July 27, 2001

SPECIAL MASTER'S OPINION: INTERIOR HAS ROUTINELY DESTROYED E-MAILS 
RELATED TO INDIAN TRUST LITIGATION

Department Has "Ignored Its Duty" to Preserve Evidence; Sanctions 
Recommended

WASHINGTON, D.C. - Violating a federal judge's order, Interior 
Department officials have routinely destroyed e-mails sought by Indian 
plaintiffs in individual Indian trust litigation while Justice 
Department attorneys stalled by arguing repeatedly in court that the 
department was preserving the evidence, a court-appointed official has 
found.

In a 19-page opinion issued today, Special Master Alan Balaran said 
Interior "has ignored its duty to retain and preserve back-up tapes of 
e-mail messages. In filing after filing, [Interior] has sought relief 
from complying with this request, and in opinion after opinion, such 
relief has been denied.

"Defendant has overlooked its obligation 'to keep or retain every 
document in its possession once a complaint is filed' and 'to preserve 
what it knows, or reasonably should know, is relevant in the action'. 
Explicitly ignoring these imperatives and this Court's directives, 
defendant has sustained a policy of overwriting e-mail back-up tapes 
and destroying potentially responsive evidence on the thin reed that 
they were under no obligation to do so."

Balaran said that Interior Department lawyers, in conduct he described 
as "disturbing," ignored their obligation to preserve and produce the 
e-mails:" notwithstanding existing requests for discovery and repeated 
court orders denying Interior's attempts to block back-up tape 
production and retention, the Office of Solicitor engaged in a pattern 
of overwriting" that erased relevant e-mails, he said. 

Balaran found that the Indian plaintiffs in the case (Cobell v. Norton) 
should be reimbursed for the cost of litigating the e-mail issue 
because of the government's conduct, calling Interior's repeated 
attempts to narrow its obligations "inappropriate."

Today's opinion comes 15 days after a separate report by a 
court-appointed federal monitor in the Cobell case found that Interior 
had used a "statistical sampling" plan as an intentional ploy to 
mislead the courts while its appeal of a 1999 decision was pending 
before a federal appeals court in Washington.

For more information, go to www.indiantrust.com.