Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:06-cv-00945-FMA

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Filed 05/21/2007

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UNITED STATES COURT OF FEDERAL CLAIMS NAVAJO NATION f.k.a. NAVAJO TRIBE OF INDIANS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-945 L Judge Francis M. Allegra

PLAINTIFF'S MOTION FOR ENTRY OF RECORD RETENTION ORDER Pursuant to RCFC 7(b), Plaintiff the Navajo Nation hereby moves for entry of the accompanying proposed Record Retention Order. In support of this motion and as grounds therefor, Plaintiff respectfully states as follows: 1. Plaintiff's claims against Defendant in this action are based on alleged breaches

of fiduciary duties owed by Defendant to Plaintiff concerning management and disposition of Plaintiff's trust funds and other trust assets. Defendant's fiduciary duties to Plaintiff include duties as a trustee to create, maintain in a businesslike manner, and make available to Plaintiff trust records related to Plaintiff's trust assets. These trust records include largely irreplaceable, one-of-a-kind trust records necessary for proof in this case as well as historic Indian trust records that the Defendant is otherwise also obliged to preserve. 2. Plaintiff seeks entry of an order that requires Defendant to (a) preserve all

documents, data, and tangible things in Defendant's possession, custody, or control that may lead to the discovery of evidence relevant to this action; (b) report immediately any destruction or loss of such records; (c) provide all available indices or inventories of such records and

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work with Plaintiff where adequate indices or inventories are not available to facilitate discovery and to establish a baseline for gauging Defendant's compliance with the order and the effectiveness of record retention policies adopted by Defendant; and (d) provide prompt inspection and production of certain records to avoid potential risks of record destruction. 3. Good cause exists for entry of a record retention order as described above

because the above records are irreplaceable and critical to determination of the scope of liability and damages in this case, Defendant has repeatedly destroyed such Indian trust records in violation of Defendant's own administrative directives and court orders in other litigation requiring preservation of such records, and entry of a record retention order here will be effective in facilitating the just, speedy, and inexpensive adjudication of Plaintiff's rights in this case without imposing undue burdens on Defendant. 4. Additional support for this motion is provided in Plaintiff's Brief in Support

hereof, filed contemporaneously with this motion. 5. Plaintiff and Defendant have conferred in good faith in an effort to resolve this

matter without court action, but Defendant opposes this motion and entry of a record retention order. 6. Pursuant to RCFC 7(b)(1), a proposed order accompanies this motion.

WHEREFORE, Plaintiff requests that the Court approve and enter the accompanying proposed Record Retention Order.

Respectfully submitted,

/s/ Alan R. Taradash Alan R. Taradash 2

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Nordhaus Law Firm, LLP 405 Dr. Martin Luther King, Jr. Ave. NE Albuquerque, NM 87102 telephone: 505-243-4275 facsimile: 505-243-4464 Dated: May 21, 2007 Attorney of Record for Plaintiff

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Of Counsel for Plaintiff:

Thomas J. Peckham Daniel I.S.J. Rey-Bear Deidre A. Lujan Dana L. Bobroff Nordhaus Law Firm, LLP 405 Dr. Martin Luther King, Jr. Ave. NE Albuquerque, NM 87102 telephone: 505-243-4275 facsimile: 505-243-4464 Donald H. Grove Nordhaus Law Firm, LLP 1401 K Street NW, Suite 801 Washington, DC 2006 telephone: 202-530-1920 facsimile: 202-530-1270

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