<< COB00001 >>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al	)
		)
	Plaintiffs,	)
		)
	V.	)	Case No. l:96CV01285
	)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior,	)
et al	)
	)
Defendants.	)
DEPARTMENT OF THE INTERIOR'S RESPONSE AND OBJECTION TO
THE FIRST INVESTIGATIVE REPORT OF THE SPECIAL MASTER
REGARDING DEFENDANT'S RESPONSE TO DOCUMENT
REQUEST 9 OF ATTACHMENT B TO THE SUBPOENA DUCES TECUM
Pursuant to Fed. R. Civ. P. 53(e)(2), the Department of the Interior ("Interior")
respectfully submits this response and objection to the "First Investigative Report Of The Special
Master Regarding Defendant's Response To Document Request 9 Of Attachment B To The
Subpoena Duces Tecum," issued by the Special Master to Interior on March 26, 2001
("Report").'
For the reasons stated below, Interior respectfully objects to the conclusions drawn by the
Report that the lack of "final reports" produced in response to "Document Request No. 9 of
Attachment B" to the subpoena indicates that (i) "it is difficult to comprehend how any official at
Interior could have exercised any care, much less great care in ascertaining the accuracy of the
	The Special Master issued his report on November 29, 2001. The Interior Defendants'
response is currently due, at the earliest, by December 13, 2001, pursuant to Fed. R. Civ. P.
53(e)(2) and 6(a), assuming that the report was filed with the court on November 29, 2001.
<< COB00002 >>
information filed with the Court" relating to the completion of the 11 HLIP tasks2 referenced in
the Report; (ii) a very real question exists about what the Interior is doing to carry out the
Records Management section of the HLIP; and (iii) there is virtually nothing in writing (other
than the quarterly reports themselves) to give the Court a measure of confidence that the
allegedly "completed" HLIP-2000 tasks identified in Document Request No. 9 have actually been
done. Report. p. 12.
BACKGROUND
	In connection with the Special Master's role of overseeing Interior's compliance with
orders relating to discovery and document retention, he has been investigating Interior's records
management functions. On February 14, 2001, the Special Master served Interior with a
subpoena commanding the production of certain categories of documents related to Interior's
efforts to comply with this Court's August 12, 1999 document retention order.3 Exhibit 1.
	On March 26, 2001, the Special Master served Interior with Attachment B, which
	2 Comments from Interior's senior management and reports provided to Interior by EDS
suggest that the decentralized management approach previously employed by Interior under the
HLIP has demonstrable shortcomings. Declaration of J. Steven Griles, para 16, filed as Exhibit 1
to Interior's Memorandum in Support of Motion to Permit Filing Modified Trust Reform Status
Report for the Period Ending October 31, 2001. References to the HLIP in this filing are not
intended to suggest a reversal of the declaration of Mr. Griles or the filing which it supports.
Rather, these references correlate to similar references in the Special Master's Report.
	Attachment A to the subpoena contained 24 requests for documentation of the activities
of the Office of Trust Records, including requests for copies of all requests for records assistance
by the BIA locations, copies of all records management training courses that have been
developed by OTR and notes taken by OTR staff during site visits. Exhibit 1. The Departments
of Justice and Interior were requested by the Special Master to add Request No. 24, which
sought notes taken by OTR staff. We understand that request was oral and was made during a
meeting in February 2001. A production plan was transmitted to the Special Master on February
22, 2001 by the Department of Justice. Exhibit 2.
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included requests for documents related to Interior's efforts under Subproject 8 of its High-Level
Implementation Plan ("HLIIP 2000"). Exhibit 3. Document Request No. 9 to Attachment B - the
focus of the Special Master's Report - sought "any and all final reports submitted to the
Department of Interior" for certain records management sub-projects which Interior had
designated as "completed".4
	Other requests in Attachment B sought documentation of activities under the HLIP 2000
that took forms other than final reports. For instance, Request B- 1, as defined in Attachment B,
sought among other documents, "any and all written documents used by the agency to plan,
develop or prepare ~y of the programs... tasks and milestones set out in the HLIP 2000
Records Management Sub-project." Request B-8 sought, among other documents, "all
documents concerning the major milestones" in completing certain tasks under the HLIP 2000.
(See Exhibit 3 and Interior's Production Plan in Exhibit 4.)
	Document Request No. 9 of Attachment B "was designed to reach behind Interior's
representations (and the Special Trustee's verifications) to the Court that these eleven tasks had
been completed, j~, that steps necessary to execute the task had been identified, implemented,
and the outlined objective had been fulfilled." Report, p. 3. In response to Attachment B of the
subpoena and after consultation with the Special Master, Interior prepared and executed a plan
designed to produce all non-privileged documents which might be responsive to Attachment B.
Exhibit 4.
	The "completed" tasks are listed on p. 3 of the Special Master's Report. The term
"final report" was not defined in Attachment B to the Special Master's subpoena.
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<< COB00004 >>
DISCUSSION
	The Report makes two significant points. First, it notes that the documents produced by
Interior include no final reports5 on the completion of 11 tasks under Subproject 8 of the HLIP
even though those tasks were reported as complete in Interior's quarterly report. It concludes that
the lack of such reports means that Interior lacked mechanisms to ensure that the HLIP tasks
were done in a timely and efficient manner. Second, the Report notes apparent inconsistencies in
the quarterly reports and concludes that there is nothing in writing to confirm that reportedly
completed tasks are, in fact, completed.
	With regard to the lack of final reports, we concede that we are unaware of documents
labeled as such. As we explain, however, we believe Interior did produce documents that meet
the definition of final report adopted in the Special Master's Report. In any event, the lack of
designated final reports does not, we believe, demonstrate that Interior lacked mechanisms to
ensure timely and efficient completion of I{LIP tasks.
	As to the apparent inconsistencies identified by the Report, it is true that the terminology
used in the quarterly reports creates ambiguities. As we explain below, we do not believe the
reports are misleading. Read in their entirety — and perhaps with more care than ought to be
necessary — the quarterly reports accurately disclose the status of the tasks.
	A.	The Absence of Final Reports
	The Report describes the Special Master's review of the 182 documents identified as
responsive to request B-9 and concludes that the absence of "final reports" within the meaning of
	~	The Report does seem to conclude that Interior produced final reports, under the
Special Master's definition, for Tasks G and K. Report, p.7.
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<< COB00005 >>
Request B-9 means that "no documents or group of documents" support Interior's report that it
has completed certain tasks. Report, pp. 8-9. Interior agrees that it produced no "final reports,"
labeled as such, for the relevant tasks of Subproject 8 pursuant to Document Request No. B-9.
However, Interior believes that there may exist documents relating to the completion of the
questioned tasks, and that these documents may be found among the other documents produced
in response to other document requests in Attachment B. For instance, Interior was required to
produce all documents concerning the major milestones in completing certain tasks under the
HLTP. (See Request B-8-Exhibit 3.) Therefore, in order to best address the Special Master's
conclusion, Interior intends to review the documents submitted to the Special Master in response
to the subpoena, and if it finds other documents which evidence the completion of any of the
eleven tasks at issue, it will submit them to the Special Master and request him to amend his
report. 6
	Moreover, and perhaps more importantly for purposes of accurately informing the Court
of Interior's progress, the absence of a "final report" stating that a task has been completed does
not mean that the particular task was not, in fact, completed. We are unaware of any requirement
that the completion of tasks must be documented by final reports other than through the
Quarterly Reports submitted to the Court. Therefore, there was no reason for OTR to separately
generate written final reports whenever it completed a task under the HLIIP, so long as it was
	6 Interior produced approximately 118,000 pages in response to the subpoena
(approximately 29,000 pages in response to Attachment A, and approximately 89,000 pages in
response to Attachment B.) Approximately 182 documents were produced in response to
Document Request No. 9 of Attachment B. Therefore, in responding to Attachment B, Interior
did not reproduce documents already submitted. Interior informed the Special Master of this
decision in its production plan. Exhibit 4 - Production Plan, dated April 12, 2001, p. 3.
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<< COB00006 >>
preparing and submitting Quarterly Report drafts for incorporation into Interior's Quarterly
Reports.
B.	Annarent Inconsistencies
	The Report takes issue with certain apparent inconsistencies in Interior's quarterly reports.
While there are some ambiguities in the reports as a result of confusing terminology, we do not
believe they are misleading when read in context. For example, the Report states, at page 5, that
in the Third Quarterly Report, Task U is represented as "ongoing" (page 26) and, in a chart (page
28), as having been "completed" on December 31, 1999. Task U is defined as the "initiation of
training and technical assistance for contracted and compacted trust records." (Emphasis
supplied.) Hence, the fact that training and technical assistance were ongoing in August of 2000
does not mean that the initiation of training and technical assistance had not occurred in
December 1999. The Report notes that "initiation" of activity can be completed with relatively
little effort, and suggests that defining a task as "initiating" an activity may not be very helpful.
Thus, the quarterly reports went further and reported when the activities that had been initiated
were also ongoing. While this may have been confusing; it is not, for that reason, misleading.7
	~	The Report also cites other examples of tasks which were to "initiate" or "begin"
certain projects. It is not misleading to state that those tasks are "completed" if the "initiation" of
those tasks has been completed.
	For example, Task T was to "establish evaluation teams and to begin cyclic evaluations
of records." The substantive description of Task T in the Fourth Quarterly Report, p. 39, reveals
that Interior is reporting that cyclic evaluations of records was begun. Moreover, in response to
Attachment A of the subpoena, Interior had produced to the Special Master a Site Visit Report
for the Southern Pueblos Agency which indicates that the evaluation of records was begun on
April 27, 2000. Exhibit 5.
	Similarly, it is not misleading to state that Task G which was "to initiate development
(continued...)
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<< COB00007 >>
	The Report also questions the representation that Task K had been completed by hiring
12 records management specialists (though the defined task did not require any particular number
of specialists to be hired). (Exhibit 6). Report, pp. 9-10. However, the documents — Ken
Rossman's February 28, 2000 e-mail (Exhibit 7) — indicate that 12 specialists had been hired by
January/February 2000. Due to movement within OTR and normal attrition, this number
fluctuated after that date until April 2001, when Interior reported that it had 12 record
management specialists in place. The issue of staffing was reported monthly in the Reports from
OTR to the Special Trustee. Although the number of records management specialists was in
flux, this does not indicate that 12 records management specialists were not hired by
January/February 2000.
CONCLUSION
	Although it appears that no "final reports," designated as such, exist, Interior believes that
the absence of such documents does not demonstrate either that it lacked mechanisms to ensure
timely and efficient completion of tasks or that its quarterly reports are misleading. In any event,
Interior will review and analyze the documents produced to the Special Master and bring to his
attention documents which may be relevant to the completion of the tasks discussed so that he
may modify his report, if appropriate.
.continued)
of records control schedules" was completed when Interior began developing records control
schedules. Interior indeed represents on p.10 of the Records Retention Report that initial draft
record control schedules "were developed and submitted to OST and BIA management and the
CIO in September 1998." Although the task is described as ongoing, it is not misleading for
Interior to have stated in the summary chart that the task - the initiation of development of
records management controls - has been completed.
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<< COB00008 >>
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART E. SCHIFFER
Deputy Assistant Attorney General
J. CHRISTOPHER KOHN
D.C. Bar No. 212357
Director
SANDRA P. SPOONER
Deputy Director
D.C. Bar No. 261495
JOHN T. STEMPLEWICZ
Senior Trial Attorney
SETH B. SHAPIRO
D.C. Bar No. 433988
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 875
Ben Franklin Station
Washington, D.C. 20044-0875
(202) 514-7164
OF COUNSEL:
Sabrina A. McCarthy
Department of the Interior
Office of the Solicitor
Washington, DC 20240
DATE:	December 13, 2001
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<< COB00009 >>
CERTIFICATE OF SERVICE
I declare under penalty of perjury that, on December 13, 2001, I served the foregoing
Department Of The Interior's Response To The First Investigative Report Of The Special
Master Regarding Interior Defendants' Response To Document Request No. 9 Of
Attachment B To The Subpoena Duces Tecum by facsimile upon:
Keith Harper, Esq.	Dennis M Gingold, Esq.
Native American Rights Fund	Mark Brown, Esq.
1712 N Street, NW	1275 Pennsylvania Ave., NW
Washington, DC 20036-2976	9th Floor
202-822-0068	Washington, DC 20004
	202-381-2372
and by facsimile and mail upon:	and by hand:
Alan L. Balaran, Esq.	Joseph Kieffer, m
Special Master	410 7th Street, N.W.
1717 Pennsylvania Ave., NW, 12th Floor	The Lansburgh, Apt. 705
Washington, DC 20006	Washington, D.C. 20004
(202) 986-8477
and by U.S. Mail upon:
Elliott Levitas, Esq.
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530