See Motion at 7-9
(identiI~ring additional considerations). As explained during the August 8 briefing and in the
Motion, the Interior Defendants can currently fund the E-Mail Proposal described in the Motion
by using funds remaining in Interior's Fiscal Year 2002 ("FY2002") budget, provided that those
funds can be obligated before the fiscal year ends on September 30, 2002. See Motion at 8-9;
August 8 Briefing (Motion Ex. 2) at 4:17 — 5:3 (funding issues), ~j. at 41:6—17 (same). If those
funds cannot be obligated in FY2002, however, they will not automatically and necessarily cany
over and be available in Interior's FY2003 budget. The E-Mail Proposal merely acknowledges
that reality.
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CONCLUSION
	For all of the reasons stated above and in the Motion, the Interior Defendants request
approval of the E-Mail Proposal.
Dated: September 9, 2002	Respectfully submitted,
ROBERT D. MeCALLUM, JR.
	Assistant Attorney General
	STUART E. SCHIFFER
Deputy Assistant Attorney General
	J. CHRISTOPHER KOH?N
Director
	SANDRA P
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Counsel
PETER B. MILLER
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7194
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CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on September 9, 2002 I served the foregoing
Interior Defendants 'Reply in Further Support c/Motion and Memorandum Regarding Proposal
to(J) Restore and Search Retained Backup Tapes Containing E-mail, (2) Implement Real-time
Capture of E-mail Traffic and Incorporation c/E-mail into a Searchable Archive; and (3)
Replace Indefinite Retention of Backup Tapes Containing E-mail with Backup c/Searchable
E-mail Archive by facsimile upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Kester Brown, Esq.
1712 N Street, N.W.	1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20036-2976	Ninth Floor
(202) 822-0068	Washington, D.C. 20004
	(202) 318-2372
and by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Copy by Facsimile and U.S. Mail upon:
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Avenue, N.W.
12th Floor
Washington, D.C. 20006
(202) 986-8477
Courtesy Copy By U.S. Mail:
Joseph S. Kieffer, lilT
Court Monitor
420 - 7"~ Street, N.W.
Apartment 705
Washington, D.C. 20004