In The United States Court of Federal Claims

No. 06-945L 

(Filed under seal: October 17, 2012)

Reissued: November 6, 2012

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NAVAJO NATION

f.k.a. NAVAJO TRIBE OF INDIANS,

 Plaintiff,

v.

THE UNITED STATES,

Defendant.

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Tribal trust case; E-discovery order; 

Production of Electronically Stored 

Information (ESI); Privileges; Clawback 

agreement under Fed. R. Evid. 502(d).

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ORDER

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Samuel J. Buffone, Buckley Sandler, LLP, Washington, D.C., for plaintiff.

Frank J. Singer, Environmental and Natural Resources Division, United States 

Department of Justice, Washington, D.C., with whom was Assistant Attorney General Ignacia S. 

Moreno, for defendant.

ALLEGRA, Judge:

On October 10, 2012, the parties filed a joint status report discussing proposed orders on 

clawback issues and e-discovery in this matter. In that joint status report, the parties were unable 

to come to complete agreement as to the terms of those orders, requiring this court to resolve the 

parties’ differences. 

Pursuant to RCFC 1, 16, and 26, as well as Fed. R. Evid. 502(d), and in order to facilitate 

discovery and avoid delays, the court hereby ORDERS as follows:
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1. This order supplements this court’s discovery rules and the provisions 

contained in the Confidentiality Agreement and Protective Order 

(“CAPO”) entered in this case on May 11, 2007.

2. Generally, the costs of discovery shall be borne by each party, subject to 

the provisions of RCFC 26(b)(2)(B) and (C), and 37.

PRODUCTION OF ELECTRONICALLY STORED INFORMATION (“ESI”)

3. All documents that originally existed in native electronic form that are 

produced by the parties in this action shall be produced in electronic image 

form in the manner provided herein. Each document’s electronic image 

shall convey the same image as the original document. Documents that 

present imaging or formatting problems shall be promptly identified by the 

receiving party; the parties shall meet and confer to attempt to resolve the 

problems.

4. All emails, email attachments, word processing documents (e.g., Word, 

Word Perfect, etc.), presentation documents (e.g., PowerPoint, 

Presentations, etc.), PDF documents, and TIFF documents shall be saved 

electronically (or “printed”) in a single page tagged image file format 

(“TIFF”) image that reflects how the source document would have 

appeared if printed out to a printer using the print settings that match how 

the document was last saved by the document’s custodian. Email 

attachments shall be ordered to immediately follow the email to which 

each is attached. The parties shall produce a Concordance-compatible 

“load file,” including an image cross-reference file, to accompany the 

images, which load file shall facilitate the use of the produced images by a 

document management or litigation support database system and shall 

identify document breaks for each document.

5. In responding to a discovery request propounded under the RCFC in this 

lawsuit, neither party is required to search for responsive materials from 

the following categories of ESI, absent a showing of good cause:

a. Data in any electronic backup system for the purpose of system 

recovery or information restoration, including but not limited to, 

system recovery backup tapes, continuity of operations systems, 

and data or system mirrors or shadows, if such data are routinely 

purged, overwritten or otherwise made not reasonably accessible in 

accordance with an established routine system maintenance policy;

b. Voicemail messages, instant messages (such as messages sent on 

AOL Instant Messenger or Microsoft Communicator), and text 

messages (such as cell-phone-to-cell-phone SMS messages, or 
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other similar services including, but not limited to, Blackberry 

“PIN” messages);

c. Data stored on a Personal Digital Assistant or smartphone (e.g., 

Blackberry handheld), including electronic mail sent to or from 

such devices, as well as calendar or contact data, provided that a 

copy of such data is routinely duplicated elsewhere in a manner 

that would be subject to searching;

d. Logs of calls made from cellular phones;

e. Deleted computer files, whether fragmented or whole;

f. Temporary or cache files, including internet history, web browser 

cache, and cookie files, wherever located;

g. Server, system, or network logs;

h. Electronic data that is temporarily stored but not preserved by 

scientific equipment or attached devices in their ordinary course of 

operation, other than the data that is ordinarily preserved as part of 

any reports or analyses created by such equipment;

i. Messages that are posted on social media sites (including, but not 

limited to, Facebook) or micro-blogging sites (including, but not 

limited to, Twitter); and

j. Data stored on printers, copy machines, or fax machines.

6. Each page of a document produced pursuant to paragraph 4, shall be 

electronically saved into a separate image file. If a document is more than 

one page, the order of the images constituting the document and any 

attachments and/or affixed notes shall be maintained as it existed in the 

original when creating the image file.

7. If an original document contains color, upon request of either party, the 

parties shall meet and confer regarding whether there is a reasonable need 

for that document to be produced in color images.

8. Each page of a document produced pursuant to paragraph 4, shall have a 

legible, unique page identifier (“Bates Number”) electronically “burned” 

onto the image at a location that does not obliterate, conceal, or interfere 

with any information from the source document, preferably located at the 

bottom right hand corner of the document. There shall be no other legend 

or stamp placed on the document image unless a document qualifies for 

confidential treatment pursuant to the terms of the CAPO entered in this 
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litigation, or has been redacted in accordance with applicable law or court

order. In the case of confidential materials or materials redacted in 

accordance with applicable law or court order, a designation may be 

“burned” onto the document’s image at a location that does not obliterate 

or obscure any information from the source document. The Bates Number 

sequence shall be entirely alphanumeric, with no spaces or symbols.

9. Each such document image file shall be named with the unique Bates 

Number of the single-page TIFF image, followed by the extension “.tif.”

10. The parties shall produce documents on CD-ROM, DVD, external hard 

drive (with standard PC compatible interface), or such other readily 

accessible computer or electronic media as the parties may hereafter agree 

upon (the “Production Media”). Each item of Production Media shall 

identify a production number corresponding to the production “wave” 

with which the documents on the Production Media are associated with 

(e.g., “NN001” or “US001,” “NN002” or “US002”), as well as the volume 

of the material in that production wave (e.g., “-001,” “-002”). For 

example, if the first production wave by a party comprises document 

images on three hard drives, a party shall label each hard drive in the 

following manner: “NN001-001” or “US001-001,” “NN001-002” or 

“US001-002,” “NN001-003” or “US001-003.” Additional information 

that shall be identified on the physical Production Media shall include: 

(1) text referencing that it was produced in No. 06-945L, (2) the producing 

party’s name, (3) the type of materials on the media (e.g., “Documents,” 

“OCR Text,” “Objective Coding,” etc.), (4) the production date, and (5) 

the Bates Number range of the materials contained on the Production 

Media. In addition, the document custodian for each Bates Number range 

of materials shall be identified in a cover letter enclosing the Production 

Media.

11. The parties shall meet and confer regarding the format of production for 

databases and other dynamically-stored ESI.

12. The parties shall meet and confer to determine whether certain files, 

including video files and audio files, shall be produced in native format. 

The parties agree to produce Excel and spreadsheet files in native format.

13. General ESI production requests shall not include metadata, absent a 

showing of good cause. However, the parties shall retain and preserve the 

original native electronic source documents in a manner so as to preserve 

the metadata associated with these electronic materials in the event review 

of such metadata is warranted. 
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14. By preserving information for the purpose of any litigation on plaintiff’s 

claims, the parties are not conceding that such material is discoverable in 

any litigation between the parties in this or any other lawsuit, nor are they 

waiving any claim of privilege.

15. Production of materials in compliance with this order also shall be deemed 

compliant with the requirements of RCFC 34.

PRIVILEGES AND FED. R. EVID. 502

16. The provisions of this order shall apply to all information produced in this 

litigation.

17. Pursuant to Fed. R. Evid. 502, the production of documents and data 

pursuant to this order shall not result in the waiver of the attorney-client 

privilege or work-product protection as to those documents and data. 

Also, the production of privileged or protected documents or data under 

this order shall not result in the waiver of the attorney-client privilege or 

work-product protection as to those documents and data in any other 

federal or state proceeding. 

18. If the producing party determines that it has produced a document or data 

to which it wishes to assert a claim of privilege or protection, counsel for 

the producing party shall notify the recipient promptly of its claim. As 

part of the notification, the producing party’s counsel shall identify, by 

Bates Number, the document as to which the producing party is asserting a 

claim of privilege or protection. 

19. Upon receiving notice of a claim of privilege or protection by the 

producing party regarding a produced document or data, the recipient shall 

segregate, with promptness and in accordance with RCFC 26(b)(5)(B), the 

specified document or data, as well as any copies thereof, and the recipient 

shall not use the information in the specified document or data, except as 

provided by RCFC 26(b)(5)(B), until after the claim is resolved. If the 

court upholds – or if the recipient does not challenge within a reasonable 

time – the producing party’s claim of privilege as to the produced 

document or data, the recipient shall return or dispose of the specified 

document or data, as well as any copies thereof. 

20. The recipient shall notify the producing party’s counsel upon 

identification of any document or data which appears to be potentially 

privileged or protected. Such notification shall not waive the recipient’s 

ability to challenge any assertion of privilege or protection made by the 

producing party as to the identified document. As part of the notification, 

the recipient shall identify, by Bates Number, the document or data at 
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issue. The recipient shall segregate the specified document or data, as 

well as any copies thereof, from the other materials, and the recipient shall 

not use the information in the potentially privileged or protected document 

or data, except as provided by RCFC 26(b)(5)(B), for a period of 14 days 

after the date on which the recipient notifies the producing party’s counsel. 

Within the 14-day period, or any other period of time agreed to by the 

parties, the producing party shall determine whether it will assert a claim 

of privilege or protection as to the identified document, and its counsel 

shall notify the recipient of its determination.

21. This order may be modified by the court for good cause. The court will be 

inclined to grant any modification jointly proposed by the parties.

IT IS SO ORDERED.

s/ Francis M. Allegra 

Francis M. Allegra

Judge