, . . 
IN THE UNITED STATES DISTRICT COURT 
ELOUISE PEPION COBELL, al., gt 
Plaintiffs, 
V. 
s t 
; I 
Case No. 1:96CV01285 
(Judge Lamberth) 
) 
) 
) 
) 
GALE A. NORTON, Secretary of the Interior, al., gt 
Defendants. 
Introductorv Comments 
) 
1 
INTERIOR DEFENDANTS' REPLY BRIEF 
lN SUPPORT OF MOTION FOR A PROTECTIVE ORDER WITH 
REGARD TO INFORMATION TECHNOLOGY SECURITY MATERIALS 
TO BE SUBMITTED PURSUANT TO JULY 28.2003 PRELIMINARY INJUNCTION 
that they continue to oppose this resolution. As we explain below, the 
I. 
Plaintiffs' opposition to Interior Defendants' Motion for a Protective Order with Regard to 
Information Technology Security Materials to be Submitted Pursuant to July 28,2003 
Preliminary Injunction ("Plaintiffs' Brief' or "PI. Br.") repeats a predictable and deplorable 
pattern. It begins with a 124-word sentence that repeatedly, indiscriminately, and without any 
foundation attacks the character and credibility of Secretary Norton, Acting Assistant Secretary 
Martin, and their counsel. Plaintiffs' Brief then continues to mix both misapplications of the law 
and misstatements of fact with more personal attacks. Finally, plaintiffs argue, inconsistently, 
that the question of protection for Information Technology ("IT") security has both already been 
resolved by the Court 
- 1 - Court should reject the arguments in plaintiffs' disgraceful and uncivil opposition.' 
Plaintiffs' Assertion That the Special Master's May 2, 2002 
Revised Order Already Governs Submissions Under the July 28, 
2003 Preliminary In-iunction is Plainly Contrary to Law and Fact 
II. 
Plaintiffs' Brief argues that Interior Defendants' submissions in response to the Court's 
July 28,2003 Preliminary Injunction are already governed by the Special Master's May 2,2002 
Revised Order, which this Court ordered filed on February 6, 2003. Cobell v. Norton, Order 
(Feb. 6,2003). In ordering the Revised Order filed, the Court neither adopted it nor made it 
applicable to any proceedings other than those already described in the Re-vised Order. Rather, 
the Court simply stated, "The Revised Order signed by the Special Master on May 2,2002, 
which is appended hereto, shall be filed this date." Id. 
A review of the Revised Order confirms that it has no application to the Interior 
Department's submissions pursuant to the July 28,2003 Preliminary Injunction. To the contrary, 
the Revised Order was expressly entered as a result of Interior Defendants' February 25,2002 
Motion for a Protective Order, which was filed to address submissions pursuant to the now- 
stayed December 17, 2001 Consent Order. This is confirmed, initially, by the text of the 
February 25,2002 motion, which began with the statement, "Defendants bring this Motion for a 
Protective Order to cover confidential and sensi tive information related to the Special Master's 
1 Plaintiffs' brief plainly crosses the line for civility in pleadings filed with this 
Court. Aside from their repeated and unfounded assertions that Interior Defendants' motion was 
frivolous, plaintiffs' brief also engages in vile attacks such as challenging the competence of 
counsel and Secretary Norton, P1. Br. at 2, 7, and 9; wrongly alleging that Interior Defendants' 
motion "perversely suggest[s] that the Court should trust them," P1. Br. at 7; and that the "'trust 
me' claim is a sucker bet," P1. Br. at 7, note 14. The gross excesses displayed in such rhetoric do 
not dignify a detailed response. Accordingly, the remainder of Interior Defendants' reply brief is 
devoted to the many flawed and erroneous legal and factual assertions buried within plaintiffs' 
invective. 
- 2 - validation of Interior's compliance with the terms of the Consent Order." Motion for Protective 
Order (filed Feb. 25,2002) (emphasis added) (copy attached as Exhibit A). The Special Master's 
Revised Order further confirmed that it was issued to address submissions pursuant to the 
December 17,2001 Consent Order: 
Beginning December 17,200 1, Interior has filed numerous 
requests to reopen andor to reconnect to the hternet, information 
technology systems that have been impacted by the Court's order of 
that date. In evaluating these requests, computer security experts 
retained by the Special Master have repeatedly expressed the need 
to secure copies of documents containing confidential security 
information ("Confidential Information"), the public disclosure of 
which may adversely impact individual Indian beneficiaries as well 
as third parties unrelated to the underlying litigation. 
Revised Order, at 1. 
Interior Defendants' current motion for a protective order seeks protection for IT security 
materials to be submitted pursuant to Court's Preliminary Injunction entered on July 28, 2003. 
Motion for Protective Order, at 1 (filed Aug. 4,2003). By definition, such submissions are not 
being made pursuant to the Consent Order. Indeed, as the Court is well-aware, the Preliminary 
Injunction stayed the Consent Order, Preliminary Injunction 7 6, and the terms of the Preliminary 
Injunction make it clear that the Court - not the Special Master - has the responsibility of 
reviewing submissions pursuant the Preliminary Injunction. 
Plaintiffs' remaining arguments about the Revised Order may be dealt with in brief 
fashion. First, plaintiffs argue that the current motion for a protective order is somehow intended 
to be a motion for reconsideration of the Special Master's Revised Order. h, PI. Br. at 3 
(erroneously describing the February 25,2002 motion as having been filed by Secretary Norton 
and Acting Secretary Martin), 4, and 10. As is explained above, the Revised Order simply had 
- 3 - no application to the Preliminary Injunction submissions; by its terms, it applied to submissions 
under the now-stayed Consent Order. 
Second, while plaintiffs imply that the terms of the Revised Order already govern the 
proceedings under the Preliminary Injunction, their other actions are inconsistent with this 
position. For example, Plaintiffs' Brief reiterates that plaintiffs object to the Revised Order, 
stating, "Although plaintiffs disagreed at the time, and continue to disam-ee, with the scope of the 
Revised Order, it was entered by the Special Master and adopted by the Court for the express 
purpose of covering material submitted by the Interior defendants in support of their efforts to 
reconnect and certify the security of IT Systems that house or access Individual Indian Trust 
data." PI. Br. at 10 (emphasis added).2 Plaintiffs apparently believe they can both seek to extend 
the application of the Revised Order, beyond its own tems, to attack Interior Defendants' motion 
while concurrently disclaiming their own support for the Revised Order. 
Plaintiffs' fallacious reliance upon the Revised Order is further confirmed by their recent 
actions during the pendency of this motion. In an attempt to resolve the current motion by 
stipulation, Interior Defendants' counsel sent a proposal to plaintiffs' counsel by facsimile on the 
morning of August 27,2003, in which Interior Defendants offered to incorporate the document 
listing in the Revised Order within the terns of a stipulated protective order. Letter from J. 
Warshawsky to D. Gingold and K. Harper (Aug. 27,2003) (copy attached as Exhibit B). As of 
the filing of this pleading, plaintiffs apparently have opted to provide no response to Interior 
2 For the reasons already stated, plaintiffs' description of the purpose for the Special 
Master's Revised Order and this Court's Order to file the Revised Order is factually 
insupportable. The Revised Order only addressed submissions made pursuant to the Consent 
Order. 
- 4 - Defendants' proposal. 
Thus, contrary to plaintiffs' repeated claims, the Revised Order only governed 
proceedings under the now-stayed December 17,200 1 Consent Order. Moreover, plaintiffs' 
attempts to extend the scope of the Revised Order beyond its own plain language conflicts 
squarely with their continuing objection to the Revised Order and their refusal to resolve this 
matter amicably through the proposed stipulated protective order. 
III. Plaintiffs' Discussion Regarding "Blanket" or "Umbrella'' 
Protective Orders Wrongly Describes the Law Governing Such 
Orders and Fails to Challenge Interior Defendants' Showing of 
Good Cause. Which Was Confirmed by Entry of the Revised Order 
Contrary to plaintiffs' assertion, particularly in complex litigation involving voluminous 
document issues, the law does not favor an approach requiring the courts to expend valuable 
resources on document-by-document reviews. Rather, as the Manual for Complex Litigation 
explains: 
When the volume of potentially protected materials is large, an 
umbrella order will expedite production, reduce costs, and avoid 
the burden on the court of documcnt-by document adjudication. 
Umbrella orders provide that all assertedly confidential material 
disclosed (and appropriately identified, usually by stamp) is 
presumptively protected unless challenged. The orders are made 
without a particularized showing to support the claim for 
protection, but such a showing must be made whenever a claim 
under an order is challenged. 
Manual for Complex Litigation 0 2 1.432, at 67 (3d ed. 1995). 
Moore's Federal Practice describes the use of such protective orders as follows: 
Although Rule 26(c) makes no mention of stipulated 
protective orders, litigants not infrequently agree to seal documents 
produced during discovery, and to seek a stipulated protective 
order to enforce the agreement. In fact, these stipulated "blanket" 
- 5 - protective orders are becoming standard practice in complex cases. 
Such orders allow the parties to make full disclosure without fear 
of public access to sensitive information. They also avoid the 
expense and delay of a dispute over every item of allegedly 
confidential information, thereby promoting the overriding goal of 
the Federal Rules of Civil Procedure, "to secure the just, speedy, 
and inexpensive determination of every action." 
6 Moore's Federal Practice 3 26.104[2], at 26-253 to -254 (June 2001) (footnotes ~mitted).~ 
Thus, in In re Halkin, 598 F.2d 176 (D.C. Cir. 1979), the Court observed: 
We recognize that flexibility will be required to accommodate the 
practical needs of the discovery process with the standards 
enunciated herein, particularly where the discovery embraces a 
large quantity of documents. It may be appropriate for example, for 
a trial court (on a proper showing) to issue a blanket protective 
order covering all documents in a large-scale exchange of files 
without prejudice to raising the merits of the protective order as 
applied to particular documents at a later time. If a party wishes to 
disseminate a particular document, he might then inform the 
opposing party (precisely as plaintiffs have done here). At that 
point the burden would revert back to the party resisting 
dissemination to establish "good cause" as applied to the particular 
document(s), consistent with the standards enunciated in this 
opinion. This procedure is commonly used to preserve parties' 
rights to assert claims of privilege with respect to particular 
documents in complex cases, while at the same time facilitating 
needed discovery. 
- Id. at 196 note 47 (dictum). 
Moore's Federal Practice further describes the policy that "discovery generally must take 
place in public in the absence of compelling reasons for denying the public access to the 
proceedings" and presents the issue typically raised by proposed blanket or umbrella protective 
3 Moore's Federal Practice continues by describing the policy that "discovery 
generally must take place in public in the absence of compelling reasons for denying the public 
access to the proceedings" and presents the issue raised by blanket or umbrella protective orders, 
namely the courtls role in assessing whether "good cause" exists to enter a protective order that 
denies the public access to discovery. u. at 26-254 to -256.2 (footnotes omitted). 
- 6 - orders, namely the court's role in assessing whether "good cause" exists to enter a protective 
order that denies the public access to discovery. a. at 26-254 to -256.2 (footnotes omitted). In 
Alexander v. FBI, 186 F.R.D. 60 (D.D.C. 1998), this Court explained the requirement for good 
cause and the balancing of litigant and First Amendment interests as follows: 
As stated, Rule 26(c) of the Federal Rules of Civil Procedure 
provides that for good cause a court may fashion a protective order 
"to protect a party or person fiom annoyance, embarrassment, 
oppression, or undue burden or expense." Fed. R. Civ. P. 26(c). 
"This standard balances the governmental and first amendment 
interests at stake when a party seeks to disseminate information 
obtained through pretrial discovery." Avirgan v. Hull, 118 F.R.D. 
252,253 (D.D.C. 1987) (citing Seattle Times Co. v. Rhinehart 467 
U.S. 20, 37 (1984)). In Doe v. District of Columbia, 697 F.2d 
11 15, 11 19 (D.C. Cir. 1983), the Court of Appeals for the District 
of Columbia stated: 
Protective orders that restrict dissemination to the 
public of discovered information . . . stand on a 
somewhat unusual footing. The resultant 
infringement of interests protected by the First 
Amendment, we have held, requires a district court 
to be careful to grant such an order only when 
essential to shield a party fiom significant ham or 
to protect an important public interest. 
- Id. (citing In re Halkin, 598 F.2d 176, 190-91 (D.C. Cir. 1979)). 
186 F.R.D. at 65-66. 
In this case, there can be no serious doubt that good cause exists to protect Interior 
Defendants' IT security materials. When he entered the Revised Order, the Special Master 
recognized that IT security materials should not be publicly disclosed to prevent the potential for 
harm.4 In doing so, the Special Master restricted plaintiffs' access to such materials to "the five- 
4 As noted earlier, while plaintiffs alternate between endorsing and objecting to the 
Revised Order; nothing in their brief challenges the Special Master's finding that good cause 
- 7 - named plaintiffs, plaintiffs' counsel and experts retained by plaintiffs who are engaged in work 
specifically related to this litigation and who require such information in order to carry out that 
work." Revised Order T[ 2. More recently, this Court recognized the need to protect IT security 
materials when it directed Interior Defendants to review the Special Master's July 25,2003 letter 
to the Court's clerk and to provide the Court with a redacted version for public filing "that does 
not reveal any information that would compromise the security of the computer systems which 
are described therein.'' Order (July 28, 2003). 
Moreover, good cause surely exists based upon a review of the six factors enunciated in 
United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1980).' There is no need for public 
access to IT security materials; indeed, by definition, such materials should not be made public to 
avoid compromising IT security. As a consequence, the IT security materials for which 
protection is sought would not have been publicly accessible in the past. The Interior 
Department unquestionably has a strong property interest in protecting its IT systems and 
ensuring that the privacy of information contained therein does not become publicly accessible. 
The disclosure of such materials would expose the Interior Department's IT systems to 
compromise and damage, thereby subjecting the Interior Department to obvious prejudice 
through disclosure. Finally, the materials would only be introduced in these proceedings if 
existed for protecting IT security materials, however. 
5 The six factors described in the opinion are (1) the need for public access to the 
documents at issue, (2) the extent of previous public access to the documents, (3) the fact that 
someone has objected to disclosure, as well as the identity of the objecting person, (4) the 
strength of any property or privacy interests asserted, (5) the possibility of prejudice to those 
opposing public disclosure, and (6) the purposes for which the documents were introduced 
during the judicial proceedings. See 650 F.2d at 3 17-22. 
- 8 - required to demonstrate IT security. For obvious reasons, the public disclosure of such IT 
security materials and inappropriate use of the materials by recipients would be improper. 
Indeed, the only factor that plaintiffs can rely upon, among the six enunciated in Hubbard, 
is the fact that someone - the plaintiffs - have objected to the protective order. Interior 
Defendants cannot articulate a single justification which arguably would support plaintiffs' 
assertion that IT security materials should either be placed in the public domain or be the subject 
of unfettered use by plaintiffs. The fact that plaintiffs, themselves, have offered no justification 
in their opposition confirms that the IT security materials fully meet the standards for protection 
under Hubbard. 
Thus, notwithstanding plaintiffs' claims to the contrary, the law of this Circuit recognizes 
that a blanket or umbrella protective order may be appropriately entered, particularly in a 
complex case, upon a showing of good cause. There is no legal authority directing that this 
Court should become involved in document-by-document review of every document claimed to 
require protection, and we respectfully suggest that the Court's resources should be reserved for 
ruling upon any exceptions raised by plaintiffs. Accord, In re Halkin, 598 F.2d at 196 note 47 
(dictum); 6 Moore's Federal Practice 5 26.104[2], at 26-253 to -254 (June 2001) (footnotes 
omitted). Moreover, the showing of good cause required for entry of a protective order is 
established by assessing the standards under Rule 26(c) of the Federal Rules of Civil Procedure. 
- See, a, Alexander v. FBI, 186 F.R.D. at 65-66; see also Avirmn v. Hull, 118 F.R.D. 252,253- 
54 (D.D.C. 1987) ("The specific focus before this Court, which has 'substantial latitude to 
fashion protective orders,' therefore, is not on the first amendment issue, but rather on whether 
[the movant] has shown good cause for a blanket protective order.") (quoting Seattle Times Co. 
- 9 - v. Rhinehart, 467 US. at 36). Interior Defendants have plainly demonstrated good cause for a 
protective order under Rule 26(c) standards. 
Conclusion 
For the foregoing reasons and the reasons set forth in the motion for protective order, 
Interior Defendants respectfully request that this Court enter a protective order, in the form 
submitted contemporaneously with the motion, with regard to IT security materials to be 
submitted pursuant to Court's Preliminary Injunction. 
Respecthlly submitted, 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHlFFER 
Deputy Assistant Attorney General 
J. CHIUSTOPHER KOHN 
Director 
/---/- 
RA P. SPOONER 
Deputy Director 
JOHN WARSHAWSKY (D.C. Bar No. 41 71 70) 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Telephone: (202) 5 14-7 194 
August 28,2003 
- 10- -. . r 
i - , * , 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBLA 
ELOUISE PEPION COBELL, al., g 
Plaintiffs, 
V. Case No. 1 :96CV01285 
(Special Master Balaran) 
GALE A. NORTON, Secretary of the Interior, al., g ) 
) 
) 
) 
) 
) 
1 
1 
1 
Defendants. 
MOTION FOR A PROTECTIVE ORDER 
Defendants bring this Motion for a Protective Order to cover confidential and sensitive 
information related to the Special Masters validation of Interiors compliance with the terms of 
the Consent Order. The Special Master has retained the services of experts (the Special 
Masters experts) to assist in his review of Defendants proposals to operate or reconnect to the 
Internet certain of its information technology systems. As part of that review, the Special Master 
and his experts have requested access to certain confidential or sensitive materials. Defendants 
expect that the Special Master and his experts will request access to additional confidential or 
sensitive materials in reviewing Defendants proposals to reconnect -to the Internet andlor to 
recommence operation of various information technology systems, including materials that may 
be generated during the course of site visits by the Special Masters experts to Interior and 
 
J ~ I t eri or con tractor faci 1 i ti es. 
On February 7, 2002, the Special Master entered a Protective Order covering documents 
produced pursuant to the Special Masters review of the Minerals Management Service (MMS)s 
proposal to reconnect to the Internet its information technology systems. This Protective Order 
EXHIBIT A 
I)& Reply Supporting Protective Order 
for Submissions Under Jul. 28, 2003 P.I. limits access to covered materials to necessary parties, and limits such access to the extent 
necessary for litigation purposes. Pursuant to this Protective Order, lnterior has produced MMS 
Systems Security Documents for review by the Special Master and his experts, and also by 
plaintiffs counsel and litigation team. Also pursuant to this Protective Order, the Special 
Masters experts have retained materials generated during the course of site visits by the Special 
Masters experts to MMS facilities during the week of February 18,2002, verifying their 
validation tests of the security of the MMS system. 
Defendants expect that similar materials will be requested with respect to proposals of 
other bureaus and offices to reconnect to the Internet their information technology systems. As 
has been the case with MMS System Security Documents, Defendants and third parties are likely 
to have security andor proprietary concerns that could lead to harm, including weakening the 
security of information technology systems protecting Indian trust data, if the materials are 
publicly disclosed. If Defendants are required to seek a new protective order to cover such 
sensitive materials after each request by the Special Master or his experts and before the 
materials are produced, this is likely to result in a delay in consideration of Interiors proposals to 
reconnect to the Internet certain information technology systems and, consequently, a delay in 
resumption of important services provided by Interior bureaus and offices for individual Lndians 
\ 
and for the rest of the country. 
In order to expedite the Special Masters review, Defendants seek entry of a protective 
order that they believe will provide timely access to the materials at issue to the Special Master 
and his experts, as well as to Plaintiffs counsel, litigation team, and experts; provide protection 
to Defendants and third parties from inappropriate disclosure of sensitive information; if there is 
2 any disagreement as to the sensitive nature of the rnateriaIs at issue, require Defendants to state 
clearly the materials that should be protected from public disclosure and the specific reasons why 
such protection is required; provide an effective mechanism for Plaintiffs to challenge a 
designation of confidentiality by Defendants; and provide protection to Defendants and third 
parties from disclosure of materials identified as sensitive until the Special Master and/or the 
Court has rendered a decision regarding any challenge made by Plaintiffs. 
To accomplish all of these goals, Defendants seek a protective order with the following 
provisions: 
1. 
2. 
3. 
o L - 
Documents produced by Defendants in connection with proposals to recommence 
operation of or to reconnect to the Internet information technology systems, or 
generated during the course of site visits to Interior facilities by the Special Master 
or his experts, may be identified as sensitive by Interior typing, stamping, or 
writing on the face of the document, Confidential - Subject to Protective Order. 
Documents marked by this legend will be immediately subject to the protections 
of the protective order. Such documents will be made available to the Special 
Master, his experts, Plaintiffs counsel, litigation team, and experts, Defendants 
counsel and Defendants litigation experts only to the extent necessary for the 
I 
litigation and only for the purposes of the litigation. All such documents must be 
returned to Interior or destroyed at the conclusion of the litigation. 
Plaintiffs may challenge any designation of materials as protected material. 
Within 10 days of any such challenge, Defendants must identify with specificity 
the materials for which it seeks protection under the protective order and the 
3 reasons for seeking such protection. Any documents so identified will remain 
protected by the protectiv~ order pending resolution of Plaintiffs challenge; any 
documents not so identified within 10 days will no longer be protected. 
If the parties are unable to resolve any objections raised by Plaintiffs, Plaintiffs 4. 
may challenge Defendants designation by bringing a motion before the Special 
Master. Tf the documents are relevant to any proceeding currently before the 
Court, such challenge may be brought directly before the Court. 
The Special Masters report and recommendation deciding such challenge will be 
subject to the normal procedures for filing and resolving objections pursuant to 
Federal Rule of Civil Procedure 53. 
5. 
Defendants believe that these reasonable provisions will provide all parties with sufficient 
and timely access to the materials at issue, while providing protection against the harm that may 
arise if sensitive documents are disclosed more broadly than is necessary for the purposes of this 
4 litigation. Counsel for the Defendants have consulted with counsel for Plaintiffs, Dennis 
Gingold. Mr. Gingold stated that the Plaintiffs will probably oppose this rnotior,. 
Dated: February 25,2002 
OF COUNSEL: 
Sabrina A. McCarthy 
Department of the Interior 
Office of the Solicitor 
Respectfully submitted, 
ROBERT D. McCALLUM, JR. 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
SAN'DRA P. $POONER 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Attorney 
MATTHEW J. FADER 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
5 IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, al., 
P 1 ain ti ffs, 
1 
1 
1 
) 
V. 1 Case No. 1:96CV01285 
1 (Special Master Balaran) 
GALE A. NORTON, Secretary of the Interior, 
Defendants. 
&, ) 
1 
1 
Order, it is HEREBY ORDERED: 
\ 
PROTECTIVE ORDER 
Upon the showing of good cause by the Department of the Interior (Interior) for the entry 
of a protective order with regard to materials to be provided in connection with the Special 
Masters review of information technology matters related to the December 17, 2001 Consent 
Protected Material as used herein means any document or portion or copies 
Protected Material so designated by Interior may be disclosed to the Court, the 
1. 
thereof, produced by Interior in connection with the Special Masters review of information 
technology matters related to the December 17,2001 Consent Order, or generated during 
validation visits, which document has been designated as Sensitive or Confidential by typing, 
stamping or writing on the face of the document the words Confidential- Subject to Protective 
Order or a substantially similar legend. 
2. 
Special Master, experts retained by the Special Master; Plaintiffs counsel, litigation staff, and 
experts; and defendants counsel, litigation staff, and litigation experts only to the extent 
necessary for this litigation. Protected material shall not be disclosed by any of the entities listed in this paragraph beyond the entities listed, shall be safeguarded from improper and inadvertent 
disclosure, and shall be used solely for purposes of this litigation. 
3. Protected Material so designated by Defendants will reniairi subject to the 
provisions of this Protective Order pending any challenge to such designation by Plaintiffs, as 
described below. If Plaintiffs challenge Defendants designation, within 10 days following such 
challenge, Defendants shall identify with specificity the materials for which they seeks continued 
protection under this Protective Order and the reasons for seeking such protection. Any materiais 
so identified will remain protected pending resolution of Plaintiffs challenge. Any challenged 
materials not so identified within 10 days will no longer be protected by this Protective Order. 
Plaintiffs may at any time after such materials have been designated object to the 
If a party desires to file with the Special Master or the Court a pleading, motion, 
4. 
designation as Protected Material. If Interior and Plaintiffs are unable to resolve the objection 
informally, Plaintiffs may challenge such designation in a motion to the Special Master. The 
Special Masters report and reconimendation deciding such challenge will be subject to the 
normal procedures for filing objections pursuant to Federal Rule of Civil Procedure 53. If the 
Protected Material is relevant to any matter currently pending before the Court, Piaintiffs may 
challenge any such designation directly and immediately with the Court. The information shall 
be treated as Protected Material until the issue is resolved by the Speyial Master, including 
resolution by the Court of any objections, or by the Court. 
5. 
brief, or other document containing Protected Material, the party shall file two sets of the 
pleading, motion, brief, or other document. One set shall be labeled on the cover Confidential 
and shall be complete in all respects. The other set shall be labeled on the cover 
2 Nonconfidential and shall have the Protected Material deleted. Both sets shall be filed with the 
Court, but the Confidential set shail be filed under seal and shall not be made available to the 
public. 
6. At the conclusion of this litigation, Plaintiffs counsel and litigation staff and any 
expert retained for the litigation by either party or the Special Master shall destroy or return to 
Interior any copies of Protected Material received or made during the course of their review and 
any notes or other summaries that disclose or include the substance of the Protected Material. 
.The provisions of this protective order shall not preclude Defendants or a third 7. 
party from seeking additional protections with respect to any specific documents. 
IT IS SO ORDERED: 
Date: February -2 2002 
Alan L. Balaran 
SPECLAL MASTER 
3 cc: 
Sandra P. Spooner 
John T. Sternplewicz 
Cynthia L. Alexander 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 5 14-9 163 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N.W. 
Ninth Floor 
Washington, D.C. 20004 
Fax (202) 3 18-2372 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levi tas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 P - 
CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on February 25, 2002, I served the foregoing 
Defendants' Motion for A Protective Order, by facsimile only, in accordance with their written 
request of October 3 1, 2001 , upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
202-822-0068 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
1275 Pennsylvania Avenue, N. W., 
Ninth Floor 
Washington, D.C. 20004 
202-3 18-2372 
by facsimile, and by hand delivery on February 26,2002, upon: 
Alan L. Balaran, Esq. 
Special Master 
17 17 Pennsylvania Ave., N. W. 
12th Floor 
Washington, D.C. 20006 
by U.S. Mail upon: 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
and by hand delivery upon: 
Joseph S. Kieffer 
Court Monitor 
420 7th Street, N W 
Apt 705 
Washington, DC 20004 
Sean Schmergei Rv Facsimile 
Mr. Dennis M. Gingold 
1275 Perlnsylvania Avenue, N.W., Ninth Floor 
Washington, D.C. 20004 
MI-. Keith Harper 
Native Amcrican Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036 
Dear Messrs. Gingold and Harper: 
U S . Department of Justice 
Cisil Di\.ision, Commcrcial Branch 
1100 L Street, N.W., Room 10030 
Wash i 11 gtoii, D . C. 20005 
Re: Cobcll v. Norton - Interior Defendants' Motion for Protective Order JVith Regard to IT Security 
Materials to be Submitted Pursuant to July 28, 2003 Preliminary Irijuiiction 
In plaintiffs' opposition to the aho\,e-referenced motion for a protective order, you rcfcr 
positively to the listing of IT security docunicnts set forth in the Special Master's May 2, 2002 Revised 
Order. Pi. Br. at i 0 {"A brielre\fiew of the existiny Revised Order makes ciear that it alonc is 
sufficient to address Norton's submissions."). Your positive comments are tempered, howcvcr, by your 
statements indicating your opposition to thc Revised Order. &, id. {"Although plaiiitiffs disagreed at 
the time, and continue to disagree, with the scope of the Revised Order, . . . ."). 
M'hile we do not agree that thc Revised Order applies to submission pursuant to the July 28, 
2003 preliminary in-junction, your coninicnts implied that the possrbiltty exists for a stipulation to 
resolve the issues presented in our motion for a protective order. Our motion was accompanied by a 
proposed protective order, which included as a definition of "Protected Material": 
any document (including any pleadings, motions, briefs, notices, 
responses to interrogatories or document production requests, or 
documents provided pursuant to an informal document production), or 
portion or copies thereof, produced, filed, or sewed by Interior 
Dekndants that has been designated by hiterior Defendants as 
confidential by typing or stamping on the face of the document lhe words 
"Protected Material--Subject to August 2003 IT Security Protective 
Order" or a substantially similar legend; . . . . 
EXHIBIT B 
Defs' Reply Supporting Protectne Orda 
for Subnussions Under Jul 2R, 2003 P I Proposed I'rotective Order 71 l(a). In licu o f this l~aragrapli, we would bc willing to stipulafe to (lie entry 
of a protcctivc order that substitutes the following langua,oc in paragraph 1 (a): 
any of the follon-iiig docurncnls and any plcadings, iiiotjons, briers, 
noticcs. 1-csponses to interrogatoi-ies or documcnt pi-oduction requests, 01' 
documents providcd piirsuaiit 10 an infoniial docunicnt pioductiori tliat 
dcscrihe the contents of the folIo~.iitg docuiiienls: 
Network d i again s ; (i 1 
(ii) Nessus outputs; 
(iii) Whisker outputs; 
(iv) Wardialing outputs; 
Incident response plans; 
Security policies; 
(I1> 
(vi) 
(vii) Firewall configurations and rules; 
[ vi i i> Router configurations and rules; 
(is) Server configurations; 
(2;) Dial-in configurations; 
System-hardening guidelines; 
Penetration test results; 
(xi) 
(xii) 
(xiii) Vinis innoculation procedures; 
(xiv) Forensic procedures; 
W) Device n) addresses; 
(xvi) Router Access Control Lists (ACLs); 
(xvii) Operating System versions and Parch levels; 
(xv i i i) Application versions arid Patch levels; 
(xix) Docuemnts containing user names and identifications; - 3 - 
(NS) Topology d i a g m s . 
Intcrior Dcfcndants' rcply brief in support of the protcctivc Q Y ~ C ~ is duc on Thursday, August I S , 
2003. Accordingly, please atl\ise us by close-of-business today whether plainliffs would he willinS t o 
stipiilate to a protective ordcr as described herejii. 
Thank ~ O L I for pour attontioii to this proposal. 
Vcry tiuly yours, 
Trial Attorncy 
Commercial Litigation Branch 
Civil Division FACSIMlLE TRANSMITTAT, 
hlr. Keith Harper [Facsimile number {204 822-0066] 
B! 
-_ From: 
Mr. Dennis M. Gingold Facsimile iiurriber (202) 3 15-2372 J 
John Warshawsky, Trial Attorney 
United States Department of Justice 
Commercial Litigation Branch. Civil Division 
1 100 L Street, N. W., Room 10030 
Washington D.C. 20005 
- . 
OEce telephone: (202) 3074010 
Facsimile number: (204 514-9163 
Date of transmisSiurl: Wednesday, August 27, 2003 
THIS FACSIiMlLE IS IhlEhBED OXLY FOR I'HE ABO\'E-DESIGXATEL, .UDRESSEE I'J' hl4Y 
COYTAK Ih'FORMATIOS WHICH IS PRIVILEGED. CONFIDENTIAL, OR OTHERNISE PROEQED 
FXOM DISCLOSURE TO AhTOSE OTHER THAN TH ADDRESSEE. 
AhT HAVE WjCEIVEU THIS FACjMLE IN ERROR: IF JVU ARE NOT.&,QDJMSSEE 
PLEASE DO NOT REVTTW, DISSE.M"TE, O R OTHERWISE USE (1) 
( 2 ) 
ANY OF THE TRANSMISSION, AND 
PLEASE ADVISE THE SENUEK OF THIS FACSIMILE IMMEDWrEL\'. 
, 
1 
! 
. . 
, i I,, CERTIFICATE OF SERVICE 
I declare under penalty of perjury that, on August 28,2003 I served the foregoing Interior 
Defendants' Reply Brief in Support of Motion for a Protective Order with Regard to Information 
Technology Security Materials to Be Submitted Pursuant to July 28, 2003 Preliminary Injunction 
by facsimile in accordance with their written request of October 31,2001 upon: 
Keith Harper, Esq. 
Native American Rights Fund 
1712 N Street, N.W. 
Washington, D.C. 20036-2976 
(202) 822-0068 
Per the Court's Order of April 17,2003, 
by facsimile and by U.S. Mail upon: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 5941 7 
(406) 338-7530 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, D.C. 20005 
(202) 3 18-2372 
By U.S. Mail upon: 
Elliott Levitas, Esq 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530