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

Case 1:06-cv-00945-FMA

Document 41-6

Filed 12/04/2007

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DECLARATION OF CAROL LAZAR
NOVEMBER 28, 2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

NAVAJO NATION a. NAVAJO TRIBE OF INDIANS,
Plaintiff

THE UNITED STATES

No. 06 945L Judge Francis M. Allegra

Defendant.

DECLARATION OF CAROL LAZR

" Carol Lazar, do hereby declare , pursuant to 28 U. C. 1746, that:
1. I am employed by the United States Nuclear Regulatory Commission (NRC) in the

Office of the General Counsel (aGO). I recently graduated from law school. I have been
certified for admission to the New York bar and am awaiting the off.
am working under the supervision of John Cordes
2. In

cial admission ceremony. I

, the NRC Solicitor.

that capacity, I am assigned as a point of contact for NRC relating to the Record

Retention Order (RRO) dated September 10

2007 , issued by the Court in the above-captioned
s response to the RRO on

case. I was assigned the lead position for coordinating the NRC'

October 2, 2007. On October 3, 2007 I received a copy of the complaint and reviewed it. The

NRC regulates uranium miling but does not regulate uranium mines or abandoned uranium
mine sites. Therefore , the records that NRC is most likely to possess wil relate to uranium
mils. The NRC' s statutory mandate is to protect public health and safety and common defense
and security. Therefore, NRO is unlikely to have any documents relating to financial
arrangements between the United States as trustee
, the Navajo Nation. and third- party lessees.

Rather , documents the NRC possesses may provide circumstantial evidence relevant to

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plaintiff' s claim , such as confirmation of the time period during which lessees of uranium mining

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. rights operated on Navajo land.
3. The purpose of this declaration is to detail the steps the NRC has taken to comply
with the RRO, as well as its plans for future compliance.
4. The basis

of the information in this declaration is my personal knowledge and

information provided to me by other NRC employees. Because I do not have in-

depth

knowledge of the field of information technology. I have had to rely to a considerable extent on NRC employees and contractors who specialize in that field for information regarding electronic

records , transmissions , and data. I contacted

individual NRC employees, including both

Headquarters and Regional personnel , and employees of contractors, by telephone
in face-to-face meetings , to obtain
information

, e-mail

regarding the location of possible responsive

documents and information about information technology systems used at the NRC.
The NRC is a small agency and has a limited number of personnel with which to pursue
the Court' s

broad order. At this point many NRC employees and contractors have expended
, the Regional

time and expertise on compliance with the RRO. These include the NRC Solicitor
, two contractors working at the Office of Information Services (OIS), three members of the OGC Program
Support Branch ,

Counsel for NRC Region IV, two senior OGC attorneys, four OGC attorneys

two Records Management Analysts . and at least five members of the Uranium

Recovery licensing Branch.
5. The

NRC issued e-mail network announcements to

aU NRC employees regarding

this lawsuit. The first announcement was sent out bye-mail and posted on the
NRC internal

website on October 9,

2007. The second announcement was sent out by a-mail and posted on

the NRC internal website on October 17, 2007. The third announcement was sent out bye-mail
and posted on the NRC internal website on October 31, 2007. These announcements
described the main foous of the lawsuit and the responsibilty of each NRC employee

o comply

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with the mandates of the RRO. On October 24, 2007 I distributed an electronic copy of the
RRO to all supervisors whose divisions may have information relevant to the RRO
, and directed
of each

.3.

them to distribute the RRO to employees they believe to have relevant records. A copy
of these e-mails is appended to this declaration.

In explaining the search requirements to NRC employees In the announcements, I

described the nature of the lawsuit , with special reference to the plaintiffs claim that the United
States has failed to exercise fiduciary duties owed the plaintiff with regard to supervision,

control . and management over the plaintiff' s trust funds and other trust property.
The announcements described the broad definition of "

document, data or tangible

things " covered by the RRO, and emphasized the need to preserve any record that may be

subject to the order. The announcements instructed. NRC employees to take the RRO with

the

utmost seriousness, and explained that disciplinary action could result from failure to preserve

any document , data or tangible thing in an employee s possession or custody. Additionally, I
explained that an NRC employee s search should not be limited to NRC records, because old

NRC employees were instructed to inform me if they knew of any responsive document, data

records of the long- defunct Atomic Energy Commission (AEC) could

. be relevant.

, or
tangible thing that may be in the possession or custody of the NRC, an NRC officer or

employee , or an NRC contractor.
7. The following details steps I have taken to find paper fies and records that may
relate to the RRO. On October 12, 2007, I visited the OGC File Room with Kristy Remsburg,
OGC' s Team Leader for Administrative Legal SUpport

Services. I removed all potentially
. to my work space to review. I have

relevant files from the OGC File Room and brought them

reviewed almost all of those fies for relevant records since removing them from the OGC File

Room.

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- 4I asked the NRC File Center to recall all files relevant to the search terms I provided

them. The File Center found eighty-three potentially relevant boxes, fourteen of which have
been transferred to the National Archives. Once records are transferred to the

National Archives, the documents are no longer under the control of the NRC. I have begun reviewing

the remaining sixt-nine boxes of records for relevant records.
, have asked the Regional Counsel for Region IV
, the NRC Region that encompasses

Arizona , New Mexico. and Utah for help locating any files that may be maintained in Region IV.
Various NRC employees have either brought me records or directed me to the location of

records that may be responsive to the RRO. I have also

worked to locate contractors who may

possess records relevant to the RRO. I have asked

project managers of the NRC- licensed
possess relevant records.

uranium mils on Navajo land for help locating contractors who may
8. The

following details the steps I have taken to locate electronic records relevant to

the RRO. The NRC networks are backed up, and the backup tapes are re-taped every ten

days. I have asked for backup tapes for each of the NRC divisions that may possess relevant

records in case any employee deleted a relevant record before learning about the RRO. The
relevant backup tapes have been preserved and wil not be re-

taped. I have inquired about the

with possibly relevant records knows of any voicemail responsive to the RRO. I have asked the licensing

existence of voicemails relevant to the RRO. None of the NRC employees

assistant for the Uranium Recovery licensing Branch to search the NRC'
s Agencywide Documents Access and Management System (ADAMS) for any relevant documents and to

create reports of potentially relevant documents. I plan to review any
relevant electronic

documents for responsiveness to the RRO.

I have worked closely with the OIS to create an e-mail retention system. E-mail
retention is difficult at the NRC. Individual

employees are limited in the number of megabytes

they can hold in their mailboxes, and the system periodically purges e-mails older than

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days. Furthermore ,
December of 2007

the agency is migrating from Novell GroupWise to Microsoft Outlook in

-5-

and the migration renders some formerly helpful e-mail retention solutions

address.
any relevant e-mailsto a specifice..mail

problematic. OIS has created an e-mail retention system that wil allow employees to forward

The system wil convert each e~mail along with the properties page and any attachments, to PDF form. The PDF documents wil be saved

in a restricted folder in ADAMS. The e-mail retention system is fully

operational. I have

instructed all NRC employees who may have relevant e-mails to use the retention system to

ensure that any potentially relevant a-mails escape the NRC'
9. Aside from the steps the

s periodic e~mail purges.
, the NRC

NRC has already taken to comply with the RRO

plans to continue to review all non- public records for responsiveness. The NRC plans to review

public electronic records found on ADAMS , the working files. maintained by former project managers.
any records found in Region IV . and any other records produced by NRC employees or

the remaining OGC files , the sixty-nine boxes of files at the File Center, the non-

contractors. The NRC wil gather all responsive records and create a privilege log for nonThe NRC wil either maintain these documents for plaintiff' s review on site or provide the plaintiff copies of nonremind all NRC employees of the RRO by resending an announcement bye-mail and posting the same

pUblic responsive NRC records that have been Identified as privileged.

public , responsive, non-privileged documents. The NRC also plans to periodically

announcement on the NRC' s internal website.
I hereby declare under penalty of perjury that the foregoing information is true and

correct to the best of my knowledge.

Executed on November 29, 2007.

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DECLARATION OF CAROL LAZAR EXHIBIT A

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NRC Announcement

October 9, 2007 .. Saving Documents Relevant to Lawsuit
At the request of the United States Department of Justice. John Cordes,
NRC Solicitor , asks that the following announcement be made:
Navajo Nation , an Indian tribe situated In New Mexico, Arizona, and Utah , has brought a lawsuit against the United States claiming that the United States failed to exercise fiduciary duties owed the tribe with regard to supervision , control, and management of the tribe s trust funds and other trust property. Among other things, Navajo Nation alleges that from 1946 until the present, uranium mining and perhaps other activities relating to uranium have been carried out On the tribe s reservation under lease agreements entered Into by the tribe the United States as its trustee , and a private company.

A court order has been issued In this lawsuit requiring the United States, its agenoies , and its employees to take steps to preserve every document , data, or tangible thing " in Its possessiOn, custody, or control that contains information relevant to the subject matter involved in the lawsuit. Under the court order , the records found wil have to be Indexed and may then have to be made available for inspection . by the plaintiff.

Document, data , or tangible thing " is defined very broadly by the court, and includes writings , records , files, correspondence, reports, memoranda. calendars, diaries. minutes , softare , photographs, and just about anye-mail messages , voice mail other format used for memorializing thoughts and actions. Any such item that is found may not be destroyed (In whole or in part), deleted , altered, Or removed, and agencies involved (including the NRC) have the responsibilty to ensure that its offcers and employees comply with this
requirement.
Accordingly, we ask each NRC officer and employee to do the following:

related to the Navajo Nation reservation , the exploitation of uranium on or near the reservation , Or any NRC or AEC activity relevant to the reservation or the exploitation of uranium on or near the reservation.
(2) Make certain that neither you nor any individual under your supervision destroys, deletes, alters, or removes any record that may be subject to this order.

(1) Ascertain whether you have, or know the whereabouts of, any document , data , or tangible thing, " as defined above, that may be

inform

any "dooument. data , or tangible thing " that may be responsive to the
court order issued In the litigation described above and that may be

Contact Ca ol Lazar (phone 301-415- 1484 or e-mail nrc. go\! ) PHL her by no later than 4 p. m. on Ootober 22, 2007,1if you know ofand

the possession or custody of the NRC or an NRC officer or employee, or a contractor of the NRC. Please note that this request is not limited to NRC records , but also applies to old AEC records.
It is important to treat this order with the utmost seriousness. The presidIng federal judge has indicated that he will assess sanctions against non-cooperating agencies , and such sanctions can also be assessed against individual employees.

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Thank you for your attention to this matter.

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Contact: Carol Lazar (phone 301-415- 1484 Or e-mail
Distribution: Headquarters , Regions

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Annou.oq ments by Da.r I A.nnounJ ements by. Categpr.
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Case 1:06-cv-00945-FMA

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DECLARATION OF CAROL LAZAR EXHIBIT B

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NRC Announcement

October 17, 2007 - Reminder: Saving Documents Relevant to Lawsuit
At the request of the United States Department of Justice, John Cordes,
NRC Solicitor , asks that the following announcement be made:
Navajo Nation, an Indian tribe situated in New Mexico, Arizona , and Utah , has brought a lawsuit against the United States claiming that the United States failed to exercise fiduciary duties owed the tribe with regard to supervision, contro', and management of the tribe s trust funds and other trust property. Among other things , Navajo Nation alleges that from 1946 until the present, uranium mining and perhaps other activities relating to uranium have been carried out on the tribe s reservation under lease agreements entered into by the tribe, the United States as its trustee , and a private company.

A court order has been issued in this lawsuit requiring the United States, its agencies , and its employees to take steps to preserve every document, data, or tangible thing in its possession. custody, or control that contains information relevant to the subject matter involved in the lawsuit. Under the court order. the records found wil have to be indexed and may then have to be made available for Inspection by the plaintiff.

Document , data , or tangible thing " Is defined very broadly by the court, and includes writings, records , files, correspondence

, mail softare , photographs. and just about anyeother messages, voice mail, format used for

memoranda, calendars , diaries, minutes

, reports,

memorializing thoughts and actions. Any such item that is found may not be destroyed (in whole or in part), deleted, altered, or removed, and agencies involved (Including the NRC) have the responsibilty to ensure that its offcers and employees comply with

this requirement.

fallowing: (1) Ascertain whether you have , or know the whereabouts of, any document, data, or tangible thing, " as defined above , that may be related to the Navajo Nation reservation , the exploitation of to the or near the reservation, Or any NRC or AEC activity relevanturanium on reservation or the exploitation of uranium on or near the reservation.

Accordingly. we ask each NRC offcer and employee to do the

subject to this order.

(2) Make certain that neither you nor any Individual under your supervision destroys , deletes, alters , or removes any record that may be

Contact Carol Lazar (phone 301415- 1484 or e-mail C HL 1 Drc. ) inform her by no later than 4 p. m. on October 22, 2007, if you know ofand any " document, data, Or tangible thing " that may be responsive to the court order issued in the litigation described above and that may be in the possession or custody of the NRC or an NRC offcer or employee. or a
contractor of the NRC. Please note that this request Is not NRC records, but also applies to old

AEC records.

limited

It is important to treat this order with the utmost seriousness. The presiding federal judge has indicated that he will assess sanctions

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against non..ooperating agencies , and such sanctions can also be

Thank you for your attention to this matter.

Contact: Carol Lazar (phone 301- 415- 1484 or e-mail
Distribution: Headquarters, Regions

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DECLARATION OF CAROL LAZAR EXHIBIT C

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Search !ntrOl)t't:

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NRC Announcement

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October 31, 2007 . Reminder: Saving Documents Relevant to Lawsuit
At the request of the United States Department of Justice, John Cordes NRC Solicitor, asks . that the following announcement be made:
Navajo Nation, an Indian tribe situated in New Mexico , Arizona, and Utah, has brought a lawsuit against the United States claiming that the United States failed to exercIse fiduciary duties owed the tribe with regard to supervision , control , and management of the tribes trust funds and other trust propert. Among other things. Navajo Nation alleges that from 1946 until the present, uranium mining and perhaps other activities relating to Uranium have been carried out on the tribes reservation under lease agreements entered into by the tribe. the United States as its trustee , and a private company. A court order has been issued in this lawsuit requiring the United States, its agencies, and its employees to take steps to preserve every document, data, or tangible thing in its possession, custody, or control
that contains information relevant to the sUbject matter involved In the

lawsuit. Under the court order, the records found wil have to be indexed and may then have to be made available for inspection by the plaintiff.
Document, data, or tangible thing Is defined very broadly by the court, and includes writings , records, files, correspondence reports, memoranda , calendars, diaries , minutes , e-maif messages, ,voice mail

memorializing thoughts and actions. Any such Item that is found may not be destroyed (in whole or in part), deleted , altered, or removed , ensure agencies involved (including the NRC) have the responsibilty to and
that its offcers and employees comply with

softare , photographs , and just about any other format used for

this requirement.

Accordingly, we ask each NRC officer and employee to do the following:

(1) Ascertain whether you have , or know the whereabouts of , document. data , or tangible thing, as defined above, that may anyrelated be to the Navajo Nation reservation, the exploitation of uranium on or near the reservation , or any NRC or AEC activity relevant to the reservation or the exploitation of uranium on or near the reservatiOn. (2) Make certain that neither you nor any individual under your supervision destroys, deletes , alters. or removes any record that may be

subject to this order.

records.

Contact Carol Lazar (phone 301--15~ 1484 or e-mail CHL1iC nrc. gQ. ) and inform her if you know of any document . data, Or tangible thing that may be responsive to the court order Issued In the litigation described above and that may be in the possession or custody of the NRC or an NRC offcer or employee , or a contractor of the NRC. Plet:se note that this request is not limited to NRC records , but also applies to old AEC

It is important to tret:t this order with the utmost seriousness. The presiding federal judge has indicated that he wil assess sanctions

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against non-cooperating agencIes. and such sanotions can also be
Thank you for your attention to this matter.
Contact: Carol Lazar (phone 30

415- 1484

or a-mail Ctf...lD(g_ gov

Distribution: Headquarters , Regions
AnnQ. ncements by Date Announqements bv Ca!eQory

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DECLARATION OF CAROL LAZAR EXHIBIT D

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Subject: Navajo Nation Record Retention Order
Dear All,

From: To: Date:
Suber, Gregory;

Carol Lazar
Cameron. Franois; Fuller, Karla; Itzkowitz , Marvin; Jones, Bradley; Rothschild VonTiI, BUI; Willamson Trip; , Edward; Winsberg, Kathryn; Zobler, Marian 10/24/2007 1 :35:31 PM

My contact at the D p1;rtment of Justice has urged me to distribute the Record Retention Order to individuals who may have information relevant to the Navajo Nation Litigation Hold. Please distribute it to

apOlogize for the unnecessary interruption If this matter does not concern your division. On a similar note , any questions. The should have included in this communication or jf you have please let me know if you know of anyone agency~wide announcement regarding this matter is available at httD:/lww. internal. nrc_gov/announcements/itemS/3446~savjnQshould you need it as a reference. htrnJ

any employees you believe may have Information. I

Sincerely,

Carol Lazar

cc:

Cordes , John

TOTAL P.