Free Notice (Other) - District Court of Federal Claims - federal

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DECLARATION OF JASON R. BARRON
DECEMBER 3, 2007

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UNITED STATES COURT OF FEDERAL CLAIMS NAVAJO NATION f k.a. NAVAJO TRIBE OF INDL\NS Plaintiff,
V.

No. 06-945L Judge Francis M. Allegra

THE UNITED STATES Defendant.

DECLARATION OF JASON R. BARON I, Jason R. Baron, pursuant to 28 U.S.C. § 1746, do hereby declare and state: 1. I serve as the Director of Litigation in the Office of General Counsel, National

Archives and Records Administration ("NARA"), with my office located at Archives II in College Park, Maryland. I have been employed in this capacity since May 2000. Previously, between 1988 and 2000,1 served as Trial Attomey and Senior Counsel in the Federal Programs Branch of the Civil Division of the Department of Justice. I am also a member of the Bar of the District of Columbia (D.C. Bar No. 366663). 2. I am generally familiar with the Navajo Nation lawsuit. I am specifically aware of

the Order of this Court, dated September 10, 2007, requiring preservation of documents, data or tangible things that are relevant or may reasonably lead to the discovery of information relevant to the subject matter involved in the pending lawsuit. I am filing this Declaration based on my personal knowledge of NARA's holdings, as supplemented with information obtained fi-om NARA archivists and staff

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3.

Under the Federal Records Act ("FRA"), the Archivist of the United States is

responsible for the custody of all records transferred to NARA, and by statute is required to maintain adequate facihties for the housing of those records. 44 U.S.C. §§ 2108(a) & 2110. The FRA provides the authority by which records of Federal agencies that have "sufficient historical or other value to warrant their continued preservation by the United States govemment" are transferred into the legal custody of NARA. 44 U.S.C. 2107. NARA's archival record holdings, by operation of statute, and in accordance with regulations promulgated thereunder, see 36 C.F.R. Part 1200 et seq., represent records being permanently retained by the United States government. 4. Accordingly, any and all archival records relevant to the proceedings in the Navajo

Nation action are being so held on a permanent basis. Undersigned counsel nevertheless has alerted key staff in NARA's Office of Records Services, Washington, D.C. (covering our headquarters holdings) and NARA's Office of Regional Records Services (covering our regional holdings nationwide), that the Court's Order in Navajo Nation is in effect, and 1 have taken reasonable steps to ensure that copies of the Order are transmitted to those components of NARA known to hold Indian and tribal records including records relevant to the Navajo Nation litigation. NARA employees are thus on notice that a preservation Order is in effect for these archival holdings. 5. More specifically, based on the inventorying of NARA's Indian and tribal

collections undertaken by NARA staff to date, I can report that substantial collections of open, publicly available records of the Navajo Nation may be found both in NARA's regional archives in Denver, Colorado, as well as in NARA's Pacific Region regional archives in San Francisco. Other NARA regional archives facilities may also hold

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publicly available Navajo Nation records. Additionally, Navajo Nation records may be found in NARA's Washington, D.C. area archival holdings, both in our Main building on the Mall in Washington, D.C, as well as at Archives II situated in College Park, Maryland. Relevant NARA holdings appear to include records catalogued under the supervising Bureau of Indian Affairs agency that had jurisdiction over a particular tribe, which in the case of the Navajo would include both the New Mexico Superintendency and the Colorado Superintendency, for specific time periods. NARA holds both 19'^ and 20"^ century records in various records series known by such titles as "Letters Received by the Office of Indian Affairs," and "Central Classified Files." Additionally, NARA has many additional archival series of Indian and tribal records that may contain relevant records to this litigation, including a series known under the generic name "General Services Files." Numerous finding aids exist for these various collections, and NARA staff are available to provide reasonable assistance to researchers with respect to their use of these open and publicly available collections of permanent records wherever they may reside. 6. Beyond NARA's archival holdings, I am confident that NARA does not possess any

operational or active records, either in textual (i.e., hard-copy) or electronic form, that would be considered relevant or material to the underlying proceedings in the Navajo Nation case. The only contact NARA archivists have with respect to archival records are requests they may receivefi-omtime to time for access to such records; they do not themselves generate records of any kind that would be relevant to the matters being litigated in this case, including involving a damage action for breaches of tmst duties by the United States or its components or agencies.

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7.

Nevertheless, in further response to this Court's Orders in both the present case and

in related cases, and in light of the many related tribal tmst cases pending in courts throughout the country, NARA has prepared the attached Notice 2008-046, "Holds on NARA Operational Records Relevant To "Tribal Tmst" Lawsuits," issued by NARA's Assistant Archivist for Information Services Martha Morphy (see Tab A). This Notice, dated December 3, 2007, is set for distribution this week via electronic dissemination to the heads of all NARA components nationwide, with further distribution to staff The

Notice is intended to alert staff both to the existence of the records retention order entered in Navajo Nation (as attached to the Notice), as well to related orders which have been entered and which may yet be entered in tribal tmst lawsuits. Accordingly, the NARA Notice goes further with respect to observing preservation obligations, by placing all NARA staff on notice "of each person's duty to preserve relevant records and information across the board for all tribes currently pursuing tribal tmst claims" (emphasis in original). Attached to the Notice is a list of all known tribal tmst cases, whether they currently have a retention order in place or not. The Notice goes on to state that NARA staff "must take reasonable steps to preserve every document, all data or tangible thing in its possession, custody or control" conceming five categories of information corresponding to the allegations of tmst mismanagement involved in the pending tribal tmst lawsuits. The Notice specifically calls for NARA staff to preserve both traditional paper documents that are relevant to the lawsuits, as well as electronic documents, including in the form of email, word processing, and voice mail, and provides specific instmctions for the forwarding of electronic documents to central email and voice mail repositories for continuous preservation during the pendency of this and

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related lawsuits. The NARA Notice also specifically reminds employees that periodic reminders and update notices will be issued to fulfill NARA's obligations in compliance with existing court orders. Finally, the Notice states that failure to comply with the Court's Orders may lead to the imposition of sanctions. 8. Additionally, undersigned counsel, working with NARA's records officer, has directed that NARA's technical staff responsible for the maintenance of our computer equipment and electronic communications systems act to preserve a set of disaster recovery backup tapes created contemporaneously with the Cotut's record retention Order. These backup tapes contain electronic mail and other documents created or received by NARA staff nationwide that were residing on our electronic systems as of September 14, 2007. They will be held indefinitely pending resolution of the proceedings in this case and at the further direction of NARA counsel and NARA's records officer. 9. With these compliance measures with the Court's preservation Order in place, NARA's Office of the General Counsel intends to coordinate the efforts of the various NARA components to monitor compliance with the Court's Orders. To this end, NARA's Records Officer will be working in tandem with an attomey in my office who has been specifically assigned to monitor the central repositories of relevant e-mail and voice mail messages, to ensure that proper archiving of such electronic records is taking place. Both myself and the staff attomey assigned to monitor NARA's preservation actions will be expected to participate in upcoming meetings and nationwide conference calls initiated by NARA headquarters staff to remind NARA staff in both regional and headquarters components of their continuing compliance obligations. We intend to

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continue to participate in such meetings and conference calls on a periodic basis during the pendency of this and related lawsuits. Additionally, as has previously been done during the course of my tenure, should any issues arise involving allegations of missing or damaged records relevant to this action, NARA's Office of the General Counsel will continue to take a leading role in working with any and all appropriate components of this agency, as well as with the Department of Justice and other affected federal agencies, in an effort to resolve outstanding issues. 10. NARA does also operate federal record centers ("FRC") around the country,

including Indian and tribal records of the Department of Interior ("DOI") presently consolidated at our facility in Lenexa, Kansas. Records in the Lenexa FRC remain in

the legal custody of DOI, and DOI as a party defendant in the litigation controls access to such records. However, all relevant DOI records have been under a "freeze" on disposition (equivalent to a legal preservation hold) since 2004, and there are no plans to lift the freeze with respect to records identified as tribal tmst records. Nevertheless, I have taken steps to alert appropriate NARA staff at the Lenexa facility of the existence of the Court's preservation Order, and the need to preserve all records relevant to this litigation. 11. As stated above, all appropriate components of NARA holding records in their

legal custody related to the Navajo Nation tribe have been alerted to the Court's Order. NARA will continue to take reasonable steps to monitor compliance with the Court's orders, including issuing periodic reminders of NARA's record retention obligations, until such time as the present litigation is resolved. I will also ensure that NARA's

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Office of General Counsel will continue to monitor NARA's obligations under the Court's Order into the foreseeable future. 12. Finally, NARA's Office of the General Counsel will immediately notify the Department of Justice should there be any violation of the Court's Orders by a NARA employee. I declare under penalty of perjury that the foregoing is tme and correct to the best of my knowledge.

JASON R. BARON I

Executed on this y

J 3

day of December 2007

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DECLARATION OF JASON R. BARRON EXHIBIT A

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TRIBAL TRUST ACCOUNTING AND TRUST MISMANAGEMENT CASES (December 3, 2007 version)
Alabama-Quassarte Tribal Town v. Kempthorne Ak-Chin Indian Community v. United States Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation v. Kempthorne [Eastern] Shoshone Indian Tribe of the Wind River Reservation, Wyoming v. United States / [Northern] Arapahoe Indian Tribe of the Wind River Reservation, Wyoming v. United States Blackfeet Tribe of the Blackfeet Indian Reservation v. United States Cheyenne River Sioux Tribe v. United States The Chickasaw Nation and The Choctaw Nation v. Department of the Interior Chippewa Cree Tribe of the Rocky Boy's Reservation; Little Shell Tribe of Chippewa Indians; Turtle Mountain Band of Chippewa Indians; White Earth Band of Chippewa Indians v. United States (Pembina Judgment Fund) Coeur d'Alene Tribe v. United States Colorado River Indian Tribes v. United States Confederated Tribes of the Colville Reservation v. Kempthorne Confederated Tribes of the Goshute Reservation v. United States

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Confederated Tribes of the Warm Springs Reservation of Oregon v. United States Crow Creek Sioux Tribe v. United States Delaware Tribe of Indians and the Delaware Trust Board v. United States Eastern Shawnee Tribe of Oklahoma v. United States Eastern Shoshone Tribe v. United States, Northern Arapaho Tribe v. United States [Eastern] Shoshone Indian Tribe of the Wind River Reservation, Wyoming v. United States / [Northern] Arapahoe Indian Tribe of the Wind River Reservation, Wyoming v. United States Gila River Indian Community v. Kempthorne Gros Ventre Tribe and Assiniboine Tribe v. United States Haudenosaunee v. United States Haudenosaunee, Onondaga Nation v. Kempthorne Hoopa Valley Tribe v. United States Hopi Tribe v. United States Iowa Tribe of Kansas and Nebraska v. Kempthorne Iowa Tribe of Kansas and Nebraska v. United States Jicarilla Apache Nation v. United States Kaw Nation of Oklahoma v. United States Kaw Nation v. Kempthorne Lower Brule Sioux Tribe v. United States -2-

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Makah Indian Tribe of the Makah Indian Reservation v. United States Miami Tribe of Oklahoma v. Kempthorne Miami Tribe of Oklahoma v. United States Muscogee (Creek) Nation of Oklahoma v. United States Navajo Nation v. United States Nez Perce Tribe v. United States Nez Perce Tribe, Mescalero Apache Tribe, Tule River Indian Tribe, Hualapai Tribe, Yakama Nation, Klamath Tribes, Yurok Tribes, Cheyenne-Arapaho Tribe, Pawnee Nation of Oklahoma, Sac and Fox Nation, and Santee Sioux Tribe of Nebraska v. Kempthorne Northern Cheyenne Tribe of Indians v. Kempthorne Northwestern Band of Shoshone Indians v. United States Oglala Sioux Tribe v. Kempthorne Oglala Sioux Tribe v. United States Omaha Tribe of Nebraska v. United States Osage Nation of Oklahoma v. United States Otoe-Missouria Tribe of Indians of Oklahoma v. United States Otoe-Missouria Tribe of Oklahoma v. Kempthorne Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California, v. United States

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Passamaquoddy Tribe v. United States Passamaquoddy Tribe of Maine v. Kempthorne Pawnee Nation of Oklahoma v. United States Pechanga Band of Luiseno Mission Indians v. Kempthorne Ponca Tribe of Indians of Oklahoma v. Kempthorne Prairie Band of Potawatomi Indians v. United States Pueblo of Laguna v. United States Pueblo of Santa Ana v. United States Quechan Tribe of the Fort Yuma Indian Reservation v. United States Red Cliff Band of Lake Superior Chippewa Indians v. United States Red Cliff Band of Lake Superior Indians v. Kempthorne Rosebud Sioux Tribe v. Kempthorne Rosebud Sioux Tribe v. United States Round Valley Indian Tribes v. United States Salt River Pima-Maricopa Indian Community v. Kempthorne Salt River-Pima-Maricopa Tribes v. United States San Manuel Band of Serrano Missions Indians v. United States Seminole Nation of Oklahoma v. Kempthorne Seminole Nation of Oklahoma v. United States -4-

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Shoshone-Bannock Tribes of the Fort Hall Reservation v. Kempthorne Soboba Band of Luiseno Indians v. United States Sokaogon Chippewa Community v. Kempthorne Sokaogon Chippewa Community (aka Mole Lake Band of Lake Superior Chippewa Indians) v. United States Standing Rock Sioux Tribe v. Kempthorne Stillaguamish Tribe of Indians v. Kempthorne Stillaguamish Tribe of Indians v. United States Swinomish Indian Tribal Community v. United States Te-Moak Tribe of Western Shoshone Indians v. Kempthorne Three Affiliated Tribes of the Fort Berthold Reservation v. Kempthorne Three Affiliated Tribes of the Fort Berthold Indian Reservation v. United States Tohono O'Odham Nation v. Kempthorne Tohono O'odham Nation v. United States Tonkawa Tribe of Indians of Oklahoma v. United States Tonkawa Tribe of Indians v. Kempthorne United Keetoowah Band of Cherokee Indians in Oklahoma v. United States

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United Keetoowah Band of Cherokee Indians in Oklahoma v. United States Ute Indian Tribe of the Uintah and Ouray Reservation v. United States Winnebago Tribe of Nebraska v. Kempthorne Winnebago Tribe of Nebraska v. United States Wyandot Nation of Kansas v. Kempthorne Wyandot Nation of Kansas v. United States Yankton Sioux Tribe v. Kempthorne Yankton Sioux Tribe v. United States Yomba Shoshone Tribe v. United States

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3fn tEbe Wníteb ~tates (!ourt of jfeberal (!laíms
No. 06-945L

(Filed: September 10, 2007)
NA V AlO NATION f.k.a. NA V AlO TRIE OF INDIANS,

Plaintiff,
v.

THE UNITED STATES,
Defendant.

ORDER
Record Retention

This matter comes before the court on plaintiffs Motion for Entry of

Order. Pursuant to RCFC 26(c) as well as the court's inherent power to regulate its proceedings and maintain the integrity of its functions, see Pueblo of Laguna v. United States, 60 Fed. Cl. 133, 135-137 (2004), the court hereby ORDERS as follows:
1. General Obligation to Preserve. During the pendency of this litigation or until further order of the court, defendant and its departments, agencies, employees, agents, and contractors must take reasonable steps to preserve every document, datum, or tangible thing in its possession, custody, or control containing information that is relevant to, or is reasonably calculated to lead to the discovery of admissible evidence relevant to, the subject matter involved in the pending litigation ("Relevant Records"). Plaintiff is reminded that it also has a similar duty to preserve evidence relevant to this case.
2. Document Inspection and Production.
the date of this order, are inactive as defined by the Deparment of Interior ("Interior") Manual Part 303, Indian Affairs ("BIA") Navajo Regional Chapter 6, and located at the Bureau of ("Gallup") Offce, the BIA Navajo Regional Realty Offce, and the BIA Fort Defiance Agency, and any predecessor offces therefor to the Gallup BIA Warehouse in Gamerco, New Mexico, at which)location such records shall be made available to plaintiff for purposes of inspection. At least 10 calendar days

(a) Defendant shall move Relevant Records that, as of

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the records from their present locations to Gamerco, defendant wil provide plaintiff with an intermediate move plan or plans, which shall include: an implementation schedule; a description or inventory of the records being moved; the method of transportation; the chain of custody; and the signature of the offcial responsible for the move. The move process may be monitored by plaintiff or its representative.
before movement of

(b) After reviewing the above inactive Relevant Records for privileged material, if

necessary, defendant shall make those records available for plaintiffs inspection, in accordance with the following schedule:
(i) Within 35 days after entr of

this order, defendant shall provide to plaintiff any and all existing indices and inventories that include inactive Relevant Records or boxes thereof located at the above offces in the most useable form readily available. Defendant shall provide to plaintiff additional or supplemental indices or inventories of inactive Relevant Records within 21 days after the creation or discovery of such indices or inventories.

(ii) Within 35 days after receiving such indices or inventories from defendant

or within some other time as agreed to by the parties, plaintiff shall designate boxes or records listed in the provided indices or inventories that plaintiff wishes to review for Relevant Records.
(iii) Within 63 days after the date on which plaintiff designates which boxes of

one or more of the above offces it wishes to inspect, defendant wil begin to make available, on a rolling basis, the boxes from such office(s) for plaintiffs inspection at the BIA warehouse in Gamerco.
(iv) Plaintiff generally shall have 63 days within which to inspect a designated

record upon receiving notification from defendant that the designated record has become available for inspection, during which process plaintiff may identify records for production. This inspection period may be extended by agreement of the parties or by the court for good cause shown. At the time of such inspection, defendant shall permit plaintiff to identify or document the condition of records identified by plaintiff for production, including without limitation through the use of audio recorders, digital cameras, or document scanning, provided that no such recordings made by plaintiff shall constitute production of records. Plaintiffs documentation shall be subject to the Protective Order entered by this court on May 1 1, 2007.
(c) After plaintiff has inspected and identified records for production pursuant to

paragraph 2(b) above, defendant may move those records to the American Indian Records Repository ("AIRR") in Lenexa, Kansas, in accordance with defendant's
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procedures and protocols for the movement of Indian trust records contained in the Indian Affairs Records Management ManuaL. After such move(s), defendant shall scan the records identified by plaintiff; code the scanned images at the document level, including data fields as agreed to by the parties; and provide such images and coding to plaintiff within such schedule as agreed to by the parties. For documents originating in media other than paper, defendant shall provide the document in a reasonably usable form, including any form reasonably requested by plaintiff, and also shall provide an opportnity to plaintiff to test or sample such documents upon reasonable request. Defendant shall expedite and prioritize the scanning, coding, and production to plaintiff of identified records.
(d) In accordance with defendant's procedures and protocols for the movement of

Indian trust records contained in the Indian Affairs Records Management Manual, defendant may move any boxes that have been either: not designated for inspection within the time period provided for in or agreed to under paragraph 2(b )(ii);. or designated but not reviewed by plaintiff within the applicable period provided for under paragraph 2(b )(iv). Nothing herein prevents plaintiff from also seeking to inspect records from the above offces in whatever location they may
be found in the future.

(e) Within such schedule as agreed to by the parties, defendant shall input into Interior's Box Inventory Search System ("BISS") data identifying the boxes, fies, and documents containing all Relevant Records located as of the date of this order at the AIR; provide plaintiff access to such BISS database at the Albuquerque
offce ofplaintiffs counsel and the AIRR; and make those records available for
plaintiffs inspection at the AIR. At the time of such inspection, defendant shall

permit plaintiff to identify or document the condition of records identified by plaintiff for production, including, without limitation, through the use of audio recorders or digital cameras, provided that no such recordings made by plaintiff shall constitute production of records. Defendant also shall provide to plaintiff all manuals, training materials, and similar documents created by or for Interior which describe the BISS database and its manner of operation and access. Defendant shall provide to plaintiff additional or supplemental indices or inventories for the AIR that include Relevant Records promptly after the creation of such indices or inventories.
(f) The parties shall meet and confer to discuss schedules and procedures to be used

for defendant to make available to plaintiff, for purposes of inspecting active or all of the date of this order) of inactive Relevant Records (determined as of defendant's deparments, agencies, offces, employees, agents, and contractors at
offces other than those identified in paragraph 2(a) above, as follows:

(i) The parties shall expedite and prioritize inspection of

Relevant Records that, as of the date of this order, are inactive and located at: (1) the offces
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of the BIA Chinle Agency, the BIA Western Navajo ("Tuba City") Agency, the BIA Eastern Navajo ("Crownpoint") Agency, and the BIA Shiprock Agency, whether inspected at those offces, the BIA Gamerco warehouse, or other mutually agreed locations; (2) the Offce of Trust Records ("OTR"), the Office of the Special Trustee ("OST"), and the BIA Land Titles and Records Office ("L TRO"), all located in Albuquerque, New Mexico; or (3) offices of the Departent of

the Treasury.

(ii) Defendant, after reviewing the records for privileged material, if

necessary, shall make the respective record collections available to plaintiff for puroses of inspection and designation. Unless otherwise agreed by the parties, defendant shall provide existing indices or inventories for such records as soon as practicable and make such records
available for plaintiffs inspection within 63 days of

plaintiffs designation

of them.
(iii) Plaintiff shall inspect the records upon receiving notification from

defendant that the records have become available for inspection. If plaintiff identifies records for production, defendant shall make arrangements for scanned and coded images, or other data in a reasonably usable form, to be delivered to plaintiff as soon as practicable.
(iv) Unless otherwise agreed by the parties, moves of are inactive as of the date of

Relevant Records that this order from the BIA Navajo Agencies identified in paragraph 2(f)(i) above, the OTR, the OST, and the LTRO to locations other than the AIR shall be subject to the intermediate move plan requirement of section 2(a) above.

(g) The parties shall attempt to reach agreement on all matters related to document

inspection and shall coordinate inspection of Relevant Records in a manner that wil minimize the disruption of ongoing governental activities.
3. Indexation and Inventorying.
this order, the parties shall identify all of their respective repositories besides the AIR and those addressed in section 2(a) above that are reasonably anticipated to be subject to discovery in this case and determine whether indices or inventories exist for each location. The parties also shall have ongoing duties to identify evidence relevant to this case in their respective possession, custody, or control.

(a) Within 126 days after entry of

(b) Within the same time period or as the parties may agree, the parties shall provide to each other existing indices and inventories for such repositories in the most

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useful form readily available, except for indices and inventories previously this Order. provided pursuant to paragraph 2 of
(c) If a part is unable to provide the other with indices or inventories of its

repositories containing evidence relevant to this case, then the parties shall meet and confer as soon as practicable about the possibilty of using, as may be appropriate, a collection-by-collection approach, including on-site reviews, to address the suffciency of existing indices or inventories and to discuss whether additional indexation of specific record collections is necessary and the scope, timing, and method of any additional indexation or elaboration of inventories at each location based on the particular facts relating to each repository and record
characteristics. The parties shall provide additional or supplemental indices or

inventories that include evidence relevant to this case within 21 days after the creation or discovery of such indices or inventories.
(d) The parties shall cooperate in good faith to attempt to reach agreement on all

issues regarding the indexation and inventorying of documents, data, and tangible things. These issues include, but are not necessarily limited to:
(i) the extent of

types of

the indexation and inventorying obligation, identifying the material to be indexed and inventoried, the subject matter, time frame, the authors and addressees, and key words to be used in identifying such materials;

(ii) the identification of

persons responsible for carying out the indexation or

inventorying;
(iii) whether indexation or inventorying wil require suspending or modifying

any routine processes or procedures, with special attention to documentmanagement programs and the recycling of computer data storage media;
(iv) the timing of

the indexation or inventorying process in relation to the movement of records, and inspection thereof, envisioned in paragraph 2, above;

(v) the methods to index or inventory any volatile but potentially discoverable

material, such as voicemail, active data in databases, or electronic messages;
(vi) the anticipated costs of indexation and inventorying and ways to reduce or

share these costs; and

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(vii) policies and procedures to review and modify the indexation and

inventorying obligation as this case proceeds, eliminating or adding particular categories of documents, data, and tangible things.
(e) If, after conferring to develop an indexation plan, counsel do not reach agreement

this order or on other material aspects of indexation, the parties shall fie expeditiously with the court a statement the unresolved issues together with each party's proposal for their resolution of of
on the subjects listed under paragraph 3(d) of

the issues.

4. Compliance. The parties shall establish policies, procedures, and controls for monitoring
compliance with this order and, on or before 63 days after entr of

this order, fie a status

report with the court describing those policies, procedures, and controls. The parties' counsel shall immediately notify this court if, at any time, they become aware of a this order (e.g., the destrction or loss of documents). violation of
5. Definitions. F or purposes of this order:

(a) "Documents, data, and tangible things" is to be interpreted broadly to include,

without limitation, writings; records; fies; contracts; leases; correspondence; reports; memoranda; calendars; diaries; minutes; electronic messages; voicemail; E-mail; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media such as tapes, disks, and cards; printouts; document image files; Web pages; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bils; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; fims; digital or chemical process photographs; video; phonographic tape or digital recordings, or transcripts thereof; drafts; jottings; and notes. The term also includes information that serves to identify, locate, or link documents, data, and tangible things, including, without limitation, fie inventories; indices; and metadata.
(b) "Preservation" is to 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 action. Preservation includes taking reasonable steps to prevent the partial or full destrction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migration, theft, mutation, negligent handling, or intentional mishandling of any documents, data, or tangible things, if such action would make that material incomplete or inaccessible.

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6. Further Instructions; Modifcation.
(a) If, after counsel confer, unresolved issues remain but require resolution

concerning matters arising under this order or other material aspects of preservation, inspection and production, or indexation and inventorying, the parties shall fie with the court a statement of the unresolved issues together with
each part's proposal for their resolution.
(b) Either part also may apply to the court for further instrctions regarding, inter

alia:
(i) defendant's obligation to preserve specific categories of documents, data,
or tangible things;

(ii) any aspect of

the inspection or indexation tasks not herein clearly defined;

and
(iii) allocating copying costs and maintaining the confidentiality of information

contained in various records.
(c) Recognizing that the parties may perceive better ways of accomplishing the
purposes of this order, the court notes that joint motions to modify any of

the

procedures listed herein wil

likely be received favorably.

7. Sanctions. Failure to comply with this order may lead to the imposition of sanctions.
See Pueblo of

Laguna, 60 Fed. Cl. at 135-137; United Medical Supply Co., Inc. v. United

States, 77 Fed. Cl. 257 (2007).
8. Dissemination. This order shall be distributed by defendant and plaintiff

to all relevant

agencies, departents, offces, divisions, contractors, and individuals.

IT IS SO ORDERED.
sf Francis M. Allegra Francis M. Allegra Judge

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In the United States Court of Federal Claims
No. 07-002L Filed October 22, 2007 ************************************* * PAWNEE NATION * OF OKLAHOMA, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * ************************************* PROTECTIVE ORDER Pursuant to Rule of the Court of Federal Claims 26(c) ("RCFC"), as well as the Court's inherent power to regulate its proceedings and maintain the integrity of its functions, the Court hereby issues the following Order: 1. Obligation to Preserve Certain Documents, Data, and Tangible Things During the pendency of this litigation (including informal settlement discussions, ADR, and/or any appeals herein), the parties, as well as their agencies, their employees, and their agents, shall take reasonable steps to preserve those documents, data, or tangible things that are in their possession, custody, or control, and that contain information that is relevant to, or may reasonably lead to the discovery of information that is relevant to, the subject matter of the pending litigation (including claims and defenses), as that subject matter is set forth in the Complaint and any amendments thereof and the Answer to such complaint and any amendments thereof. This Order does not impose an obligation on the parties to retain duplicate copies of the documents, data, or tangible things that are subject to the Order. Additionally, nothing in this Order Supplants the discovery obligations under the RCFC. 2. Mechanism for Ensuring Compliance With This Order Defendant, in consultation with Plaintiff, shall establish a mechanism for ensuring on-going compliance with this Order, such as periodic reminders of record retention obligations to be sent to appropriate document repositories by a date to be determined by the Court and then every six months

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thereafter for the pendency of this case. Defendant shall file a report setting forth its compliance mechanism, within 60 days of the date of this Order. The compliance mechanism shall include the parties' specification of the subject matters at issue in this litigation and the documents, data, or tangible things that the parties reasonably anticipate to be subject to discovery in this case and to this Order. Counsel shall notify the Court and opposing counsel, as soon as is reasonably possible, if, at any time, they become aware of a violation of Paragraph 1 of this Order (i.e., the destruction or loss of certain documents, data, and/or tangible things). 3. Definitions For purposes of this Order, the following terms are to defined as follows: (a) "Documents, data, and tangible things" shall be interpreted to consist of writings; records; files; contracts; leases; correspondence; reports; memoranda; calendars; diaries; minutes; electronic mail (e-mail) ; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media, such as tapes, disks, and cards; printouts; document image files; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; films; digital or chemical process photographs; video; phonographic or digital recordings, or transcripts thereof; and circulated drafts. The term also shall include information that serves to identify, locate, or link documents, data, and tangible things, such as file inventories and indices. (b) "Preserve" shall be interpreted to accomplish the goal of maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be subject to discovery in this case as related to the subject matters defined by the Parties under paragraph 2 above. "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. 4. Movement(s) or Transfer(s) of Certain Documents, Data, and Tangible Things In the event that Defendant anticipates moving or transferring trust documents relating to Plaintiff from the Central California Agency and Pacific Regional Office of the Bureau of Indian Affairs (BIA) to the American Indian Records Repository (AIRR), Defendant shall provide Plaintiff with notice of such document movement at least 20 days in advance of the movement. Such written advance notice shall include a copy of any move plans and box inventories produced pursuant to regulations and procedures governing movement of trust documents. 5. Dispute Resolution If a party desires clarification of any issue(s) related to the parties' obligations pursuant to, or compliance with, this Order, or believes that the opposing party has violated any term of this 2

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Order, the party shall notify the opposing party in writing and state the issue(s) requiring clarification or the grounds upon which the party has formed such belief. As soon as practicable after receiving such written notification, the parties shall meet and confer in an attempt to clarify the issue(s) in a mutually agreeable manner or resolve the dispute. If the parties cannot clarify the issue(s) in a mutually agreeable manner or do not resolve the dispute, within a period of 20 days either party may file a motion with the Court seeking a ruling regarding the parties' obligations under, and compliance with, this Order. 6. Further Instructions, Clarification, or Modification of This Order Each party may apply to the Court, at any time, for further instructions, clarification, or modification of this Order, regarding, inter alia, their obligations to preserve specific categories of documents, data, and tangible things covered by the Order. The parties are encouraged to confer among themselves and to make a joint proposal or submission to the Court, wherever appropriate or possible. The court, however, reserves the right, after reviewing the record and other information submitted by the parties, to modify this Protective Order in the event such information is not confidential, privileged, proprietary, or would adversely affect national defense and/or national security upon public disclosure. IT IS SO ORDERED. s/Susan G. Braden SUSAN G. BRADEN Judge

3

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In the United States Court of Federal Claims
No. 06-900L Filed October 1, 2007 ************************************* * ROUND VALLEY INDIAN TRIBES, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * ************************************* PROTECTIVE ORDER Pursuant to Rule 26(c) of the Rules of the Court of Federal Claims (RCFC), as well as the Court's inherent power to regulate its proceedings and maintain the integrity of its functions, the Court hereby issues the following Order: 1. Obligation to Preserve Certain Documents, Data, and Tangible Things During the pendency of this litigation (including informal settlement discussions, ADR, and/or any appeals herein), the parties, as well as their agencies, their employees, and their agents, shall take reasonable steps to preserve those documents, data, or tangible things that are in their possession, custody, or control, and that contain information that is relevant to, or may reasonably lead to the discovery of information that is relevant to, the subject matter of the pending litigation (including claims and defenses), as that subject matter is set forth in the Complaint and any amendments thereof and the Answer to such complaint and any amendments thereof. This Order does not impose an obligation on the parties to retain duplicate copies of the documents, data, or tangible things that are subject to the Order. Additionally, nothing in this Order Supplants the discovery obligations under the RCFC. 2. Mechanism for Ensuring Compliance With This Order Defendant, in consultation with Plaintiff, shall establish a mechanism for ensuring on-going compliance with this Order, such as periodic reminders of record retention obligations to be sent to appropriate document repositories by a date to be determined by the Court and then every six months thereafter for the pendency of this case. Defendant shall file a report setting forth its compliance mechanism, within 60 days of the date of this Order. The compliance mechanism shall include the

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parties' specification of the subject matters at issue in this litigation and the documents, data, or tangible things that the parties reasonably anticipate to be subject to discovery in this case and to this Order. Counsel shall notify the Court and opposing counsel, as soon as is reasonably possible, if, at any time, they become aware of a violation of Paragraph 1 of this Order (i.e., the destruction or loss of certain documents, data, and/or tangible things). 3. Definitions For purposes of this Order, the following terms are to defined as follows: (a) "Documents, data, and tangible things" shall be interpreted to consist of writings; records; files; contracts; leases; correspondence; reports; memoranda; calendars; diaries; minutes; electronic mail (e-mail) ; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media, such as tapes, disks, and cards; printouts; document image files; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; films; digital or chemical process photographs; video; phonographic or digital recordings, or transcripts thereof; and circulated drafts. The term also shall include information that serves to identify, locate, or link documents, data, and tangible things, such as file inventories and indices. (b) "Preserve" shall be interpreted to accomplish the goal of maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be subject to discovery in this case as related to the subject matters defined by the Parties under paragraph 2 above. "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. 4. Movement(s) or Transfer(s) of Certain Documents, Data, and Tangible Things In the event that Defendant anticipates moving or transferring trust documents relating to Plaintiff from the Central California Agency and Pacific Regional Office of the Bureau of Indian Affairs (BIA) to the American Indian Records Repository (AIRR), Defendant shall provide Plaintiff with notice of such document movement at least 20 days in advance of the movement. Such written advance notice shall include a copy of any move plans and box inventories produced pursuant to regulations and procedures governing movement of trust documents. 5. Dispute Resolution If a party desires clarification of any issue(s) related to the parties' obligations pursuant to, or compliance with, this Order, or believes that the opposing party has violated any term of this Order, the party shall notify the opposing party in writing and state the issue(s) requiring clarification or the grounds upon which the party has formed such belief. As soon as practicable after receiving such written notification, the parties shall meet and confer in an attempt to clarify the issue(s) in a 2

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mutually agreeable manner or resolve the dispute. If the parties cannot clarify the issue(s) in a mutually agreeable manner or do not resolve the dispute, within a period of 20 days either party may file a motion with the Court seeking a ruling regarding the parties' obligations under, and compliance with, this Order. 6. Further Instructions, Clarification, or Modification of This Order Each party may apply to the Court, at any time, for further instructions, clarification, or modification of this Order, regarding, inter alia, their obligations to preserve specific categories of documents, data, and tangible things covered by the Order. The parties are encouraged to confer among themselves and to make a joint proposal or submission to the Court, wherever appropriate or possible. IT IS SO ORDERED. s/Susan G. Braden SUSAN G. BRADEN Judge

3

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3Jn ~be Wníteb ~tates C!ourt o($eberaI C!laíms
No. 06-899L

(Filed: August 24, 2007)

SWINOMISH INDIAN TRIAL
COMMUNITY,

Plaintiff,
v.

THE UNITED STATES,
Defendant.

ORDER
On July 31, 2007, the court ordered the parties in this case to fie a proposed document
preservation order. On August 8, 2007, the parties fied a joint stipulation regarding preservation of documents, data, and tangible things. Pursuant to RCFC 26(c) as well as the court's inherent

power to regulate its proceedings and maintain the integrity of its functions, see Pueblo of Laguna v. United States, 60 Fed.CL. 133, 135-137 (2004), the court adopts the parties' stipulation with minor changes, and hereby ORDERS as follows:

1. General Obligation to Preserve. During the pendency of this litigation or until further order of the court, defendant, its agencies, and its employees must take reasonable steps to preserve every document, data or tangible thing in its possession, custody or control, containing information that is relevant to, or may lead to the discovery of information relevant to, the subject matter reasonably involved in the pending litigation ("Swinomish documents"). Plaintiff is reminded that it also has the same duty to preserve evidence relevant to this case.
2. Definitions. For purposes of

this order:

(a) "Documents, data, and tangible things" is to be interpreted broadly to include, without limitation, writings; records; fies; contracts; leases; correspondence; reports; memoranda; calendars; diaries; minutes; electronic messages; voicemail; E-mail; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media such as

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tapes, disks, and cards; printouts; document image fies; Web pages; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bils; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; fims; digital or chemical process photographs; video; phonographic tape or digital recordings, or
transcripts thereof; drafts; jottings; and notes. The term also

includes information that serves to identify, locate, or link documents, data, and tangible things, including, without limitation, fie inventories; indices; and metadata.
(b) "Preserve" is to be interpreted broadly to include, without

limitation, taking reasonable steps to prevent the partial or full
destrction, alteration, testing, deletion, shredding, incineration,

wiping, migration, 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 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.
3. Movement of

Documents, Data, and Tangible Things.
that it does
not anticipate moving or transferrng Swinomish documents from

(a) On August 6, 2007, defendant represented to plaintiff

the Department of the Interior within the immediate future. Defendant shall provide plaintiff with written notice at least thirty (30) days prior to moving or transferrng Swinomish documents from the Puget Sound Agency of the BIA to the American Indian

Records Repository (AIR).

(b) Defendant has represented that it is determining the location of Swinomish documents held in other Departent of the Interior
that investigation, defendant shall meet and confer with plaintiff concerning its ffndings with respect to any collections of Swinomish documents that are found in other Interior facilities, and shall provide plaintiff any existing ffnding aids or indices of such collections, so as to allow plaintiff to determine whether it wishes to review the records at the facilties. Such review, if any, wil be according to the rules and procedures of the facilities in which the records are located. During the aforementioned meeting, the parties shall also discuss how plaintiff wil be notiffed should
facilities. Within thirt (30) days after the completion of

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any of the collections ofSwinomish documents be considered for movement or transfer to the AIR.

( c) Should, at any point, the parties' consultations reveal a need to

modify this order, the parties' shall fie an appropriate motion seeking that modiffcation.
4. Compliance. Defendant, in consultation with plaintiff, shall establish a mechanism for monitoring compliance with this order, providing, inter alia, for periodic reminders of record retention obligations to be sent to Swinomish document repositories, BIA Puget Sound Agency, Northwest Regional Offfce and the Offce of Trust Records. On or before September i 7, 2007, defendant shall fie a status report with the court describing this
compliance mechanism. Counsel shall immediately notify opposing

counsel if, at any time, they become aware of a violation of paragraph i of this order (e.g., the destruction or loss of documents, data, and/or tangible things).

5. Dispute Resolution. If a pary desires clariffcation of any issue(s) related
to the parties' obligations pursuant to, or compliance with, this order, or believes that the opposing party has violated any term of this order, the part shall notify the opposing part in writing and state the issue(s) requiring clariffcation or the grounds upon which the party has formed such belief. As soon as practicable after receiving such written notiffcation, the parties shall meet and confer in an attempt to clarify the the issue(s) in a mutually agreeable manner or resolve the dispute. If parties cannot clarify the issue(s) in a mutually agreeable manner or do not
resolve the dispute within a period of20 days of

the aforementioned

written notice, either part may fie a motion with the court seeking a ruling regarding the parties' obligations under, and compliance with, this
order.
6. Sanctions. Failure to comply with this order may lead to the imposition of

sanctions. See Pueblo, 60 Fed.CL. at 135-137; United Medical Supply Co.,

Inc. v. United States, 77 Fed.CL. 257 (2007).

7. Dissemination. This order shall be distributed by defendant to all relevant
agencies, departents, offces, divisions, and individuals.

IT IS ORDERED.
sf Francis M. Allegra Francis M. Allegra Judge
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