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Case 1:06-cv-00945-FMA

Document 60

Filed 07/08/2008

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In The United States Court of Federal Claims
NAVAJO NATION f.k.a. NAVAJO TRIBE OF INDIANS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-945L Judge Francis M. Allegra

Defendant's Supplemental Notification of Additional Discovery of the Possible Presence of Mold or Water Damage to Documents

In Defendant's filings on April 15, 2008 (Docket ("Dk") 49) and May 8, 2008 (Dk 53), Defendant advised the Court of the discovery of nine boxes potentially containing mold and/or water damaged documents of Bureau of Indian Affairs ("BIA") records by the United States Department of the Interior ("Interior"), Office of the Solicitor ("Solicitor's Office") attorneys. The discovery was made while Solicitor's Office attorneys were performing a privilege review of a collection of 709 boxes of BIA Navajo Regional Realty Office records transferred from Window Rock, Arizona to the Gallup, New Mexico Federal Building. Two additional boxes that might contain exposed documents were later identified by Assaigai Laboratories of Albuquerque, New Mexico, contractors hired to perform testing concerning the presence of mold and/or water damage. In a status conference with the Court on June 6, 2008, Defendant informed the Court of its plan to amend the November 30, 2007 Record Retention Order ("RRO") to permit movement of the affected boxes to Albuquerque, New Mexico for the purposes of testing and remediating

Case 1:06-cv-00945-FMA

Document 60

Filed 07/08/2008

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the affected records. Based upon the analysis completed by Interior as of the June 6, 2008 status conference, Interior had determined that 574 boxes needed to be tested in Albuquerque for mold and/or water damage. At that point, Defendant had preliminarily concluded that 135 boxes of the 709 box collection could remain in Gallup for completion of the privilege review by the Solicitor's Office to be followed by the document review by Plaintiff. Thereafter, on July 7, 2008, prior to the filing of the Defendant's motion to amend the RRO, the Solicitor's Office advised the Department of Justice that one of the Solicitor's Office attorneys had reviewed the 135 boxes on a file by file basis and determined that seven boxes out of the 135 required further testing and potential remediation. The seven boxes did not have obvious signs of water and/or mold damage. The criterion used to identify these seven boxes was simply that if any document within the box showed some evidence of exposure to water or mold, then the entire box was selected. The potential for damage only became apparent after a second, closer review at the file level conducted out of an abundance of caution The net effect is that seven additional boxes will be moved to Albuquerque for testing and possible remediation, if needed, making the total number of boxes to be moved 581. Thus, 128 boxes will remain at the Gallup Federal Building (i.e., the original 135- 7 = 128) for completion of the privilege review and continued document review by Plaintiff. Defendant attaches as Exhibit 1 a report dated July 8, 2008 by Solicitor's Office attorney Gladys Cojocari explaining in greater detail the discovery of the seven additional boxes described above, which Defendant has determined should be the subject of further testing and, if necessary, remediation. Defendant will file additional progress reports with the Court as appropriate. Defendant contacted Plaintiff's counsel Mr. Rey-Bear and advised him of the events

Case 1:06-cv-00945-FMA

Document 60

Filed 07/08/2008

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described herein on July 7, 2008. Respectfully submitted this 8th day of July, 2008.

RONALD J. TENPAS Acting Assistant Attorney General

s/Robert W. Rodrigues ROBERT W. RODRIGUES Trial Attorney E. KENNETH STEGEBY Trial Attorney AYAKO SATO Trial Attorney Unites States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Telephone: 202.353.8839 Facsimile: 202.305.0506 Email: [email protected]