I!  :'    "_!ii',,_,_! _  _
                                                                                                                                                                                                                                             _i'I_! ';-_


                                                                                         UNITED STATES DISTRICT COURT
                                               FOR THE DISTRICT OF COLUMBIA                  -  : _  i _  t i


                                                                  )                                                    t:i F i_il
             ELOUISE PEPION COBELL, et al.,          )
                                                                  )
                               Plaintiffs,               )        Civil Action No. 96-1285 (RCL)
                                                                  )
                 v.                                          )        (Judge Lamberth)
                                                                  )
          GALE A. NORTON, et al.,                     )
                                                                  )
                               Defendants.            )
                                                                  )
                         THE DEPARTMENT OF THE INTERIOR'S OBJECTIONS
                                TO CORRECTED REPORT OF THE SPECIAL MASTER
                          REGARDING TItE DELETION OF INDIVIDUAL INDIAN TRUST
                         INFORMATION BY FORMER ASSISTANT SECRETARY-INDIAN
                                                   AFFAIRS NEAL MCCALEB
                     On January 27, 2003, the Special Master issued his report (the "Corrected Report") of his
            investigation of allegations that between December 2001 and early October 2002, former
            Assistant Secretary Neal McCaleb failed to print out and file e-mail messages he received and
            may have deleted the messages before they were captured on backup tapes. On the basis of an
           investigation concerning the e-mail practices of a particular former Department of the Interior
            official, the Special Master's report draws certain conclusions about the Department's
            recordkeeping practices that are legally incorrect and/or factually erroneous.  The Department's
            objections follow.
                     1.      The Corrected Report apparently reached factual conclusions that the Department
            as an institution had failed to take required actions to ensure that records were maintained. This
            conclusion is not supported by the record. The Special Master recognizes that the Department of
            the Interior has promulgated "numerous regulations and directives governing the retention of
            electronic correspondence." Corrected Report at 12. indeed, the report lists four directives




                 issued during Mr. McCaleb's tenure as Assistant Secretary concerning policies for the retention
               of records and information transmitted by e-mail, id. at 12-13, and identifies eight other
               directives issued before Mr. McCaleb took office, id. at 13-14 n.8. See also Attachments 1-3 to
               the Corrected Report.
                        The report also reflects that other employees in the Office of Assistant Secretary whose
               recordkeeping practices were examined had adhered to the Department's directives. Corrected
               Report at 31-33. The report specifically cited the recordkeeping practices of Jean Maybee,
               Deputy Assistant Secretary Aurene Martin, and Acting Deputy Commissioner Terry Virden. Id.
               at 32-33, and 33 n.32. Further, the report quotes with approval testimony that Mr. McCaleb's
              predecessor, Kevin Gover, printed out and retained e-mails, and that former Deputy
              Commissioner Sharon Blackwell was a "fanatic" in retaining her e-mails, id. at 33.
                       In sum, the evidence developed in the Special Master's investigation, as set forth in the
              Corrected Report and the attachments to the report show that, first, the Department repeatedly
              provided directions to employees concerning their obligations on the retention of records
              transmitted by e-mail, and second, that other employees whose e-mail practices the Special
              Master examined in the course of his investigation adhered to thc policies set forth in the
              Department's directives. Consequently, the Special Master's conclusory statements that the
              "current state of affairs can best be described as chaotic," id. at 51, or that the Department used
              "an enfeebled data-transmission backup policy that virtually ensured trust communications would
             neither be captured nor preserved," id. at 1, are contradicted by the evidence developed in the
             investigation and therefore are clearly erroneous.


                        Moreover, contrary to the Special Master's apparent assumption, the Department did not
                                                                                                                 (continued...)
                                                                    -2-




                           2.      The Special Master implies that Mr. McCaleb erased trust information not only
               from his own e-mail inbox but also from the Department's records. See Corrected Report at 1,
               40. This finding is without evidentiary support and is speculative. The trust information would
               be erased from the Department's records only iff
                        (1) the sender and each recipient of the e-mail, contrary to repeated directives,
                        failed to print out and file the trust information;
                        (2) the sender and each recipient deleted the e-mail;
                        (3) the sender and each recipient, contrary to e-mailed instructions, deleted the e-
                        mail before the e-mail was successfully captured on a Friday backup tape2; and
                        (4) the trust information existed solely in the e-mail, and had not been preserved
                        in any other media, such as on paper or a computer hard drive, or in other data
                        collections.
                        There is simply no evidence indicating that all of the above contingencies occurred. The
               Special Master speculates that Department employees who sent e-mails to Mr. McCaleb may
               have been "equally remiss in the administration of their electronic correspondence" because the
              Department had allegedly not provided training. Corrected Report at 40. The conclusion that the
              Department had not provided training is based on the deposition testimony of Aurene Martin and
              Jean Maybee that they had received no training. As discussed above, the Special Master


                       _(...continued)
              use a data-transmission backup policy, enfeebled or otherwise, to capture or preserve trust
              records. Rather, as is clear from the directives attached to the Corrected Report, employees were
              directed to print out e-mails containing trust information or which constituted federal records.
                       2 After the Friday backup had been successfully completed, notifications were sent to
              each user's computer stating the date of the successful backup, reminding users that they were
              required to print and file all e-mail messages relating to the "Three Functional Areas," and
              instructing users not to delete any e-mails pertaining to the Three Functional Areas received after
              the date of the successful Friday backup "until you receive another message similar to this one
              indicating the retention Backup has been successful." Corrected Report at 38 and Attachment 4
              (emphasis omitted).
                                                                     -3-





                 apparently approved of the record retention practices of Ms. Martin and Ms. Maybee. As also
               discussed above, the Department had repeatedly instructed employees on record retention
               requirements.
                        More fundamentally, there is no basis for the Special Master's apparent assumption that
               there was any trust information that existed solely in the form of a BIA e-mail sent to Mr.
               McCaleb. The Special Master cites Mr. McCaleb's testimony that he deleted e-mails containing
               the OIRM Morning Report. Corrected Report at 16-17. However, Mr. McCaleb testified that he
               subsequently was able to obtain paper copies of all of the OIRM Morning Reports. Deposition of
               Neal McCaleb, December 6, 2002 ("McCaleb Dep.") at 60 (attached in full as Exhibit 2). 3

               During the period in question, December 2001 to October 2002, BIA's trust responsibilities were
               limited to leasing of land resources, collection of funds and computing of funds for distribution.
               Id. at 30. We are aware of no evidence that the lease and accounting records generated by these
               trust responsibilities were created in e-mails that would have initially been sent to or received
               from Mr. McCaleb, and logic dictates otherwise.
                       The Special Master's apparent finding that Mr. McCaleb erased e-mails containing trust
               information from his own inbox before they were captured on retained backup tapes, Corrected
              Report at 16, has little if any record support. As the Special Master noted, throughout the period
              in question, it was BIA's policy to retain Friday backup tapes for BIA e-mails. Id. at 38. If the
              Friday backup was successful, notifications were sent to each user 's computer. Mr. McCaleb was
              away from his office on a majority of the working days between December 2001, and October


                       3The attached transcript of the McCaleb deposition bears the erroneous label
              "Confidential - Subject to Protective Order." See Exhibit 2, at 1. As noted in the December 12,
              2002 letter from Amalia D. Kessler, Department of Justice, to Alan L. Balaran, Special Master
              (attached as Exhibit 3), the deposition was not subject to a protective order.
                                                                     -4-





                 2002, and he did not access his e-mails while on travel. See Corrected Report, Attachment 8,
               November 8, 2002 Letter from Sabrina McCarthy, Department of the Interior, to Peter B. Miller,
               Department of Justice (the "McCarthy letter") at 1-2, and 3 n.3. Zantaz, a Department of the
               Interior contractor, has conducted an initial audit of the backup tapes and found 7,136 e-mails
               sent or received by Mr. McCaleb. See Attachment 4 to the January 2003 Report of the Special
               Master, Zantaz report at 3 (Exhibit 1 to this memorandum). 4  The record reflects that between
               December 6, 2001, when BIA's access to the Intemet was shut down, and June 20, 2002, Mr.
               McCaleb was able to receive e-mails only from employees of the Office of the Assistant
               Secretary-Indian Aflhirs and from BIA employees. See McCarthy letter at 2. After June 20,
               2002, he was also able to receive e-mails from the Office of Special Trustee. Id. at 2 n. 1. BIA's
               trust responsibilities were limited to leasing of land resources, collection of funds and computing
               of funds for distribution. McCaleb Dep. at 30. Therefore, Mr. McCaleb was able to receive by
               e-mail limited types of trust information from a limited number of DOI employees. While it is
               possible that the retained backup tapes did not capture all of Mr. McCaleb's e-mails, and it is also
               possible that one or more of the missing e-mails contained trust information, under these
               circumstances a finding that he erased from his inbox trust information not captured in the
              backup tapes rests only on the Special Master's skepticism about Mr. McCaleb's deposition
              testimony.
                       3.      The Corrected Report incorrectly describes the issue decided in the Master's July
              27, 2001 opinion in this matter in stating that "on July 27, 2001, the Special Master reported that
              Interior had 'ignored its duty to retain and preserve backup tapes of e-mail messages' in

                       4 Some of the messages found by Zantaz might be duplicates, if Mr. McCaleb had not
              deleted messages between successful Friday backups.
                                                                     -5-





                 derogation of its trust responsibilities." Corrected Report at 11. While overwriting of backup
               tapes may violate the discovery obligations imposed by the July 27, 2001 opinion, overwriting
               does not violate any trust responsibility. The July 27, 2001 opinion was directed solely to
               Interior's discovery obligations, and not to trust responsibilities. The complete sentence from the
               July 27, 2001 opinion confirms that the opinion pertained to discovery obligations only: "In sum,
               defendant has ignored its duty to retain and preserve backup tapes of e-mail messages responsive
               to the Third Formal Request for Production of Documents." July 27, 2001 opinion, at 18. The
               opinion was occasioned by a discovery dispute - specifically, Interior's Motion for a Protective
               Order Clarifying Duty to Produce E-Mail Records (filed Aug. 2, 2000). Even the August 12,
               1999 Order regarding document retention did not require retention of backup tapes. See
               Attachment 1 to Corrected Report.
                        4.      The Corrected Report contains an extended discussion on Aurene Martin's actions
               in preparing a draft affidavit for Mr. McCaleb, Corrected Report at 47-51, and concludes that her
               conduct was "troubling." Id. at 51. The entire discussion is gratuitous to the investigation, and
               the criticism of Ms. Martin is unwarranted and unsupported. On the record developed, there is
               no basis to question her explanation of the events -- that after talking by telephone with Mr.
               McCaleb about deleted e-mails, she typed up a draft affidavit so that there would be some
               documentation of the situation close to the time of the initial disclosure. Id.  at 47-48. That the
              documentation was in the form of a draft affidavit rather than a memorandum is of no
              significance. Further, the Special Master specifically found that Ms. Martin had not sought to act
              as a legal representative of Mr. McCaleb in preparing the documentation. Id. at 47. The Master
              cites no regulation or policy of the Department that prohibited her from assisting Mr. McCaleb in
              a non-representative capacity. The draft prepared by Ms. Martin was not signed by Mr. McCaleb

                                                                     -6-





                 and was not submitted to the Special Master or the Court as his sworn declaration. The Special
               Master also questions why Ms. Martin did not incorporate Jean Maybee's recollections in the
               draft affidavit. /d. at 49-50. The draft affidavit was intended to record Mr. McCaleb's
               recollection. The record reflects that Ms. Maybee prepared her own statement, and the statement
               was made available to the Special Master. Id. at 50 and Attachment 17.
                                                           Respectfully submitted,
                                                           ROBERT D. McCALLUM, JR.
                                                           Assistant Attorney General
                                                           STUART E. SCHIFFER
                                                           Deputy Assistant Attorney General
                                                           J. CHRISTOPHER KOHN
                                                           MICHAEL F. HERTZ
                                                           Directors


                                                           SXND  OpOo R
                                Deputy Director
                                                           D.C. Bar No. 261495
                                                           Dodge Wells
                                                           Senior Trial Counsel
                                                           D.C. Bar No. 425194
                                                           TracyL. Hilmer
                                                           D.C. Bar No. 421219
                                                           Trial Attorney
                                                           Commercial Litigation Branch
                                                           Civil Division
                                                           P.O. Box 261
                                                           Ben Franklin Station
                                                           Washington, D.C. 20044
                                                           (202) 307-0474






                                                                     -7-




                                                             CERTIFICATE OF SERVICE
                         I declare under penalty of perjury that, on February 10, 2003 I served the foregoing The
                Department of the Interior's Objections to Corrected Report of the Special Master Regarding the
                Deletion of Individual Indian Trust Information by Former Assistant Secretary-Indian Affairs
                Neal McCaleb 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 Hand upon:
               Joseph S. Kieffer, III
                Special Master Monitor
               420 7 th
                                   Street, N.W.
               Apartment 705
               Washington, D.C. 20004
               First 25 pages by facsimile; a complete copy to be delivered by hand February 1 I, 2003 upon:
               Alan L. Balaran, Esq.
               Special Master
               1717 Pennsylvania Avenue, N.W.
               12th Floor
               Washington, D.C. 20006
               (202) 986-8477





                                                                             Sean P. Schmergel


                                                                                     U.S. Department of Justice
                                                                                    Civil Division
                                                                                    Commercial Litigation Branch
                                                                                    P.O. Box 875, Ben Franklin Station
                                                                                    Washington, D.C. 20044
                    Peter B. Mitler                                                                        Tel. 202-307-0184              Fax 202-307-0494
                              pcter.millcr_usdoj.gov                                                                By Hand:  1100 L Sh'ect NW, Room 10104, Washington, DC 20005


                                                                                                                          January 24, 2003
                    BY FACSIMILE AND FIRST CLASS MAI'[.
                    Alan L. Balaran, Esq.
                    Special Master
                    1717 Pennsylvania Ave. NW', I2th Floor
                    Washington, DC 20006
                             Re:     Cobell v. Norton - January 2I, 2003 Biweekly Report
                    Dear Mr. Balaran:
                             As discussed in Interior's portion of the January 21,2003 biweekly report, we enclose the
                    current status report regarding implementation of the E-Mail Proposal. See Electronic Email
                    Archive System Status Report, January 24, 2003 (first section provided by Interior, second
                    section by ZANTAZ).
                                                                                   Sinc,ef_y,  _ ./"7  ,,

                                                                                   Peter B. Miller
                   Enclosure
                   cc:     Distribution list for 1/21/03 biweekly report (see altachzd list)
                            Sabrina McCarthy, Esq.















                                                                                                                                        Exhibit 1
                                                                                                                              Dept. of Interior's Objections to S.M.'s
                                                                                                                                                                                      Report on Deletion of Trust Information





                                                            CERTIF!C_F$ER'_V]CF.
                                                       ,/
                        , I declare under penalty ofp,_that, on January 2 I, 2003, I served the foregoing United
                 States Status Report to the S_al Master of January 21,2003_ facsim_I_in accordance with
                 their written request f O'3t_er 31 ' 2001
                                                               upn/.._ ''''_
                                                                                       _/      --

                 Keith Harper, Esq                      _                   Dennis M Gingold, Esq
                 Native American Rights Fund                                 Mark Brown, Esq.
                 1712 N Street, NW                                             1275 Pennsylvania Avenue, NW
                 Washington, DC 20036-2976                                 Ninth Floor
                 202-822-0068                                                   Washington, DC 20004
                                                                                    202-318-2372
                 and by U.S. Mail upon:
                Elliott Levitas, Esq.
                 1100 Peachtree Street, Suite 2800
                 Atlanta, GA 30309-4530
                 and by U.S. Mail and by facsimile upon:
                Alan L. Balaran, Esq.
                Special Master
                 1717 Pennsylvania Ave., NW
                12th Floor
                Washington, DC 20006
                202-9864477
                Joseph S. Kieffer, 121I, Esq.
                Special Master-Monitor
                420 7th Street, NW
                Apt 705
                Washington, DC 20004






                                                                         Sean_'i_ergel

              Jan  24  03  Ol:lOp                                                                                                                           p.2






                                                        Electronic Email Archive System (EEAS) Status Report
                                                                     January 24, 2003

                                 Live E-mail
                          On January 15, 2003 the Minerals Management Service (MMS)began transmitting data
                          live to Zantaz.  MMS transmitted a total of 110,714 messages which are now stored in
                          Zantaz Digital Safe.
                          On January 20, 2003 Virtual Private Networks were installed for the National Business
                          Center (NBC) and on January 23, 2003 the NBC began transmitting data live to Zantaz.
                          As of January 22, 2003 a total of 5,272 messages have been transmitted to Zantaz from
                          the NBC.
                          Restoration
                          Zantaz has inventoried 1,699 tapes and restored 445 of these tapes from the Bureau of
                          Indian Affairs (BIA). A total of 2,615,080 unique BIA e-mail messages have been
                          transmitted to Zantaz Digital Safe.
                          Security
                         On January 15, 2003 two additional Zantaz contractors were favorably screened. The
                         total number of favorably screened Zantaz contractors is now thirty-three.
                         Search Request
                         Zantaz has provided Interior a CD-ROM containing messages sent and received by
                         former Assistant Secretary - Indian Affairs Neal McCaleb. This CD-ROM contains all
                         Washington, DC messages present in the Digital Safe on January 14, 2003. There were a
                         total of 7,136 messages found. Of these messages, a total of 105 messages were
                         encrypted.
                         Privacy Act Notice
                         The Privacy Act Notice has been revised to include the Office of Surface Mining, the
                         Bureau of Reclamation and the National Business Center and handed carried to the
                         Federal Register on January 23, 2003.
                         Qutstandin_ Issues:
                         DOI has requested Zantaz to provide a timeframe when DOI can expect to perform full
                         text searches on Word Perfect documents.
               Jan  _4  U3   Ul: 1Up                                                                                                                           p.3






                     l
                     ST^TUS      ,o.
                             Prepared January 22, 2,003

              LIVE CAPTURE- IMPLEMENTATION STATUS

                      Bureau                                                                                                       i
                                                         Date Live Capture          Comments               Number of             MB stored in
                                                                 Began                                                Messages in         Digital Safe as of
                                                                                                                        Digital Safe as of            01/22103
                                                                                                                              01122/03

                        J BIA                         December 10. 2002   SMTP Relay Host in                    278,556                      19,389
                         (Inciuc_es Office of the                                     place at Reston        !
                         Assistan! Secretary-
                        I
                         Indian Affairs}                                              site.  Lotus Notes.     [

                         MMS                     , January 15, 2003       MS Exchange                            110,714                        4,330

                         NBC                       January 23, 2003       Lotus Notes                                   7,826                          456
                       [                                                               (Messages In safe were
                         {includes OAS-PMB.                                      captured during 3 hours
                         OS, and OHTA)                                           of implementation lesting
                                                                                      on 01/21103.)                                                                             I
                       i
                         Catchall- Live                                         Please see explanation                         5,272                            46
                                                                                      of Catchall Repository on
                         Capture                                                 Page 4
                                                                                                                    I

                        TOTALS                                                                                                402,368               24,221 MB


                                                                                    [                                                                                                                                                                                ,,
                                                                                                                                                                                          ESTIMATED
                                Bureau                                           Date Live Capture                         Commenfs                      i
                                                                                            Can Begin                                  ....                                 j

                        BLM                                                      January 23, 2003                      For 2 NT Servers - Lotus Notes
                                                                                     January 31,2003                  For test AIX Servers - Lotus Notes
                        OST                                                       February 4, 2003                                      Circuit Date Pending
                        OHA                                        ....            February 6, 2003                                      Circuit Date Pending
                        SOL                                                     i February 15, 2003               ......                Circuit Date Pending
                        BOR                 ..                                   Late February 2003                            GroupWise emait product
                       OSM                                                      Late February 2003                            GroupWise email product
               Jan  24   03  01: IOF,
                                                                                                                                                                                   p.4

                                ZANTAZ"sTATUS                      Co t,, ed
                                                                                     I
           UNIQUE TAPE MESSAGES IN DIGITAL SAFE AS OF JANUARY 22, 2003
                               BIA                             2,615,080 messages     189,864 MB of storage
                                     'CATCHALL                    20,562 messages             343 MB of storage

                       TOTALS FROM TAPE PROCESSING   2,635,642 messages      190,207MB of storage
                        * Please see explanation of Catchall Repository on Page 4,



                       COMPLETED BIA TAPE PROCESSING AS OF JANUARY 22, 2003
                '
                           'Location         l'   Total     Total Gap   To'tal Tape  MB of Raw Tape Input Data Prior tol
                                                I Non-Gap     Tapes         Count            Storing Unique Messages
                                                                                                                                                    I
            .....    / . Tapes                                                                                     ._
                  Aberdeen                              0                0                0                                                0
                  Albuquerque                          0                C                                                                  0
                  Anadarko                               C                C,                                                                 0
                  Billings                                4.;
                                                              i              71             11                                       11323,528
                 m Juneau                    ,             E:              37              43                                       260,816 I
                 .Vlinneapolis                           C              11               11                                        118,274'
                 Phoenix                          ....   O                0                0                                                0
                 Portland                               32              62              94                 ....
                                                                                                                                      1,035,178
                 R'eston                 ...              16           3q           46                                       569,750
                 Washington DC                     3Q            1.0.8j            138           .........
                                                                                                                                      2,609,538
                I     ,   ,, TOtals       ......
                                               ['        126_ .........
                                                                    . ....     3.19_            _445J                                    '5,917,0851




                TAPES CURRENTLY INVENTORIED AND STORED AT ZANTAZ
             ABE
                                                                                                                         208
                                                                                                                         178
                                                                                                                         386
                    ALB
                                                                                                                          39
                                                                                                                         104
                                                                                          Page 2 of 5              143
                    AND
               ,]an  2.4  03  01: lop                                                                                                           p.5

                           ZANTAZ'*s- ATUS  EPO T Fo. oo,-      Oon,, ued                     J
                                                       31
                                                                                                             59
                                                                                                             90


                                                                                                           556
                                                                                                          1143
                                                                                                          1699




                                                 Non-Gap        Gap    Total Tapes
                   There are also 500 tapes from SOL inventoried and stored at Zantaz.

                    INITIAL AUDIT OF NEAL McCALEB EMAIL MESSAGES
                As requested by DOI, Zantaz performed an Audit seeking messages where Neal McCaleb was either
                   the Sender or the Recipient.  This Audit included all messages present in the Digital Safe on January
                    14, 2003. This Audit is identified in the Zantaz tracking system as RQST2419.
                   There were 7,136 messages found that met the search criteria. Ofthese messages, 105 messages were
                   encrypted.  Zantaz sent a CD with the Audit results in NSF format to Sabrina McCarthy.  Earlier
                   today, Kimberly James of Zantaz worked with Sabrina to familiarize her with the format of the audit
                   results.

                   LOTUS NOTES ENCRYPTION ISSUES
                OVERVIEW- The Lotus Notes email product provides the user the ability to encrypt messages on a
               message-by-message f_._is. The header of an encrypted message is NOT encrypted; but the body of
                   the message is encrypted. The Lotus Notes product is designed to prevent the transfer of encrypted
                   messages outside of the Lotus Notes environment. Thus, by Lotus design, only the header portion of
                   an encrypted message was initially able to be stored in the Zantaz Digital Safe.
                   LIVE CAPTURE - Zantaz has now developed a process in which an encrypted message can be
                   captured as an attachment and stored in the digital safe. The target date for having this new process
                   available for DOI Live Capture of messages is January 29.
                  TAPE PROCESSING - Zantaz developed a similar process to capture encrypted messages during tape
                  restoration.  This new process is already in place for tapes being processed at this time. All of the
                  original data is retained as an attachment. The data continues to be encrypted.
                  Zantaz will reprocess the tapes that were processed prior to completion of the new tape processing
                  solution described above.

                                                                               Page 3 of 5

         .      .]an  24.  03  01: lop
                                                                                                                                                            p.6






                    EXPLANATION OF CATCHALL REPOSITORY
                Zantaz has a Domain for storage of Del Live Capture messages and a sep_n-ate Domain for storage of
                    Tape Restoration messages.  Within each of these domains are Repositories for each Bureau or Office
                    specified by DOI.
                    Within each Domain, there is also a repository called Catchall.  The Catchall Repository is used for the
                    storage of all messages containing header information that cannot be indexed properly.  Several
                    common problems are that the headers can be formatted incorrectly or it can contain unknown
                    character sets.
                    Zantaz supports RFC1522 MIME (Multipurpose Intemet Mail Extensions) standard as defined by the
                    Internet Engineering Task Force (LETF).  If the message header is coded improperly (for any reason)
                    file entire email message in considered unparseable and is stored in the Catchall Repository.
                    Messages with an overall size greater than 30 MB cannot be indexed, so they are stored in Catchall.
                    Use of the Catchall Repository insures that no messages are lost even if the formatting of a message is
                    flawed.  Audits performed by Zantaz staff always check the Catchall Repository.  (Catchall Tape and
                    Catchall Live were both checked as a part of the Neal McCaleb Audit). Special techniques are used in
                   searching Catchall using the Web Interface.
                   Zantaz continually seeks to improve the techniques for indexing messages,  When enhancements are
                   developed, Zantaz routinely reprocesses messages in Catchall to direct more of the messages into the
                   specific repositories to which they were originally directed.




















                                                                               Page 5 of 5


         Neal A. McCaleb                   CO_IDENT_L - SUBJE_ TO PROTECTIVE ORDER                  December 6, 2002
                                                                  Was_gton, D.C.

                                                                                                                                   Page 1
             1                        UNITED  STATES  DEPARTMENT  OF  JUSTICE
             2
             3                                                                            X
             4       ELOUISE  PEPION  COBELL,   et  al.,      :
             5                    Plaintiffs,                                  :
             6                              v.                                           :     No.   96-1285
             7       GALE  NORTON,   et  al.,
             8                    Defendant.                                    :
             9                                                                            X
           10               CONFIDENTIAL  -  SUBJECT  TO  PROTECTIVE  ORDER
           11                                                             Washington,   D.C.
          12                                                             Friday,   December  6,   2002
          13                               Deposition  of  NEAL  A.   McCALEB,   a
          14       witness  herein,   called  for  examination  by  Special
          15      Master  Balaran  in  the  above-entitled  matter,   the
          16      witness  being  duly  sworn  by  PAUL  GASPAROTTI,   a
          17      Notary  Public  in  and  for  the  State  of  Maryland,
          18       taken  at  the  offices  of  DFI   International,   1717
          19       Pennsylvania  Avenue,   N.W.,   Washington,   D.C.,   at
          20       10:05  a.m.,   Friday,   December  6,   2002,   and  the
          21      proceedings  being  taken  down  by  Stenotype  by  PAUL
          22       GASPAROTTI,   and  transcribed  under  his  direction.
          23
          24
          25

                                                        Alderson RepoSing Company, Inc.
                                   1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005             Exhibit 2
                                                                                                                     Dept. oIntenor's Objectiom to S.M.'s
                                                                                                                                                                                                                       Repo_ on Delehon ofT_t h_m_tion


         Neal A. McCaleb                        CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                               Washington, D.C.

                                                                                 Page 2                                                                         Page 4
             1   APPEARANCES:                                                      1              PROCEEDINGS
             2                                                                              2   Whereupon,
             3       On behalf of the Plaintiff:                                         3               NEAL A. McCALEB,
             4           DENNIS GINGOLD, ESQ.                                   4   business address at Department of the Interior,
             5           1275 Pennsylvania Avenue, N.W.                             5   1849 C Street, N.W., Washington, D.C. 20240, was
             6           Washington, D.C. 20004                                      6   called as a witness by the Special Master, and
             7                                                                              7   having been duly sworn by the Notary Public, was
             8       On behalf of the Defendant:                                       8   examined and testified as follows:
             9           AMALIA KESSLER, ESQ.                                   9                 EXAMINATION
            10          U.S. Department of Justice                                   10           BY MR. BALARAN:
            11           1100 L Street, N.W., Room 10030                           11       Q.   Good morning, Mr. McCaleb. First, I'd
            12          Washington, D.C. 20530                                     12   like to thank you for coming here. I know your
            13          (202) 307-0010                                                13   schedule is quite pressing and I appreciate the
            14                                                                             14   time that you have taken to answer some questions
            15       On behalf of the Witness:                                         15   for me. By way of introduction, my name is Alan
            16          B. MICHAEL RAUH, ESQ                                  16   Balaran. In February of 1999 1 was appointed by
            17          JULIE CAMPBELL, ESQ.                                   17   the Honorable Roy C. Lamberth of the United States
            18          Mannat, Phelps & Phillips                                    18   District Court for the District of Columbia to the
            19           1501 M Street, N.W.                                          19   position of special master pursuant to Rule 53 of
           20          Suite 700                                                       20   the Federal Rules of Civil Procedure.
           21           Washington, D.C. 20005                                     21           At the time, my order of reference
           22                                                                             22   encompassed deciding discovery disputes in the
           23       ALSO PRESENT:                                                23   case captioned Cobell v. Norton, 96-1285. That
           24          SHANA GREATMAN, ESQ.                                24   order of reference ultimately was expanded in
           25                                                                             25   August of 1999 to include oversight over the

                                                                                Page 3                                                                         Page 5
            1                C O N T E N T S                                           i   preservation and retention of all trust documents
            2   WITNESS                    EXAMINATION BY                  2   and records, lt's pursuant to that amended order
            3   NEAL A. McCALEB               SPECIAL MASTER            3   of reference that I have asked you to come here.
            4       By Mr. Balaran               4                                    4   Okay?
            5                                                                              5       A.   Yes, sir.
            6                E X H I B I T S                                            6       Q.   As you know, the topic of discussion
            7   McCALEB EXHIBIT NO.        FOR IDENTIFICATION        7   today will be related to the deletion of e-mails
            8        1   BIA News Release of 7/2/01   17                            8   during the ten-month period between December 2001
            9       2   McCarthy letter of 10/16/02  J7                              9   and October 2002. Do you understand that'?
           10       3   Bataran letter of 10/20/02   57                               10      A.   Yes.
           11       4   McCarthy letter of 11/8/02   68                              11       Q.   Okay. As a preliminary matter, as you
          12       5   McCaleb Declaration of                                      12   probably notice, we are not from the same
          13           11/19/02                75                                      13   neighborhood and I tend to talk quite quickly. So
          14       6   McCaleb Affidavit, unsigned                                14   at any point in time if you don't understand a
          15          and undated             78                                    15   question, if you want me to back up, if you want
          16       7   Interior's Policies on                                          16   me to slow down, I encourage you to please just
          17          Retaining, Printing and Filing                                17   ask me to do so. I have no problem whatsoever
          18          Cobell related e-mail      90                                 18   repeating things any number of times until you are
          19       8   Court Order of 9/30/02     129                              19   absolutely satisfied that you understand the
          20       9   Deposition Notice of 10/4/02 129                           20   question as posed. Okay'?
          21       l0  Document relating to trust                                   21       A.   Very good.
          22          management and llM accounts  147                          22      Q.   I will, however, assume that if you
          23                                                                             23   don't ask me for any clarification whatsoever that
          24                                                                             24   you did understand tile question, and that I will
          25                                                                             25   take your answer as in fact responsive to that


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                                         1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


         Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                               Washington, D.C.

                                                                                 Page 6                                                                                               Page 8
                  1   question. Ail right?                                                    I       A.   Aurene Martin was appointed to that
             2      A.   That's fine.                                                     2   role as a Presidential appointee.
             3       Q.   If you need at any time to take a                             3       Q.   And what is that role exactly?
             4   break, all you need to do is simply ask. The only                   4      A.   She's my chief deputy, and discharges
             5   thing I will ask you, however, is that you don't                      5   the discharge of the instructions that I give and
             6   ask for a break while a question is pending, only                    6   the policies that I provide her.
             7   so we keep the integrity of the process and nobody                 7       Q.   What's the difference between that and
             8   can come screaming later.                                             8   the management functions that Mr. McDivitt
             9      A.   I understand.                                                   9   assumes?
            10      Q.   Okay. Now this court reporter has been                   I0      A.   His are primarily administration
            11   with me a couple of times, and tends to kick me                    11   functions, whereas Miss Martin is responsible for
            12   under the table if you nod your head one way or                   12   working directly with the tribal leaders, advising
            13   the other, so I'm going to ask you just out of                        13   me on legal issues relative to a variety of
            14   deference to my shins and knees, that you answer                  14   things, because it is a government-to-government
            15   questions with a yes or no, or as appropriate with                  15   relationship between the 563 tribes and the United
            16   a vocal response.                                                       16   States government, and they have a vast legal
            17      A.   All right.                                                       17   history, most of them do, so that's a fairly
            18      Q.   Could you tell me where you are                            18   complex undertaking.
            19   currently employed?                                                   19      Q.   And you say that Mr. McCaleb assumes
           20      A.   The Department of Interior of the                          20   administrative oversight, is that fair to say?
           21   United States.                                                          21       A.   Yes.
           22      Q.   And your current position?                                  22      Q.   Would that include the budget'?
           23      A.   I am the Assistant Secretary of the                         23      A.   Yes.
           24   Department of Interior for Indian Affairs.                          24      Q.   What other functions would be subsumed
           25      Q.   And when did you encumber that                          25   under Mr. McDivitt's role as administrative

                                                                                Page 7                                                                                               Page 9
                1   position?                                                                 1   manager?
            2      A.   I was sworn to that office on July 4th,                       2       A.   Chief information officer. The chief
            3   2001.                                                                     3   human resources officer. The chief financial
            4      Q.   Can you tell me what your                                    4   officer. And then, those are the primary reports,
            5   responsibilities are as the Assistant Secretary                        5   and then you know, secretaries and miscellaneous
            6   for Indian Affairs at the Department of Inter/or?                    6   support personnel.
            7      A.   Well, the oversight of the Bureau of                         7       Q.   Am I to understand you as saying that
            8   Indian Affairs is the primary responsibility,                          8   Mr. McDivitt is the CFO of the BIA?
            9   reporting directly to the Secretary of the                              9      A.   No, the chief financial officer is
           10   Interior. As an assistant secretary, I'm part of                      10   Debbie Clark.
           11   her office.                                                               11       Q.   So when you --
           12      Q.   And who reports to you?                                     12      A.   She reports to Mr. McDivitt.
           13      A.   The Deputy Commissioner of Indian                       13      Q.   I see. So when you said the CIO and
           14  Affairs, which is the chief operating officer of                     14   CHRO and the CFO, you were talking about a chain
           15   the Bureau of Indian Affairs, and the deputy                        15   of command that reports to him, correct?
          16   assistant secretary of Indian affairs. And I                          16      A.   Yes. I understood that to be the
          17   actually have two deputy assistant secretaries;                      17   question, and I apologize.
          18   one is a manager of administration --                                18      Q.   Not at all. And the CIO is whom?
          19      Q.   And who would that person be?                             19      A.   Bryan Bums.
          20      A.   James McDivitt.                                              20      Q.   And is Mr. Bums in all acting or t_tll
          21       Q.   And wasn't he in fact in the position                        21   capacity'?
          22   of the acting assistant secretary prior to your                       22      A.   Full capacity.
          23   taking over this position in July?                                     23      Q.   When did he assume his position?
          24      A.   Yes.                                                            24      A.   Late June orearly Julyof2002.
          25      Q.   Okay. And who else is the other?                          25      Q.   And prior to Mr. Bums assuming the


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                                         1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


         Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                               Washington, D.C.

                                                                                Page 10                                                                        Page 12
             l   position as CIO in July 2002, who had that                          1   contracted with by --
             2   position?                                                                 2      A.   Yes, Electronic Data Systems.
             3       A.   There was an acting, Debbie Clark was                     3       Q.   Just as a matter of procedure, you have
             4   acting, and this was at -- oh, I'm having a senior                    4   to let me finish the question.
             5   moment here.                                                           5      A.   I'm sorry.
             6      Q.   The nice thing is they never get picked                     6      Q.   Otherwise, that gets him angry also.
             7   up on the tape, so we can have as many as we like                  7   And EDS is the organization that was contracted by
             8   between the two of us, so not to worry.                               8   OST to oversee or report on the status of trust
             9      A.   Oh, he actually was gone by the time I                      9   reform?
            10  got there.                                                               10      A.   I'll try to tell you my understanding
            11       Q.   Okay. So Miss Clark at one point was                     11   of why they were employed. In the summer of'01,
            12   assuming the dual roles of being the CFO and the                  12   they were engaged by the then special trustee at
            13   CIO; is that right?                                                     13   that time to evaluate the progress that was being
            14      A.   Yes.                                                            14   made on the Trust Asset and Accounting Management
            15      Q.   Did you pick Mr. Bryan Bums for the                      15   System, TAAMS. That employment was expanded to
            16   position of CIO?                                                       16   take a look at all aspects of trust management.
            17      A.   I did.                                                           17      Q.   And who expanded the scope of their
            18      Q.   Based on what qualifications?                               18   contract'?
           19      A.   He had previously been the deputy CIO                    19      A.   Well, the special trustee did, upon
           20   at the Department of Health and Human Services,                 20   approval of the Secretary.
           21   which is a much larger agency than the Bureau of                 21       Q.   And isn't it in fact the case that
           22   Indian Affairs. And also, he dealt with the                         22   their reports constitute the quarterly reports to
           23   Indian Health Service in their information                          23   the Court?
           24   systems, so he had a frame of reference of Indian                  24      A.   No, I don't think that's accurate.
           25   issues. But primarily because of his apparent                      25   They didn't prepare any of the quarterly -- they

                                                                               Page 11                                                                        Page 13
            1   technical knowledge and disposition as a manager.                  I   didn't prepare any information prior to the eighth
            2      Q.   And he reports directly to                                     2   report, and the eighth report and the subsequent
            3   Mr. McDivitt?                                                          3   reports were primarily prepared by Ross Swimmer,
            4      A.   We've changed that slightly. He did                         4   who is the director of the Office of Indian Trust
            5   report directly to Mr. McDivitt. We're going to                     5   Transition.
            6   reorganize it to where he reports directly to the                      6      Q.   And do you know what information Ross
            7   assistant secretary. We have just published a new                  7   Swimmer obtained in order to draft those quarterly
            8   reorganization chart, it hasn't been approved by                     8   reports you're referring to?
            9   Congress yet, but he will be the Deputy Assistant                   9       A.   Well, all the participants in the trust-
           10   Secretary for Information Resource Management.                  10   reform process reported to him directly, or
           11      Q.   And who will he report to?                                  11   reported to him directly. I'm advised that he did
           12      A.   Me, or to the assistant secretary.                             12   use many aspects of the EDS report, and in fact
          13      Q.   I see. Were you the architect of this                        13   may have incorporated sections of it in their
          14   reorganization plan?                                                   14   entirety into the report.
          15      A.   I was an active participant in it along                       15      Q.   Issues related to information
          16   with a number of people, Donna Irvin, who is the                  16   technology are under the supervision of Bryan
          17   acting special trustee, because the reorganization                   17   Bums; is that correct?
          18   was designed to try to integrate these two                           18      A.   In the Bureau of Indian Affairs, that's
          19   activities more closelyin keeping with EDS's                       19   correct.
          20   recommendations for having a more integrated role                20      Q.   Okay.
          21   of these two functions under one single executive                  21       A.   And tile assistant secretaries' offices,
          22   sponsor, which in this case will be the deputy                      22   all of them.
          23   secretmy.                                                               23      Q.   Let's talk about your officein
          24      Q.   And when you're ret_mng to EDS,                         24   particular for a moment. Who is your staff
          25   you're referring to the organization that was                        25   assistant'?


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                                         1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


        Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                               Washington, D.C.

                                                                                Page 14                                                                                              Page 16
                 1       A.   Jean Maybee.                                                   1       Q.   And do you believe that her
             2      Q.   And how long has she been your staff                      2   responsibilities for filing the information that
             3   assistant?                                                                3   comes to your office are in her job description?
             4      A.   Since I came to the office. She was                         4      A.   You know, I have never seen her job
             5   there before I came, as the staff assistant to                          5   description, l just developed that relationship
             6   Sharon Blackwetl. The offices are configured in                   6   with her as we went along, and she seemed ready to
             7   such a way that her space is between the two                        7   provide those services, and I direct her to do the
             8   offices and she provided that service when I got                    8   filing, send notes and memos, to say file this or
             9   there and I never saw a reason to change.                            9   send this, or direct this correspondence to so and
            10      Q.   Does she still provide staff assistant                        10   so, and she does so.
            11   services to Mr. Verdon?                                               11       Q.   Is it your happen to send notes and
            12      A.   Yes, but on a more limited basis. She                      12   memos when you want something carded out by Miss
            13   provides staff assistance now to myself and to                      13   Maybee?
            14   Aurene Martin.                                                         14      A.   To the extent that when correspondence
            15      Q.   Isn't it a fact that Aurene Martin took                       15   comes in, yes, I will put a sticky on it and say
            16   over Miss Sharon Blackwell's office?                                16   this goes to Aurene Martin, with a note to her
            17      A.   Yes.                                                            17   what I would like her to do. It's really as much
            18      Q.   I see. Was that the reason that she is                       18   of a note for direction of it and to the people
            19  now servicing both of you?                                           19   that I expect to respond.
           20      A.   Proximity has something to do with it,                     20      Q.   I was just wondering about your general
           21   yes, I think. Convenience.                                            21   work habits. It's my work habit to scream and
           22      Q.   Okay. Anybody else in terms of your                      22   yell, and I never sort of put anything on paper.
           23   staff that you can mention, who report to you?                     23      A.   I'm afraid I'm a screamer myself,
           24      A.   Well, I think I mentioned Mr. Verdon,                     24   that's the reason I like to have proximity, so
           25   the Deputy Commissioner of Indian Affairs. There               25   that 1 can speak up and get a response.

                                                                               Page 15                                                                                              Page 17
                 1   is a Mr. Mike Talley, who is a special assistant                      I       Q.   But from what I'm understanding, you
            2   on infrastructure, primarily roads. Those are the                    2   also, you supplement your screaming with Post-It
            3   ones that I can think of.                                                3   notes and other written communications.
            4      Q.   Anybody just from an administrative                        4      A.   Right.
            5   perspective who helps you with the filing or helps                   5       Q.   And those communications actually
            6   actually work in the office to make sure that we                     6   specify what your instructions are?
            7   have--                                                                   7      A.   Right, and e-mail of course. If she's
            8      A.   Well, we have -- excuse me, sorry.                           8   not there at her desk, I will send her an e-mail.
            9      Q.   You understood the question.                                 9      Q.   Oka2'. When you first took the
           10      A.   We have two to three people that are in                     10   office -- I don't know if you have ever seen this
           l l   the foyer of the office that answer the telephones                   l 1   or not. I'm handing you a document --
           12   and see to the, call it housekeeping activities of                    12           MR. RAUH: Is that going to be marked
           13   the office.                                                               13   for identification?
           14      Q.   What is Miss Maybee's title?                                14          MR. BALARAN: Yes, we can. I just
           15      A.   I don't know that anybody has ever told                    15   don't have any exhibit tabs.
           16   me what her title is. I've always referred to her                     16          MR. RAUH: I think the reporter does.
           17   as administrative assistant.                                            17           MR. BALARAN: Okay, thanks. Why don't
           18      Q.   What are the titles of the two or three                       18   we mark this as Exhibit I.
           19   individuals in the foyer who answer the                              19          (McCaleb Exhibit I marked for
           20   telephones, do you know?                                            20           identification.)
           21       A.   I don't know.                                                  21           BY MR. BALARAN:
           22      Q.   Who's responsible for filing ill your                        22      Q.   This is a document that I pulled of tile
           23   office'?                                                                  23   web, it's News, U.S. Department of the Interior
           24      A.   Jean Maybee for filing the information                     24   Bureau of Indian Affairs, for immediate release,
           25   that comes from my office.                                           25   July 2nd 2001, and the title is, McCaleb Confirmed


                                                                                                                                                   5 (Pages 14 to 17)
                                                                    Alderson Reporting Company, Inc.
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       Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                              Washington, D.C.

                                                                              Page 18                                                                                              Page 20
                1   as Interior Assistant Secretary for Indian                             I   with the Office of Special Trustee on a regular
            2   Affairs, Secretary Norton Lauds Senate's Action.                   2   basis as a participant or cochair actually of the
           3   Have you ever seen this document before?                           3   Trust Improvement Management Project, TMIP. And
           4      A.   Yes, I have.                                                    4   we coordinated the activities of the participants
           5      Q.   Take a look at it for a moment and tell                      5   in that committee to address the breaches that
           6   me if the statements made in this document are                     6   were contained in the '99 opinion or decision of
           7   accurate.                                                                 7   thejudge.
            8      A.   (Perusing.) To the best of my                                8       Q.   And when you say we, this is you and
           9   knowledge. 1 really had no previous knowledge of                 9   Tom Slonaker?
           10  Mr. McDivitt's service, having not been there.                      I0      A.   That's correct.
           11      Q.   But how about the information relating                    11       Q.   And Tom Slonaker being the former
           12   to you and your functions, are they accurate?                       12   special trustee?
           13      A.   Yes, they are.                                                 13      A.   Correct.
           14      Q.   Let me mm you to the second page,                        14      Q.   And when you say that you coordinated,
           15   which is noticed page 2 of 2. It states in the                        15   was this a coordination that was done prior to
           16   only full paragraph on that page, The Assistant                    16   every meeting, did you actually discuss the
           17   Secretary-Indian Affairs has responsibility for                     17   agenda, and then go in?
           18   fulfilling the Department's trust responsibilities                    18      A.   Actually, Tom prepared the agenda.
          19   and promoting self determination on behalf of                     19      Q.   And in what way did you contribute to
          20   tribal governments, American Indians and Alaskan                20   the meeting itself?.
          21   Natives. The Assistant Secretary is also                            21       A.   Initially my contributions were very
          22   responsible for providing services to                                22   limited, having been there -- not having been
          23   approximately 1.4 million American Indians and                  23   there before. The July contributions were fairly
          24  Alaskan Natives who are members of the 558                      24   limited. Early August I began to become more
          25   federally recognized tribes. Is that accurate?                       25   involved. The last half of August I was on the


                                                                              Page 19                                                                                              Page 2l
               1       A.   It was at the time.                                              1   road. And then beginning in September, the
           2      Q.   Is that no longer accurate?                                    2   transition where we were, the going began to
           3      A.   Well, a lot of the trust                                         3   develop and the greater involvement of the deputy
           4   responsibilities that the previous assistant                            4   secretary in about that time, Mr. Kayson, the
           5   secretaries did are now under the direct                              5   associate deputy secretary came on board, and we
           6   supervision of the deputy secretary.                                   6   became very much involved.
           7      Q.   When did that change take place?                            7       Q.   Can you give me examples of ways that
           8      A    I would say between September, October,                   8   you became moreinvolved in August of 2001 in the
           9   November, it was kind of a transition, but it                         9   TMIP meetings?
          10  became fully operable by November of 2001.                       10      A.   Well, the agenda began to mean
          11      Q.   2001. So, do I understand that you had                    11   something to me. I was, had gotten enough
          12   trust responsibility between July 2001 and roughly                 12   information and background to be able to ask
          13   November 20017                                                       13   pertinent questions and to have some understanding
          14      A.   Yes.                                                            14   of the answers, because I had, you know, no
          15      Q.   And between sometime in November 2001,                15   background in terms of the organization and how
          16   those responsibilities were taken over by Steven                    16   things were being done. I had read -- the high
          17   Griles?                                                                  17   level improvement plan was my only orientation to
          18      A.   Many of them under the proposed                          18   the TMIP.
          19   reorganization called for the creation of Bureau                    19      Q.   But you said you cochaired this. l
         20   of Indian Trust Asset Mmlagement. That was                      20   have reviewed all the agendas for all tile TMIP
         21   submitted to the Court in mid-November.                           21   steering committee meetings and I have never seen
         22      Q.   During the period between July 2001 and                  22   your name as a cochair. Could you explain that?
         23   November 200l, what were your responsibilities                   23      A.   l can't explain it.
         24   vis-a-vis the tribes?                                                    24      Q.   Have you seen the agendas themselves?
         25      A.   Well, as the assistant secretary, I met                       25   I mean, I can pull them out, I didn't think we'd


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         Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                                Washington, D.C.

                                                                                Page 22                                                                        Page 24
              1   have to, but I can if you'd like. Have you seen                      1   interest to me, so if counsel can bear with me for
              2   the agendas themselves7                                               2   a few minutes. Did you begin attending these
             3      A.   Yes, I have copies of the agendas which                    3   meetings when you first assumed office in July
             4   I attended in my files.                                                  4   2001 ?
             5      Q.   Do you have a recollection as to                             5       A.   I don't know. I would have to go back
             6   whether your name was on there as cochair?                        6   and look, but I think my first meeting I attended
             7      A.   I don't have a recollection. Tom would                     7   was in late July.
             8   always refer to me as a cochair.                                       8      Q.   And you first took office July 4th, is
             9      Q.   Did you actually direct the meetings                         9   that correct?
            10  themselves, did you assist with that?                                 I0      A.   That's correct.
            11      A.   Tom directed the meetings.                                  11       Q.   Are you aware that Miss Blackwell, who
            12      Q.   So for instance, if the number of                            12   at that time was the Deputy Commissioner for
            13   topics, if there were eight topics to be                               13   Indian Affairs had requested assistance, financial
            14   discussed, who if anybody decided how long a                     14   assistance to shore up Interior's computer systems
            15   specific topic would be discussed?                                   15   or BIA's computer systems, for how they were
            16      A.   That was usually a function of how much                  16   processing Indian Trust data?
            17   the individual had to offer on the subject. I                         17      A.   I became aware of that, yes.
            18   can't remember Tom cutting anybody off.                           18      Q.   How did you become aware of that?
            19      Q.   What was your relationship with                            19      A.   Because she told me.
           20   Mr. Slonaker?                                                         20      Q.   Are you aware that -- strike that. Do
           21      A.   It was a very positive relationship.                          21   you know whether or not Miss Blackwell ever went
           22   We got along well. There had -- I felt there had                   22   to a TMIP meeting and requested funding to assist
           23   been, or developed a tension between the people                  23   her in shoring up these systems?
           24  representing the Bureau of Indian Affairs on that                  24      A.   I don't have a specific memory of that.
           25   committee and the people representing the Office                 25      Q.   Do you have any knowledge whether or

                                                                               Page 23                                                                        Page 25
             1   of the Special Trustee, and I felt it was my job                       1   not Miss Blackwell was able to ultimately receive
            2   to bring those two organizations into closer                          2   the funds that she was requesting to shore up
            3   concurrence and teamwork.                                            3   BIA's computer systems that housed and processed
            4      Q.   Can you explain to me what the source                      4   Indian Trust data?
            5   of that tension was between the two organizations?                 5      A.   She received some funds. I don't think
            6      A.   Not really. I mean, I tried to ferret                           6   she received the funds to the extent that she
            7   that out as I went along. I think a lot of it                            7   requested them.
            8   went back to when the Office of Trust Fund                         8      Q.   Did you assist her in her effort to                              _.
            9   Management was transferred out of the Bureau of                  9   receive these funds?
           10   Indian Affairs and into OST. Bureaucracies have a                i 0      A.   The budget when I arrived, the budget
           11   way of developing, being very territorial about                     11   year was approaching expiration, we were in the
           12   those kinds of things and I thought, my opinion is                  12   end of the third quarter, and those funds were
           13   that there was some residual resentment at many                   13   committed. We talked about funds for the '03
           14   levels within the organization.                                        14   budget and in fact we did include additional funds
           15      Q.   Were you successful in any                                  15   in the '03 budget for the Office of Information
           16   rapprochement in having sort of this concurrence?                 16   Resource Management.
          17      A.   Yes, I think so. Tom and I discussed                       17      Q.   My question was a little different.
          18   the decisions that were made and concurred when we              18   Did you assist her in her quest, if you will, to
          19   could, and most of the time we did concur. And we               19   secure additional funds to shore up B IA's computer
          20   met privately, he and I, on numerous occasions to                  20   systems?
          21   discuss issues that were of mutual concern to us.                   21       A.   1 can't recall a specific instance or
          22      Q.   I'm only going to touch on this for a                        22   activity in which I assisted. My impression, my
          23   few more moments. I realize we're going a bit                     23   general memory is that I was supportive of that
          24   afield and I apologize for that, but you've                           24   with her.
          25   brought up some facts that were somewhat of some                25      Q.   Okay. I'm going to let that go.

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             1           You stated there came a time that there                       1   responsibility, even like education or health or
             2   was a transition that went over to Mr. Griles and                    2   the Department of Health and Human Services, they
             3   Associate Deputy Secretary Mr. Kayson. Can you                 3   perceive that to be a trust responsibility as an
             4   tell me what the causes of that transition were,                      4   outgrowth of their treaties and executive orders.
             5   what led up to that transition?                                         5       Q.   Well, let's just for the purposes of
             6      A.   Well, I think as Mr. Griles and                               6   this discussion, then, talk about trust
             7   Mr. Kayson became more apprised of the                            7   responsibilities as delineated in the 1994 Trust
             8   circumstances, they felt, and as EDS's report, I                      8   Reform Act.
             9   think EDS report probably was the principal engine                9      A.   The fiduciary, can I define those as
            10   of change.                                                              10   fiduciary trust responsibilities? That's how he
            11      Q.   Are you speculating or do you know this                   11   we delineate and differentiate.
            12   for a fact based on a meeting, something you've                    12      Q.   That's fine. Can you tell me what
            13   heard or something you have seen in writing?                      13   fiduciary responsibilities were left after this
            14      A.   Well, I attended numerous meetings with                  14   transition over to Ross Swimmer's group in
            15   them and the EDS report, draft copies of the                        15   approximately October of 2001, the reorganization
            16   report were beginning to come in in October, late                  16   that you addressed'?
            17   September and October, and I attended several                     17      A.   Yeah. The Bureau of Indian Affairs is
            18   meetings with them along with Tom Slonaker, and                18   responsible at the agency level where they
            19   then we began to talk about reorganization and                     19   actually interface with the individual Indian
           20  Mr. Slonaker and myself worked with both                         20  money account holders and they are the clerks, if
           21   Mr. Griles and Mr. Kayson in that reorganization,                 21   you please, that service those accounts when they
           22   and ultimately both signed offon the proposed                     22   come in. And to that extent the BIA and therefore
           23   reorganization.                                                         23   I, were still involved in those activities. But
           24      Q.   My question to you, again, was slightly                    24   the control of the organization and the
           25   different. Can you tell me based on any of the                     25   reorganization were clearly gravitating and did in


                                                                               Page 27                                                                        Page 29
             1   meetings that you attended or any documents that                   1   fact gravitate to the deputy secretary and to his
             2   you reviewed why this transition took place? And                  2   assigns or delegee, Mr. Kayson, and Mr. Swimmer.
             3   I will ask you not to speculate. If you know,                         3       Q.   So again, after this transition of
            4   then just tell me.                                                        4   trust responsibilities and again, we will use the
             5      A.   I don't have specific knowledge.                             5   word trust as you defined it, fiduciary
            6      Q.   Well, this is a transition that                                  6   responsibilities, what did BL& have left, what was
            7   basically took, as I understand it, some of the                        7   left in its quiver of trust responsibilities'?
            8   trust responsibilities away from the BIA and put                    8      A.   Education.
            9   them un&r different auspices, correct?                               9      Q.   Now again, I have to ask you, I'm
            10      A.   That's correct.                                                 10   equating trust with fiduciary responsibilities.
            11      Q.   Okay.                                                          11      A.   Oh, I'm sony.
           12      A.   And as a result of that, a proposed new                     12      Q.   That's quite all right.
           13   reorganization, they created the Office of Indian                   13           MR. RAUH: Mr. Balaran, you're asking
            14   Trust Transition.                                                       14   from the point of a view of BIA, not from the
            15      Q.   And it's headed by whom'?                                   15   point of view of the Indians --
           16      A.   Ross Swimmer.                                               16           MR. BALARAN: Oh, I'm only asking from
           17      Q.   Were you left with, the Office of the                       17   your perspective as the Assistant Secretary of
           18   Assistant Secretary left with any trust                                18   Indian Affairs during this transition period.
           19   responsibilities following this transition that                        19           BY MR. BALARAN:
           20   you say took place sometime in August 20017                      20      Q.   My question, just to repeat it is,
           21       A.   Well, the definition of trust                                  21   after this transition took place, what
           22   responsibility is always at issue in Indian                           22   responsibilities were left for BIA vis-a-vis the
           23   country. Our Indian beneficiaries, especially the                   23   beneficiaries for example, or what fiduciary
           24   tribes, consider everything that is done by the                      24   responsibilities did it now have?
           25   Bureau of Indian Affairs to be a trust                                25           MR. RAUH: Vis-a-vis the deputy

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             1   secretary's office.                                                       1           BY MR. BALARAN:
             2           MR. BALARAN: Yes.                                        2       Q.   Yes, and I would offer some more
             3           BY MR. BALARAN:                                          3   questions--
             4      Q.   That's correct.                                                 4      A.   I think I previously named them.
             5      A.   The leasing of land resources, the                           5       Q.   Okay. We will assume that all
             6   collection of funds from those leases. The                          6   questions relate to that office.
             7   computation of the funds for distribution to the                     7           Who is in charge of insuring the
             8   trustees consistent with the records of                                8   security of information that resides on the
             9   fractionated ownership.                                                9   BIANET?
            10      Q.   Anything else you can think of?.                             10      A.   The CIO.
            11       A.   From a fiduciary standpoint, those are                     I 1       Q.   And that would be Mr. Bums?
            12   the ones that I think remained.                                       12      A.   Now it is, yes.
            13      Q.   What was taken away?                                       13      Q.   And that would be a function that still
            14      A.   Well --                                                         14   exists within the Office of the Assistant
            15      Q.   And let me make it more clear for the                      15   Secretary for Indian Affairs?
            16   record. What responsibilities, trust                                  16      A.   Yes. I can remember the previous CIO,
            17   responsibilities were taken away from the Office                   17   Mr. Dom Nessi was the previous CIO.
            18   of the Assistant Secretary for lndian Affairs                        18      Q.   The famous Don Nessi?
            19  during the transition you referred to?                                19      A.   The famous Dom Nessi, yes.
           20      A.   The management of the information                        20      Q.   Prior to coming on board in July of
           21   systems. The data cleanup activities. The                         21   2001, did any of the jobs that you previously had
           22   probate, the control of the probate activities;                       22   involve trust or fiduciary responsibilities?
           23   there are still a lot of detailed probate                               23      A.   No.
           24   activities done by the BLA, but the basic control                   24      Q.   And have you taken any courses in trust
           25   and direction of probate. Obviously the actual                     25   or fiduciary law or anything of the sort?


                                                                               Page 31                                                                        Page 33
             1   disbursement of the funds had long since before I                   1       A.   No. My only experience was I served as
            2   ever arrived been taken from BIA into the Office                    2   a bank board member for several years.
            3   of Trust Fund Management. When they took the                    3       Q.   And that bank was what bank?
            4   Office of Trust Fund Management into OST, that had              4       A.   Memorial Bank of Oklahoma City.
            5   been a BIA function but it had been subsumed by                   5       Q.   What were your functions as a bank
            6   the Office of Special Trustee, which means all the                  6   board member?
            7   funds that were collected by the BIA went to OTFM,               7       A.   We reviewed loan -- a credit committee
            8   and they were computed and distributed by OTFM to               8   I served on reviewed loan applications and the
            9   the recipients.                                                           9   oversight of the policies of the bank.
           10      Q.   Anything else that you can recall that                       10      Q.   Would trust responsibilities, and when
           11   for lack of a better word, that your office was                       11   I talk about trust we're talking about fiduciary
           12   stripped of'?.                                                             12   responsibilities, a part of your --
           13      A.   Records is an important issue. This                        13      A.   We did not have a trust department.
           14   was before I came also. The records of the                         14      Q.   Okay. When you came on board, were you
           15   agencies, which were the primary source of the                     15   given the benefit of any classes, any courses, any
           16   records, were moved to Albuquerque into their                     16   training whatsoever in trust.'?
           17  records section of the Office of Special Trustee.                    17      A.   No.
           18      Q.   I guess my question is a little more                         18      Q.   Did anybody sit down with you and go
           19   focused, rm asking what responsibilities the                       19   over the 1994 Trust Reform Act'?
           20   Office of the Assistant Secretary for Indian                         20      A.   No.
           21   Affairs was stripped of as a result of the                            21       Q.   Have you read it'?
           22   transition that took place in August 2001, not                      22      A.   Yes.
           23   events that took place prior or for other reasons.                    23      Q.   Okay. Do you understand it?
           24          MR. RAUH: Again, vis-a-vis the deputy                   24      A.   I think I do.
           25   secretary's office?                                                      25      Q.   You're doing better than I am.


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            l       A.   Well, it may be attributed to my lack                        l       Q.   Did anybody at the Department of
           2   of understanding.                                                       2   Justice ever inform you of your trust
           3      Q.   Or mine.                                                        3   responsibilities, the fact that you had trust
           4      A.   1 did try to acquaint myself with the                         4   responsibilities as the assistant secretary?
           5   Act and with the high level improvement plan that                  5       A.   No.
           6   was designed to address the Court breaches.                         6       Q.   Did anybody from the Department of
           7      Q.   Was there any formal orientation that                       7   Justice ever tell you what your responsibilities
           8   you undertook that went into the high level plan                     8   were, your trust responsibilities as Assistant
           9   or went into the 1994 Trust Reform Act?                            9   Secretary for Indian Affairs?
          I0      A.   No. There may have been some                            10      A.   Not that I can recall.
          11   briefings, but I can't recall them.                                     11      Q.   Would it be a fair characterization to
          12      Q.   Did you receive any informal                                12   say that your understanding of what your
          13   orientations concerning the high level plan or the                  13   responsibilities were as Assistant Secretary for
          14   1994 Trust Reform Act, and when I say informal,                  14   Indian Affairs sort of came about as on-the-job
          15   not in a classroom setting?                                            15   training?
          16      A.   Discussions, yes. Discussions with                         16      A.   That would be the term that I would
          17   Miss Blackwell, and to a lesser degree,                              17   use, yes.
          18   Mr. McDivitt, those two primarily, and to some                    18      Q.   Can you tell me what you believe an
          19   degree I think with representatives of the                           19   Indian Trust record is?
          20  solicitor's office.                                                       20      A.   Well, I believe any record that relates
          2 l      Q.   And the representatives of the                              21   to the accounting or asset management of a tribe
          22   solicitor's office gave you an orientation on what                  22   or individual Indian Money Account holder is such
          23   your responsibilities were vis-a-vis the trust?                       23   a record.
          24      A.   Yes, some.                                                    24      Q.   Okay. And would that include
          25      Q.   What were those responsibilities? What                   25   correspondence?

                                                                              Page 35                                                                        Page 37
           1   did they tell you your responsibilities were?                          1       A.   It could include correspondence, yes.
           2           MS. KESSLER: Objection. Thafs                           2       Q.   Could you give me some examples of
           3   getting into attorney-client communication.                          3   documents that you feel would fit your definition?
           4           MR. BALARAN: I think there is no                         4      A.   A lease, a contract for the sale of
           5   attorney-client communication involved if they're                   5   resources like timber or other natural resources
           6   telling you what your responsibilities are to the                      6   that were inherent from the land. Obviously
           7   trust. It's clearly not work product in the sense                      7   financial accounting, correspondence that related
           8   that it's not related to the specificity of                               8   to any financial accounting. Apd to a degree,
           9   litigation, and I don't think it covers here. I                          9   correspondence that related to the high level
          10  think the fiduciary exceptions --                                      10   improvement plan itself.
          11           MS. KESSLER: As long as he doesn't                      11       Q.   And how did you come by this
          12   address litigation.                                                      12   understanding, this definition that you have just
          13          MR. BALARAN: And I'm not, I'm                          13   given me?
          14   certainly going to give you a wide berth as far as                   14      A.   I think that's probably intuitive.
          15   any communications you've had with counsel, so let               15      Q.   Did there come a point in time that
          16   me go back to my question so we're absolutely                     16   anybody from the Office of the Solicitor either in
          17   clear.                                                                    17   form or in substance gave you a definition of
          18          BY MR. BALARAN:                                          18   Indian Trust records?
          19      Q.   What did anybody at the Office of the                      19      A.   That was discussed at length beginning
         20   Solicitor inform you that your responsibilities as                   20   in September, because there was -
         21   Assistant Secretary for Indian Afl:airs, and when I                  21       Q.   September of what year'?
         22   say responsibilities, I'm referring to trust                            22      A.   September of 2001, because there was a
         23   responsibilities.                                                        23   definite divergence of opinion as to what
         24      A.   I don't remember that they did inform                      24   constituted a trust record between the special
         25   me of any specific responsibilities.                                   25   trustee, the tribes themselves, and the Bureau of


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             I   Indian Affairs operatives.                                              1       Q.   Rossman?
            2      Q.   Let's explore that for a minute. This                        2      A.   Ken Rossman, I don't know if he was
            3   divergence of opinion regarding what constituted                   3   chair, but he was a principal participant. He
            4   an Indian Trust record, are you telling me that                      4   represented OST at the meeting.
            5   OST had one definition, the tribes had another and                 5       Q.   Do you recall a few moments ago --
            6   BIA had yet a third?                                                    6      A.   I am told. I was not there.
            7      A.   I think that's correct.                                          7       Q.   I understand. Do you recall a few
            8      Q.   And were these various definitions                          8   moments ago I asked you what your definition was
            9   somehow memorialized in a writing?                                 9   of Indian Trust records?
           10      A.   Yes, they were. As a result of two                         10      A.   Uh-huh.
           11   nationwide meetings, I think in Albuquerque, and                  11       Q.   Is that a yes?
           12   then the third in Redding, California, there was                    12      A.   Yes, that's a yes.
           13   developed I think three options for defining what                  13      Q.   Is that the definition that's currently
           14   a trust record was, and actually the special                          14   employed by the BIA?
           15   trustee didn't like any of them.                                        15      A.   Yes, I think so.
           16      Q.   What did he propose?                                        16      Q.   Is there a general consensus now of
           17      A.   That any federal record was a trust                         17   what constitutes an Indian Trust record to your
           18  record, which seemed too all inclusive.                              18   knowledge? To your knowledge, is there a general
           19      Q.   Is that your opinion?                                         19   consensus of what constitutes an Indian Trust
           20      A.   Yes, I think so.                                               20   record, a universal definition?
           21      Q.   Did you attend these meetings?                             21       A.   I think there is -- no, not a universal
           22      A.   No, I did not. One of them occurred                       22   definition, that means one that is adopted and
           23   before I was sworn in, and I did not attend the                     23   employed by everyone, and no, I don't think there
           24   Redding meeting. I had a conflict at the time.                      24   is a universal one.
           25      Q.   Did you review the documents that                         25      Q.   Well, let me ask you, is there a


                                                                              Page 39                                                                        Page 41
            1   emerged from either or both of these meetings that                  1   definition to your knowledge that has been adopted
            2   delineated the various definitions you're giving                      2   by the Office of the Solicitor?
            3   me now?                                                                 3       A.   I don't know the answer to that.
            4      A.   Yes, I did, the Redding meeting, which                     4      Q.   Is there a definition to your knowledge
            5   actually listed the three options. I was asked to                     5   that has been adopted by the Department of
            6   concur in the option that we would actually use                     6   Justice?
            7   for discharging of some of our contracts, the 638                    7      A.   I don't know the answer to that.
            8   contracts, and compacts wherein tribes were                         8       Q.   Is there.a definition to your knowledge
            9   managing some of these records, and they were the                 9   that has been adopted by the U.S. Attorney's
           10   biggest, had the greatest dissent, because --                         10   office?
           11      Q.   Dissent from?                                                 11      A.   I don't know the answer to that.
           12      A.   Dissent from the special trustee's                            12      Q.   Have you seen any document, any
           13   objecting. And in fact there was a decision                         13   correspondence or any other writing from any of
           14   reached at the Redding meeting, a consensus which                14   those three organizations wherein a definition of
           15   included the chief of records for the Office of                      15   Indian Trust records was given?
           16   Special Trustee and the tribal participants, the                      16      A.   I have not personally seen one.
           17   BIA participants there essentially had said the                      17      Q.   Is that something that would normally
           18  records that we have been keeping are trust                         18   come across your desk given your position as the
           19   records, the way we have been keeping the records                 19   Assistant Secretary of Indian A flairs?
          20   will be, serve as a definition of trust records,                       20      A.   Yes.
          21   and MI'. Slonaker rejected that.                                       2 l       Q.   What was your position prior to coming
          22      Q.   Was this a meeting that he chaired'?                        22   to the Bureau of Indian Afl, irs, what did you do?
          23      A.   No, he was not there.                                         23      A.   I was the Secretary of Transportation
          24      Q.   Was this a meeting that OST chaired'?                      24   for the State of Oklahoma, the Director of
          25      A.   Ken --                                                         25   Oklahoma Department of Transportation, and the


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             1   Director of the Oklahoma Turnpike Authority.                      1       Q.   I wasn't even thinking of manual or
            2      Q.   Didn't you have something key to do                        2   detailed briefing, I was just wondering if-
            3   with Amtrak there?                                                     3   well, when you came on board, I assume somebody
            4      A.   It reinstated Amtrak rail service to                          4   set up your calendar, correct?
            5   Oklahoma City.                                                         5      A.   Uh-huh.
            6      Q.   And how many years were you involved                    6      Q.   And I assume somebody set up your
            7   with Oklahoma state government?                                    7   Notes, your Lotus Notes, your e-mail system,
            8      A.   About 20. I served in the legislature                        8   correct?
            9   for eight years, served in the term of Henry                          9       A.   Correct.
           10  Bellman a similar position, Secretary of                            10      Q.   Who was that person, do you recall?
           11   Transportation for four years, and served six and                  11      A.   I don't have specific knowledge. It
           12   a half years in the Keating administration as                        12   appeared on my computer.
           13   Secretary of Transportation.                                          13      Q.   Okay.
           14      Q.   My understanding is you had a run for                     14      A.   It was my assumption that it was Miss
           15   lieutenant governor; is that correct?                                  15   Maybee in concert with the Office of Information
           16      A.   That was one of my ill-starred                              16   Management, because all my contact with the Office
           17  political voyages.                                                      17   of Information Management vis-a-vis my computer
           18      Q.   Did you have a run for govemor as                         18   and my personal applications were through her.
           19   well?                                                                    19      Q.   Does BIA have an e-mail administrator?
           20      A.   I did indeed.                                                  20      A.   I'm sure they do. I don't know who it
           21      Q.   When was that?                                              21   is.
           22      A.   1982.                                                          22      Q.   So you have not had any contact with
           23      Q.   Ready to do it again?                                         23   such a person?
           24      A.   No. I am educable.                                          24      A.   No.
           25      Q.   What kind of e-mail system do you                         25      Q.   And when you first came on board, you

                                                                              Page 43                                                                        Page 45
            1   currently use in your office?                                           I   found your system set up, both your calendar, your
            2      A.   Lotus Notes.                                                   2   notes and your e-mail, correct?
            3       Q.   Was Lotus Notes a system that you used                    3       A.   That's correct.
            4   when you were in the Oklahoma state government?                 4       Q.   Did you have any problems using them?
            5      A.   No.                                                              5   I just know that I am particularly inept so I'm
            6      Q.   What did you use then?                                       6   just wondering if you share the same disability?
            7      A.   We used a Microsoft system.                                 7      A.   Well, from my generation, let's say, l
            8      Q.   So is it fair to say that Lotus                                  8   had only become able to use e-mail in the last
           9   Notes -- strike that. Is it iair to say that the                          9   five years probably, well, last six and a half
           10   first time you encountered Lotus Notes as an                        10   years.
           1 l   operator were when you came to the Department of               11       Q.   Okay.
           12   the Interior?                                                            12      A.   And there is a lot about the systems,
           13      A.   That's correct.                                                 13   even WordPerfect and some of the basic systems,
           14      Q.   Did you receive any training on Lotus                      14   that I am not proficient at.
           15   Notes'?                                                                  15      Q.   Have you ever had occasion during your
          16      A.  No.                                                             16   tenure as assistant secretary to call somebody up
          17      Q.   Did you ask for any?                                         17   to ask a question regarding a problem you have
          18      A.   No.                                                             18   encountered with Louts Notes or your e-mail
          19      Q.   Is the Lotus Notes system in your view                     19   system'?
          20   something--                                                           20      A.   Yes.
          21       A.   Well, let me back up. I did ask the                         21       Q.   Can you give me an example'?
          22   Office oflnfonnation and Resource Management to               22      A.   Yesterday 1 couldn't get into the
          23   assist me in certain ways. I did not ask for a                        23   system because my password didn't work.
          24   manual on Lotus Notes or detailed briefing on how                24      Q.   And who did you call?
          25   to use Lotus Notes.                                                    25      A.   A guy by the name of Clarence, that's


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             1   in the Bureau there, that looks after my computer.                   I       Q.   Did you see this letter before it
            2   Or 1 has Miss Maybee call Clarence.                                 2   actually went out?
            3      Q.   And do you know Clarence's last name?                    3       A.   No.
            4      A.   No, I don't.                                                     4      Q.   You saw this letter only after it went
            5      Q.   Do you know what his title is?                               5   out?
            6      A.   No, I don't.                                                     6      A.   Yes.
            7      Q.   Can you give me another instance where                   7      Q.   Did anybody consult you conceming the
            8   you had to ask for some assistance?                                  8   contents of this letter?
            9      A.   Well, that has happened several times.                      9           MR. RAUH: Objection. Just give me one
            10      Q.   When you say several times, are you                       10   second. You can answer his question without
           11   talking about the fact that you couldn't get in                       11   divulging any conversations you had with counsel.
           12   with your password?                                                  12           BY MR. BALARAN:
           13      A.   Yes.                                                            13      Q.   Yes, I will not ask you -- if anything
           14      Q.   Have you had any other difficulties                         14   comes up with your conversations with private
           15   with your e-mail system?                                             15   counsel, please let me know that I'm going into
           16      A.   There is some extraneous pop-ups that                     16   that territory and we can have that discussion.
           17   are an attendant part of Lotus Notes that I don't                    17   Okay, Mr. McCaleb?
           18   use, and I asked them to take it off yesterday.                       18      A.   Let me reread this.
           19      Q.   That was yesterday?                                          19      Q.   No. I just need to sort of--
           20      A.   Yeah.                                                          20      A.   I understood your instruction.
           21      Q.   You are familiar with how to send a                        21       Q.   Okay, very good.
           22   message?                                                               22      A.   (Perusing.)
           23      A.   Yes.                                                           23      Q.   Let me just ask you, you appear to be
           24      Q.   You're familiar with how to receive a                      24   consulting your calendar; is that correct?
           25   message?                                                               25      A.   Yes.


                                                                               Page 47                                                                        Page 49
            1       A.   Yes.                                                             l       Q.   For what purpose, may I ask?
            2      Q.   You're familiar with how to delete a                         2      A.   Because I left after October 10th when
            3   message?                                                                3   the problem became apparent to me, in my
            4      A.   Yes. I became familiar with how to                         4   conversations with Miss Maybee, and I think I was
            5   delete a message.                                                       5   gone the entire following week. I remember the
            6      Q.   Okay. Do you want to take a break?                         6   discussions after the letter was sent and I was
            7      A.   l'm fine.                                                        7   looking at the calendar to see if I was in town at
            8           MR. BALARAN: Okay. Let's mark this as                  8   anytime before this October 16th date, and I don't
            9   Exhibit 2.                                                                9   thinklwas.
           10          (McCaleb Exhibit 2 marked for                               10      Q.   So you were in town for the October
           1 l           identification.)                                                 11   10th conversation with Miss Maybee, which we will
           12          BY MR. BALARAN:                                          12   discuss in a moment; is that correct?
           13      Q.   Mr. McCaleb, I'm showing you a document                13      A.   Correct.
           14   labeled Exhibit 2. It's a copy of a letter, the                         14      Q.   When did you leave town?
           15   letterhead the United States Department of the                      15      A.   I think the next day. Yeah, the 11 th,
           16   Interior, Office of the Solicitor, Washington,                        16   fight, that would be fight.
           17   D.C., dated October 16, 2002, and it's a facsimile                  17      Q.   Okay. And when did you return?
           18   transmission to Peter Miller of the United States                   18      A.   I'm not sure. I think I spend most of
           19   Department of Justice Civil Division, Commercial                 19   -- I would have to go back and consult my
          20   Litigation Branch, and it's signed on page 2 by                     20   calendar, but I think I spend most of that week on
          21   Sabrina McCarthy. Have you seen this letter'?                      21   the road. I spend about half of my time on the
          22      A.   Yes.                                                            22   road away fi'om the office.
          23      Q.   When did you first see this letter'?                           23      Q.   Okay. So in response to my question,
          24      A.   I don't remember the specific date;                          24   you did not review this letter prior to it being
          25   fairly soon after it was prepared.                                     25   sent from Miss McCarthy at the Solicitor's office


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                                          1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


        Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                               Washington, D.C.

                                                                                Page 50                                                                        Page 52
             1   to Mr. Miller at the Department of Justice?                          1       Q.   Well, can you tell me how the facts
             2      A.   I don't think so. I wasn't in town.                            2   that are contained in this letter came out, do you
             3   The only way I would have been able to have                       3   know?
             4   reviewed it is if they faxed it to me at my hotel                      4      A.   I would be assuming. I do not know.
             5   and that may have occurred, I just don't remember.                 5       Q.   Well, assume them.
             6      Q.   Where were you staying, do you recall?                     6           MR. RAUH: Now you're clearly asking
             7      A.   I would have to go back and look at my                     7   him to speculate.
             8   calendar to see where I was going. I mean, I'm on                  8           MR. BALARAN: Yes, I am, and I will
             9   the road half the time and I usually make several                   9   accept his answer as a speculation.
            10  visits at different tribal headquarters and                            10          THE WITNESS: I'm speculating that
            11   locations when I'm gone, and so I don't remember.                 11   there was a discussion with Miss Martin or the
            12      Q.   Let me understand the time line then.                      12   chief of staff, Mr. Jerry Gidner.
            13   You have a conversation with Miss Maybee on                    13           BY MR. BALARAN:
            14   October 10th, correct?                                                14      Q.   Who is Miss Martin?
            15      A.   Correct.                                                        15      A.   Aurene Martin, the Deputy Assistant
            16      Q.   And does there come a point in time                       16   Secretary.
            17  before October 16th that you have a conversation                  17      Q.   And who would have had such a
            18   with the Office of the Solicitor regarding the                       18   conversation?
            19  events that are discussed in this letter?                              19           MR. RAUH: Again, you're asking him to
           20      A.   Let me consult my calendar here and see                  20   speculate?
           21   if I --                                                                    21           MR. BALARAN: Yes, I am.
           22      Q.   This is the second calendar?                                22           THE WITNESS: I don't know. I'm told
           23      A.   Yeah, this is a Palm Pilot obviously.                       23   this was brought to the attention of the associate
           24  Again, on the 16th I was in Denver.                                 24   deputy secretary early the following week after
           25      Q.   Where were you on the l lth?                               25   thel0th, like on the l2th or the l3th. Idon't


                                                                               Page 5l                                                                        Page 53
             1       A.   I was en route.                                                 1   know that specifically.
            2      Q.   I see. You were en route to Denver?                        2           BY MR. BALARAN:
            3      A.   I had two meetings at that time. One                        3       Q.   Who told you that?
            4   was a meeting with the Council of Energy Resource                4      A.   The chief of staff, Mr. Jerry Gidner.
            5   Tribes in Denver and the next meeting was with the                5       Q.   Just so I understand the chronology, on
            6   Indian Trust Monitoring Association.                                 6   October 10th you discovered that your e-mails are
            7      Q.   And that was again in Denver?                               7   deleted; is that correct?
            8      A.   Yes. And then I went from there on to                      8      A.   Yes  I knew they were deleted. I                   _.
            9   Oklahoma.                                                               9   thought they had been saved.
           10      Q.   And what date was that?                                     10      Q.   Okay. We can go into the details of
           11      A.   The 17th, that was a travel day.                              11   that in a moment, but October 10th is the date
           12      Q.   Let's focus our attention on the time                        12   that you discovered that your e-mails had been
           13   between October 1 l th and October 16th, if we may,               13   deleted; is that correct?
           14   okay?                                                                   14      A.   No. I knew they had been deleted.
           15      A.   Okay.                                                          15   That was the date I discovered that they had not
           16      Q.   At that time you testified that you                           16   been saved.
           17   were in Denver, Colorado, correct?                                  17      Q.   When did you first find out that they
           18      A.  That's correct.                                                 18   had been deleted'?
           19      Q.   Did there come a point in time between                    19      A.   Well, I was deleting them, so l knew
           20   October 1 lth and October 16th that you had a                      20   they were being deleted.
           21   discussion with the Oftice of tire Solicitor                          21       Q.   Had anybody else deleted your e-mails?
           22   regarding tile events contained in tire letter that                     22      A.   I don't know.
           23   is now before you as Exhibit 2?                                      23      Q.   Who else has access to your e-mails?
           24      A.   I don't remember. I really don't                             24      A.   Jean Maybee.
           25   remember.                                                              25      Q.   Have you ever given instruction to Miss


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                                                                   Alderson Reporting Company, Inc.
                                          1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


       Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                              Washington, D.C.

                                                                              Page 54                                                                        Page 56
            1   Maybee to delete your e-mails?                                       1       Q.   And I'm asking you a different
            2      A.   No.                                                              2   question. I'm asking you if you instructed Miss
            3      Q.   Okay. Let's go back to October 10th.                       3   Maybee or anybody else at any time to reconstitute
            4   October 10th you find out that your e-mails have                   4   or go to the backup tapes to get the information
            5   not been saved; is that correct?                                        5   that you deleted that was Cobell related.
            6      A.   Correct.                                                         6      A.   Not until I returned, and then I
            7      Q.   Did you talk to anybody about this                          7   discussed it with Mr. Kayson.
            8   besides Miss Maybee?                                                 8       Q.   Was this in a private meeting with
            9      A.   No. I gave her some specific                                 9   Mr. Kayson?
           10  instructions to contact the Office of Information                   10      A.   I think so.
           11   Resource Management and to recover the e-mails                  I 1       Q.   And did you ask Mr. Kayson to see if
           12   from them.                                                              12   the information that you had deleted that was
           13      Q.   Why the Office of Information Resource                  13   Cobell related and not OIRM morning reports, did
           14  Management and not the e-mail administrator over                14   you ask him to see if they could be taken off the
           15   at the BIA?                                                             15   backup tapes?
           16      A.   Because I thought the OIRM would have                  16      A.   I think he told me that he thought they
           17  the backup tapes, that's what I had been led to                      17   could be.
           18   believe.                                                                 18      Q.   How did he find out about it, do you
           19      Q.   And who told you that?                                      19   know?
          20      A.   I can't give you a name. That is the                        20      A.   The issue had been raised in his office
          21   impression that I had from -- that's the                              21   by the chief of staff, Mr. Jerry Gidner.
          22   impression I had.                                                      22      Q.   And how did Jerry Gidner know, if you
          23      Q.   And you told her to go to OIRM                            23   were away during this time?
          24  specifically; is that correct?                                          24      A.   Miss Maybee raised the issue with him.
          25      A.   Right. Specifically, we were getting                       25      Q.   Is the information contained in this


                                                                              Page 55                                                                        Page 57
            1   daily reports from OIRM on the amount of money                  1   October 16, 2002 letter that's Exhibit 2, is it
           2   disbursed to HiM account holders pursuant to the                    2   accurate?
           3   shutdown that had occurred in December, whereby                 3       A.   To the best of my knowledge it is.
           4   IIM account holders were unable to receive their                    4       Q.   Reviewing it now, would you change
           5   monthly distributions, and so we started keeping                    5   anything in it?
           6   -- I asked for a report to be given to me on a                         6       A.   No.
           7   daily basis so I could see when we instituted a                       7       Q.   Okay.
           8   method of paying out some of the mineral leases                    8           (McCaleb Exhibit 3 marked for
           9   based upon estimates from prcvicus month's payout,                9           identification.)
          l 0  so I could see how much money was getting into the               10           BY MR. BALARAN:
          11   hands of the IIM account holders. And I never                     11       Q.   I'm showing you a copy of a letter
          12   stopped that coming in.                                                12   generated by my office on October 20, 2002 to
          13      Q.   Did you delete the OIRM morning                          13   Peter Miller at the Department of Justice, the
          14  reports?                                                                 14   caption being e-mail message of Assistant
          15      A.   I did.                                                           15   Secretary-Indian Affairs. It is a two-page letter
          16      Q.   Did you delete any other incoming                          16   and I would like you to take a moment and review
          17   e-mail?                                                                  17   this letter and tell me whether you have seen it
          18      A.   Yes.                                                            18   before.
          19      Q.   Did you delete any other incoming                          19      A.   (Perusing.)
          20  Cobell e-mail?                                                         20      Q.   My question to you again, have you seen
          21      A.   Probably.                                                      21   this letter before'?
         22      Q.   Did you ask Miss Maybee to call OIRM to                22      A.   Yes.
         23   get a copy of those?                                                   23      Q.   And where have you seen it?
         24      A.   1 asked her specifically to get the                           24      A.   It was presented to me, I think shortly
         25   morning reports.                                                       25   after the date.
                                    :                 ?                                                                                                                                                                  ,:                       ,                                                                            ,:

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                                                                  Alderson Reporting Company, Inc.
                                         1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


        Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                               Washington, D.C.

                                                                               Page 58                                                                                             Page 60
                 1       Q.   By whom?                                                      1   secretary, administrative assistant, and had them
             2      A.   I think Miss McCarthy.                                       2   sort of type up your notes.
             3       Q.   When you say you think Miss McCarthy,                   3       A.   No.
             4   could it have been someone else who gave this to                   4       Q.   Did you take any notes that, in
             5   you?                                                                     5   response, in preparing for your responses to this
             6           MR. RAUH: Objection, speculative.                         6   letter?
             7           MR. BALARAN: Yes, exactly.                              7      A.   No.
             8           BY MR. BALARAN:                                          8       Q.   Did you consult any documents?
             9      Q.   Could it have been anyone else?                             9      A.   Well, yes, I went to see what e-mail 1
            10      A.   It could have been.                                           10   still had, and by that time we had received from
            11      Q.   Who else could it have been?                               11   OIRM all the daily reports that we had asked for,
            12      A.   It could have been Miss Martin.                            12   printed copies of all the daily reports, so I took
            13      Q.   Miss Martin gave you my letter?                            13   a rough inventory of what we had, which was almost
            14      A.   I don't know. I didn't say that, I                             14   all the sent e-mail and all the daily reports, and
            15   said it could have been. I suspect that the                          15   substantial portions of other Cobell related
            16   letter was circulated to her in my absence.                          16   e-mail over that period of time.
            17      Q.   Who else might it have been besides                       17      Q.   So you were looking not just at the
            18   Miss McCarthy or Miss Martin?                                     18   OIRM morning reports but at other Cobell related
            19      A.   I don't know. I mean, that would be                        19   e-mails that might have been deleted; is that
           20  reaching further than I am willing to do.                            20   correct?
           21      Q.   Okay. So the likely contenders are                         21       A.   I asked Mrs. Maybee to give me a copy
           22  Miss McCarthy as a first and Miss Martin as a                     22   of any and all Cobell related e-mail that she had
           23   second; is that right?                                                  23   access to in her files.
           24      A.   Right.                                                          24      Q.   What constitutes a Cobell related
           25      Q.   Didyou discuss the contents of this                        25   e-mail?


                                                                               Page 59                                                                                              Page 61
                 1   letter with anybody?                                                    1       A.   Well, one that has to do either with
            2      A.   When I discussed it with Miss McCa_hy,                   2   the litigation itself, with the IIM account
             3   yes.                                                                      3   holders, with the -- there's three primary ones
            4      Q.   On how many occasions?                                     4   that I don't --
             5      A.   Probably two.                                                  5       Q.   Are you referring to the three
            6      Q.   Were you asked to draft a response to                       6   functional areas?
            7   this letter?                                                               7      A.   Yes.
            8      A.   Yes.                                                             8       Q.   Do you have a list of those three
            9      Q.   Did you in fact do so?                                         9   functional areas on your desk somewhere --
           10      A.   I counseled with Mrs. McCarthy and she                   10      A.   I think so.
           11   drafted a response from our conversations.                          11       Q.   Please let me finish the question. Do
           12      Q.   When you say you counseled with her,                     12   you have a list of the three functional areas that
           13   does that mean that you actually met with her and                  13   you're supposed to keep that are Cobell related on
           14   gave her the responses orally'?                                        14   your desk somewhere?
           15      A.   Yes.                                                            15      A.   Yes, Ido.
           16      Q.   Did there come a point in time when you                  16      Q.   Where do you keep them?
           17   generated a written response to this either in                        17      A.   In my desk file.
           18   draft or final form'?                                                    18      Q.   What is the proper procedure for
           19      A.   That I personally did, no.                                     19   e-mails in your office'? What is the proper
           20      Q.   Did you direct anybody else to draft                        20   procedure for printing, saving, filing and
           21   your responses in writing, aside from Miss                         21   archiving, can you tell me?
           22   McCarthy?                                                             22      A.   My impression was the proper procedure
           23      A.   No. I was told that Mrs. McCarthy was                    23   was that the e-mails that I was doing, that I was
           24   preparing tbe response.                                                24   sending, were being archived by Miss Maybee.
           25      Q   I'm just asking if you went to a                              25      Q   And I'm going to stop you and I'm going
                            ?

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                                           1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


         Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                                Washington, D.C.

                                                                                Page 62                                                                        Page 64
              1   to say that's not responsive, because I want you                     1   recoverable?
              2   to listen to my question very carefully. I'm                          2       A.   No.
              3   going to ask you first, does the Department of The                  3       Q.   What does the policy say?
              4   Interior have a policy regarding the saving,                          4      A.   I can't quote it to you, I just told
              5   filing, archiving and deleting of e-mails?                             5   you generally what my impression was.
              6      A.   Well, they have published numerous                        6      Q.   Would you believe me if I told you that
              7   instructions in both printed letters and e-mails.                      7   the policy says that you must print them before
             8      Q.   And would you consider those numerous                   8   deleting them?
             9   instructions in letters and e-mails the Department                   9      A.   Yes, I would.
             10  policy vis-a-vis the retention, preservation,                         10      Q.   Did you do so with the OIRM morning
            11   archiving and deleting of e-mails?                                   11   reports?
            12      A.   Yes.                                                            12      A.   No.
            13      Q.   What is that policy? And I'm not                           13      Q.   Isn't it in fact true, sir, that Miss
            14  asking with regard to you -- and this may be your                  14   Maybee could not have opened up the O1RM morning
            15   impression. What is that policy?                                     15   reports?
            16      A.   That you don't delete any e-mails, that                     16      A.   Well, they were encrypted. I only
            17   you keep a record of all the e-mails before they                    17   found that out recently.
            18   are deleted.                                                             18      Q.   when did you first start getting OIRM
            19      Q.   And what type of record are we                             19   morning reports?
            20  referring to?                                                            20      A.   In January of 2002.
            21      A.   Well, I think the written requirement                       21       Q.   When did you find out that they were
            22   is that they be printed, hard copy printed.                           22   encrypted?
            23      Q.   Did you print these e-mails before                          23      A.   Last week.
            24   deleting them?                                                         24      Q.   So, am I to understand that you didn't
           25      A.   No, sir, I did not.                                             25   read them?


                                                                               Page 63                                                                        Page 65
             1       Q.   Did you believe that Miss Maybee was                      1       A.   I did read them. Well, I asked for
            2   printing these e-mails before they were deleted?                     2   them so that I would be current on how many
            3      A.   I did not know.                                                 3   payments were made and how current we were with
            4      Q.   Well, let me ask you, sir, the OIRM                         4   our IIM account holders. When we reached a level
            5   morning reports were deleted, direct?                                 5   of currency, frankly, I quit reading them because
            6      A.   Yes.                                                             6   they had served their interest.
            7      Q.   And you deleted them; is that right?                         7       Q.   But when you first started reading
            8      A.   Yes.                                                             8   them, were they encrypted?
            9      Q.   And you believe Miss Maybee was                          9       A.   I don't have any idea.
           l0  printing them out?                                                     10      Q.   Well, you just told me they were
           11      A.   No, I do not.                                                   11   encrypted, I didn't.
           12      Q.   So in fact when you deleted them                           12      A.   Well, I'm told they were encrypted.
            3   without printing them out, you were in violation                    13      Q.   Do you know the process for
           14   of Interior policy regarding e-mails; is that                          14   unencrypting?
           15   correct?                                                                 15      A.   No, I donot.
           16          MR. RAUH: Objection. You're calling                     16      Q.   Did you ever instruct Miss Maybee to
           17   for a legal conclusion.                                                 17   unencrypt your e-mails?
           18          MR. BALARAN: That's fine.                                 8      A.   No, I did not.
           19          BY MR. BALARAN:                                           9      Q.   Let's go back to the October 20th, 2002
          20      Q.   To the extent that you understand what                     20   letter which 1 believe is Exhibit 3.
          21   tile policy is, I'm entitled to your answer.                            21       A.   October 20th, yes.
          22      A.   I thought they were recoverable and in                     22      Q.   And you have had the opportunity to
          23   fact were, or had been recovered.                                    23   review that'.)
          24      Q.   Does Interior policy say that you are                        24      A.   Yes.
          25   not to print them out if you believe that they are                    25      Q.   And that's a fair representation of the


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                                                                   Alderson Reporting Company, Inc.
                                          1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005


       Neal A. McCaleb                       CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER                      December 6, 2002
                                                                              Washington, D.C.

                                                                              Page 66                                                                       Page 68
            1   letter that you saw?                                                     l   letter?
            2      A.   Yes.                                                             2      A.   Yes.
            3       Q.   Okay. You stated, I believe, and                            3       Q.   And how long did each of these meetings
            4   correct me if I'm wrong, that you consulted with                    4   last?
            5   Miss McCarthy prior to this letter being                              5      A.   I don't have a specific recollection.
            6   generated, correct?                                                     6   I would say the first one was probably more
            7      A.   Yes.                                                             7   lengthy, maybe a half an hour, and the second one
            8      Q.   And you also testified, I believe, that                        8   was more abbreviated, maybe 15 minutes.
            9   you did not put anything down in writing to                         9      Q.   Okay. And did Miss McCarthy take notes
           10  memorialize any of the answers in writing; is that                  10   while you were discussing this'?
           11   correct?                                                                 11      A.   Yes.
           12          MS. KESSLER: Which letter are we                        12      Q.   Did you review the questions that I had
           13   talking about?                                                          13   asked?
           14          THE WITNESS: Yeah, I'm confused about                14      A.   Yes.
           15   which letter. She wrote the letter of October                       15      Q.   And did you give your responses to
           16   16th, and I was not familiar with the letter of                       16   those questions?
           17   October 20th, which is your letter, sir.                               17      A.   Yes.
           18          BY MR. BALARAN:                                         18      Q.   Did there come a point in time when
           19      Q.   I'm sorry, I apologize. Yes, the                             19   Miss McCarthy responded to this?
          20  October 20th letter, I'm referring to that. Did                      20      A.   Yes.
          2 l   you consult with Miss McCarthy regarding the                     21           (McCaleb Exhibit 4 marked for
          22   response to this letter?                                                22          identification.)
          23          MR. RAUH: That's a different question.                   23           BY MR. BALARAN:
          24          MR. BALARAN: I apologize for that.                      24      Q.   In front of you, sir, is a November 8,
          25          THE WITNESS: Yes, I did.                                 25   2002 letter with the caption United States


                                                                              Page 67                                                                        Page 69
            1           BY MR. BALARAN:                                           I   Department of the Interior Office of the
           2      Q.   Okay. And you testified, just to go                          2   Solicitor, a facsimile transmission from Miss
           3   back over this, you testified that you did not                         3   Sabrina McCarthy of the Office of the Solicitor to
           4   memorialize any of your responses to this letter                     4   Peter B. Miller at the Department of Justice. The
           5   in v_xiting; is that correct?                                              5   letter is four pages in length and I would like
           6      A.   No.                                                              6   you to take a moment and review it and tell me if
           7      Q.   And on how many occasions did you --                     7   you have ever seen this letter before.
           8           MR. RAUH: Wait, wait, wait. You asked                   8       A.   (Perusing.)
           9   a double negative question there. Do you want to                   9      Q.   Have you seen this letter before':
          10  repeat that question? I don't think the wimess                      10      A.   Yes, I have.
          11   understood it.                                                           t I       Q.   When did you see this letter?
          12          THE REPORTER: "Question: And you did                12      A.   I don't have a specific recollection of
          13   not memorialize any of your responses to this                       13   the date, but I think after it was, shortly after
          14   letter in writing; is that correct? Answer: No."                     14   it was written and before it was transmitted, I
          15          THE WITNESS: I did not memorialize it.                   15   had an opportunity to review the letter.
          16          BY MR. BALARAN:                                          16      Q.   After it was transmitted?
          17      Q.   Okay. You understood the question?                       17      A.   No, before.
          18      A.   Yes.                                                            18      Q.   Okay. How many drafts did you review,
          19      Q.   And your answer is still no?                                 19   if any?
          20      A.   Yes.                                                            20      A.   Oil, more than one. I don't remember a
          21       Q.   On how many occasions did you meet with                21   specific number.
          22   Miss McCarthy regarding tile response to this                      22      Q   How were the draft or drafts sent to
          23   letter'?                                                                   23   you?
         24      A.   Two that I can recall.                                         24      A.   Hand-delivered.
         25      Q.   In response to the October 20th, 2002                      25      Q.   By whom'?


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                                                                                Washington, D.C.

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                  1       A.   Sabrina, I assume. I wasn't there when                      1   meetings did you go over these multiple drafts?
             2   she delivered them. I received them in my in                       2       A.   Well, I think there was only two
             3   basket.                                                                   3   drafts, I'm not sure, but I think there was only
             4      Q.   Did you make comments?                                    4   two.
             5      A.   Well, the first letter had a lot of                             5       Q.   Okay. So did you --
             6   blanks in it because she didn't have the                              6      A.   The one with the blanks in it and then
             7   information and I tried to provide her the                            7   a final draft.
             8   information.                                                             8       Q.   So am I to understand that you went
             9      Q.   So you filled in the blanks?                                   9   over the -- in your first longer meeting that may
            10      A.   Uh-huh.                                                        10   have been up to an hour, that's when you went over
            11      Q.   And you did that in writing'?                                 11   the first draft?
            12      A.   Yeah.                                                          12      A.   No. The first meeting was when we
            13      Q.   Okay. So I asked you prior whether or                     13   discussed the content and I communicated to her my
            14  not you memorialized -- let me just finish the                       14   answers. Then she prepared a draft that had some
            15   question please -- memorialized any of your                        15   blanks in it, and then we discussed that.
            16   answers at all, either in notes or in final form                       16      Q.   That was the second meeting?
            17   in writing, and I'm going to ask you to please                       17      A.   Yes.
            18   reconsider your answer.                                               18      Q.   And that was the first draft?
            19          MR. RAUH: Counsel, that was a                            19      A.   Yes.
            20  different letter.                                                         20      Q.   Did you see a second draft?
            21           MR. BALARAN: That's fine.                               21      A.   No, I think i just saw the one with the
           22          THE WITNESS: I'm not sure that I                         22   blanks.
           23   filled in the blanks. Sabrina and I sat down and                   23      Q.   Oh, so there was only one draft that
           24   went over the letter, and I may have given her the                 24   you saw now?
           25   instructions verbally, and I may have written them                25      A.   Mr. Balaran, I didn't intend to

                                                                               Page 71                                                                                              Page 73
                 1   down. I didn't keep a copy. If I did write them                      1   indicate I saw multiple drafts. I said we had two
            2   down, I gave them to Sabrina. She and I talked                     2   meetings. I gave her the information to fill in
            3   about it, we had an understanding about what the                   3   my response to the questions, she prepared a draft
            4   content of the letter was to be, but whether it                        4   that was not complete. I provided that
            5   was in writing, I don't really specifically                             5   information and she prepared a final draft. There
            6   recall.                                                                    6   may have been a third meeting. I don't have a
            7           BY MR. BALARAN:                                          7   specific --
            8      Q.   And do you recall one or two drafts?                        8       Q.   Who keeps your calendar of your
            9      A.   More than one.                                                 9   appointments?
           10      Q.   So let me understand. You had two                        10      A.   Miss Maybee.
           11   meetings, you testified, do you recall, with                          11       Q.   Would she keep a calendar of
           12   regards to a response to my letter?                                   12   appointments that you have with Office of the
           13      A.   Uh-huh.                                                        13   Solicitor as a general rule?
           14      Q.   You had one that was a half hour that                      14      A.   As a general rule, unless they came in
           15   you described, I believe, as the longer of the                        15   without an appointment and wanted to speak with
           16   meetings, correct?                                                     16   me.
           17      A.   Yes.                                                            17      Q.   Do you recall whether or not these
           18      Q.   And then you had a second meeting that                   18   appointments with Sabrina McCarthy were scheduled
           19   I believe was shorter, that ran approximately 15                    19   or unscheduled'?
          20   minutes, correct?                                                      20      A.   The first one was scheduled.
          2l      A.   Yes. Those time intervals are not                           21       Q.   And the second?
          22   necessarily accurate; rmjust trying to delineate                    22      A.   l don't recall.
          23   that one was longer than the other, and less than                   23      Q.   Okay.
          24   an hour.                                                                 24           MR. BALARAN: I'm going to put you on
          25      Q.   Okay. Then during which of these                         25   record that I'm going to ask for a copy of your

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                                                                                Washington, D.C.

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              1   calendar for that month so we can -- this is                           1       A.   Yes, they are.
              2   directed at DO J, right.                                                  2      Q.   Did you prepare this declaration?
              3           BY MR. BALARAN:                                          3       A.   I didn't personally have it typed. I
              4      Q.   Just so I understand, and perhaps this                       4   consulted in the preparation of the document,
              5   is my confusion, how many drafts of this letter do                  5   provided the factual information.
             6   you recall seeing?                                                      6      Q.   Who did you consult with?
             7      A.   I can only recall the first draft with                          7           MR. RAUH: Objection. You can answer
             8   the blanks in it, before this document here.                          8   that so long as it doesn't involve conversations
             9      Q.   Are the responses in this document                          9   with Miss Campbell or myselfi
            10   accurate?                                                               10          MR. BALARAN: Well, he can say if he
            11      A.   Yes.                                                            11   consulted with you. I certainly wouldn't ask the
            12      Q.   Do you know who, if anybody else, Miss                  12   content of it.
            13   McCarthy consulted in drafting the responses in                   13           MR. RAUH: Then that's fine.
            14  this November 8th fax?                                               14           BY MR. BALARAN:
            15      A.   I have no knowledge of that.                                15      Q.   I just asked with whom you consulted.
            16      Q.   Do you know if she talked to Miss                          16      A.   Mr. Rauh and Miss Campbell.
            17  Maybee?                                                                17      Q.   Did you consult with the Office of the
            18      A.   I have no knowledge of that.                                18   Solicitor?
            19      Q.   Did there come a point in time that you                    19      A.   No.
            20  drafted an affidavit regarding the destruction of                   20      Q.   Were you made aware of the fact that at
            21   e-mails that took place during the ten-month                       21   one point in time I asked for a declaration or
            22   period between December 2001 and October 2002?               22   affidavit from you attesting to the truth of the
            23      A.   The question is?                                              23   statements contained in Miss McCarthy's letter
            24      Q.   Did there come a Point in time that you                    24   dated November 8, 2002?
           25   drafted an affidavit concerning the destruction of                 25      A.   No, I Was not.


                                                                               Page 75                                                                        Page 77
             l   e-mails?                                                                  1       Q.   Then what were the circumstances under
            2      A.   Yes.                                                             2   which you created this declaration?
            3           MR. BALARAN: Is that unclear.                             3       A.   I thought it would be useful, in
            4           MR. RAUH: I think it was a                                  4   consultation with my counsel, to set down the
            5   declaration, but that may be a distinction without                   5   circumstances as I remembered them.
            6   a difference.                                                             6       Q.   So you came about this on your own; is
            7           MR. BALARAN: Okay.                                       7   that correct?
            8           (McCaleb Exhibit 5 marked for                               8       A.   Yes, in consultation with my counsel.
            9           identification.)                                                  9      Q.   I understand. How many drafts of this
           10          MR. BALARAN: Let's go off the record                    10   declaration did you go through?
           11   for a second.                                                            11       A.   I only remember one draft.
           12          (Offthe record discussion.)                                   12      Q.   Isn't it in fact true that a draft
           13          BY MR. BALARAN:                                          13   affidavit was prepared for your signature at one
           14      Q.   I have just presented you with                               14   point in time?
           15   Exhibit 5, the legend of which is Declaration of                    15      A.   Yes, there was.
           16  Assistant Secretary Neal A. McCaleb. I would like                16      Q.   Who prepared that?
           17   you to look at this document and tell me if you've                  17      A.   Miss Martin.
           18   ever seen it before.                                                     18      Q.   Okay. And is Miss Martin an attorney?
           19      A.   Yes.                                                            19      A.   Yes.
          20      Q.   Is this in fact your declaration                               20      Q.   Is Miss Maitin your counsel?
          21   concerning the events surrounding tile destruction                 21       A.   She was at one time General Counsel for
          22   ore-mails during the ten-month period'?                             22   tlle Assistant Secretaly. She is not General
          23      A.   Yes, it is.                                                      23   Counsel now.
          24      Q.   Are the statements in here true and                         24      Q.   When she prepared the draft affidavit
          25   accurate'?                                                               25   that I just referred to, did she do this in her


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                                                                               Washington, D.C.

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             1   capacity as General Counsel?                                         1       Q.   Do you know if anybody did?
             2      A.   No, she is not General Counsel.                              2       A.   I have no knowledge of that.
             3      Q.   I understand but I just want to be                            3       Q.   Did you ask her what this was?
             4   absolutely sure because you did state that at one                    4      A.   I knew what it was, it's an affidavit.
             5   point she acted as General Counsel.                                  5       Q.   Well, had she prepared any other
             6      A.   Correct.                                                        6   affidavits for you since you have been Assistant
             7      Q.   And my question to you again, this                          7   Secretary at the Department of the Interior?
             8   draft affidavit that I refer to, did she prepare                         8       A.   No.
             9   it in her capacity as General Counsel?                                9      Q.   So this is the first affidavit, is that
            10      A.   Sir, I don't know what capacity she                         10   correct?
            11   prepared it in. I didn't ask for it and I didn't                        11       A.   That's correct.
            12   sign it.                                                                  12      Q.   Has she prepared any other legal
            13      Q.   Did you review it?                                            13   documents for you since you have been assistant
            14      A.   Yes, I read it.                                                 14   secretary?
            15      Q.   Okay. Do you have any idea what                          15      A.   Yes.
            16  inspired her to create such a document?                             16      Q.   What other legal documents has she
            17      A.   No.                                                             17   prepared?
            18          (McCaleb Exhibit 6 marked for                              18      A.   Well, in her role as General Counsel,
            19          identification.)                                                 19   she prepared a great many legal documents.
           20          BY MR. BALARAN:                                         20      Q.   But how about when she wasn't General
           21       Q.   I'm handing you a document that simply                   21   Counsel, did she prepare any legal documents for
           22   contains the legend affidavit on top. It's a                          22   your signature and review?
           23   two-page document that has 13 paragraphs with a                 23      A.   Yes. As the deputy assistant
           24   signature line and a notary block on the bottom.                    24   secretary, she reviewed many of the determinations
           25  Take a moment and look at this and I will ask you                 25   that I made and prepared them for my signature.

                                                                               Page 79                                                                        Page 81
             1   if you have ever seen Exhibit 6 before.                                1       Q.   But this is the only affidavit that she
            2      A.   Okay.                                                           2   prepared; is that correct?
            3       Q.   And my question is, have you ever seen                     3       A.   That's correct.
            4   this document with the legend affidavit on the                       4      Q.   And you didn't question it at all?
            5   top, that I have had give you as Exhibit 6?                           5      A.   I didn't sign it.
            6      A.   I have.                                                          6      Q.   I didn't ask you that. You didn't
            7      Q.   Is that the document that you referred                       7   question it at all? You didn't ask her any
            8   to before as being the one given to you by Aurene                  8   questions concerning the origin, why she created
            9   Martin?                                                                  9   this affidavit?
           10      A.   Yes.                                                            I0      A.   No, ldidnot.
           11      Q.   Can you tell me the circumstances under                   11       Q.   You didn't ask her any questions about
           12   which Miss Martin gave you this document?                        12   the content of the affidavit?
           13      A.   When I returned from my trip following                    13      A.   I don't recall that I did.
           14   about the 20th of October, she provided me with                   14      Q.   Didn't you find it somewhat unusual
           15   this document.                                                         15   that she would create an affidavit for your
           16      Q.   She just came into your office and said                     16   signature when she was not General Counsel and she
           17  Mr. McCaleb, sign it?                                                 17   was not so instructed to do so by you?
           18      A.   No, she didn't. She presented it to me                      18      A.   I assumed that she was acting in what
           19   for my consideration.                                                  19   she thought was my best interests.
           20      Q.   Did you instruct her to create such a                        20      Q.   Even though this is thc first time she
           21   document?                                                             21   had ever done so'/
           22      A.   No, 1 did not.                                                  22      A.   Well, she always acted in my best
           23      Q.   Did you ask her to create such a                            23   interests.
           24   document?                                                             24      Q.   No. In terms of creating an affidavit
           25      A.   No, I didnot.                                                  25   for your signature.

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                                                                                Washington, D.C.

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              1       A.   This is the first time she ever created                        1   October 10th, that I began to systematically
              2   an affidavit.                                                             2   delete some of these sent e-mails in order to gain
              3      Q.   And you did not discuss the contents                        3   capacity, and I went through -- there was only a
             4   with her?                                                                4   few days in October, I went through September, and
             5      A.   No.                                                              5   that's when I asked Mrs. Maybee, before I
             6      Q.   Did you discuss the contents of this                         6   eradicated all these sent e-mails, [ asked her
             7   affidavit with anybody?                                                7   about the backup at that point. When she said
             8           MR. RAUH: Same objection.                                 8   that she had not, I stopped at that point.
             9           MR. BALARAN: No problem.                               9      Q.   Okay. Let's go back to this number 13,
            10          BY MR. BALARAN:                                         10   however. So you did in fact delete e-mails
            11      Q.   Just, did you discuss the contents?                          11   located in the sent box, correct?
            12      A.   I can only assume that this                                   12      A.   For that period of time, September and
            13   information - well, I did -- I can only assume                      13   the first ten days of October.
            14  that the bulk of the content of this came from my                  14      Q.   So the statement that first came to me
            15   discussion with Sabrina McCarthy.                                  15   that the deletions of incoming e-mails had --
            16      Q.   And that wasn't my question. I asked                      16   strike that. Going back to the first, to the
            17  you, did you discuss the contents of this                             17   exhibit of October 16th --
            18   affidavit with anybody.                                                18           MS. CAMPBELL: Mr. Balaran, are you
            19      A.   Yes.                                                            19   relating to Cobell related e-mails or all e-mails?
            20      Q.   With whom?                                                  20           MR. BALARAN: I will get to that in a
           21      A.   My counsel.                                                   21   moment. The October 16th, 2002 letter that first
           22      Q.   Private or professional? I should say,                      22   advised me says, please advise the special
           23   we are all professionals, excuse me. Your                         23   master --
           24   personal counsel or --                                                 24           MR. RAUH: Excuse me. October 16th was
           25      A.   My personal counsel.                                        25   not addressed to you.

                                                                               Page 83                                                                        Page 85
             1       Q.   Did you discuss this with the Office of                      1           MR. BALARAN: I'm sorry, I apologize,
            2   the Solicitor?                                                            2   that was addressed to the Department of Just/ce.
            3      A.   No.                                                              3   It says, please advise the special master that it
            4      Q.   Did you discuss it with the Department                     4   appears that e-mail messages received by the
            5   of Justice?                                                               5   Assistant Secretary-Indian Affairs, from
            6      A.   No.                                                              6   approximately December 1st, 200l to approximately
            7      Q.   Was it your decision not to sign this                         7   October 1st, 2002, may have been deleted before
            8   document?                                                              8   they were printed and filed.
            9      A.   Yes.                                                             9           BY MR. BALARAN:
           10      Q.   Are the contents of this document                          10      Q.   Now, am I to understand now from your
           11   accurate? Are the statements made in this                          11   testimony that it's not just incoming e-mails that
           12   affidavit accurate?                                                     12   were deleted, but also outgoing e-mails that were
           13      A.   Most are. There are some that aren't.                       13   deleted?
           14      Q.   Tell me which ones are not.                                  14      A.   The vast majority of the outgoing
           15      A.   13.                                                             15   e-mails, the sent e-mails are still there, and
           16      Q.   I have never deleted e-mail that is                           16   they're printed. The only ones that were deleted
           17   located in the sent box of my e-mail account.                       17   are the ones from October 10th back through the
           18      A.   That's not accurate.                                           18   month of September, or maybe a couple days of
          19      Q.   What would be the truth?                                    19   August, and that's when I raised the question and
          20      A.   I started backing up from current times                     20   that's when I stopped deleting them.
          2t   in the first of October in response to the message                  21       Q.   So my question to you is that this
          22   that I got that the threshold memory had been                      22   statement-- strike that. Okay.
          23   exceeded.                                                               23           You stated at one point that you got a
          24      Q.   October of what year?                                        24   message of some sort informing you that your box
          25      A.   2002. It was on the same day as                            25   was full or something like that?


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                                                                              Washington, D.C.

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                1       A.   Yes.                                                             1   thought they were being saved.
            2      Q.   What was the message that you received?                  2       Q.   Even though you hadn't printed them?
            3      A.   I don't recall it precisely but                                  3       A.   Yes, sir.
            4   essentially the content of the message was, you're                   4      Q.   Are you aware of the fact that once
            5   running out of memory capacity in your e-mails,                    5   you, if you had not deleted from your trash box,
            6   you need to delete some of your e-mails.                             6   they would still be on your computer?
            7      Q.   Did you call anybody to discuss this?                       7      A.   I am now. I wasn't then.
            8      A.   No, I did not.                                                   8       Q.   Why didn't you go seek some
            9      Q.   You didn't discuss it with Miss Maybee?                   9   information?
           10      A.   No, I did not.                                                  10      A.   I should have.
           t 1       Q.   With the e-mail administrator?                              11       Q.   Any of the information that you deleted
           12      A.   No, I did not.                                                  12   from your sent box, were any of those
           13      Q.   With Clarence?                                               13   communications Cobell related communications?
           14      A.   No, I did not.                                                  14      A.   To the best of my knowledge, they were
           15      Q.   Was there a reason that you chose not                      15   not. I can't tell you absolutely that there
           16  to discuss what the ramifications of having an                      16   weren't some. I was systematically going through
           17   e-mail message like this was?                                        17   them and I don't remember seeing any e-mails that
           18      A.   Well, the ramifications were that I                          18   related to the three specified areas of the Cobell
           19  needed to reduce the number of e-mails that I had                 19   litigation.
          20  stored, and I thought that they were being                          20      Q.   Is it your practice to read the
          21   electronically saved.                                                   21   practices and directives that come to you from the
          22      Q.   And I understand that's your position                       22   Office of the Solicitor, the Assistant
          23   and we will explore that in a moment, but when you               23   Secretary-Policy, Management and Budget?
          24   deleted your e-mails, did you delete them from                    24      A.   Yes, sir, it is. I get copious notes
          25   your in box?                                                           25   and copious policies from all those different


                                                                              Page 87                                                                                              Page 89
               1       A.   Primarily.                                                       1   operatives, and I can't tell you that I remember
           2      Q.   Where else did you delete them?                             2   them all. I will tell you that I remember this
           3      A.   Well, I deleted the sent e-mails for                          3   one.
           4   that month and odd days that l just answered to.                     4      Q.   Are you aware that there came a point
           5      Q.   Any other boxes that you deleted                            5   in time that the special master drafted an opinion
           6   e-mails from?                                                           6   related to the destruction ore-mails in this
           7      A.   No, I don't know that I have any boxes                      7   litigation?
           8   besides inbound and sent.                                              8       A.   I don't have a specific knowledge of
           9      Q.   Well, do you have a drafts box?                              9   that.
          10      A.   Yes, I do.                                                      10      Q.   Do you have even a vague knowledge of
          11      Q.   Did you delete e-mails from your drafts                    11   that?
          12   box?                                                                     12      A.   I had a knowledge that we were supposed
          13      A.   No.                                                             13   to save them, that was clear.
          14      Q.   Do you have a trash box?                                    14      Q.   Do you believe that, we were talking
          15      A.   Yes.                                                            15   before about what the definition of Indian Trust
          16      Q.   Did you delete e-mails from your trash                     16   records are. Do you believe that there were any
          17   box?                                                                     17   communications that you deleted that were Indian
          18      A.   Yes, I thought that was part of the                           18   Trust records?
          19   cleaning process. I transferred them to the trash                    19      A.   No.
          20   box and I didn't delete them, but there was a                        20      Q.   Even though they related to --
          21   little circle figure there and I would hit that                         21       A.   Well, let me readdress that issue. The
          22   because if I didn't, they stayed there.                                 22   IIM account daily reports clearly had information
          23      Q.   Why did you do that, why did you delete                   23   about Indian Trust records. I deleted those, we
          24   them from the trash box?                                             24   recovered them.
          25      A.   Because I was through with them and [                     25      Q.   But you testified that you deleted


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                                                                               Washington, D.C.

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             1   other Cobell related material, is that not                              I   and others. Do you see this document?
             2   correct?                                                                  2      A.   Yes.
             3           MR. RAUH: Objection, it's not correct.                     3       Q.   And I believe the document is three
             4           MR. BALARAN: That's fine.                                 4   pages long. Can you take a look at that?
             5           BY MR. BALARAN:                                          5       A.   (Perusing.) All right.
             6      Q.   Testify now. Have you deleted anything                   6      Q.   On the second page there is a cc. list.
             7   besides the OIRM monthly reports that would be                   7   Would you take a look at that, and would you
             8   part of the three functional areas?                                     8   notice that second from the bottom is the
             9      A.   Not to my knowledge.                                         9   Assistant Secretary for Indian Affairs?
            10      Q.   Okay.                                                          10      A.   Yes.
            11           (McCaleb Exhibit 7 marked for                              11       Q.   And since the date is August 3rd, 2001,
            12          identification.)                                                 12   at that point in time you were the Assistant
            13          BY MR. BALARAN:                                         13   Secretary for Indian Affairs, correct?
            14      Q.   I'm handing you a series of documents                     14      A.   I had been for 29 days.
            15  that were given to me in response to my request                   15      Q.   Does that have -- well, you're saying
            16  for Interior's policies on retaining, printing and                     16   that for what relevance, what purpose?
            17   filing Cobell related e-mail messages, and they                    17      A.   That's just a fact.
            18   are Bates stamped SMREQ0024950 and it goes through          18      Q.   Okay. So you were now the Assistant
            19   SMREQ0024997.                                                      19   Secretary for Indian Affairs for 29 days. Does
           20      A.   I'm not -- whereabouts is that?                              20   that in any way vitiate or minimize your
           2 l      Q.   It's on the bottom right-hand.                                21   responsibility to read directives as they come
           22      A.   Oh, okay.                                                      22   out?
           23      Q.   You see 24950?                                              23      A.   No, it does not. I want to imply that
           24      A.   Yes.                                                           24   there were mountains of policies and information
           25      Q.   And the last page is 24997?                                 25   that I had not reviewed and that I was becoming

                                                                               Page 91                                                                        Page 93
             1       A.   Yes.                                                             1   acquainted with in a very short period of time.
            2           MR. RAUH: Mr. Balaran, just so I                           2       Q.   Can you think of anything among your
            3   understand, you're saying these documents were                    3   trust responsibilities that are more important
            4   given to you in separate documents that are now                    4   than retaining documents relating to the Trust?
            5   combined into a single exhibit.                                        5   And when I'm talking about the Trust I'm not
            6           MR. BALARAN: That is correct. My                       6   talking law enforcement, I'm not talking
            7   request was for all the policies -- let me just                         7   education, I'm talking about fiduciary
            8   explain it for the record. I requested all the                          8   responsibilities of the United States Government
            9   policies regarding e-mail, CobelI related e-mail                     9   vis-a-vis ti_e IIM beneficiaries.
           10   saving, retention, printing and filing, and this                       10           MR. RAUH: Objection.
           11   is what was given to me.                                              11           MR. BALARAN: Fine, noted. Please
           12          BY MR. BALARAN:                                         12   answer.
           13      Q.   Did you review these documents before                    13           THE WITNESS: Yes, I can think of some.
           14  they were transmitted to me in response to my                      14           BY MR. BALARAN:
           15   request?                                                                15      Q.   Please tell me.
           16      A.   No.                                                             16      A.   The maintenance of the honesty and
           17      Q.   Okay. I want to turn your attention,                        17   integrity of the system and the people who operate
           18   if I may, to the document with the Bates stamp                     18   the system.
           19   SMREQ0024959.                                                      19      Q.   Give me an example of the maintenance
           20      A.   I think I have that document.                                20   and integrity of the system.
           21      Q.   And that's a document on tile letterhead                    21       A.   Well, if I detemfine that there is
           22   of the United States Department of the Interior                     22   somebody that is misappropriating I IM account
           23   Office of the Secretary, dated August 3rd, 2001,                   23   funds, I think that's more important than the
           24   and it's a memorandum from Daryt White, the Chief              24   record, because that's what we're trying to
           25   Information Officer, to Acting Associate Solicitor                 25   protect with the record is the funds.


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             I       Q.   1 see, okay. Do you recall reading                           1       Q.   Did you do so intentionally?
            2   this--                                                                    2      A.   Yes.
            3       A.   No, I don't.                                                     3      Q.   Did you do so knowingly?
            4      Q.   Let me just finish. Do you recall                            4      A.   Yes.
            5   reading this memorandum that is dated August 3rd,                 5      Q.   So when you said that you did not
            6   20017                                                                    6   destroy them, was that based on the assumption
            7      A.   No, I don't.                                                     7   that somebody else was saving them?
            8      Q.   Okay. I would like to turn your                              8      A.   That's right, and that they were
            9   attention back again to the Declaration of                           9   recoverable. Destroy implies that they're gone.
           l0  Assistant Secretary Neal McCaleb that is                           l0      Q.   What's the Department policy for
           11   Exhibit 5. Okay?                                                      11   recovering and capturing e-mails, do you know?
           12          MR. RAUH: I'm just trying to                               12      A.   I don't have any specific knowledge of
           13   concentrate on this last exhibit you've shown him.                 13   that.
           14   If I understand it correctly, it is a memorandum                    14      Q.   Well, tell me what it is generally.
           15   to a series of chief information officers with                        15      A.   I was under the impression, I was told
           16   copies to a series of people shown on page 60, and                16   that we were making backup tapes of all the
           17  then an attachment to that. Is that correct?                         17   e-mails. I was also told by my assistant that she
           18          MR. BALARAN: That's correct.                            18   was making files.
           19          MR. RAUH: That's the three pages'?                        19      Q.   Let's go through the policy of backups.
           20          MR. BALARAN: That's correct.                            20   I have to focus your attention on the question
           21           MR. RAUH: So in this case Mr. McCaleb                 21   asked. What is the policy, can you state it in
           22   was a copy?                                                            22   either form or in substance, what is the
           23          MR. BALARAN: I don't believe I implied                 23   Department of the Interior's policy concerning the
           24   anything other, and again, I acknowledged that you                24   capture and backup of e-mails?
           25   were in office for 29 days at the time.                               25      A.   That backup tapes are made for all


                                                                               Page 95                                                                        Page 97
            I           BY MR. BALARAN:                                           I   e-mails.
            2      Q.   Going back to your declaration, I would                    2      Q.   And how often does this happen?
            3   like to go through this with you ifI may.                             3      A.   I have become aware recently that they
            4      A.   That's fine.                                                     4   are backed up weekly.
            5      Q.   And just so I'm absolutely clear, did                         5      Q.   Were you aware of that at the time that
            6   you review this with the Office of the Solicitor                      6   you were deleting these e-mails?
            7   before this was tendered?                                              7      A.   Not specifically that they were backed
            8      A.   No, I did not.                                                   8   up weekly.
            9      Q.   Did they know that you were preparing a                   9      Q.   Then how could you assume -- you
           10   declaration?                                                            l0   testified earlier that you assumed that they were
           11      A.  No, or at least I didn't tell them that                         11   backed up.
           12   I was.                                                                   12      A.   Because I would leave them on there for
           13      Q.   After this declaration was submitted to                     13   a couple of weeks.
           14   me, did anybody from the Office of the Solicitor,                  14      Q.   But again, if you didn't know what the
           15   Department of Justice contact you conceming this                 15   policy for the backing up was, how can you
           16   declaration?                                                            16   possibly make such an assumption?
           17      A.  No.                                                             17      A.   I did make that assumption.
           l 8      Q.   It says, I Neal A. McCaleb, this 19th                        18      Q.   Was it based on something you read?
           19   day of November, 2002, hereby declare under                      19      A.   I don't know.
           20   penalty of perjury as follows: I am the Assistant                   20      Q.   Let's go into what you believe Miss
           21   Secreta_3' of the Department of the Interior for                     21   Maybee was to do. What was your understanding of
           22   Indian Affairs. 1 did not knowingly or'                              22   what Miss Maybee was to do vis-a-vis your e-mails?
           23   intentionally destroy any e-mails. Did you delete                  23      A.   That she was making files and taking
           24   the e-mails?                                                            24   the e-mails that related to Cobell and putting
           25      A.   Yes.                                                            25   those into a file folder and saving them, and in


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                 l   fact she was.                                                             l   Let's do it this way. Did she say it when you
             2      Q.   Okay. And to your knowledge, was she                    2   first came on in July?
             3   filing and saving e-mails that you had deleted?                      3       A.   No, I would say that I became aware
             4      A.   She was filing and saving them before                      4   that she was doing that in the fall.
             5   they were deleted.                                                      5      Q.   Fall of what year?
             6      Q.   So an e-mail would come in, she would                     6      A.   Fall of 2001.
             7   file and save it and then you would delete it,                         7      Q.   And what circumstance in the fall of
             8   correct?                                                                  8   2001 came about that you would have had this
             9      A.   An e-mail would come in, I left them                       9   discussion?
            t 0  all on there for a couple of weeks to give her                       10      A.   Because we were disconnected from the
            11   adequate time to file them in separate folders.                      11   lntemet and before I had taken my computer laptop
            12      Q.   And then you would delete them?                          12   with me so I could pick up the e-mails, and now I
            13      A.   Ultimately I began to delete them after                     13   couldn't do that anymore. And she in the
            14   I got the message that the capacity of the memory                 14   conversation advised that she was filing those
            15   was being reached.                                                    15   e-mails.
            t 6      Q.   Did you instruct Miss Maybee to file                       16      Q.   Now, explain to me why explaining that
            17   and save your e-mails?                                                17   she was filing would be commensurate with
            18      A.   No, I did not.                                                  18   explaining that she was saving. Isn't it tree,
            19      Q.   Did you instruct her to archive your                        19   sir, that she simply said that she was going to
           20  e-mails?                                                                20   create files for you, different folders that you
           21      A.   No, I did not.                                                  21   could put your e-mails in?
           22      Q.   Did you instruct her to preserve your                       22           MR. RAUH: Objection. Is there a basis
           23   e-mails?                                                                23   for that question?
           24      A.   No, I did not.                                                  24           MR. BALARAN: Well I'mjust asking.
           25      Q.   Well, you stated earlier that your                           25           BY MR. BALARAN:


                                                                               Page 99                                                                                            Page l01
                1   instructions in another context were on Post-Its,                     1       Q.   Did she tell you that?
            2   et cetera, that you gave instructions, but here                        2      A.   I don't recall that. My recollection
            3   something in preserving documents, at least the                     3   is that there was a method of saving the e-mail.
            4   OIRM morning reports, you gave no such written                   4      Q.   Did there come a point in time that
            5   instructions?                                                            5   Miss Maybee created folders for your e-mails?
            6      A.   Because I was advised that she was.                         6      A.   That's what my understanding was.
            7      Q.   Who advised you?                                             7       Q.   And where did you come by that
            8      A.   Shedid.                                                         8   understanding?
            9      Q.   Tell me the conversation in which she                       9      A.   From her.
           10  advised you of that.                                                    10      Q.   And was this during the same
           11      A.   I don't have a specific recollection of                       11   conversation?
           12   the conversation when she advised me of that.                      12      A.   I think. I don't have a specific
           13      Q.   At what point in time did she --                             13   recollection.
           14      A.   Nor did I have a recollection of how                        14      Q.   And I appreciate that. Is this what
           15   her filing systems operated, but I assume that                       15   you meant by Miss Maybee is filing your e-mails?
           16   she's filing all the documents that I send to her                     16      A.   Yes.
           17   to file.                                                                   17      Q.   Do you have any distinct recollection
           18      Q.   But you're testifying based on an                            18   of Miss Maybee saying, I will save your e-mails?
           19   assumption and you're stating that you assumed                    19      A.   No, but in fact she was.
          20   that she was performing an act, and I'm simply                     20      Q.   How do you know that?
          21   asking you, what's the basis for your assumption?                  2l       A.   She said that that was her-- when we
          22      A.   Because she said that she was.                              22   began to discuss -- 1 was gone for long absences,
          23      Q.   And when did she say this?                                  23   over half my time has been away from the office in
          24      A.   And I can't give you a specific date.                        24   conducting the consultations and task force
          25      Q.   And l'm not asking for a specific date.                      25   hearings with the Indian tribal task force in


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              1   Indian country. So, I would have two weeks of                     1   e-mails?
              2   e-mails or a week of e-mails in accumulation, and                  2      A.   Yes.
              3   she was I think explaining to me how we were going               3       Q.   How many such conversations did you
              4   to manage that.                                                          4   have?
              5      Q.   And this was in the same time frame,                       5      A.   I don't know specifically. She was
              6   correct, this roughly Thanksgiving --                                 6   very concerned about the preservation of e-mails
              7      A.   I started that travel schedule in                               7   and she made a point, talked about her -- before
              8   November.                                                              8   she left in June of 2002-- about the extensive
             9      Q.   The Thanksgiving period of 2001                            9   flies that she had built up as deputy
             10  roughly?                                                                10   commissioner.
             11      A.   Right.                                                          11      Q.   And how many such conversations do you
             12      Q.   Did she state to you she was going to                       12   recall, was it more than one?
            13   archive your e-mails?                                                  13      A.   I think it was probably more than one.
            14      A.   I can't say that she said that specific                        14      Q.   Was would you say it was more than
            15   word, no.                                                               15   five?
            16      Q.   Okay. Number 3. Shortly after I --                         16      A.   I don't know that it was more than
            17   I'm reading from your declaration, the third                         17   five.
            18   paragraph -- shortly after I was sworn in to                         18      Q.   Can you tell me what the general tenor
            19   office on July 4th, 2001, it was my impression                     19   or substance of these conversations was?
            20  that my administrative assistant was saving my                    20      A.   Well, she was talking, she had a lot of
            21   e-mail messages relating to American Indian trust                 21   boxes around her office and she wanted to come
            22   reform, including the high level implementation                   22   back in the office after she had resigned, and she
            23   plan, any of its subprojects, the Cobell v. Norton                  23   needed to have the keys so that she could sort
            24   litigation, and administration of Individual                         24   through her e-mails and her files.
            25   Indian Money accounts hereinafter Cobell-related                 25      Q.   And what was the conversation itself?.

                                                                              Page 103                                                                       Page 105
             1   e-mails. Did your discussion with Miss Maybee                     1       A.   Well, I told you the substance that I
            2   during this November 2001 time frame discuss                      2   can remember.
            3   specifically messages relating to the American                      3       Q.   Well, if you could repeat it, I'm
            4   Indian trust reform?                                                    4   sorry'?
            5      A.   Yes, I think they did, but I don't                              5      A.   That in fact she had felt the need, she
            6   really recall. I think she was trying to save not                      6   had accumulated extensive files of e-mails that
            7   only Cobell-related e-mails, but e-mails she                          7   she needed to catalog, and that space needed to be
            8   thought that I had not dealt with.                                      8   set aside in the office to retain these.
            9      Q.   How did you expect Miss Maybee, who was                9      Q.   Did she convey to you at any point in
           10   a GS-12 staff assistant, to know what a                              10   time the importance of retaining and preserving
           11   trust-related e-mail was?                                              11   e-mails?
           12      A.   Well, she was my administrative                            12      A.   Well, just from the standpoint that she
           13   assistant and I expected that.                                          13   was.
           14      Q.   And did you expect that because of some                  14      Q.   But did she impress upon you, did she
           15   instruction or direction you gave her on how to                     l 5   say specifically in form or some substance that
           16   tell what a Cobell-related e-mail was versus                         16   it's important to retain Cobell-related e-mails?
           17   another one?                                                           17      A.   That was implied in the conversation.
           18      A.   That was my expectation.                                    18   I don't know that she directed it just like that,
           19      Q.   I understand, but did you give her any                       9   but that's why--
          20   direction that would assist her in that regard?                       20      Q.   That's why I said in form or in
          2t      A.   No.                                                             21   substance, something to that effect'?
          22      Q.   Did there come a point in time that you                    22      A.   Uh-huh.
          23   have a conversation with Miss Sharon Blackwell,                  23      Q.   Did she convey that?
          24   the former Assistant Deputy Commissioner,                        24      A.   Yes.
          25   concerning the preservation and retention of                       25      Q.   Are you aware that Miss Blac_vell had a


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              1   habit of burning her e-mails on a CD?                                I   categories that you would know just by the heading
              2      A.   No.                                                              2   constituted the three functional areas, correct?
              3       Q.   Do you have any knowledge that Miss                      3       A.   That's right.
             4   Blackwell at times would come in on weekends with               4      Q.   How about if I sent something that said
             5   her staff in order to categorize and make folders                    5   LLRIS?
             6   for her e-mails?                                                         6      A.   I wouldn't presume that that was on its
             7      A.   She did not share that with me.                              7   face a Cobell-related document.
             8      Q.   Well, did anybody else share that with                      8       Q.   How about just the three -- I was
             9   you?                                                                     9   asking not Cobell as much as the three functional
            l0      A.   No.                                                             l0   areas. Isthat the same answer?
            11       Q.   Was it Miss Maybee'sjob to save your                     11       A.   Yes.
            12   e-mails?                                                                12      Q.   How about if I have something that says
            13      A.   I thought it was, yeah, just as I                              13   IRMS, would you assume that an e-mail with the
            14  thought it was her job to handle the filing. She                    14   heading IRMS would fall within the category of
            15   was my administrative assistant.                                     15   under the three functional areas?
            16      Q.   Even though, you realize her title was                      16      A.   Not necessarily.
            17   staff assistant?                                                         17      Q.   Okay.
            18      A.   I didn't know what her title was, 1                           18           MS. KESSLER: The question was on its
            19   think I said that earlier.                                                19   face.
            20      Q.   Okay.                                                          20           MR. BALARAN: Well, all you see is the
            21      A.   I have always used the title                                  21   subject heading.
            22   administrative assistant.                                               22           MS. KESSLER: There could be more in
           23      Q.   Is there a reason you didn't use her                         23   the e-mail.
           24  name specifically in the declaration?                                24           MR. BALARAN: Well, then let's go
           25          MR. RAUH: Objection.                                      25   through it.


                                                                              Page 107                                                                       Page 109
             1           MR. BALARAN: That's all right, just                        1           BY MR. BALARAN:
            2   you personally. Do you have a reason to not                        2       Q.   When somebody like Jean Maybee sees
            3   answer that? Strike that. That's quite all                             3   your screen, would she see just the subject
            4   right. I don't need an answer to that.                                  4   heading of the e-mail, or would she see the whole
            5           BY IvlR. BALARAN:                                          5   e-mail?
            6      Q.   Do you know of any other administrative                   6      A.   Well, she could open the e-mail.
            7   assistants or staff assistants in the office that                        7      Q.   So could open it, I understand, but
            8   saved the e-mails of their bosses, supervisors,                       8   would it normally just have the heading?
            9   et cetera'?                                                                9      A.   Normallyitjust says who the letter
           10      A.   At the Department of Interior, I have                       10   came from and sometimes it will have a subject,
           11   no specific knowledge.                                                11   but most of the time, or many times it doesn't
           12      Q.   Do you know whether it's policy,                           12   have a subject, you have to open the e-mails.
           13   written or unwritten, for staff assistants or                          13      Q.   Did you instruct Miss Maybee to open
           14   administrative assistants to do so?                                   14   your e-mails?
           15      A.   1 have no knowledge of that.                                 15      A.   I gave her full access to them.
           16      Q.   How do you distinguish between an                        16      Q.   That wasn't what I asked. Did you
           17   e-mail that falls within one of the three                              17   instruct her to do so?
           18   functional areas or one that does not?                                18      A.   Not specifically.
           19      A.   If it says Cobelt on it, I assume it's                          19      Q.   Well, she certainly couldn't open the
          20   Cobell related. If it speaks of the litigation,                        20   ones that were encl_pted?
          21   it will always say Cobell on it. If it's llM                           21       A.   That's correct.
          22   account related such as the daily reports, that's                     22      Q.   Anything besides the OIRM morning
          23   self evident on its face. If it has to do with                         23   reports that were encrypted?
          24   the TMIP, it will say TMIP on it.                                     24      A.   Not to my knowledge. I didn't have any
          25      Q.   And so you had a certain number of                        25   knowledge that they were encrypted.

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             l       Q.   I understand. So if Miss Maybee would                    l   Budget, to the Office of the Secretary, and you're
             2   open up an e-mail just to satisfy the question, if                     2   the second in the line, the Assistant
             3   Miss Maybee would open up an e-mail and see on the             3   Secretary-Indian Affairs, correct?
             4   heading that it said LLRIS or IRMS, is it your                      4      A.   Yes.
             5   testimony that it may or may not be something that                 5       Q.   So you're not just copied on this, this
             6   falls within the three functional areas?                               6   is directed to you second in line, correct?
             7      A.   That's correct.                                                  7      A.   That's correct.
             8      Q.   Okay.                                                           8      Q.   And this is November 28, 2001, correct?
             9           Number 4. Even though I thought my                        9      A.   Yes, sir.
            10  Cobell-related e-mails were being electronically                   10      Q.   At this point you have been in office
            11   saved, it was initially my practice to leave all                       11   for several months?
            12   Cobell-related e-mails on my computer                             12      A.   Four.
            13   indefinitely. In the late spring or early summer                    13      Q.   Well, if you came in July 4th, I would
            14  of 2002 1 began receiving automatic messages on my              14   argue that it's even more than four months.
            15   computer stating that I had exceeded the maximum                15      A.   Well, five, not five complete months,
            16   memory threshold allowable, and that I might not                  16  but nearly five.
            17   be able to send or receive e-mails if I did not                       17      Q.   And the subject matter of this,
            18   delete e-mails. That was the first time you had                     18   document retention related to trust management and
            19   received such a message?                                             19   Individual Indian Money accounts. Why don't you
           20      A.   Yes.                                                           20   look through this memo and its attachments, which
           21      Q.   How many such messages did you receive?               21   are only two pages, I believe, and tell me if I
           22      A.   They began to pop up with some                           22   you recall ever seeing this document.
           23   frequency. It didn't say I had exceeded it, it                        23      A.   I don't recall having seen the document
           24   said I was approaching the threshold of my memory               24   itself. I was aware generally of its content.
           25   allocation.                                                              25      Q.   Then let's mm to the second page of


                                                                              Page 111                                                                       Page 113
             I       Q.   Okay. As a result of these messages, I                       1   that, if we may. The top of the page says
            2   began immediately deleting all e-mail messages                     2   reminder instructions to employees about retention
            3   that were not Cobell related.                                           3   of e-mail messages. Under printing and filing, do
            4      A.   That's correct.                                                  4   you see that?
            5       Q.   I want to turn your attention again if                        5      A.   Yes.
            6   I may to Exhibit 7, which were the policies on                       6      Q.   It says, you must print to paper and
            7   retaining, printing and filing Cobell related                          7   file all e-mail messages that you send or receive
            8   e-mail messages. I'm sorry, it's the big thick                         8   that relate to the three functional areas, Do you
            9   one. I'm not referring to anything specific, I'm                      9   see that?                                            '_
           10  just going to the bottom of the documents                           10      A.   Yes.
           11   themselves. I want to refer you to this document                   11       Q.   Were you generally aware of that
           12   again, and this was appended to the November 8th,                12   policy?
           13   2002 letter from Miss McCarthy to Mr. Miller at                   13      A.   I really didn't think that we had to
           14   the Department of Justice that was in response to                   14   print them.
           15   my requests.                                                            15      Q.   As you look at them now --
           16          And let's take a moment if we can, if                        16      A.   And the reason 1 say that, this arrived
           17   you mm the page, it says Interior's policies in                       17   while t was out of town, I'm specifically aware of
           18   retaining, printing and filing Cobell-related                         18   that, because on November 28th I was at the
           19   e-mail messages. The first such memo, which is                   19   National Congress for American Indians meeting in
           20   Bates stamped on the bottom right-hand comer                    20   Spokane, Washington. I had injured my leg, I had
           21   SMREQ0024952, do you see that'?                                  21   to leave the convention, 1 went home to be treated
           22      A.   Yes.                                                            22   by my doctor. 1 was gone for most of the
           23      Q.   Is a memorandum from William G. Myers                 23   following week and when I came back, I had been
          24   III, the Solicitor, and P. Lynn Scarlett, the                          24   gone for almost two weeks, and there obviously was
          25   Assistant Secretary for Policy, Management and                   25   a large accumulation of mail, and I will admit to


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              1   you that I didn't read every piece of mail that                        1   but I didn't know about the specific memo.
              2   was there.                                                               2      Q.   Well, let's talk about the content
              3       Q.   Well, if I could turn your attention to                        3   then. Assuming that you didn't read this memo
              4   the letter dated November 8th, 2002, would you                    4   because you were out of town as you state, it says
              5   take a look at that please, Number 4. Take a look                  5   you must print to paper and file all e-mail
              6   on page 3, if you would. And I will direct you to                   6   messages that you send or receive if they relate
              7   footnote 3; do you see that?                                            7   to the three functional areas. Were you aware of
              8      A.   Yes.                                                             8   that, whether it came from this directive or
             9      Q.   And it says, Mr. McCaleb's travel                           9   others?
             10  records show he was out of the office from                         10      A.   I was aware that I needed to save the
            11   November 12, 2001, and then it goes up until                       11   memos.
            12   September 23, 2002. Is that correct?                                12      Q.   So you were not aware of the
            13      A.   December.                                                    13   requirement to print to paper and file all e-mail
            14      Q.   September 23, 2002, at the end, I'm                        14   messages that you sent or received?
            15   going through the whole length of time. There's                   15      A.   No.
            16   various increments therein.                                           16      Q.   Okay. Then I will ask you to go down
            17      A.   The first area substantiates what I                          17   to the first bullet, and we're back to that same
            18   said, that I was out of the office from November                   18   page which is SMREQ0024953, and it says above the
            19   12th, 2001 until December 2nd, 2001.                               19   bullet, you must keep in mind a few additional
            20      Q.   Okay. Now, did you supply your                           20   points about preserving e-mail messages. Both
            21   calendar to Miss McCarthy or anyone else that                    21   senders and recipients of an e-mail message are
            22   would have assisted them in writing this footnote?                 22   equally obligated to print and file it. Were you
            23      A.   Well, I didn't personally supply it.                          23   aware that senders also had an obligation to print
            24      Q.   Do you know who did?                                      24   and file e-mail messages?
            25      A.   I don't have specific knowledge.                            25      A.   I was aware that senders had an

                                                                              Page 115                                                                       Page 117
             1       Q.   Did you review this before it went out                       I   obligation to save their e-mail messages.
            2   to verify its accuracy?                                                  2      Q.   My question again is a little bit
            3       A.   I glanced at it, the dates looked                               3   different. Are you aware that senders had an
            4   reasonable to me, just like I identified that one                      4   equal obligation to print e-mail messages?
            5   there, and my calendar as we've indicated before                    5      A.   I'm going to try to respond to this the
            6   was immediately available to Mrs. Maybee, since                   6   best way that I can and accurately tell you what I
            7   she kept the calendar, she managed the calendar.                    7   believe.
            8       Q.   Do you believe that simply being out of                     8      Q.   What period of time are we talking
            9   the office on travel scmehow diminishes the          -              9   about?
           10   responsibility--                                                        10      A.   Up untilOctober 10th of 2002.
           11      A.   No, sir, l--                                                    11      Q.   Okay.
           12      Q.   You have to let me finish the question.                     12      A.   That we had to have the ability to
           13   Do you believe that being out of the office on                      13   print from a recorded source. I didn't think
           14   travel diminishes your responsibility to read the                    14   there was a responsibility to print each e-mail
            5   memoranda that are directly addressed to you?                      15   each day.
           16          MR. RAUH: Objection. It's                                  16      Q.   And what are you basing your assumption
           17   argumentative and may call for a legal conclusion.                 17   on?
           18           BY MR. BALARAN:                                          18      A.   The limitations at the time on the
           19      Q.   You can answer to the best of your                         19   assistant secretary.
          20   ability, please.                                                          20      Q.   Did somebody tell you that due to the
          21       A.   I don't think it relieved me from tile                        21   thct that there were limitations of your time as
          22   responsibility of knowing what was in them, but                   22   assistant secretary, you were relieved of the
          23   there was a real limitation in terms of time of                      23   obligation of-- and I understand this is, I'm not
          24   what I could do and what I couldn't do.  I                           24   asking for a legal conclusion, just based on your
          25   admitted that I knew about what the content was                   25   understanding as assistant secretary.

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                  1           MR. RAUH: Plus argumentative.                             1   after they are captured by the systems
             2           MR. BALARAN: Okay.                                      2   administrator on an e-mail backup that is
             3           BY MR. BALARAN:                                          3   designated for indefinite retention. This means
             4      Q.   Did somebody at any point in time                          4   that even after you have printed and filed e-mail
             5   inform you that based on your schedule, your busy                 5   messages related to the three functional areas,
             6   schedule as an assistant secretary, you were                         6   you must not delete them until they are backed up.
             7   relieved of the responsibility of printing sent                        7           To insure your compliance with this
             8   e-mail messages?                                                       8   policy, please follow this procedure: Be sure
             9      A.   Nobody ever specifically advised me of                    9   that your computer is set to save your outgoing
            10  that.                                                                     10   messages in your sent box. If you are not sure
            11      Q.   Did they advise you generally?                              11   whether your computer is set to save your sent
            12      A.   I have no recollection.                                        12   messages, please consult your e-mail
            13      Q.   Did you ever see anything in writing to                    13   administrator.
            14   that effect?                                                             14           Were you aware or did there come a
            15      A.   I have no memory of having ever seen                     15   point in time that you became aware of the
            16   anything in writing.                                                    16   requirement to set your computer tear to save your
            17      Q.   Okay. How many assistant secretaries                     17   outgoing messages to your sent box?
            18   are there for the Department of the Interior?                        18      A.   Well, it was saving them.
            19      A.   There are five.                                                19      Q.   Oh, it was?
           20      Q.   Do you have meetings with the assistant                   20      A.   Yes.
           21   secretaries?                                                            21      Q.   So this was something that you just did
           22      A.   Yes.                                                            22   without having to get the specific instruction?
           23      Q.   I mean, are there like assistant                              23      A.   That's right, it was saving.
           24   secretary conventions?                                                24      Q.   But was it saved by default or was it
           25      A.   There's a weekly meeting of the                            25   saved because you purposely were following the

                                                                              Page 119                                                                                            Page 121
                 1   assistant secretaries with the Secretary of the                         1   instruction, something like this that you
            2   Interior and her key staff.                                              2   understood?
            3      Q.   Did the topic of retention, filing and                         3       A.   I wanted to save them because I would
            4   preservation of e-mails ever come up during any of                 4   use them for reference, a lot of my sent e-mails
            5   these meetings that you have referred to?                             5   are instructions to subordinates and I would use
            6      A.   I have no specific recollection that                           6   them to follow up on.
            7   they did. There was a meeting that I was absent                     7      Q.   After printing, leave your e-mail
            8   from subsequent to the revelation of this event on                   8   messages on the computer without deleting them
            9   October 10th, that that was specifically brought                     9   until, they are captured by a backup. Did you do
           10  up.                                                                       10   so?
           11      Q.   How do you know it was brought up?                      11      A.   I thought I was doing so, yes, sir.
           12      A.   Because I got copies of information                        12      Q.   Did you ever get verification that in
           13   from the meeting.                                                      13   fact your e-mails were captured by a backup?
           14      Q.   And what was the information from the                    14      A.   No.
           15   meeting?                                                                15      Q.   How did you think you were doing so?
           16      A.   It went into great detail on the need                         16      A.   Because we were told that e-mails were
           17   to print and save Cobell-related e-mail.                              17   all being backed up.
           18      Q.   In keeping with the memorandum that I                    18      Q.   Who told you?
           19   have just shown you?                                                  19      A.   I don't have the specific recollection
          20      A.   Yes.                                                            20   of that.
          21      Q.   Okay. Let's go to the next page, if we                      21       Q.   Do you have a general recollection or a
          22   may, SMREQ0024054. Under the topic, insuring                 22   vague recollection'?
          23   captured e-mail messages on backup media, it says,                23      A.   I think that information came from
          24   e-mail messages related to the three functional                     24   Mr. Kayson.
          25   areas can be deleted from user mailboxes only                     25      Q.   And at what point in time did


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                                                                                Washington, D.C.

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              1   Mr. Kayson give that instruction?                                     1   Have you ever seen this correspondence before?
              2      A.   I can't give you a date.                                        2   And this states that, there is a to and cc. line
              3       Q.   Was that after it was discovered that                        3   that are blank, this is just as it was given to
             4   e-mails during that ten-month period had been                      4   me. Subject, all DOI employees reminder to save
              5   deleted?                                                                 5   e-mail messages in hard copy. Note to
             6      A.   No, it was well before that.                                   6   supervisors, please insure that employees without
             7      Q.   Do you recall the context in which he                       7   access to e-mail receive a paper copy of this
             8   said that?                                                                8   message. Have you seen this before?
             9      A.   In the discussion of records retention                        9      A.   I don't have a recollection of having
            10  on the Cobell lawsuit.                                                 10   seen it before.
            11      Q.   And in the discussion of records                            11       Q.   Are you aware that this also says in
            12   retention in the Cobell lawsuit the topic of                          12   the second full paragraph, this is a reminder that
            13   e-mails came up?                                                      13   all department personnel are required to print and
            14      A.   Yes.                                                            14   properly file a paper copy of all e-mail,
            15      Q.   Okay. Do you recall what else was said                   15   including transmission data in the message and
            16   during this meeting?                                                   16   attachments, whether sent or received, which
            17      A.   No, I can't recall the meeting so I                           17   discuss any of the four topics described above.
            18   can't recall specifics of it, and I tried to say                         18   Are you aware that that was the requirement,
            19  that, that's my impression. I can't tell you this                      19   again, stated in this?
            20  came from Mr. Kayson.                                               20      A.   I wasn't aware of the memo.
            21      Q.   All right. It says leave your e-mail                         21       Q.   Okay. It states here, these procedures
            22   messages in your in or sent box. Do not delete                    22   apply to all e-mail regardless of whether the
            23   e-mail messages from your in or sent box until                     23   substance of a particular message is contained in
            24   after you receive an e-mail message from your                     24   subsequent messages. Were you aware of that
            25   systems administrator that your e-mail messages                   25   requirement, that not only did you have to save or

                                                                              Page 123                                                                       Page 125
             1   have been backed up for indefinite retention.                         1   print, but you also had to do it even if the same
            2   Were you aware that that was a requirement?                        2   message was contained in another?
            3       A.   I had never received a communication                       3       A.   No, I was not aware of that.
            4   from my e-mail administrator, as evidenced by the                  4      Q.   It goes on to say, please note that
            5   fact that I didn't know that we had one or who it                    5   these procedures are broader than the normal roles
            6   was.                                                                      6   that apply under the Federal Records Act and
            7      Q.   Were you aware that there was a                             7   includes messages received for informational
            8   requirement to do so?                                                  8   purposes only, arranging meetings and other
            9           MR. IL\UH: What was required'?                            9   non-records. Do you know what the Federal Records
           10          MR. BALARAN: l'm sorry.                                  10   Act is, and rm not asking for a legal
           11           BY MR. BALARAN:                                          11   interpretation, I just wonder if you know what it
           12      Q.   This last sentence that I read, were                          12   is?
           13   you aware that there was a requirement not to                      13      A.   I'm not familiar with the Federal
           14   deplete e-mail messages from your in or sent box                  14   Records Act.
           15   until you received an e-mail message from the                      15      Q.   Do you know what a federal records is,
           16   systems administrator9                                                16   have you ever heard that as a term of art'?
            7      A.   No, I was not aware that we had to                          17      A.   In our discussions relative to the
            8   receive a communication from the administrator.                   18   Indian Trust records and just generalizations, I
            9      Q   The next page is a memorandum from                      19   have heard it.
           20   Daryl White dated November 28th, 2001. Again,                  20      Q.   Whose discussions when you say ours?
           21   this is the same date and you were out of town, I                   21       A.   Special trustee, myself, Mr. Rossman,
          22   believe you had stated earlier, correct?                              22   Art Gary, of the Bureau of Indian Affairs, Sharon
          23      A.   Yes.                                                            23   Blackwell.
          24      Q.   And I believe we touched on this.                           24      Q.   Are these related to the conversations
          25   Let's go two pages after this to SMREQ0024962.                  25   you were speaking about earlier when you had the


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                                                                               Washington, D.C.

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             1   divergent views as to what constituted Indian                        1   'O1, yes.
             2   Trust records?                                                          2      Q.   And did you ask anybody if they were
             3       A.   Exactly.                                                        3   being preserved?
             4      Q.   But as far as what a federal records                         4      A.   No. On a periodic basis?
             5   is, you're not exactly aware?                                           5      Q.   Let's say on any basis, that they were
             6      A.   No.                                                              6   electronically preserved. That's your language.
             7      Q.   How about generally?                                         7      A.   Well, I was told that they were being
             8      A.   No, I'm not going to pretend that I                           8   electronically preserved.
             9   have knowledge that I don't have.                                     9      Q.   In those words?
            10      Q.   Okay. The next page, SMREQ0024963 --                 10      A.   Maybe not in those precise words, but
            11   well, actually I'm going to strike that.                                11   they were creating files and putting the e-mails
            12   September 15th, 1999, I assume you had better                    12   in those files.
            13   things to do. So, okay, let's go back to your                         13      Q.   Is that what you talked about before,
            14  declaration.                                                             14   the creating of the folders?
            15          (Off the record discussion.)                                   15      A.   Yes.
            16          (Recess.)                                                        16      Q.   On October 10, 2002, in preparation for
            17          BY MR. BALARAN:                                         17   a scheduled deposition anticipating questions
            18      Q.   Let's go back on. Let's go to                                18   regarding e-mail issues, I spoke with my
            19  Number 5. As a result of these messages, I began                 19   administrative assistant to confirm that my e-mail
           20  immediately deleting all e-mail messages that were               20   messages had been saved as required. Let's
           21   not Cobell related. As an extra precaution, I                       21   discuss that for a moment. Did there come a point
           22   continued to save Cobell-related e-mails for at                     22   in time that you were noted for a deposition?
           23   least a couple of weeks with the intent of                           23      A.   Yes, in relationship to the Mona
           24   allowing enough time to pass for the e-mails to be                 24   Enfield issue.
           25   captured by the Department of the Interior's                        25      Q.   I'm going to show you a court order and


                                                                              Page 127                                                                      Page 129
             1   e-mail backup tape s. Is that a true statement?                        1   notice of deposition, and we can label them 8 and
             2       A.   Yes.                                                             2   9.
            3      Q.   Isn't it in fact also true that you                               3           (McCaleb Exhibits 8 and 9 marked for
            4   also deleted Cobell-related e-mail messages?                        4           identification.)
            5      A.   After they had been on the computer for                    5           BY MR. BALARAN:
            6   a couple of weeks.                                                      6      Q.   I have placed before you two exhibits.
            7      Q.   Do you have any independent knowledge                   7   Exhibit 8, which is a one-page order filed on
            8   of whether those Cobell-related e-mail messages                    8.  September 30, 2002, from Roy C. Lamberth, United
            9   were in fact backed up?                                                9   States District Court for the District of Columbia
           10      A.   I'm told that they were recoverable,                         10   that states, this matter comes before the Court on
           l 1   yes.                                                                      I 1   defendant's motion for protective order precluding
           12      Q.   Were all of them recoverable?                               12   discovery claims relating to claims of retaliation
           13      A.   That's what I'm told.                                          13   by Mona Enfield and immediate stay of depositions
           14      Q.   By whom?                                                     14   filed on February 12, 2001. Because an order to
           15      A.   By Mr. Kayson and his visits with the                      15   show cause has been issued regarding this matter,
           16   contractors.                                                             16   discovery is now appropriate. Accordingly, it is
           17      Q.   Well, do you have the knowledge to be                     17   hereby ordered that defendant's motion shall be,
           18   able to explain to me how if something was deleted                18   and hereby, is denied. So ordered. Have you ever
           19   and is not on a backup tape you would know that it                19   seen this order'?
           20  even existed in the first instance'?                                    20      A.   No.
           21      A.   No.                                                             21       Q.   Were you aware that there came a point
           22      Q.   Okay. Prior to October 10, 2002, I was                    22   in time that the judge allowed tbr the discovery
           23   never informed that my e-mail messages were not                 23   in tile Mona Enfield matter'?
           24   being electronically preserved. Did you ask'?                       24      A.   No.
           25      A.   Well, we discussed it in the fall of                          25           MR. RAUH: Wait. The word discovering

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                                                                               Washington, D.C.

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             1   is confusing him. He knew that there was a                         1       Q.   Did you have any idea what you were to
             2   deposition of him to be taken, and I think it's                        2   testify about?
             3   the word discovery that's confusing.                                  3       A.   Well, it was a puzzle to me, because I
             4           BY MR. BALARAN:                                          4   really didn't know anything about it other than
             5      Q.   Do you know what discovery means?                       5   just what I've outlined fight here, and I couldn't
             6      A.   Not in a legal sense.                                           6   really see how anything I had to say would be
             7      Q.   What's your understanding of discovery?                   7   salient to that whole issue. I had no knowledge
             8      A.   Finding something out that you didn't                       8   firsthand of it.
             9   know about.                                                             9      Q.   But you knew it had something to do
            10      Q.   You've got it right, good enough for                        10   with OIRM, correct?
            11   me. Where did you go to law school?                               11      A.   Right.
            12          There came a point in time you became                     12      Q.   And you knew it had something to do
            13   aware that you were going to be deposed in the                    13   with retaliation of some sort?
            14  matter regarding Mona Enfield?                                     14      A.   Yes.
            15      A.   Yes, that's correct.                                            15      Q.   And you knew that Miss Enfield was on
            16      Q.   Tell me to the best of your knowledge                      16   paid leave?
            17   what the Mona Enfield matter was all about.                        17      A.   Yes.
            18          MR. RAUH: Objection. He just wants to                  18      Q.   And those are the facts that you knew
            19   know what you know about Mona Enfield in general.              19   about this case?
           20          THE WITNESS: Oh, I apologize.                           20      A.   Sharon Blackwell had shared that with
           21           BYMR. BALARAN:                                         21   me.
           22      Q.   That's all right. I just wanted to ask                        22      Q.   And no other facts that you can recall
           23   you, you've heard of Mona Enfield, correct?                        23   at the moment?
           24      A.   Yes, I have.                                                   24      A.   No.
           25      Q.   Are you aware that Mona Enfield at one                   25      Q.   Okay. Let's go back to your

                                                                              Page 131                                                                       Page 133
             1   point in time asserted a claim or an argument that                   1   declaration.
            2   she was retaliated against?                                             2           MR. RAUH: What about Exhibit 9, are we
             3      A.   Yes, I was told that by third parties.                         3   going to ignore that?
            4      Q.   Can you tell me in your own words what                    4           MR. BALARAN: Yes, just for the moment.
             5   you know had occurred or what she was alleging?                  5   Oh, actually, thank you, Mr. Rauh.
            6      A.   Just really what you said, that Mona                         6           BY MR. BALARAN:
             7   Enfield was an employee of the Bureau of Indian                   7       Q.   You did receive this notice of
            8   Affairs, that she had been asked to move from                       8   deposition that was Exhibit 9?
            9   Albuquerque to work in Reston, that she didn't                      9      A.   Yes.
            10   want to, I'm not sure whether she moved or not,                    10      Q.   You were prepared to testify'?
           11   and that she was retaliated against somehow in                     11       A.   Yes.
           12   relationship to that whole controversy. That all                    12      Q.   Did there come a point in time that you
           13   happened before I came on the scene, I didn't know                13   did so testify?
           14   anything about it, and it wasn't my responsibility                   14      A.   No. I presented myself at the
           l 5   to become actively involved. She was on paid                      15   appointed time and place and they, the
           16   leave, I was aware of that, in Albuquerque.                         16   attomeys --
           17      Q.   Anything else?                                                17      Q.   Who's they?
           18      A.   That's it.                                                       18      A.   I don't know.
           19      Q.   And this move that you're talking                           19      Q.   Oh, okay. You used the word they.
           20   about, what move'?                                                    20      A.   The attorneys for both sides reached a
           21       A.   Well, we had moved the Office of                          21   settlement.
           22   hdbrmation Resource Management-- not we, the                  22      Q.   Okay.
           23   Bureau of Indian Aflhirs did sometime prior to the                 23           MR. RAUH: While Mr. McCaleb, and I
           24   time that I came in, from Albuquerque to Reston,                  24   believe this court reporter was sitting waiting to
           25   Virginia.                                                                25   start the deposition, there was another discussion


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                                                                                Washington, D.C.

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              1   going on somewhere with someone, and we were told              1       Q.   You were in the process of going
             2   later by Mr. Gingold to go home, the matter had                    2   through the sent e-mdb?
             3   been resolved.                                                           3       A.   Right, I was going --
             4           BY MR. BALARAN:                                          4       Q.   Can you show --
             5      Q.   Is that your understanding?                                   5      A.   I was going through the process of
             6      A.   Yes.                                                             6   cleaning up my computer.
             7      Q.   Let me read paragraph 7 again of your                      7      Q.   Can you show me where it says that in
             8   declaration. On October 10, 2002, in preparation                   8   an earlier--
             9   for a scheduled deposition, anticipating questions                   9       A.   It says --
            10  regarding e-mail issues. Why were you                             10      Q.   No, please. Stop for one second. We
            11   anticipating questions regarding e-mail issues?                     11   have to calm down here. When you tell me
            12      A.   I was trying to anticipate all kinds of                       12   something and I ask you a question, please just
            13   questions because I didn't have any facts relative                   13   wait until I finish. You testified a moment ago,
            14   to the matter at hand and I couldn't understand                     14   as it said here in an earlier paragraph, you were
            15   why 1 was being subpoenaed to testify.                              15   going through your sent e-mail messages. Does it
            16      Q.   But the facts you did have, as you just                     16   say that in here?
            17   told me, it had to do with OIRM, they had to do                    17      A.   No, that's incorrect. It says in the
            18   with retaliation, they had to do with Mona Enfield                 18   earlier paragraph that I deleted e-mails in order
            19  on paid leave, why would you anticipate questions                 19   to comply with the threshold memory limitation.
            20  regarding e-mail issues?                                              20      Q.   You stated a moment ago that you were
           21      A.   I guess I was anticipating questions                        21   going to be more accurate about this, that this
           22   about a plethora of issues relative to the Cobell                    22   was accurate but you were going to give me or
           23   case.                                                                    23   clarify. Why don't you do so?
           24      Q.   Okay. Tell me what other issues you                      24      A.   I was in the process of cleaning up the
           25   anticipated questions about.                                          25   computer and deleting some e-mails, and I had had

                                                                              Page 135                                                                       Page 137
             1       A.   The reorganization.                                            1   this, you know, question in my mind about what I
            2      Q.   The reorganization of what?                                  2   was going to be queried about, and I thought that
            3      A.   The Bureau of Indian Affairs within the                     3   well, I'd better assure myself that we had all the
            4   Department of the Interior. The BITAM proposal.                  4   e-mails. And that's when I raised the issue with
            5   Tile consultations. The 'task force activities.                         5   Miss Maybee.
            6      Q.   Did anybody tell you that these were                        6       Q.   And tell me how you raised the issue.
            7   topics that you would be discussing?                                 7      A.   Well, she -- I was at my computer, and
            8           MR. RAUH: Let me object. I think both                    8   I asked her.
            9   the Department of Justice and private counsel want                 9       Q.   Did you call her in the office?
           10  to object to that question at this time.                                I 0      A.   Yeah.
           11           MS. KESSLER: Yes.                                         11       Q.   And what did you ask her'/
           12          MR. BALARAN: Okay, all right.                            12      A.   I said, are all of my e-mails are
           13          THE WITNESS: I apologize, counsel, I'm                  13   backed up?
           14  a very forthcoming person.                                            14      Q.   Just like that?
           15          MR. RAUH: You're also a very quick                       15      A.   Right, and I specifically asked as an
           16  person.                                                                  16   example, do we have all the moming reports.
           17          BY MR. BALARAN:                                          17      Q.   Wily did you pick that as an example?
           18      Q.   Anticipating questions regarding e-mail                    18      A.   Because it was something that came out
           19   issues, I spoke with my administrative assistant                      9   every day.
          20  to confirm that my e-mail messages had been saved                20      Q.   Did you give her ally other examples?
          21   as required. Is that correct'?                                          21       A.   No, l just asked lbr thc morning
          22      A.   A more accurate description, not that                       22   reports.
          23   this is inaccurate, but I was in the process as l                      23      Q.   Did you ask her during this
          24   indicated in the earlier paragraph, of going                          24   conversation whether or not you should have
          25   through the sent e-mails.                                              25   printed the OIRM report before deleting it'?


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                                                                                Washington, D.C.

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                   1       A.  No, I don't remember asking that.                            1           BY MR. BALARAN:
              2      Q.   It's possible you did?                                          2      Q.   Any time. I'm asking, was it October
              3      A.   No, I don't think so.                                           3   10, 2002?
              4      Q.   So you asked her about saving the                           4      A.   No, its was before.
              5   e-mails, correct?                                                        5      Q.   So when before?
              6      A.   Yes.                                                             6      A.   Well, when I received the message that
              7      Q.   And what did she say?                                        7   the threshold, the memory threshold was getting
              8      A.   I don't recall exactly what she said.                          8   full.
              9   She conveyed to me that they weren't saved, that                   9      Q.   And that's when you started deleting
             10  she hadn't been saving them.                                         10   the e-mail messages?
             11       Q.   And this is the first time you posed                         11      A.   The incoming e-mail.
             12   this question to her, correct?                                          12      Q.   Right, that's the late spring and
             13      A.   I think so, yes.                                                13   summer of 2002, correct?
             14      Q.   And you did this because you                               14      A.   Yes.
             15   anticipated in response to a deposition about Miss                 15           MS. KESSLER: That's when he started.
            16   Enfield being queried about this matter?                            16           BY MR. BALARAN:
            17      A.   A convergence of two events. I had the                   17      Q.   That's fine. Did you delete e-mail
            18   deposition coming up, that was the possibility                      18   messages on October 10, 2002?
            19  that ! might be asked questions about the e-mail.                   19           MR. BALARAN: Go ahead. You can
            20   I was in the process of cleaning e-mails off the                    20   testify for him.
            21   computer, and the convergence of those two events               21           MS. KESSLER: No.
            22   caused me to ask the question.                                       22           MR. BALARAN: No, no. You can testify
            23      Q.   Now this doesn't say that, though.                          23   for him, but I'm asking you.
            24  This doesn't mention the other matter. This                        24           BY MR. BALARAN:
            25   doesn't mention the matter that you were cleaning                 25      Q.   Were you deleting e-mail messages on

                                                                              Page 139                                                                                            Page 141
                 1   up your e-mails. Why is that?                                         1   October 10, 2002?
             2       A.   Well, I do mention it in the previous                         2      A.   I think I just said that I was deleting
             3   paragraphs.                                                              3   sent e-mails.
             4      Q.   Please tell me where. Show me what it                     4      Q.   On October 10, 2002?
             5   is you're referring to, that you cleaned up your                       5      A.   Yes.
            6   e-mails?                                                                 6      Q.   And so there was a convergence of
            7      A.   I began immediately deleting all e-mail                     7   issues. There was the fact that you were deleting
            8   messages that were not Cobel! related, and it has                    8   them and the fact that you were about to be
            9   a reference to paragraph 4 where it says --                           9   deposed on an issue related to retaliation for
           I0      Q.   Right, in !ate spring and summer of                        10   Mona Enfield?
           ! 1   2002, sir. This is October 10, 2002. How could                   11       A.   Correct.
           12   there be a convergence at that point in time?                        12      Q.   Okay. Did you ask Miss Maybee for any
           13      A.   I think Ijust said there was the                              13   documents related to BITAM?
           14   convergence.                                                           14      A.   No.
           15      Q.   Please, explain it to me again.                               15      Q.   Did you ask her for documents related
           16      A.   I was going through deleting e-mails on                    16   to any of the other topics that you just specified
           17   sent e-malts, I just started --                                           17   that you thought you might he asked about?
           18          MS. KESSLER: Mr. Balaran, it doesn't                     18      A.   No. I asked for the daily reports
           19   say the late summer of 2002, number four doesn't.                 19   because they came daily and there would be a
           20          MR. BALARAN:  I understand.                              20   number of them, and that would be a test.
           2l           MS. KESSLER: It says as a result of                       21       Q.   A test for what'?
           22   these messages; it doesn't limit tile time.                             22      A.   The recoverability of the e-mails.
          23           BY MR. BALARAN:                                         23      Q.   So you were trying to test the system'?
          24      Q.   Was your number 5 on October 10, 20020?               24      A.   I was trying to assure myseIfthat
          25          MR. RAUH: Or before?                                      25   there were in fact recoverable, all the e-mails


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              1   were recoverable.                                                       1   question to you is, you stated four or five topics
              2      Q.   Did you call the e-maiI administrator?                      2   in addition to the e-mail issue that you felt you
              3      A.   No, I did not.                                                   3   might be queried on. Do you recall that?
              4      Q.   Did you call anybody technical?                             4      A.   Uh-huh.
              5      A.   I didn't know who the e-mail                                 5      Q.   And I'm asking, did you ask anybody for
              6   administrator was.                                                      6   documents related to any of these other topics to
              7      Q.   So, did you make an inquiry to find out                     7   assist you in preparing for the Mona Enfield
              8   who that person was or if such a person existed?                    8   deposition?
              9      A.   No, Ididnot.                                                   9      A.   No.
             10      Q.   So you asked Miss Maybee to do it; is                      I0      Q.   Why not?
             11   that correct?                                                            11      A.   I didn't feel that I had the need to.
             12      A.   Yes.                                                            12      Q.   Just the e-mailissue?
             13      Q.   Now to your knowledge, does Miss Maybee               13      A.   Because that wasn't in my care, control
            14  have that kind of computer expertise?                               14   and custody.
            15      A.   No, I don't think she does, but she's                         15      Q.   But BITAM was?
            16  my --just as my deputy assistant secretary                          16      A.   I was intimately involved and had an
            17   doesn't have specific knowledge of highway                        17   extensive knowledge about BITAM.
            18   activities, I asked her to get information from                      18      Q.   So you didn't need those documents?
            19   the roadway people to refer back to me, so I don't                  19      A.   That's right.
            20  have to talk to everyone of 3,000 people in my                     20      Q.   So the only documents you felt, of all
            21   organization.                                                           21   of the topics you discussed with me, the only
            22      Q.   So, did you tell her to go to the                             22   topic you needed documents on were the e-mail
            23   e-mail administrator or some such person?                         23   issues, correct?
            24      A.   I didn't instruct her who to go to, I                          24      A.   That I needed an assurance that we in
            25  just gave -- I said I'd like to know if I have, I                       25   fact had them.


                                                                              Page 143                                                                       Page 145
             I   wanted -- basically I said it this way, I think my                     1       Q.   Did Sharon Blackwell tell you that the
             2   e-mails are stored, is that right? There was this                     2   retaliation issue had to do with e-mails?
            3   big long silence, and I said let's get the daily                         3      A.   No.
            4   reports.                                                                  4      Q.   Did anybody?
            5      Q.   Let's get the daily reports?                                    5      A.   No.
            6      A.   Right.                                                           6      Q.   Who else did you discuss this with?
            7      Q.   What kind of-- is that when you found                      7           MR. RAUH: Other than counsel.
            8   out they were encrypted?                                               8           BY MR. BALARAN:
            9      A.   I didn't find out they were encrypted                         9      Q.   You can tell me who you discussed it
           10   until I read it a few days ago.                                         10   with. I'm not asking the substance of the
           11      Q.   A few days ago being sometime this                        11   conversations.
           12   month?                                                                  12      A.   Counsel.
           13      A.   Yes.                                                            13      Q.   Personal counsel?
           14      Q.   What other information did you request                    14      A.   And Department of Justice.
           15   for preparation for your deposition, because you                   15      Q.   Solicitm's office?
           16  mentioned about four or five different topics that                  16      A.   They were there, yes.
           17  you anticipated being queried about. What other                   17      Q.   During the course of these discussions
           18   information did you ask for?                                          18   with professional -- not with personal counsel,
           19      A.   That's all I asked her for.                                      9   but during your conversations with either Justice
          20      Q.   Who else did you ask for infomlation,                      20   or Solicitor's office, did you receive any
          21   fi'om who else'?                                                        21   documents?
          22      A.   Oh, 1 sat down and discussed the Mona                    22      A.   I don't know. I don't think so.
          23   Enfield issue with the deputy commissioner, to                     23      Q.   Did you ask for any documents to assist
          24   make sure my recollection was correct.                              24   with your preparation of the Mona Enfield
          25      Q.   Okay. And that's not responsive. My                      25   deposition?
                           ::                                                                                                                                                                                                                                                      :  :


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                                                                              Washington, D.C.

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            1       A.   No. In fact, the discussion centered                         1   in Exhibit 7?
            2   around the fact that I had no personal firsthand                     2           MR. BALARAN: I don't know and I'll
            3   knowledge and there was little reason for me to                     3   tell you why. I'm not sure that it is. In fact,
            4   become educated on something I didn't have any                   4   I'm sure it's not actually.
            5   knowledge of, by third parties.                                        5           BY MR. BALARAN:
            6      Q.   I have five drafts in my possession                          6      Q.   But look at your November 8th, or the
            7   which I'm going to share with you, of the November               7   November 8th, 2002 letter, if you would. Could
            8   8th Sabrina McCarthy letter to Peter Miller.                         8   you refer him to that, to page 3, footnote 3? Do
            9   Would that refresh your recollection if I told you                   9   you see that? We discussed that fhese are the
           10  that there were five such drafts?                                     10   dates that you were out of town?
           11      A.   No, it wouldn't. I didn't have any                           11      A.   Uh-huh.
           12   knowledge that there were five drafts.                               12      Q.   And you said you scanned those and
           13      Q.   Okay.                                                          13   those seemed to conform to your schedule. Now I
           14      A.   That does not surprise me, but I had no                    14   would like you to look at April 4th, 2002, and it
           15   knowledge of it.                                                        15   appears that you were out town at that point,
           16      Q.   I'm just asking what you know, why                        16   correct?
           17   wouldn't it surprise you?                                              17           MR. RAUH: I'll stipulate that's what
           18      A.   Typically lawyers do a lot of I dotting                      18   paragraph 3 says.
           19   and T crossing before they submit the final                         19           BY MR. BALARAN:
           20  document in my experience.                                          20      Q.   Okay. Do you recall where you were at
           21      Q.   So they would submit a document with a                  21   that time?
           22   lot of drafts without having consulted you for all                   22      A.   Let's see. March 29, I think to the
           23   of them, do you feel that's the way things are                       23   best of my recollection we were holding a tribal
           24   done?                                                                   24   task force meeting in San Diego.
           25      A.   I saw the final one.                                           25      Q.   Okay. Did anybody forward this, what


                                                                             Page 147                                                                       Page 149
            1       Q.   You saw the final one before it was                          1   exhibit is it now, Exhibit 10 to you?
            2   sent to me?                                                              2      A.   I have no recollection of that.
            3      A.   Yes.                                                             3       Q.   So you have not seen it before today?
            4      Q.   And you signed off on it?                                     4      A.   No, I don't think so, principally
            5      A.   Yes, 1 approved it.                                             5   because of the distinctive heading up here.
            6      Q.   Well, when you say you approved it,                        6      Q.   What makes that distinctive heading
            7   what does that mean?                                                  7   something --
            8      A.   I mean I looked at it and thought the                         8      A.   I just have never seen it before.
           9   content of it was accurate.                                             9       Q.   I see. How about the meniorandum itself
           10      Q.   Okay.                                                          10   without the distinctive heading, just something
           11           MR. BALARAN: Just off the record for a                  11   with that subject, that date, that content?
           12   second.                                                                  12      A.   I don't have any specific recollection
          13          (Off the record discussion.)                                   13   of having seen it before.
          14          MR. BALARAN: Back on.                                   14           MS. KESSLER: Mr. Balaran, is it clear
          15          (McCaleb Exhibit 10 marked for                             15   that this memorandum was issued on April 4th? I
          16          identification.)                                                  16   mean, the document is not at all clear. This is
          17          BY MR. BALARAN:                                         17   an e-mail that was sent on April 4th, and we have
          18      Q.   I'm handing you a document; it says                        18   no idea when --
          19   discussion, subject, document retention related to                  l 9           MR. BALARAN: I agree with you. It's
          20   trust management and Individual Indian Money                    20  just a document that came into my possession and
          21   accounts, the date on it is April 4th, 2002, and                     21   I'm asking if he's seen it.
          22   it's a memorandum fom Bill Myers to the Office of               22           MS. KESSLER: Right. l'mjust making
          23   the Secretary, et cetera. Do you see that?                           23   it clear that this document is not dated, the
          24      A.   Yes.                                                            24   e-mail is, but not the memorandum.
          25           MR. RAUH: Now, is that also included                    25           MR. BALARAN: Well, I agree with


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                  1   exactly what you're saying, counsel. However, not                 1       A.   I have general knowledge of it. As I
              2   given anything else to go by, I have to go by the                    2   have said before, I can't identify a specific
             3   only date that's on here.                                                3   document that I read at a place in time.
             4           THE WITNESS: I want to make it clear                     4      Q.   Have you ever taken any training of any
             5   that I'm not swearing that I was in San Diego on                    5   sort, either formal or informal, that keeps you
             6   those dates. San Diego could have been the 21st                   6   abreast of the Cobell litigation, any meetings?
             7   to the 24th, but somewhere in that vicinity we had                  7      A.   No. I get copies of filings for the
             8   a meeting in San Diego. I would have to go back                   8   Cobell litigation.
             9   to my calendar to see specifically where I was.                      9      Q.   And do they go to you directly?
            10          BY MR. BALARAN:                                         10      A.   They are widely disseminated in the
            11      Q.   During your tenure as Assistant                             11   Department of the Interior.
            12   Secretary for Indian Affairs, have you ever had                    12      Q.   And when you say filings, do you mean
            13   occasion to meet with Bryan Bums, Dominic Nessi,               13   copies of all pleadings, filings, motions that go
            14   or anybody in the acting position, Debbie Clark,                   14   back and forth?
            15   conceming the preservation and retention of                       15      A.   I can't tell you that I get copies of
            16  e-mails?                                                                16   all pleadings and filings. I get copies of a
            17      A.   Not specifically on that subject.                             17   great many.
            18      Q.   How about generally on that subject?                      18      Q.   Okay. Are you aware that there is
            19      A.   Not with Dom, for sure. Debbie, I                         19   currently an effort under foot to try and arrive
            20  don't think so, and not with Bryan.                                   20   at a definition of Indian Trust records, a uniform
            21      Q.   During your tenure as Assistant                            21   definition?
           22   Secretary for Indian Affairs, have you ever met                    22      A.   I'm aware that there is a need to do
           23   with any of your staff concerning the preservation                 23   that.
           24   or retention of Cobell-related e-mails as they                       24      Q.   But my question is a little different.
           25   relate to the three functional areas?                                  25      A.   I am not aware who the participants

                                                                              Page 151                                                                                             Page 153
                 1       A.   Yes. Pursuant to October 10th of 2002,                     1   would be.
            2   I had been briefed by representatives from the                       2       Q.   Well, I didn't ask you that either. My
            3   Solicitor's office, specifically.                                         3   question was, are you aware -- let's start this
            4      Q.   Is that your staff?                                              4   way. Do you know whether there is in fact an
            5      A.   Not my staff, no.                                               5   initiative under foot to define Indian Trust
            6      Q.   Let me go back and ask the question                         6   records, Indian Trust data?
            7   again. During your tenure as Assistant Secretary                    7           MR. RAUH: I think, Mr. Balaran, if you
            8   for Indian Affairs, have you had occasion to meet                   8   identify by whom, that might help.
            9   with your staff where the topic of discussion was,                   9           BY MR. BALAIL&N:
           10  or a topic of discussion was the preservation and                   10      Q.   By anybody at the Department of The
           11   retention of e-mails related to the three                              11   Interior.
           12   functional areas?                                                       12      A.   We started that back in the fall of
           13      A.   No.                                                             13   2001.
           14      Q.   Okay. Has any directives or memoranda                   14      Q.   And by that you're referring to with
           15   related to the retention or preservation of                           15   Redding, et cetera?
           16  e-mails related to the three functional areas ever                    16      A.   Right.
           17  been distributed under your letterhead or under                     17      Q.   And is this initiative one that there
           18   your name?                                                             18   is a discrete group of people assigned to, to your
           19      A.   Not that Ican recall.                                           9   knowledge?
          20      Q.   ls that something you would recall,                         20      A.   I don't have knowledge of that.
          21   si[ming such a directive'?                                              21       Q.   Are you involved in such discussions?
          22      A.   I sii,m a great many papers, l just--                         22      A.   No.
          23   not that I could have, l just don't recall.                              23      Q.   Are you given updates regularly as to
          24      Q.   Do you recall reading such a directive                      24   the status of Interior's efforts to define Indian
          25   that came from your office?                                          25   Trust data or records?


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             1       A.   I have not received any recently.                             1   Billings, the Rocky Mountain regional office, and
             2      Q.   Have you received any at any time?                         2   is deployed at Anadarko, the Southern Plains
             3      A.   Back in the fall of'01, I did, yes.                            3   regional office.
             4      Q.   And that was the Redding, California                       4      Q.   So, it is deployed now?
             5   meeting notes?                                                          5       A.   It is there and it's capable of finding
             6      A.   Right.                                                           6   current title.
             7      Q.   But aside from that?                                           7       Q.   Is it currently in use, do you know?
             8      A.   I have no recollection of any since                           8      A.   Yes, at Billings.
             9   then, but I know that it's not resolved.                                9      Q.   So at Billings, is it what they call
            10      Q.   How do you know that?                                      10   the system of record?
            11      A.   Because we had some conversations in                    11      A.   Yes, it is.
            12   the spring with Tom Slonaker.                                        12      Q.   Okay.
            13      Q.   Spring?                                                        13           MR. RAUH: You are going to tie this in
            14      A.   Of'02.                                                         14   to e-mail somehow?
            15      Q.   And those conversations were what?                       15           MR. BALARAN: Yes. You're objecting
            16      A.   That we had not resolved that issue.                        16  now?
            17      Q.   Do you know what LRiS is?                                 17           MR. RAUH: I'm just saying I'm waiting
            18      A.   Sure.                                                           18   for you to tie this in with e-mail.
            19      Q.   Tell me.                                                       19           MR. BALARAN: Then I will state for the
           20      A.   That's an acronym that stands for Land                    20   record that they are tying in to the extent that
           21   Realty Information Systems.                                        21   there were e-mails that refer to these things and
           22      Q.   Do you know what information is                          22   whether or not they fall within the three
           23   contained on LRIS?                                                   23   functional groups that need to be saved, or just
           24      A.   Title, ownership -- well, not                                 24   other administrative e-mail, I'm entitled to know
           25   ownership, but who has title to it as the trust                       25   how he defines them.


                                                                              Page 155                                                                       Page 157
             1   beneficiary.                                                              1           MR. RAUH: Maybe you ought to ask him,
            2      Q.   And do you know where that information                   2   were any of those e-mails that were involved in
            3   resides?                                                                  3   this issue --
            4      A.   Well, LRIS is the, what they refer to                         4           MR. BALARAN: Well actually, I did ask
            5   as the legacy system, where we came from, and the                 5   him that, so I think I've got what I need. If you
            6   title information basically originates at the                           6   want to supplement the answer, you're welcome to
            7   agency level and is usually maintained as                            7   do so.
            8   historical information at the regional level.                           8           Let's go offthe record.
            9   LRIS, the servers are in Reston, I think.                              9           (Off the record discassion.)
           10      Q.   Any other legacy systems that you know                   10           BY MR. BALARAN:
           11   of?.                                                                      11       Q.   Back on the record. I just want to in
           12      A.   No. There are other legacy systems.                        12   conclusion, it's my understanding that you
           13   Historic title, LRIS has both historic title and                       13   recently tendered your resignation?
           14  the current title, I'm aware of that because                           14      A.   That's correct.
           15   that's an issue with TAAMS, the integration of                     15      Q.   What are your plans?
           16   historic and current title.                                              16      A.   Go back to Oklahoma and enjoy my
           17      Q.   But are there any other legacy systems                      17   children and grandchildren.
           18   you can name for me now?                                            18      Q.   Do you intend to do any more work with
           19      A.   No, I can't.                                                     19   the Department of the Interior?
           20      Q.   What's the status of the TAAMS system'?                  20      A.   No. That doesn't preclude that, but
           21      A.   It has been in suspense for some time.                      21   that's not my plan.
           22      Q.   Do you know why'?                                           22           MR. BALARAN: Well, listen, 1 thank
           23      A.   Because the EDS report suggested that                     23   you, because itl the first instance, you know, you
           24   it be held in suspense, the deployment of it. And                  24   willingly came in response to a letter that I
           25   I know the system is existent and is deployed in                    25   wrote without having to go through a more formal


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                                                                               Washington, D.C.

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             1   process, and I want to explicitly acknowledge
             2   that, that we didn't have to go through any
             3   machinations or legal maneuvering and I'm very
             4   grateful for that.
             5           I'm also grateful just from what I've
             6   seen from your footnote 3 of the November 8th
             7   letter that you travel more than anyone really
             8   should and that your time is quite valuable,
             9   especially so I'm sure in your last days.
            10  Therefore, I do want to thank you for appearing
            11   today. And I just appreciate your candor and
            12  honesty. Obviously, we're going to have an
            13   opportunity to sit one more time where both
            14   counsel will have the ability to question you
            15   about this issue alone, and what else can I say
            16  but thanks very much.
            17          MR. RAUH: Let me just ask Mr. Gingold,
            18   do you have a concept of the amount of time that
            19   you need.
            20          MR. GINGOLD: It depends on the
            21   answers.
            22          MR. RAUH: Maybe you can go for the
            23  next ten minutes.
            24
            25


                                                                              Page 159
             1           MR. GINGOLD: Oh, it's going to be
             2   longer than that. I'mjust talking about, it will
             3   not take all day, that's for sure.
             4           (Whereupon, at 1:20 p.m., the taking of
             5   the instant deposition ceased.)
             6
             7
             8                     Signature of the Witness
             9   SUBSCRIBED AND SWORN tv, before mc this _ day
            10  of                     ,20
            11
            12
            13                         Notary Public
            14  My Commission Expires:
            15
            16
            17
            18
            19
           2O
           21
           22
           23
           24
           25

                                                                                                                                               41 (Pages 158 to 159)
                                                                    Alderson Reporting Company, Inc.
                                           1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005








                       _'?Z%_                                        U.S. Department of Justice
                                                                                  Civil Division
                                                   Regular Mail:                           Express Delivery:
                                                   P.O. Box 875                              1 I00 L Street, N.W.
                                                   Ben Franklin Station                      Room 10048
                                                    Washington, DC 20044-0875            Washinl_ton, DC 20005
                      Amalia D. Kessler                                                     Tel.: (202) 305-1759
                      Trial Attorney                                                          Facsimile: (202) 514-9163
                                                                                               E-mail: amalia.kessler_usdoj.gov
                                                                                               December 12, 2002
                      BY FACSIMILE
                      Alan L. Balaran, Special Master
                      1717 Pennsylvania Ave., N.W., 12th Floor
                      Washington, DC 20006
                                        Re:     Transcripts of Depositions Regarding the Deletion of Assistant Secretary
                                                 for Indian Affairs McCaleb's E-mails
                     Dear Mr. Balaran:
                               I am writing to advise you that, as I myself just noticed, the transcript of the December 6
                     deposition of Assistant Secretary for Indian Affairs Neal McCaleb states "Confidential-Subject
                     to Protective Order." As you know, there is no such protective order regarding this deposition, or
                     any of the depositions you are conducting concerning the deletion of Mr. McCaleb's e-mails.
                              Thank you.

                                                                                     Sincerely,


                                                                                     Amalia D. Kessler
                                                                                    Trial Attorney
                                                                                    Commercial Litigation Branch
                    cc:     Dennis M. Gingold, Esq.
                             Keith M. Harper, Esq.
                             Sabrina McCarthy, Assistant Solicitor for Trust Reform









                                                                                                                                        Exhibit 3
                                                                                                                              Dept. of Interior's Objections to S.M.'s
                                                                                                                                                                                      Report on Deletion of Trust lnfonnatlnn

                                *************** -COMM.  30L_FHq[_- ******************* DATE DEC-i2-2002 ***** TIME 11:54 ********

                                                     NODE - MEMORY TRANSMISSION                            START=DEC-iF. 11:49        END-DEC-12 11:54
                                                        FILS NO. =354
                                             STN    CDMM,         ONE-TOUCH/    STATION HAME/TEL NO.                                      PAGES       DO_qTION
                                             liD.                      ABBR NO.
                                             001        OK           8                   _8477                                                        002/_2    _: _: 44
                                             002       OK          8                  93182372                                                        802/_2    00: 00:51
                                             _3       OK           ii                   982.2_68                                                        082./002    00: _: J6
                                             004       OK          G                  920B3490                                                        _2/_2    E_: _:


                                                                                                                                      -DOJ/CIUIL DIVISION
                                             ********_*_***_***_*****_*_**wo_ -                         - ***** -            _2 514 9163- **x_*_*

                                                                                                        U.S. Department of Justice
                                                                                                        Commercial Litigation Branch
                                                                                  R_ular Marl:                                 Express D,_vcr_
                                                                                  P.O. Box 875                                  I100 L Street, N.W.
                                                                                  Be,, Franklin $tafio-                          Room 10<]48
                                                                                  W_hin_:ton_ DC 20044-0875                 W_bin_tont DC 20005
                                                    Amalia D. K_lor                                                          TeL: (202) 305-1759
                                                    Trial Anoraey                                                               Fax: (202) 514-9163
                                                                                                                                    E-mail: atmliz.k_ler_u_doj, gov
                                                                                                                                    December 12, 2002

                                                      To: Alan L. B_]_6 Esq.                              Fax: (202) 986-8477
                                                      Organization: Special Master                         Tel,: (202) 466-5019

                                                     TO;  D_I_i$ M.  Gin_o Id. _$q.


                                                                                                                                                                                                                I  F_'.  (_02) 3 _ _-2372


                                                                                                                                                                                                                                                                                                                                   l
                                                                                                Organization:                                              Tel.: (202) 661-6380



                                                   I To: Keith M. Harper, Esq.                             Fax: (202) 822-0068
                                                     Organization:                                              Tel.: (202) 785-4166

                                                     To: Sabrina A. McCarthy, A.sst. Solicitor          Fax: (202) 208-3490
                                                     Organization:                                              Tel,: (202) 219-2139


                                                   NUMBER OF PAGES SENT (INCLUDING COVER PAGE):  2
                                                   REMARKS:










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