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Case 1:07-cv-00002-SGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PAWNEE NATION OF OKLAHOMA, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) )

No. 07-CV-00002-L

PLAINTIFF'S SUBMISSION OF PROPOSED RECORD RETENTION ORDER COMES NOW the Plaintiff, the Pawnee Nation of Oklahoma ("Tribe"), pursuant to this Court's August 14, 2007, Order directing the parties to confer regarding the submission of a proposed order on the issue of record retention and preservation, and states as follows: 1. Pursuant to the Court's Order, counsel for the parties have conferred regarding

the content of a proposed record retention order. 2. The parties are in general agreement with one notable exception: In Paragraph

2(b). Paragraph 2(b) is reproduced herein, with strikeout indicating language the Tribe desires to be omitted from the final order: (b) "Preserve" shall be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be subject to discovery under RCFC 26, 45, and 56(e) in this case. "Preserve" includes the parties taking reasonable steps to prevent the partial or full destruction, alteration, deletion, shredding, incineration, wiping, theft, or mutation of documents, data, and tangible things, and any negligent or intentional handling that would make material incomplete or inaccessible. The term also includes the parties taking reasonable steps to prevent the relocation of documents, data, and tangible things, if such relocation would result in the documents, data, or tangible things no longer being in the possession, custody, or control of the party from whom the documents, data, and tangible things are relocated. 1

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3. language. 4.

The parties have been unable to agree on mutually acceptable alternate

The Tribe's position is that for the contemplated record retention order to have

full effect, it must take a broad view of the documents to be protected. 5. The United States seeks to impose a qualifying standard for documents that

must be retained, but the standard expressed in the language at issue does not impose an objective standard of what must be retained. It places the decisions about what documents to retain squarely within the subjective determination of the United States 6. Given the complex nature of this litigation and the multitude of financial

transactions that could be relevant to the Tribe's claims, the loss of historical documentation could severely prejudice the Tribe and impair its ability to prosecute its case. 7. Since the outset of this litigation, the parties have expressed an intention to

resolve this dispute as quickly as possible through negotiation and settlement. However, the parties have not yet reached an agreement that would limit the Tribe's claim as to types of transactions, time period or otherwise. As a result, it is impossible to predict what documents may be relevant should this matter go to trial. 8. As part of its ongoing trust responsibility to the Tribe, the United States has an

obligation to maintain records relating to its administration of the Tribe's assets and to make those records available to the Tribe. The language proposed by the United States, however, would make it the arbiter of what documents the Tribe will require to prosecute its case. Given that the Tribe's claims against the United States relate to the federal government's mismanagement of the Tribe's assets, this places the United States in something of a conflict, 2

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and it should not be permitted to destroy potentially relevant documents even though such relevance might not be immediately apparent. 9. It is to the benefit of both parties that this case be litigated on as complete a

record as possible. To allow the United States to guess what documents might or might not be relevant and destroy what it deems unimportant could result in a grave injustice for both sides. 10. Although it is possible that the proposed document retention order might

impose certain burdens on the United States, these burdens will be lifted as soon as the parties can successfully settle this case, these additional requirements will be lifted. 11. Accordingly, the Pawnee Nation asks the Court to enter the proposed order

submitted by the Tribe without the qualifying language proposed by the United States.

s/ Michael D. McMahan_______ Kennis M. Bellmard II, OBA #13965 Counsel of Record Timothy M. Larason, OBA #5239 Sandra Benischek Harrison, OBA #18647 Michael D. McMahan, OBA #17317 Of Counsel ANDREWS DAVIS A PROFESSIONAL CORPORATION ATTORNEYS AND COUNSELLORS AT LAW 100 North Broadway Avenue, Suite 3300 Oklahoma City, OK 73102 Telephone: (405) 272-9241 Fax: (405) 235-8786 www.andrewsdavis.com ATTORNEYS FOR PLAINTIFF PAWNEE NATION OF OKLAHOMA

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CERTIFICATE OF SERVICE I hereby certify that on the 31st day of August, 2007, I electronically transmitted the attached document to the Clerk of U.S. Court of Federal Claims using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Terry Petrie and Anthony P. Hoang United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663

s/ Michael D. McMahan_______

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