7_j i,_'i-,i 9
                                                                                                                  U.S. ['i!'-_;_i'2.F C{}{RT
                                                                                                                 !,,.c._r:-!,:{ :_} S{}:;_i!i'C}':.\
                                           iN THE UNITED STATES DISTRICT COURT
                                                FOR THE DISTRICT OF COLUMBIA                  ?3 }i_2 12  PH  6' 02

                                                                                                                  NR",'_i3{-_ P'Si :i _: 3TCi7 ']
              ELOUISE PEPION COBELL, et al.,                   )                                              CL {_ :,{
                                                                            )
                  Plaintiffs,                                         )
                                                                            )
                  v.                                                   )        Case No. 1:96CV01285 (RCL)
                                                                            )        (Judge Lalnberth)
              GALE NORTON, Secretary of the Interior, et al.,   )
                                                                            )
                  Defendants.                                       )
                                                                            )
            INTERIOR DEFENDANTS' SECOND MOTION AND SUPPORTING MEMORANDUM
                  FOR RELEASE OF THE REPORT OF THE SPECIAL MASTER REGARDING IT
                         SECURITY AND ANY INFORMATION REPORTED TO THE COURT
                       REGARDING THE SPECIAL MASTER'S INVESTIGATION OR REPORT
                       Interior Defendants respectfully move for (1) release of the Special Master's report
              regarding his investigation of the Department of the Interior's information technology ("IT")
              security practices; and (2) provision to the parties of any information the Special Master reported
              to the Court regarding his investigation or report.
                       On September 3, 2002, Interior Defendants filed their Motion For Release of the Report
              of the Special Master Regarding IT Security and any Information Reported to the Court
              Regarding the Special Master's Investigation or Report ("First Motion"). This Court denied the
              First Motion in an Order dated September 17, 2002. The Court stated that "[t]he Special Master,
              after a discussion of the status of his inquiry with the Court, agreed with the Court that the report
              he was in the midst of finalizing should not be submitted because it was directed largely at

                         In accordance with Local Rule 7. l(m), counsel for Interior Defendants attempted to
              consult with counsel for Plaintiffs about this motion. Plaintiffs' counsel has not responded, and
              we presume Plaintiffs do not consent to this motion.

                difficulties within OST, and did not address BIA, CIO, and Secretarial difficulties." Order, Sept.
               17, 2002, at 1. Rather, the Court stated, "a report addressing the Department's failure to fix IT

               security is the appropriate way to proceed." Id.__. (emphasis in original). The Court stated that

               "[t]he Special Master readily agrees, and he has no interim or other report to submit, nor will he
               have a report until he has conducted and completed all of the necessary fact-gathering." Id.___. at 1-
               2.
                       The First Motion also sought any information the Special Master reported to the Court

               regarding his IT investigation or report. See First Motion at 3-4. The February 24, 1999 Order

               appointing the Special Master requires that "[a]ny information reported to the [C]ourt by the

               [S]pecial [M]aster shall also be reported to counsel for the parties," Order, Feb. 24, 1999, at 3.
               Although the Order denying the First Motion establishes that the Special Master reported
               information about his IT investigation and report to the Court, see Order, Sept. 17, 2002, at 1

               ("The Special Master, after a discussion of the status of his inquiry with the Court, agreed with
              the Court that the report he was in the midst of finalizing should not be submitted because it was
              directed largely at difficulties within OST, and did not address BIA, CIO, and Secretarial
              difficulties."); id__:. ("[H]ere the discussion with the Special Master indicated that he disagrees with
              OST's actions regarding providing funding for IT security"), the September 17, 2002 Order did
              not address Interior Defendants' request for such information.
                       The Special Master has now concluded the additional investigation directed by the Court.
              His October 2002 Report stated that he "concluded [his] investigation into the IT security
              practices of the Department of the Interior with the deposition of former Assistant Secretary for
              Indian Affairs Kevin Gover," and that his "final report on this topic will soon issue." October

                                                                       2

                2002 Report of Special Master at 2 (Nov. 1, 2002). The Special Master's November 2002
               Report stated:
                                As reported in my October 2002 monthly report, I concluded the
                                depositions related to my investigation into the IT security
                                practices of the Department of the Interior. On November 22,
                                2002, Interior produced the final documents responsive to my
                                various requests related to this investigation. Following review of
                                those documents, I will issue my final report.
              November 2002 Report of Special Master at 3 (Dec. 2, 2002). The Special Master's subsequent
              monthly reports contain no mention of the IT security investigation or final report.
                       In a January 2, 2003, letter to the Special Master, counsel for Interior Defendants noted
              their understanding that the Special Master had completed his IT security report, and requested
              that he issue the report and provide Interior Defendants with a copy. See Letter from John
              Warshawsky, Trial Attorney, Department of Justice, to Alan Balaran, Special Master (Jan. 2,
              2003) (Exhibit 1). Counsel for Interior Defendants wrote again to the Special Master on
              February 27, 2003, this time asking that he advise them as to the approximate date on which he
              intended to release his IT security report. See Letter from Sandra P. Spooner, Deputy Director,
              Department of Justice, to Alan L. Balaran, Special Master (Feb. 27, 2003) (Exhibit 2). The
              Special Master has not responded to these inquiries.
                       The Special Master's report will almost certainly provide information that will be helpful
              to the Interior Defendants as they proceed with resolving IT security matters and implementing
              trust reform, tn addition, the Special Master-Monitor is seeking to depose former Special
              Trustee Thomas Slonaker, and the report presumably will contain information that will be
              relevant to that deposition. Moreover, to the extent the report addresses issues that may be

                                                                      3

                 relevant to the Phase 1.5 proceedings, Interior Defendants should be afforded the opportunity to
               address the report's findings as they prepare for trial. It has now been more than four months
               since the Special Master reported that he had concluded his investigation, and more than three
               months since he reported that Interior Defendants had produced the final documents related to
               this investigation. Federal Rule of Civil Procedure 53, pursuant to which the Special Master was
               appointed, requires the Special Master to file reports he has prepared with the clerk of the court
               and to "serve a copy of the report on each party." Fed. R. Civ. P. 53(e)(1). Accordingly, Interior
               Defendants respectfully request that a copy of the report be filed and served on the parties
               pursuant to Rule 53.
                       Furthermore, as noted above, the February 24, 1999 Order appointing the Special Master
              requires that "[a]ny information reported to the [C]ourt by the [S]pecial [M]aster shall also be
              reported to counsel for the parties." Order, February 24, 1999, at 3. In accordance with this
              Order, any information that the Special Master reported to the Court regarding his IT
              investigation or report must also be reported to counsel for the parties. Accordingly, Interior
              Defendants also respectfully request that the Special Master provide to the parties ally

                                                                      4

                 information (including any interim report or draft) he provided to the Court regarding his IT
               security investigation.
               Dated: March 12, 2003                                  Respectfully submitted,
                                                                             ROBERT D. McCALLUM
                                                                             Assistant Attorney General
                                                                             STUART E. SCHIFFER
                                                                             Deputy Assistant Attorney General
                                                                            J. CHRISTOPHER KOHN
                                                                            Director

                                                                            S_ P. SPOONER
                                                                            D.C. Bar No. 261495
                                                                            Deputy Director
                                                                            JOHN T. STEMPLEWICZ
                                                                            Senior Trial Attorney
                                                                            CYNTHIA L. ALEXANDER
                                                                            Trial Attorney
                                                                            Commercial Litigation Branch
                                                                            Civil Division
                                                                            P.O. Box 875
                                                                            Ben Franklin Station
                                                                            Washington, D.C. 20044-0875
                                                                            (202) 514-7194

                                                IN THE UNITED STATES DISTRICT COURT
                                                 FOR THE DISTRICT OF COLUMBIA
               ELOUISE PEPION COBELL, et al.,                  )
                                                                             )
                   Plaintiffs,                                         )
                                                                             )
                   v.                                                  )        Case No. 1:96CV01285
                                                                             )
            GALE NORTON, Secretary of the Interior, et al.,   )
                                                                             )
                   Defendants.                                       )
                                                                             )
                                                     ORDER
                        Upon consideration of Interior Defendants' Second Motion For Release Of The Report
               Of The Special Master Regarding IT Security And Any Information Reported To The Court
               Regarding The Special Master's Investigation Or Report ("interior Defendants' Motion"), any
               responses thereto, and the record in this case, it is hereby
                        ORDERED that Interior Defendant s' Motion is GRANTED. The report of the Special
               Master regarding the Department of the Interior's IT security practices shall be released and
               served on the parties, and the parties shall be provided with any information (including any
               interim report or draft) the Special Master provided to the Court regarding his investigation or
               report.

                        SO ORDERED this __ day of                     ,2003.

                                                                                     Royce C. Lamberth
                                                                                     United States District Judge

                 CC:

                     Sandra P. Spooner
               Commercial Litigation Branch
               Civil Division
               P.O. Box 875
               Ben Franklin Station
               Washington, D.C. 20044-0875
               (202) 514-7194
               Dennis M Gingold, Esq.
               Mark Brown, Esq.
               1275 Pennsylvania Avenue, N.W.
               Ninth Floor
               Washington, D.C. 20004
               202-318-2372
               Keith Harper, Esq.
               Native American Rights Fund
               1712 N Street, NW
               Washington, D.C. 20036-2976
               202-822-0068
               Elliott Levitas, Esq.
               1100 Peachtree Street, Suite 2800
               Atlanta, GA 30309-4530

                      ii_                                         U.S. Department of JustiCe
                                                                                   Civil Division, Commercial Branch
                                                                                    1100 L Street, N.W., Room 10030
                                                                                    Washington, D.C. 20005

                     .Iohn Warshawsky                                                          Telephone: (202) 307-0010  Facsimile: (202) 514-9163

                                                                                                          January2,2003
                   By Facsimile
                   Mr. Alan Balaran
                   Special Master
                    1717 Pennsylvania AVenue, N.W.
                   Twelfth Floor
                   Washington, D.C. 20006
                   Re:     Cobell v. Norton - TMIP Steering Committee Investigation
                   Dear Mr. Balaran:
                            We understand that you have completed your investigation of the TMIP Steering Committee and
                   that you have completed your report setting forth your findings and conclusions resulting from this
                   investigation. Therefore, we request that you issue your report and that you provide us with a copy.
                            Thank you for your consideration of this request.
                                                                 Very truly yo.urs,   /_

                                                                  n ,^tto%     (.)
                         Commercial Litigation Brar
                                                                 Civil Division
                   cc:     Mr. Dennis Gingold (by facsimile)
                            Mr. Keith Harper (by facsimile)

                                                                                                                                     Exhibit 1
                                                                                                                                                             Def's 2nd Motion to Release
                                                                                                                                                                SM's IT Security Report

                          :_'************* _.  Ji/Jl_- *',_*******:**_l_k** DATE _2B(_ **'-*** TIHE 14:45 ***_
                                             MODE - 1_ TI_ISSION                            START-JAN-O_ 14:41        EN_J'AN-82 14:45
                                                FILE NO. -71o
                                    STN    _,         ONE-TOU04/    STATION I,,12.I,E/TEL b{O.                                      PRFi-S       DORATION
                                    NO.                      ABBW NO.
                                    _1           OK               ill                          9986847?
                                                                                                                                                                                                                    _2/_:?.      0(_:8:41
                                                                    El<          s                  931825_                                                        _2/Z_2    _:8_:45
                                                OK          a                  98_                                                        _2_    BE: 88:35

                                                                                                                             -D03/CI VIL DIUISION
                                                                                                                        - *4,,*** -            2_2 514 916J- *,_*-******

                                                                                    FACSI1V!ILE Ti_ANSM]TTA_L
                                        TO:               Mr. Alan L, Balaran [F_cstmHc uumber (202) 9R6-8477]
                                                            Mr. Dennis M, Oingold [Facsimile number (202) 318-2372]
                                                            Mr, Keith Harper [Facsimile number (202) 822-0068]

                                       Ffgm:            1ohn Warshawsky. Trial Attomcy
                                                            United Sm_'s D_artm_t of Justice
                                                            Commercial Litigation Branch, Civil Division
                                                            1100 L Street, N.W., Room 10030
                                                            Washington D.C. 20005

                                                            Office telephone: (202) 307-0()10
                                                           Facsimile number. (202) 514-9163

                                       Pages fiIlCuding powr panel: 2

                                       Comments;

                                       Date of ixall_.aission: Thursday, January 2, 2003

                                       NOT_: THIS FA-CSI_LE IS INTEND]_DONLY FOR TEE ABOV_DE.qlONATI_D ADDRESSEE. IT MAY
                                       CONTAIN INFORMATION WHICH IS PRIVILEGED. CONFiDFNTIAI_ OR OTHERWISE PROTECTED
                                       FROM DI$CLOfU_ TO ANYONE  OTI/F.R TITAN THE ADDRESSEE.
                                          yOU AKB NOT.. THE ADDRLrSSEI[ ANDHAVE RECEIVED TI{IS F_ACSD4ILE IN ERROR:
                                                           (1)      PLEASE DO NOT REVIEW, DISSEMINATE, OR OTHERWISE USE
                                                                     ANY OF THE TRANSMISSION, AND
                                                           (2)      PLEASE ADVISE THE SENDER OF THIS FACSIMILE IMMEDIATELY.

                         -_                                     United States Department of Justice
                                                                                Civil Division
                                                                                Commercial Litigation Branch

                    Sandra P. Spooner                                                               P.O. Box 875, Ben Franklin Station  Tci: (202) 514-7194
                             Deputy Director                                                                 Washington, D.C. 20044-0875       Fax: (202) 307-0494
                                                                                                                                                                 Email:sandra. spooner_usdoj.gov

                                                                                                                         February 27, 2003

                    BY FACSIMILE
                    Alan L. Balaran, Esq.
                    Special Master
                    1717 Pennsylvania Ave., N.W.
                    Twelfth Floor
                    Washington, DC 20006
                             Re:     Cobell v. Norton - TMIP Steering Committee Investigation
                    Dear Mr. Balaran:
                             On September 3, 2002, we filed a motion seeking release of your report regarding the IT
                    security practices of the Department of the Interior and any information (including any interim
                    report or draft) you provided to the Court regarding your investigation or report. On September
                    17, 2002, the Court denied our motion on the ground that your report should not be submitted
                   because "it was directed largely at difficulties within OST, and did not address BIA, CIO, and
                    Secretarial difficulties." Order, Sept. 17, 2002, at 1. The Court stated that "[i]n the Court's
                                                                     ~
                                                   view, a report addressing the Department's failure to fix IT security is the appropriate way to
                   proceed." Id_..:. The Court further stated that "[t]he Special Master readily agrees, and he has no
                   interim or other report to submit, nor will he have a report until he has conducted and completed
                   all of the necessary fact-gathering." Id_.__. at 1-2.
                            In accordance with the February 24, 1999 Order appointing you, which requires that
                   "[a]ny information reported to the [C]ourt by the [S]pecial [M]aster shall also be reported to
                   counsel for the parties," Order, Feb. 24, 1999, at 3, we also sought any information you reported
                   to the Court regarding your IT investigation or report in our September 3 motion. The Court did
                   not address this request in its September 17, 2002 Order.
                            Your October 2002 Report stated that you "concluded your investigation into the IT
                   security practices of the Department of the Interior with the deposition of former Assistant

                                                                                                                                  Exhibit 2
                                                                                                                                                          Def's 2nd Motion to Release

                    Secretary for Indian Affairs Kevin Gover," and that your "final report on this topic will soon
                    issue." October 2002 Report of Special Master at 2 (Nov. 1, 2002). Your November 2002
                    Report stated:
                                      As reported in my October 2002 monthly report, I concluded the
                                      depositions related to my investigation into the IT security
                                      practices of the Department of the Interior. On November 22,
                                      2002, Interior produced the final documents responsive to my
                                      various requests related to this investigation. Following review of
                                      those documents, I will issue my final report.
                   November 2002 Report of Special Master (Dec. 2, 2002).
                             In a January 2, 2003, letter to you from John Warshawsky, we noted our understanding
                   that you had completed your report on Interior's IT security, and requested that you issue your
                   report and provide us with a copy. We received no response.
                            As we have explained, Interior is actively involved in long term and short term planning
                   to improve the security and integrity of information technology systems that house Indian trust
                   data, with the ultimate goal of achieving A-130 compliance. See Letter from Sandra P. Spooner
                   to Alan L. Balaran (Aug. 23, 2002). We again request that you issue your report so Interior may
                   utilize any information you have gathered that may help guide its efforts. In addition, as you may
                   be aware, the Special Master-Monitor is seeking to depose former Special Trustee Thomas
                   Slonaker during the week of March 24, 2003, and the report may contain information that will be
                   relevant to that deposition.
                            We ask that you advise us as to the approximate date on which you intend to release your
                   IT security report no later than next Tuesday, March 4, 2003. Thank you for your prompt
                   consideration of this request.
                                                                                   Very truly yours,     FN

                   cc:     Dennis Gingold, Esq.
                            Keith Harper, Esq.

                            _oK*_***_ok**_** -COMM.  J(1J_- **_o_**_ok**_**_ DATE FEB-LT?-2(3B3 *_ TIrE 16:35 *******_

                                                IqODEE = HEEMORY _ISSION                            START=FEB-ir7 16'26;       END=_B-Lz? 1fi'135
                                                   F I LE NO. -798
                                        STN    COMM.          ONE-TOUCH/    STATIOH IqAMEE/TEL NO.                                      PAGES        IXJ_qTION
                                        HO.                      ABBR NO.
                                        (301        OK           a                   99868477                                                         (_33/{_(33    0(3: 01: {;3{3
                                        (a(_2       OK           z                  93182:372                                                         003/00.3    {_ffi:Bl: 15
                                        B03       OK           &                   5BP..2OOf_                                                         g_3/_L_    _0:{_3:47

                                                                                                                                 -DO.T/C I UIL DIUISION
                                       ***--****aec*******--**--******* _                         - _ -            :2S32 514 91F::_- **_c******

                                             IMPORTANT: This'facsinal is imtnd_ only for the us_ of the indh_dUal or entity to which it is a_d. It may
                                             contlda information 1hat h privileged, com'idential, or oth_'wLse protJected from disclosure under applicable law. If
                                             thc resdcr of this trtnsm_sion is not the inlendcd recipient or thc em]plo_ or egeat respousible for dolivc_ the
                                             tnmmr_sion to _ h_te_ted recipient, you sre hereby notified that any _fio_, dism'bution, copying or use of
                                             thia mmsar_sion or it's conten_ is s_tly prohibited, ffyou have received this I_an_nLuioa in error, ple..ase notify us
                                             by telepho-_,_g ead return, the ozi_m,1 tramn,Assion to ta at the adclre_ $ive_ below.

                                              FROM:      Department of Justice
                                                                Civil Division, Commercial Litigation Branch
                                                                Corporate Financial Section
                                                                P.O. Box 875, Ben Franklin Station
                                                                Washington. DC 20044

                                                                Fax No.: 202 514-9163       Voice No.: 202 514-7194
                                                                Emai!: sandra,spooncr_azdoj ,_ v

                                            SENT BY:    Sandra P. Spooncr
                                            TO:              Alan L. Balaran, F_zq.           FAX No.:      202 986-8477
                                                                Dennis M. GL:gold, Esq.                          202 31g-2372
                                                                Kcith Harp_, Esq.                                   202-822-0068

                                            DATE:         February 27, 2003

                                            NUMBER OF PAGES SENT ('INCLUDING COVER PAGE):  3
                                            SPECIAL INSTRUCTIONS:

                                                            CERTIFICATE OF SERVICE
                         I declare under penalty of perjury that, on March 12, 2003 I served the foregoing Interior
                Defendants'Second Motion and Supporting Memorandum for Release of the Report of the
                Special Master Regarding IT Security and Any Information Reported to the Court Regarding the
                Special Master's Investigation or Report by facsimile in accordance with their written request of
                October 31, 2001 upon:
                Keith Harper, Esq.                                        Dennis M Gingold, Esq.
                Native American Rights Fund                          Mark Kester Brown, Esq.
                1712 N Street, N.W.                                      1275 Pennsylvania Avenue, N.W.
                Washington, D.C. 20036-2976                         Ninth Floor
                (202) 822-0068                                           Washington, D.C. 20004
                                                                             (202) 318-2372

                By U.S. Mail upon:
                Elliott Levitas, Esq.
                1100 Peachtree Street, Suite 2800
               Atlanta, GA 30309-4530

               By facsimile and U.S. Mail upon:
               Alan L. Balaran, Esq.
               Special Master
                1717 Pennsylvania Avenue, N.W.
                13th Floor
               Washington, D.C. 20006
               (202) 986-8477
               By Hand upon:
               Joseph S. Kieffer, llI
               Special Master Monitor
               420 7 th
                                  Street, N.W.
               Apartment 705
               Washington, D.C. 20004
               (202) 478-1958

                                                                             ,w     t  v                                    //
                                                                                                                                                                        Kevln P. Kingston
                                                                                                     Y