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

Case 1:06-cv-00934-FMA

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EXHIBIT HF1

Case 1:06-cv-00934-FMA

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United States Department of the Interior
OFFICE OF THE SOLICITOR'

MAR I 2 2001
MEMORANDUM
To: Office of the Secretary Office of the Solicitor Office of the Special Trustee Office of Historical Trust Accounting Office of the Inspector General Office of Assistant Secretary - Indian Affairs Bureau of Indian Affairs Office of Assistant Secretary Policy, Management, and Budget office of Hearings and Appeals Office of Assistant Secretary Land and Minerals Minerals Management Service Office of Surface Mining Bureau of Land Management Office of Assistant Secretary - Fish, Wildlife, and Parks Fish and Wildlife Service Office of Assistant Secretary - Water and Science Bureau of Reclamation U.S. Geological Survey

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From:

Lawrence J. Sensen Deputy Solicitor

Subject:

Litigation Hold: Preservation of Information in Tribal Trust Cases
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As you may know, eighty Tribal plaintiffs, including some Indian groups that are not federally recognized, recently filed actions against the Department of the Interior ("Department") asserting claims of breach of trust and/or asset mismanagement (coIlectively, "Tribal Trust cases"). This gives rise to an extremely important obligation under Federal Iaw to presewe material that is or may be relevant to the Tribal Tmst cases. The purpose of this Litigation Hold is to inform you of the scope of this obligation and what actions are required to comply with it. The preservation of information will primarily be carried out by individual employees and contractors (any reference herein to "employees" includes contractor employees). Therefore, it is imperative that a copy of this Litigation Hold reaches every employee who may possess relevant information in your bureau or office.

Case 1:06-cv-00934-FMA

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Filed 08/20/2008

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Information To Be Preserved:

The information that must be preserved consists of all "documents, data, and tangible things" in the possession, custody, or control of your bureau or office that are or may be relevant to the subject matter ofthe Tribal Trust cases. "Documents, data, and tangible things" encompass paper documents, electronically stored information (discussed below), and other materials, such as maps, videos, calendars, charts, and similar items. Attached is a list identifying the individual Tribal plaintiffs whose information must be preserved. Additionally, the Native American Rights Fund has filed an action purporting to be on behalf of all other Tribes that received materials as part of the Tribal Reconciliation Project. Therefore, this Litigation Hold covers infonnation concerning any Tribe or woup of Indians for which the Department administers or has administered assets in trust. The Tribal Trust cases concern the management and accounting of tribal resources and funds held in trust by the Department. Accordingly, information that is or may be relevant to these cases includes, without limitation, anything reflecting, referring or relating to:
1. any asset, sucl-~ funds, land, minerals, forestry, sand and gravel, or other resources, that as is, or at any time has been, held in trust by the United States or its agents for Tribes or Indian groups ("trust asset"); 2. policies, procedures, guidelines, or correspondence relating to any aspect of the management or administration of trust assets; 3. proceeds, interest, or income from trust assets; or disbursemeilt, distribution, disposition or transfer of any trust assets; 4. reports, appraisals, reconciliations, or evaluations of any trust assets; and 5. information that serves to identify, locate, or link any relevant infonnation, such as file inventories, file folders, and indices.

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The timeframe of information that must be preserved is from a yet-to-be-detemined beginning date through the present, which means that information created in the f u t ~ ~must also be re preserved.
General Preservation Requirements:

Enlployees are required to take "reasonable steps" to preserve the infonnation described above. Reasonable steps, at a minimum, include ensuring that information is not purged pursuant to a records disposition schedule or otherwise inadvertently destroyed. This obligation also extends to records maintained in off-site storage facilities, which may include, in some instances, Federal Records Centers. At the present time, this obligation is only to identify and preserve the information. You will be notified if anything additional is required as the Tribal Trust cases proceed.

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Preservation of ElectronicaIly Stored Information ("ESI"): Under new amendments to the Federal Rules of Civil Procedure, the preservation requirement explicitly relates to electronically stored information. ESI can include, but is not limited to: E-mail (including attachments); Instant messages; Electronic calendars, task lists, and other organizational aids; Word processing documents; Spreadsheets; Databases; Audio and video recordings; and Voicemail.

ESI may be located on network systems and servers, local hard drives, laptops, storage media, (including flash drives, diskettes, and CD-ROMs), as well as on PDAs (such as Blackberries) and cell phones. Note that home computers, cell phones, and other devices used for work may also contain relevant or potentially relevant information that must be identified and preserved. Further, the hard drive and network files of departing employees must be identified and preserved.
Your IT personnel will be responsible for taking steps to preserve ESI from a technical standpoint. Employees should seek assistance from the IT personnel as necessary to preserve their ESI, and in no case should they delete any relevant information. Conclusion: Immediate compliance wit11 this Litigation Hold is essential to protect the Department from lengthy-and avoidable--discovery disputes that consume bureau time and resources and other negative consequences, such as monetary sanctions and evidentiary inferences that would limit the Departxnent's ability to defend against the claims in the cases. This Litigation Hold also protects individual managers and employees by providing them basic guidance on how to comply with their legal requirements. Thank you for your prompt attention to this matter. Please direct any questions about this memorandum to Paul Smyth, Counselor to the Solicitor, (202-208-4307). Attachnent

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