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

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DECLARATION OF LACHLAN W. SEWARD EXHIBIT A

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DEPARTMENT i~ THE TREASURY FINANCIAL MAKAGEMEN'r 8ERVICE~
WASHINQYON, D,. ~7

IN THE ~ STATES ~T OF ~ CLAIMS

PUEBLO OF LAOUNA,

Pl~-Siff, V,

No, 02-24 L Judge Fmn~ M. Al~ S'I'ATI~S OF ~mRICA, Deltmdm~

ow nEUA
1, Debm Die~, ~ de~l~, ~ to ~ US(: § 1746, as follows:

I. icunu am employed by thc

of h

,F'umn

Mmmgan~ut Sa-vi~ (FMS), as Chief Counsel. ! have cootdinm~ Treasury's effom at tim devetopmeat of reportable steps to ~mpty with the ordem of Ihis Corm, issued on Mmr, h 19, 2004.. 2. The Depmrtnmm ofTreasmy herew~ sub~ .~ its status report on th~ development of"a madumism for ~ onmplim~" with this Court's ord~ of Ivlm~ 19,2004. Each section of the status repo~ was ~ by employees wRhin the affecled bmeaus of the ~ of the Treasury with personal knowledge ofthe fa~s set for~ therein. I declare under penalty ofpetjury that the feregoing is true and oormct. Ex~d on April 23, 2004.

DEBRA DIENER

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ststu nqmt on me US. D~.ot tim Tremury's Cemphn~ M~ Meebsnbm mr
The Puddo otLsmms v. United States in an order issued on March 19, 2004~ the Ceert imposed several obIigmiom on the United States. One of Ihese obligaliom is to establish a mechanism for monitming

the Sovermn~'s ~npeen~ wi~ its obligation to peserve ~ dm, and

~mgiM© thi~ Another ofeJese oblismiom is to file a statm repo~ with the Coert This smtm mixer describes (1) the plan that the U.S, DeparUnc~ of the Tmasm'y

('~r~,) has ~ m satisfy its prcservati~ obngmion und~ the Court's order (the "px~mcrvation pure"), and (2) the mechanism mat Tmumury has esmbUsh~ to satisfy ~ ob~aon to ~ its comV,lim~ wi~ ~ phm (0~"~ ~ medmnism"). This report Ires ttm~ pints:
@

ntzessa~ must descr~ the subje~ ~mmer oftl~ doaummts to be ~, v,' ,Usmms tUat mpie am.
. The second part of this rClX~ dcscrib~ Tmasu~'s prmervation plan. The third pert ofth~ report desm'Jbm Treasu~'s compfian~ monitoring med.mi~ Le., how Treasmy will ~ and dmnonsb'ate that tbcs¢ documm~ L Docemems Covered by (he Preservstion Pbm end

~:¢p.kme MmUor~ Me~n~su

In Trm~u~'s view, an ~w plato ~ ~g ~ and mo~ing compliaz~ requh~ ~ the ~ ~ by ~ plan be descn'bed cle~ly, The

Court's orde.'rcquircs the Oovmuncnt to '*take reasonable steps to prcs~ every
inf0nnafion fl~at is relevaat to, ef may reasomably lead to dis~very of information

relev~ ~ the subject meaer ofe~e pmdi~ liti~tio.." The boundm~ ofmis bn~
description are inherency mnbiguous, because no pwty cau onfxleufly identify all deemuenls that might be sub~et to discovery at lhe outset of a case. At Tn~ma~, lhere me literally thousands of ~eod people, fiun e~eks to mmagem, who need mo~ ~ guidance in o~ler to aEply dds ordmr to their daily business oper~ons. For these reasons, Treasury's report begins by defini~ mm~e cet~y the subject mattcr of documents, data, and tmgible things revered by its p~ plan and comp['umce ~ ~. Thls &fruition is overly broad, and we fully expect lhat Tn~smry will need furll~ clarification ffmn tl~ Court as ~]fis case ~. Weput

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the ~ fomard now, howev~, in ~ter to show Our good fadth ef~ to comply wi~ tlz Comfs mdcr) To thc cxteat this ~tioa ~m~es T~, its sub]oct mae~r pcrt~es ~o
Treasm'y's ~ role as a co-tmst~ for i~ads ~ to the Pueblo of ~ tribe.

o~ ~ plan and conWfimsce mechmism over documem pataining to the activities we Imvc mdatak~ msd will ~ in this role: The ~abl~hmc~ of m:cou~ in Trsasury'a central
Treasury establishes ~cotm~ in Treasmy's omtral accounting and

financial ~ sy~m fcc l~liag ta'~ ut~ funds, including funds ~ to the Pue~ ofLagunn ~'be. ~~ ~gm, mm~,,,ccmm~. 1a a,is rcp,'d, tw~ an hdcsim's ~ T~umry moords the ~-il~ of deposits, the

~ce~ion (~) of~xne deposits to a~om,,s, and the
tnmfer of~ fm~ m acceu~.

7~e ~ ofamoan~ ~ ~ ~. In a~is r~rd, m the reque~ of linear, Tremury i~ests u~am~ fi'om ti~ accom~s in U.S. ~ ~ resard,-at the request of Inmk.-, Treasury redeems inwstments hdd in tl~ acco,m~ An~'~/,~v~ov with the ~eme,,t qfmoncys, Interior has aue~ity to disburse funds f~om the w.cou~ through the issuance of Treasury checks. At tl~directionoflnterior, Treasury makes elecuenic pay, hemSand may issue check payments to recipients identified by lnt~or.
e

The government's accoun~g ~ lnthis rcgm-d, Treasury produces ~jumnt statemems and pests accotmt infommtion for

dep0~-.~p~ mvesun~ redempt~ and d~u~ement
~ oflhe acumms.

s T~docummst mtmtioe orda'in C~v. Nmm~n ere bmef~ ~fdeflni~ the subject nmteref

~ ~nsma~ ~ ew aue., ~ Lmba~ ~ Tn~z~ to ~ sp~~ csteSmies of ~ meads paU~ w ~he ~ ~im. v~ese~ wh~ove~ m,~ ~
f~m C~ Ccbell ~d~ i~ ~md~, ¯

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We note that the docmaents, data, and ~ eMngs de~ibed above nmy pmain to ~ that.aze slx~W-sc~41y in the mmme of the l:~,m~blo ofLasuaa u'it~ as well asto summmy level ao~ounts. Prior to 1973, Tmasmy ~ in its ~ntral a~.oum~mg and ~ t~systemseparme accounts for Indi~ tdbes. In 1973, with the

~of~U. S. Geueml AcmmSing Olrme, these separate ~ 0oUding
appmxima~y 1,500 at ,hat time) were emmoHdmed on Treamry's books into summmy

~et aemms. Tmaserfs ~ pbm md ~ monitm~ medmism cove~ existing ~ dma, m~d ~.~fings ~d befo~ I~ and afar.
Tzeasuty may also have ~ ~ of nmduetabte set.dries and

savinp bonds by Immi~ in nst for the Pueblo of Lagmm tn'be, and payments relaeug to Judgment Fund awa~ Tree--Is pmsevvffiion plm and eompitm~ medmism ~ aay docummm, dma, aud mngil~ e~ngs preening to these
types ofinvestmen~ and ~ enmt are .in o~r possession, custody, or controL

Treasury's preservation plan reties in part on a sucvessful ~that we developsd to comply with a reteati~ orde: in the Cobdl case. Prior to e~at case. Tnmsury's ~ had been to comply with mcerd retemion schedules approved by the N~iomd AmMves m~l ~ ~ ("NARA"). Th~sc ~ 1~mm~t~ Treamry t0 ~ ofrecoe~- both trust and nan-roB records- at the end of an

approved mtemioa pe~od. Treemry cemed mis pin,ice for re~'vam ~ dur~
Cobdl. amt instituted a rigorous pmgxmn for ~ them.

The fonowing prace~ devetoped auri~ Cob~ ~ pert of our prese~mon phn
for this ~me:

ktemifying those nsonh, or systems containing mx~s, thatmay reflem
Treasury's activities as a ~ for Indian trust funds. Treasury's Financial M~ Service (~4S") and Bureau of the Public Debt (~BPD~) are the Tmamwy Immaus ~et have the vast nmjodly of such reconts for re'hal trust funds. Each of these lmreaus ires ueated writum inventmdes or mmmfiv~ des~bing lh~se mcot, ds and ,t, lmir Iotmions.

Mainteinln8 back-up systems o~ procedures alrmdy in ple~ for disaster recovery imrlmses.

3

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Suspending the dispo~ of ~t t~cercls at fedemt n~,a~ cemers. As
Pm of its normal praeti~ in umuagiug doeumm~ Treasu~ sends t~xx~Ms

to NARA for maimemmce ia fedend n~ont eente~ unde~ approved. tetentionsehedul~ To lu~sev~doemnmmin Cobd/, Treastwy dkec4ed NAXA o suspend deseeaiee ofdoemume in ~Uao record groups, and Tn~ma'y issues pedodle reminders to that effect. Some recm~ relafn8 to
:tnl~ funds mayi~ in fl~:sc tucotd g~u~s. If there at~ ~ record

8mups that may contain malm-ials overed by chug ~afi~ plan, we will i~ ~Idi~ml imm~aio~ to NARA m p.~m~ ~ ~ B. Nn, Comlpeaems ofTrmmry+s ~ Plan Treasury has ~ additional ~ to mmu~ mmpliance With the Com.t's 19, 2004 older:
Following m~ of tim Court's March 19, 2004 older, FMS, BPD, and

Main Treasury's Depmtmmdai Offices ("DO") each established a dedicated e-mail archive mailbox to house re'hal-related e-maits end a dedicmed retpository to ste~e voicemml messages related to this case. FMS, BPD, and DO distributed detailed, writtm imtructions fm using the~ storage ~ to ~eir respec~e employees, and ~ that O~'y be~n us~ those me~an~ immecUau~y. FMS, mq>, andDO wi~ ~e ~c remim~ ~o ~ m~o~es m con~ ~ ~ese s~ra~ n~mim~.
Following entry of the March 19, 2004 order, FMS, BPD, and DO each

issued written din~tives to pminmt offw, ials mnumxing me requiremems in the Court's onter. FMS, BPD, and DO will issue periodic written mnindets to their employees. In am~ Treama~ has beem, and ccmtinu~ to be, n~tstning vast categories of doctmza~ data, aud tangible things zelated te Treasury's activists in its micas acetms~ for lndiau tribal Uust funds. TI~ ~bed im~aiou plan has provm to be effeedve and will mmiuue m be employed in a geod faith effort to fulfill Treasury's preservation obligations in this case. in. Trmerv', Co~~ A. Treamry's ~ C~mpl~s~ ~,~~ M,~dn,msms Treasury has been employing several mechanisms for monitoring eompfianee in C~bd/that will continue indds ease. These me~lmimns m'e the following: DO, FMS, and BPD have estsbl/shed a dem .e~ec~fioa within offr-m~ my qum~ons or concerns regarding record memion should be

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Seaior nmmsmneat at I~, FMS and BI~ have been, and ~ to be, amively involved in ludim eibal trust fend(and Co~ll) 1~ mmte~ including record releuti~ For example, retaining n~nts subjeet to a eou,t orckr has bee~ and eeminum to beq included as a mmmge,ial ~ ekmem for annual perf~ mengs ofthe Ass/stant
~ at FMS mMi BPD. Assistam C~mnission~s am held

dire~iy au:ountal~ to dte Commissioner oftheir bureau for moni~ and eommllin8 their own ot~e's mmplianee with rmention ordem and
dire~ves.

to ~bnn ~ 0ndod~ senior Tnan=y ome~ and ~ appo*m~s) about the impmmnee of~ ~ ceve~d by a prese,va~ orde,, ad az h~eeamce ofpmnq~ reporens my

T~sury utilizes et~entmioa briefing& meetings, and periodic reuthtdem

destruction ineidems involvi~ such docmmen~ DO employees have been ~ to notify the General Coeusel's O4Zmx, and FMS and BPD employees have been iastmcted to uotify their Chief Counsel's Office, if such records m= destmy~L T~mery will continue to use these to keep im employees mindful of these impo,tmtt nMuiremc=ts.

~y~ the incident ~ ~ ~ ofJw~i~. Tremwy will
subsequen~ follow up wiOt a wtit~ rep~ to ~he Department of Justice,

a~y~g ~e reeords that wine desueyed (such a~ whee~ e~y r~,tmned
~evant inf~ and whet~ the information can be obtained fmm

oth= remnh).
B. New Cemlmum~ ofTremur~s C~ Moaitorlag Meehmtbm ln ~ to meama~ already in ptace from Cobelt, Treasury will be taldn8 addi~onal measmes to monitor ~mpliance with e~e Corn's order and ou~ pt~emaien

pt~

We will peciodk~y mouitor dedimed e-mail aad vo'~=~atl mailboxes to em~pe they imve m ston~ problems. We will issue pmiodi¢ reminders that desm'be the documents we must preserve to all relevamt employees. Copies of these notices will be available for in~ upon request.

.T

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DECLARATION OF LACHLAN W. SEWARD EXHIBIT B

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) JICARILLA APACHE NATION

No. 02-25 L Judge Francis M. Allegra

DEFENDANT'S SUPPLEMENTAL STATUS REPORT DESCRIBING COMPLIANCE WITH THE MARCH 19, 2004 ORDER I. INTRODUCTION On March 19, 2004, the Court issued a record retention order (RRO) in this case, requiring the parties to take reasonable steps to preserve "documents, data, and tangible things" that contain information relevant to, or that may reasonably lead to information relevant to, the subject matter of this case. As explained in its April 26, 2004 Status Report describing compliance with that Order, the federal agencies that have been identified as having documents potentially subject to the RRO1/ proceeded to implement reasonable measures to preserve those documents, data and tangible things. The agencies explained to the Court how the RRO had been distributed, the additional instructions

1/

The RRO does not identify the specific agencies subject to its coverage, instead simply referring generally to the Defendant, (i.e., the United States) along with its "agencies" and "employees." Based on the information provided in the complaint, including references to specific statutes and regulations in Plaintiff's proposed Record Retention Order filed on September 12, 2003, and on the Department of Justice's experience in previous tribal trust cases, the Defendant has focused its attention on the Department of the Interior (DOI), Department of the Treasury (Treasury), the National Archives and Records Administration (NARA), the General Services Administration Indian Trust Accounting Division (ITAD), the Department of Energy (DOE), the Nuclear Regulatory Commission (NRC), and the United States Forest Service (USFS) as the agencies likely to have information subject to the RRO.

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for complying with the RRO that had been provided to employees, the additional measures taken in order to comply with the RRO, and the means by which they intended to monitor compliance with the RRO.2/ The focus of the agencies' initial efforts after entry of the RRO was to ensure that their employees were fully informed of their individual obligations under the RRO, particularly the need to save or transcribe voice mails and e-mail.3/ Since April 26, 2004, the agencies have continued these efforts, focusing on the systematic measures for preserving relevant electronic records. This Supplemental Status Report, along with the attached declarations, updates Defendant's April 26, 2004 Status Report and describes the steps taken by Defendant to continue compliance, particularly in the context of certain electronic media covered by the RRO, including backup data, network and computer activity logs, metadata, web pages, and hard drives. II. STATUS A. DEPARTMENT OF THE INTERIOR 1. Measures to Ensure the Continued Preservation by Individual Interior Employees of Documents, Data, and Tangible Things

Senior Department of the Interior ("DOI" or "Interior") management has continued to remind
2/

See April 26, 2004 Status Report, Declaration of Abraham Haspel, Deputy Secretary in the Office of the Secretary, DOI, April 26, 2004 (Haspel Decl.) ¶ 8; Declaration of Cristobal Alvarez, Attorney-Advisor, DOI, April 26, 2004 (Alvarez Decl.) ¶¶ 2-7; Attachment 1 to Declaration of Debra Deiner, April 23, 2004 (Deiner Decl.) ¶¶ 4-6; Declaration of Jason Baron, Director of Litigation in the Office of General Counsel, NARA, April 21, 2004 (Baron Decl.) ¶¶ 3-5; Second Declaration of Dow Davis, Attorney, DOE, April 23, 2004 (Davis Decl.) ¶¶ 8-10; Declaration of Marie Clark, Acting Director (Former), ITAD, April 22, 2004 (Clark Decl.) ¶¶ 4-6, 9-10; and Declaration of James Snow, Special Counsel, DOA, April 22, 2004 (Snow Decl.) ¶ 7; see also Declaration of Susan Fonner, Attorney, NRC, April 22, 2004 (Fonner Decl.) ¶¶ 5-10.
3/

Haspel Decl. ¶ 8 and Exhibit D; Alvarez Decl. ¶¶ 3, 4 and Exhibits; Attachment 1 to Deiner Decl. ¶ 4; Baron Decl. ¶ 3.d.; Clark Decl. ¶¶ 7-8; and Fonner Decl. ¶ 6. -2-

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Treasury Excerpt Follows

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Superintendents, and Commissioners to ensure that hard drives that are no longer in use but were previously used by employees dealing with Jicarilla and Laguna trust assets are being physically preserved and stored in a safe and secure environment. Memorandum from Lawrence Jensen & W. Hord Tipton to Secretary, et al. (October 8, 2004) (Attached as Exhibit 2). The directive also requires that bureaus and offices "label and catalog all preserved hard drives with appropriate documentation to allow for meaningful search and recovery." Id. B. DEPARTMENT OF THE TREASURY This part of the Status Report describes the steps that Treasury is taking to preserve certain electronic media currently used for tribal trust activities. As noted in Treasury's original status report, there are six such activities, and only one of those activities (disbursing) is known to generate electronic records that specifically relate to the Jicarilla Apache Nation. See April 26, 2004 Status Report, Attachment 1 to Deiner Decl. at 2. The other activities generate electronic records that relate to undifferentiated funds in Treasury accounts that may belong to many tribes.11/ Treasury performs transactions with these funds at Interior's direction, and only Interior ­ as the agency responsible for carrying out the tribal trust fund program ­ knows the extent to which particular transactions relate to a particular tribe. This fact is critically important when evaluating the reasonableness of Treasury's Prior to July 1, 1973, Treasury maintained separate accounts for tribal trust funds in its central accounting and financial reporting system. On July 1, 1973, with the concurrence of the U.S. General Accounting [now Government Accountability] Office, these separate accounts (totaling approximately 1,500) were consolidated into a few general tribal accounts. See April 26, 2004 Status Report, Attachment 1 to Deiner Decl. at 3. Certain deposits made by specific types of electronic funds transfers may be accompanied by an addendum identifying a particular tribe; however, that information is used (if at all) by the program agency, not Treasury. Although Treasury would likely be able to retrieve that addendum if provided sufficient predicate information to locate a particular electronic funds transfer (just as it can retrieve copies of certain cancelled checks if provided sufficient predicate information), Treasury does not need or use the addendum information in maintaining the general tribal accounts established in 1973. - 15 11

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preservation plan for electronic media. The following chart shows how the activities that Treasury currently performs for tribal trust funds relate specifically to the Jicarilla Apache Nation. Treasury Trust Activity Establishing Accounts Relationship to Jicarilla Apache Nation Treasury does not maintain any accounts specifically for the Jicarilla Apache Nation. Declaration of Richard L. Gregg, Commissioner, FMS, March 4, 2005, (Gregg Decl.) ¶ ¶ 2,3 (Attached as Exhibit 9). Only Interior, as the program agency responsible for carrying out the government's tribal trust fund-related activities, would know the extent to which Jicarilla funds exist in Treasury's general tribal accounts. Treasury keeps electronic records of funds added to general tribal accounts, but (with the exception of certain deposits made through electronic funds transfers), cannot identify which funds may belong to the Jicarilla Apache Nation. Id. Only Interior, as the responsible program agency, would be able to do that. Treasury records how it invests funds in general tribal accounts, Declaration of Anne M. Meister, Deputy Commissioner, Bureau of the Public Debt, March 8, 2004 (Meister Decl.) ¶ 2 (Attached as Exhibit 10). Only Interior, as the responsible program agency, would be able to determine the share belonging to the Jicarilla Apache Nation. Treasury records when it redeems investments, but cannot identify what share may belong to the Jicarilla Apache Nation. Id. Only Interior, as the responsible program agency, would be able to do that.

Funding Tribal Accounts

Investing Money in Tribal Accounts

Redeeming Investments

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Assisting Interior with Disbursing Money to the Jicarilla Apache Nation.

At the direction of Interior, Treasury may disburse money by check or electronic funds transfer to the Jicarilla Apache Nation. Gregg Decl. ¶ ¶ 2, 3. In addition, Interior reports its disbursements to Treasury. Id. Treasury retains electronic records of disbursements made by Treasury and Interior, including disbursements to the Jicarilla Apache Nation. Id. Treasury does accounting for the activities listed above. Gregg Decl. ¶ 2; Meister Decl. ¶ 1. Electronic accounting records are at the general tribal account level, and so do not contain information specific to the Jicarilla Apache Nation. Gregg Decl. ¶ 2; Meister Decl. ¶ 1.

Accounting Activities

In the discussion below, Treasury shows how it preserves electronic media and data used in these trust activities. The components performing these activities are the Financial Management Service (FMS), the Bureau of the Public Debt (BPD), and to a very minor degree, Treasury's departmental offices (DO). Tribal trust activities are only a small part of these components' missions. For example, FMS provides centralized disbursement, collection, and accounting services for almost all federal agencies, and oversees the federal government's central accounting and reporting system.12/ See Financial Managment S er vice, What We Do at FMS, (2004), at

http://www.fms.treas.gov/aboutfms/what.html.

To illustrate the breadth of these activities, FMS oversees the daily cash flow of nearly $58 billion into and out of federal accounts, disburses more than $1.5 trillion annually to more than 100 million individuals via Social Security and veterans' benefits, income tax refunds and other federal payments, and collects more than $2 trillion in federal revenues annually. In fiscal year 2004, nearly 235 million of FMS's payments were disbursed by check. See Financial Managment Service, What We Do at FMS, (2004), at http://fms.treas.gov/aboutfms/what.html. - 17 -

12

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BPD borrows the money needed to operate the Federal Government and accounts for the resulting debt. See Bureau of Public Debt, The Commssion of the Public Debt Welcomes You, (2004), at http://www.publicdebt.treas.gov/com/comhello.html. DO is primarily responsible for making policy and managing the entire department. See U.S. Department of Treasury, Departmental Offices, (2005), at http://www.treas.gov/offices/index.html. DO does not perform any of the operations associated with the tribal trust activities listed above. See id. 1. Backup Data.

Treasury stores tribal trust data in the same systems used for all data central to its mission, and protects it with the same high level of care. Gregg Decl. ¶ 2; Meister Decl. ¶ 2; Declaration of Rory Schultz, Director (Acting) for Headquarters Information Technology, DO, February 28, 2005 (Schultz Decl.) (Attached as Exhibit 11). For example, the system that stores information about Treasury checks issued to tribes, called the Check Payment and Reconciliation System, also stores data about all checks issued by the Federal Government since the system was created. Gregg Decl. ¶ 5.A. The system that stores information about tribal investments also stores data about many other government trust funds. Meister Decl. ¶ 2. Safely preserving electronic data in these systems, including tribal trust data, is an essential and integral part of Treasury's mission. Treasury is currently retaining indefinitely potentially relevant electronic data (i.e., data that documents the six tribal trust activities described in Treasury's original status report filed on April 26, 2004), either in an electronic system's storage device or in archival storage media, such as a magnetic tape or DVD. Gregg Decl. ¶ 5; Meister Decl. ¶ 3. If such data must be removed from an electronic storage device for archival storage, Treasury follows a plan that ensures the data's retention in another media designed for long-term storage. Gregg Decl. ¶ 7; Meister Decl. ¶ 3. As a result, relevant data - 18 -

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may be moved, but it is not lost. In addition, Treasury protects the operating systems and applications that contain trust data from catastrophic loss through creation of business continuity (a/k/a disaster recovery) backup tapes. Gregg Decl. ¶ ¶ 11, 12; Meister Decl. ¶ 4; Schultz Decl. ¶ 3. Business continuity tapes are designed to permit the wholesale restoration of data to a system in the event of a disaster; such tapes are not designed to be used (or to allow access to data on them) independent of the system that they back up. In other words, the contents of the tapes are generally intelligible and useful only to and in connection with the system being backed up; they are not necessarily intelligible or useful independent of that system. See The Sedona Conference, "Best Practice Guidelines & Comments for Managing Information and Records in the Electronic Era" (Sept. 04) at pp. 21, 79 (backup data is distinct from archived data). Because the systems and applications that may contain trust data are constantly in use, and therefore accumulate additional data continually, Treasury creates new backup tapes of the data in active systems at regular intervals and may re-use superseded tapes. (DO does not currently reuse tapes but may decide to do so in the future). Gregg Decl. ¶ 11; Meister Decl. ¶ 4; see also Schultz Decl. ¶ 3. Full backup tapes contain all relevant data from previous backup tapes as well as any new data accumulated in the operating system or application being backed up. Gregg Decl. ¶ 11; Meister Decl. ¶ 4; Schultz Decl. ¶ 3.

These procedures ensure that data pertaining to the trust activities above are preserved and protected against inadvertent loss, and meets the Court's requirement that Treasury take reasonable steps to preserve data that may be relevant to the case.13/

13

Treasury notified Plaintiff of its practices regarding backup data by letter dated August 26, 2004. See Letter from Robert W. Rodrigues to Alan Taradash and Thomas Peckham, (continued...) - 19 -

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2.

Metadata

The Court's March 19 Order calls for Treasury to take reasonable steps to maintain the integrity of "metadata" reasonably anticipated to be subject to discovery in this case. In general, Treasury interprets "metadata" to mean "data about data." In the context of the systems used to perform the trust activities listed above, this term can refer to data that are attached to and travel with other electronic data automatically, so that data can be identified, located, linked, or made accessible. Gregg Decl. ¶ 13; Meister Decl. ¶ 5; Schultz Decl. ¶ 4. Thus defined, Treasury is preserving metadata to the same extent that it is preserving any electronic data that evidences the trust activities mentioned above. Gregg Decl. ¶ 13; Meister Decl. ¶ 5; Schultz Decl. ¶ 4. 3. Computer and Network Activity Logs

The Court's March 19 Order calls for Treasury to take reasonable steps to maintain the integrity of "computer and network activity logs" that may reasonably be subject to discovery in this case. At Treasury, these logs are general system logs that contain such information as the time and date that individual users logged into system computers, data related to the use of certain applications, and data related to security incidents. Gregg Decl. ¶ 14; Meister Decl. ¶ 6; Schultz Decl. ¶ 5. Plaintiff has not alleged or otherwise raised any issue in this case that would implicate Treasury's general system logs. Accordingly, Treasury is not taking any additional measures beyond its normal data backup procedures to preserve them. Gregg Decl. ¶ 14; Meister Decl. ¶ 6; Schultz Decl. ¶ 5.

4.

Web Pages

(...continued) dated August 26, 2004 (Attached as Exhibit 17). - 20 -

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The Court's March 19 Order calls for Treasury to take reasonable steps to maintain the integrity of "Web pages" that may reasonably be subject to discovery in this action. Plaintiff has not sought discovery or information about any issue that implicates Treasury's web pages. Nonetheless, Treasury is taking the following steps to preserve them. The public websites for FMS and BPD can be found at http://www.fms.treas.gov/ and http://www.publicdebt.treas.gov/, while a list of the divisions that comprise Treasury's Departmental Offices (with appropriate links) can be found at http://www.treas.gov/offices/. The FMS and DO websites are static; that is, each page within the site displays text and other information that has been built into the page itself (such as the departmental seal), or built into documents linked to the page (such as the most recent Daily Treasury Statement, viewable at http://www.fms.treas.gov/dts/index.html. Gregg Decl. ¶ 15; Schultz Decl. ¶ 6. BPD's website is predominantly static, but some pages are not. Meister Decl. ¶ 7. For example, BPD posts the daily rates for state and local government securities, viewable at https://wwws.publicdebt.treas.gov/SZ/SPESDailyRate?requestType=R. This page uses an application that draws correct data from a database, and a program that turns the data into a web page. Meister Decl. ¶ 7. As with most material posted publicly on the Internet, all of these pages are usually available to the public at all times. Each organization's retention policy concerning its website reflects the nature of the information presented therein. For example, BPD (which hosts the FMS website) provides FMS each month with a copy of FMS's website on CD-rom, which FMS is retaining indefinitely. Gregg Decl. ¶ 15. Additionally, FMS itself makes interim copies of its website and retains those copies for as long as they are needed (after which time they are written over). Id. BPD retains a copy of every static HTML webpage, but not copies of the dynamic web pages. Meister Decl. ¶ 7. Instead, BPD retains the - 21 -

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underlying data used to create those dynamic web pages. Meister Decl. ¶ 7. DO backs up all of its Web server data onto tapes and onto its storage area network. Schultz Decl. ¶ ¶ 3, 6. 5. Personal Computer Hard Drives

The Court's March 19 Order calls for Treasury to take reasonable steps to maintain the integrity of "hard drives" reasonably anticipated to be subject to discovery. The following describes what Treasury is doing to comply with this part of the Court's order. FMS's systems that may contain data subject to the RRO are designed to run on mid tier or mainframe systems, and data related to these systems reside on the storage devices for those systems rather than on individual desktop PC hard drives. Gregg Decl. ¶ 6. Such systems at FMS perform centralized payment, collection, and accounting and reporting services for the federal government. Gregg Decl. ¶ 4. Desktop computers can be used only as an access point or gateway to these systems. Gregg Decl. ¶ 6. Accordingly, PC hard drives would not contain any data from these systems that is not already residing within the systems' storage devices.14/ FMS employees may also access office automation systems through their desktop PCs. Gregg Decl. ¶ 6. Electronic documents created using those systems (such as e-mail, word processing documents, or spreadsheets) are saved to either the PC's hard drive or to a network drive. Id. FMS

Moreover, the data potentially discoverable in this action stored in connection with these systems is preserved in two ways. First, none of that data is ever deleted from those storage devices while they are actively supporting a system. Gregg Decl. ¶ 6. FMS routinely upgrades or replaces these storage devices, but ensures that the data is preserved by moving a complete copy of that data to the new device. Id. Second, the data is backed up. See supra Section II.B.1., "Backup Data." As a result, it is neither necessary nor sensible for FMS to preserve decommissioned storage devices. It is not necessary because the data has been moved to the newer storage device. Nor is it sensible, because the older equipment will gradually become technologically obsolete. Just as data on 5.25" floppy discs is now virtually inaccessible, data on discarded equipment is destined to become unusable. - 22 -

14

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has instructed its employees to forward any Jicarilla-related electronic documents that they have used in the course of conducting agency business to the dedicated mailbox set up in response to the Court's March 19 Order. Id. ¶ 16. Treasury discussed this dedicated mailbox in the status report filed April 26, 2004. See April 26, 2004 Status Report, Attachment 1 to Deiner Decl. at 4. In the remote event that an FMS employee had a potentially discoverable (and non-privileged) electronic document on his or her PC hard drive, that document should also have been copied to FMS's dedicated mailbox. Gregg Decl. ¶ 16. This dedicated mailbox (along with the rest of FMS's email system) resides on a network drive, not on any PC's hard drive. Id. Because FMS's dedicated mailbox preserves tribal trust-related information that might also exist on a PC hard drive, FMS has not retained PC hard drives for this litigation. Id. BPD does not perform any trust functions for funds that can be specifically identified as belonging to the Jicarilla Apache Nation. Meister Decl. ¶ 2. BPD does invest undifferentiated tribal funds that may include plaintiff's money, redeems those investments, and performs accounting functions relating to them. Id. The official electronic records for these investments, redemptions, and accounting activities are kept on the network, not PC hard drives. Meister Decl. ¶ 8. The network is protected by the backup and archive processes described above. BPD does not anticipate that any information reasonably subject to discovery can be found on its PC hard drives, unless the information has been copied from the network. Accordingly, BPD has not made a special effort to retain PC hard drives. Meister Decl. ¶ 8. When this equipment becomes antiquated or otherwise unsuitable for use, BPD replaces it. Id. Finally, DO uses "DO LAN" work stations that are configured to save data files to the customer's "home" or shared data directories, which reside on the "DO LAN." Schultz Decl. ¶ 7. All - 23 -

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data servers for this local area network containing customer "home" or shared data are backed up onto the storage area network and backup tapes. Id. Accordingly, DO, like FMS and BPD, is not retaining PC hard drives for purposes of this litigation. Id. C. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (NARA) AND THE INDIAN TRUST ACCOUNTING DIVISION (ITAD) OF THE GENERAL SERVICES ADMINISTRATION Neither NARA nor ITAD have on-going trust management responsibilities with respect to Jicarilla trust funds or assets. At most, they have functioned as repositories for historical documents that may be responsive to the subject matter of the Jicarilla litigation and the RROs. NARA has two broad categories of documents: 1) historical documents from governmental agencies kept in Federal Records Centers (FRCs) and archives, and 2) NARA's own operational records. Declaration of L. Reynolds Cahoon, Assistant Archivist for Human Resources and Information Services, NARA, December 29, 2004 (Cahoon Decl.) ¶¶ 7-8, 14 (Attached as Exhibit 12). NARA has physical custody of agency records stored at FRCs, but legal custody remains in the agency that transferred the records to NARA. Id. ¶ 8. Pursuant to agency record retention schedules, records may be transferred to the legal custody of NARA. Such archival records are permanently retained at archive facilities. Id. Most of the archival records (primarily originating from Interior) relevant to the Jicarilla case are in hard-copy format. Id. ¶ 12. NARA staff have identified only four archival series of records (each relating to agencies other than Interior) in its custody maintained in electronic format that could conceivably be relevant to the cases. Id. In addition to the historical documents, NARA creates and maintains its own daily operational records, which are frequently in electronic form. NARA does not expect that any non-privileged information relevant to the litigation would be located in such records, nor in NARA's computer and network activity logs or web pages. Id. ¶ ¶ 14, 17, 19, 22-23. NARA - 24 -

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DECLARATION OF LACHLAN W. SEWARD EXHIBIT C

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DECLARATION OF LACHLAN W. SEWARD EXHIBIT D

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DECLARATION OF LACHLAN W. SEWARD EXHIBIT E

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