Free Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PUEBLO OF LAGUNA, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________)

No. 02-24 L Hon. Francis M. Allegra

DEFENDANT'S SECOND SUPPLEMENTAL STATUS REPORT REGARDING THE COMPLIANCE OF THE DEPARTMENT OF THE INTERIOR WITH THE E-MAIL RETENTION REQUIREMENTS OF THIS COURT'S MARCH 2004 AND APRIL 2005 ORDERS INTRODUCTION Defendant United States submits this second supplemental status report regarding the continuing compliance of the Department of the Interior (Interior or DOI) with the requirements regarding retention of e-mails, among other items, in this Court's March 2004 and April 2005 orders. This supplemental status report is based on new information and events that have developed since the filing of Defendant's first supplemental status report in March 2005. As demonstrated below and in the attached declaration, the Interior Department is continuing to comply with the e-mail preservation requirements of this Court's orders in March 2004 and April 2005. RELEVANT FACTUAL HISTORY On March 19, 2004, this Court issued an opinion and order in this case, requiring Defendant to take reasonable steps to preserve and maintain "documents, data, and tangible things" relevant to the claims and issues raised by Plaintiff in the case. See Order dated March 19, 2004 ("Record Retention Order" or "RRO"). E-mails are among the "documents, data, and tangible things" required 1

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to be retained. Id. at 3. On April 26, 2004, pursuant to the Court's order, Defendant filed a notice describing its agencies' plans and procedures (i.e., "mechanisms") for complying with the record preservation requirements of the March 19 Order. Defendant's status report consisted of the declarations, with attachments thereto, from officials or employees of the federal agencies that had been determined to be the most likely to have the "documents, data, and tangible things" that are potentially relevant to Plaintiff's claims in this case, including the Department of the Interior (Interior). Defendant's Notice of Filing Status Report Describing Compliance Monitoring Mechanisms, dated April 26, 2004, at 1. The declarations from the Interior Department officials described the reasonable steps undertaken to preserve "documents, data, and tangible things," including e-mails, that are relevant to the claims in this case. See Declaration of Cristobal Alvarez, Attorney-Advisor, Branch of Trust Reform and Litigation, Division of Indian Affairs, dated April 26, 2004; Declaration of Abraham E. Haspel, Ph.D, Assistant Deputy Secretary in the Office of the Secretary for the Department of the Interior, dated April 26, 2004. On March 18, 2005, Defendant filed a supplemental status report ("SSR"), providing additional information about the additional reasonable steps undertaken to preserve "documents, data, and tangible things," including e-mails, that are relevant to the claims in this case. In particular, Defendant described the Interior Department's different and duplicative methods of retaining e-mails pursuant to this Court's March 2004 record retention order. See Defendant's Supplemental Status Report ("SSR") dated March 18, 2005, at 8-11; see also Declaration of Robert E. Brown, Associate Director for Administration and Budget, Minerals Management Service (MMS), dated March 11, 2005, ("Brown Decl."); Declaration of Scott E. MacPherson, Indian Trust Project Manager for 2

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Information Resources Management, Bureau of Land Management (BLM), dated March 3, 2005, ("MacPherson Decl."); Declaration of Robert C. McKenna, Chief Information Officer, Office of the Special Trustee for American Indians (OST), dated March 17, 2005, (McKenna Decl."); Declaration of John Messano, Director of Office of Information Operations, Bureau of Indian Affairs (BIA), dated March 17, 2005 (Messano Decl."). As explained in the declarations, Interior's e-mail retention methods consist of (1) the indefinite retention of e-mail back-up tapes.1/ McKenna Decl. ¶ 8; Supplemental Declaration of Robert E. Brown, July 28, 2005 (Exhibit 2 to the Second Supplemental Status Report) ("Supp. Brown Decl.") ¶ 2; Messano Decl. ¶ 10; MacPherson Decl. ¶ 5(a) n.2, 5(e); (2) the printing and indefinite retention of e-mails in paper copy form. SSR at 8-10; McKenna Decl. ¶ 8; MacPherson Decl. ¶ 5(e); and (3) the indefinite electronic e-mail archiving and retention of emails by Interior Department contractor ZANTAZ through the use of certain software. Brown Decl. ¶ 5; MacPherson Decl. ¶ 5(a), 5(e); Messano Decl.¶ 10; McKenna Decl. ¶ 8.2/ Also on March 18, Defendant filed a motion to modify certain aspects of the March 19, 2004 RRO. Specifically, Defendant requested that the Court clarify the definition of "preservation" in the RRO to make clear that the qualification "would make the material incomplete or inaccessible"

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"Back-up data" is defined as information stored upon portable media (often tapes) so as to permit data recovery in the event of a disaster. See Defendant's Supplemental Status Report at 8 (citing "The Sedona Principles: Best Practices, Recommendations, & Principles for Addressing Electronic Discovery," Sedona Working Group Series 2003, at App. A. 51). Contrary to the typical practice of overwriting back-up tapes after retaining them for a limited period of time, Interior has implemented a practice of indefinitely retaining e-mail back-up tapes at relevant agencies and bureaus. See McKenna Decl. ¶ 8; Supp. Brown Decl. ¶ 2; Messano Decl. ¶ 9; MacPherson Decl. ¶ 5(a) n.2, ¶ 5(e).
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Specifically, the ZANTAZ software allows the real time capturing of e-mail messages transmitted or received by Interior Department employees at relevant agencies and bureaus. See Messano Decl. ¶ 10; McKenna Decl. ¶ 8; MacPherson Decl. ¶ 5(e). 3

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applies to all the otherwise prohibited actions described therein. Absent a clarification, Defendant argued, the final phrase in the definition is potentially ambiguous since the qualification arguably may be read to apply only to "negligent or intentional handling" of the material versus all the other activities identified in the preservation definition (i.e., testing, wiping, relocation, etc.). On April 18th, this Court entered an order granting Defendant's modification motion generally adopting Defendant's proposed clarifying language. On July 7, 2005, the U.S. District Court for the District of Columbia issued an order in Cobell v. Norton, (Civ. No. 96-1285), regarding the use of ZANTAZ's software to capture and retain Interior's e-mails. See Exhibit 1 hereto. In its order, the Court noted that Interior now represented that ZANTAZ did not capture all e-mails sent and ordered that Interior should produce all responsive hardcopy e-mail in addition to its continuing obligation to produce all responsive ZANTAZ e-mail and attachments. July 7, 2005 Order at 1-2, Cobell v. Norton, (Civ. No. 96-1285). The District Court had issued the July 7, 2005 order after entering orders on April 25 and May 26, 2005, concerning the production--in hard copy format--of certain documents and e-mails, respectively, relating to the evidentiary hearing concerning the security of Interior's information technology systems. Comparison of the e-mails produced by Interior for Agency officials James Cason, W. Hord Tipton, and Brian Burns,3/ in electronic and hard copy format, revealed discrepancies between the e-mails stored in electronic format and those retained in hard copy, thus raising questions about the effectiveness and comprehensiveness of ZANTAZ's e-mail-capturing software. Id. Based on the discrepancies, the plaintiffs alleged that, contrary to Interior's previous representations,
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Mr. Cason is the Associate Deputy Secretary for the Interior Department; Mr. Tipton is the Chief Information Officer for the Interior Department; and Mr. Burns is the Chief Information Officer for the Bureau of Indian Affairs. May 26, 2005 Order at 2-3, Cobell v. Norton (Civ. No. 96-1285). 4

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ZANTAZ's software was not a reliable method for indefinitely retaining Interior's e-mails by electronic archive. In response, the District Court issued the July 7 order, mandating that Interior produce, in hard copy form, the e-mails of Interior Department officials and employees in addition to Messrs. Cason, Tipton, and Burns. Id. Neither the plaintiffs' allegations nor the District Court's orders addressed the effectiveness or comprehensiveness of Interior's other two methods of indefinite e-mail preservation. INTERIOR CONTINUES TO PRESERVE E-MAILS, AS ORDERED BY THIS COURT As described above and in its March 18, 2005 supplemental status report and supporting declarations, the Interior Department has formulated and deployed a three-pronged practice of indefinitely preserving e-mails since before the entry of this Court's March 2004 RRO, and is in full compliance with this Court's orders. The practice is the following: (1) the indefinite retention of email back-up tapes (SSR at 8-10; Supp. Brown Decl., ¶ 2; McKenna Decl. ¶ 8; Messano Decl. ¶ 10; MacPherson Decl. ¶ 5(a) n.2, 5(e)); (2) the printing and indefinite retention of e-mails in hard copy format (SSR at 8-10, McKenna Decl. ¶ 8, MacPherson Decl. ¶ 5(e); and (3) the indefinite electronic archiving and retention of e-mails by ZANTAZ software (SSR at 10; Brown Decl. ¶ 7; McKenna Decl. ¶ 8; MacPherson Decl. ¶¶ 5(a), 5(e)). This indefinite preservation practice meets the requirements of this Court's orders. The July 7, 2005 order issued by the District Court in the Cobell litigation does not change or otherwise affect this outcome. Even if the ZANTAZ e-mail archival software has been shown to be ineffective in capturing and preserving all Interior Department e-mails indefinitely, Interior's other two methods for e-mail retention--e-mail back-up tapes and printing out and filing e-mails in hard copy--provide fully sufficient means for complying with the RRO. See

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McKenna Decl. ¶ 8; MacPherson Decl. ¶¶ 5(a), 5(e); Supp. Brown Decl., ¶ 2. These requirements have been in effect since before entry of this Court's March 2004 record retention order. Supp. Brown Decl. ¶ 2; Messano Decl. ¶ 10; McKenna Decl. ¶ 8; MacPherson Decl. ¶ 5(a), 5(e), and they have been reaffirmed in Departmental directives issued after the Court's order (see Memorandum from J. Steven Griles, then-Deputy Secretary of the Interior, dated July 9, 2004 (Exhibit 3 hereto)). The Interior Department is currently conducting an internal review of the ZANTAZ electronic e-mail archiving software system. Among other things, Interior has been in the process of determining which component agencies and bureaus may have been affected, and of evaluating the extent to which other e-mails may have been retained by the ZANTAZ system. In the meantime, however, the relevant Interior Department component agencies and bureaus continue to preserve the e-mails of its employees, not only by backing them up onto tapes that are kept in perpetuity, but also by having the e-mails printed out in paper copy and filed or stored indefinitely. Such e-mail preservation methods are fully in compliance with this Court's record retention orders in March 2004 and March 2005. Respectfully submitted this 8th day of September, 2005, KELLY A. JOHNSON Acting Assistant Attorney General

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/s/ Robert W. Rodrigues ROBERT W. RODRIGUES United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 353-8839 6

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Fax: (202) 353-2021 Attorney for Defendant

OF COUNSEL: NICOLETTE ROMANO United States Department of Justice Environment and Natural Resources Division Natural Resources Section Washington, D.C. 20044-0663 BRENDA RIEL Office of the Solicitor United States Department of the Interior Washington, D.C. 20240

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