1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., : Civil Action 96-1285 : Plaintiffs, : : v. : Washington, D.C. : Friday, November 30, 2001 DEPARTMENT OF THE INTERIOR, : 2:15 p.m. et al., : : Defendants. : : - - - - - - - - - - - - - - - - : TRANSCRIPT OF STATUS HEARING BEFORE THE HONORABLE ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: DENNIS GINGOLD, ESQUIRE MARK BROWN, ESQUIRE AUKAMP & GINGOLD 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 (202) 662-6775 ELLIOTT H. LEVITAS, ESQUIRE 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309-4530 (404) 815-6450 KEITH HARPER, ESQUIRE NATIVE AMERICAN RIGHTS FUND 2025 I Street, N.W. Washington, D.C. 20006 (202) 785-4166 Pages 1 through 44 THERESA M. SORENSEN, OFFICIAL COURT REPORTER 2 APPEARANCES (Continued): For the Defendants: MARK NAGLE, ESQUIRE CRAIG LAWRENCE, ESQUIRE SCOTT HARRIS, ESQUIRE SANDRA SPOONER, ESQUIRE UNITED STATES ATTORNEY'S OFFICE Civil Division 555-4th Street, N.W. Washington, D.C. 20001 J. CHRISTOPHER KOHN, ESQUIRE JOHN T. STEMPLEWICZ, ESQUIRE MATTHEW J. FADER, ESQUIRE U.S. DEPARTMENT OF JUSTICE Civil Division Commercial Litigation Branch P.O. Box 875 Ben Franklin Station Washington, D.C. 20044 HERBERT L. FENSTER, ESQUIRE McKENNA & CUNEO, L.L.P. 1900 K Street, N.W. Washington, D.C. 20006-1108 B. MICHAEL RAUH, ESQUIRE MANATT, PHELPS & PHILLIPS 1501 M Street, N.W. Suite 700 Washington, D.C. 20005 Court Reporters: THERESA M. SORENSEN, CVR-CM Official Court Reporter Room 4800-H, U.S. Courthouse Washington, D.C. 20001 (202) 273-0745 THERESA M. SORENSEN, OFFICIAL COURT REPORTER 3 1 P R O C E E D I N G S 2 THE DEPUTY CLERK: This is Civil Action 96-1285, 3 Elouise Cobell, et al. versus the Department of Interior, et 4 al. 5 I am going to ask lead counsel to please come 6 forward and identify yourselves for the record and also 7 introduce counsel at your table. 8 MR. GINGOLD: Good afternoon, Your Honor. I am 9 Dennis Gingold. With me is Mark Brown, Keith Harper, Elliot 10 Levitas, for plaintiffs. 11 MR. NAGLE: Good afternoon, Your Honor. Mark Nagle, 12 Assistant United States Attorney, for the defendants, and with 13 me at counsel table are Scott Harris and Craig Lawrence, 14 Assistant United States Attorneys, William Meyer, the 15 Solicitor of the Department of the Interior, Mr. Matthew Fader 16 and Mr. Christopher Kohn from the Civil Division of the 17 Department of Justice, all for the defendants. 18 THE COURT: I will talk about non-parties 19 identifying themselves later if we get to that. 20 I apologize for the delay. The Attorney General 21 asked me to do an emergency application for the Foreign 22 Intelligence Court that I had to attend to, and I just 23 completed my chambers hearing in that, so I'm sorry we're late 24 starting here. 25 I did want to begin this hearing by making some THERESA M. SORENSEN, OFFICIAL COURT REPORTER 4 1 preliminary observations. We are here today to address 2 allegations of contempt regarding for the most part the past 3 actions of the Interior, defendants, during the last 4 administration. However, I want to acknowledge that but for 5 the present Secretary of the Interior's agreement to the 6 appointment of the court monitor last April and her written 7 direction that he receive unfettered access to both Department 8 of Interior personnel and documents as well as her insistence 9 on the cooperation of all Department of Interior personnel, 10 this Court would not have learned of the status of trust 11 reform described in the court monitor's reports. Those 12 reports have brought you here today. 13 The Secretary's initiation at the recommendation of 14 the special trustee of the Electronic Data System 15 Cooperation's investigation of the management and status of 16 all of the trust reform sub-projects and her recent voluntary 17 submission to me of the EDS reports on TAMS and BIA data 18 cleanup have also been helpful in my gaining a more thorough 19 and accurate understanding of the status of these sub- 20 projects. I look forward to receiving EDS' report on the 21 other trust reform sub-projects. 22 Since I raised the question at our last hearing of 23 who was in charge of trust reform, the Secretary has appointed 24 the Deputy Secretary, Stephen Griles, to examine the need for 25 and to direct the reorganization of the Interior Department's THERESA M. SORENSEN, OFFICIAL COURT REPORTER 5 1 management and operations of the IAM trust. 2 His efforts to address and solve the major trust 3 reform management personnel and systems problems addressed by 4 the court monitor, the special master, and EDS, have reflected 5 a recent level of involvement by this Secretary of Interior 6 that was never apparent in her predecessor's administration of 7 the trust. 8 Having said this, we are still here today to address 9 beginning a trial on the potential contempt of this Secretary 10 and her Assistant Secretary for Indian Affairs in their 11 official capacities as the government for Interior's past and 12 present actions in response to this Court's rulings. I will 13 decide the question of the prospective need for the 14 appointment of a receiver over IAM trust operations following 15 the contempt trial. 16 I said I thought the Secretary should throw herself 17 on the mercy of the Court at our last hearing. Instead, the 18 Secretary has decided to contest everything and to throw down 19 the gauntlet. The plaintiffs must prove every sentence of the 20 court monitor's reports according to the Secretary. "I admit 21 nothing," says the Secretary. Moreover, the Secretary's 22 counsel are now raising questions about the role of the 23 special master and the role of the court monitor. 24 So I will take first, then, the government's motion 25 to reconsider the order to show cause. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 6 1 Mr. Nagle. 2 MR. NAGLE: Thank you, Your Honor. May it please 3 the Court, anyone charged with contempt of court has a basic 4 due process right to have a full and fair opportunity to 5 defend against those charges. 6 We have filed our motion for reconsideration, Your 7 Honor, because this Court's order of November 28th states that 8 the court monitor reports number 1, 2 and 3 cannot be 9 contested in the context of the contempt trial that you have 10 directed to start Monday, December 3rd, the business day 11 following today, except to the extent that objections were 12 made within ten days of notice of the issuance of those 13 reports over the last several months. 14 In effect, Your Honor, the effect of your order is, 15 then, in a proceeding in which the moving party does bear the 16 burden of proof by clear and convincing evidence to show 17 contempt -- that's well established common law -- a 18 substantial number of facts are deemed established through a 19 process that did not subject them to cross-examination, 20 through a process that included the gathering of statements 21 not under oath, through a process that has led to the 22 preparation of reports that contain hearsay and perhaps in 23 some respects multiple hearsay, through a process that has led 24 to the development of reports that contain statements from 25 individuals who, if we were to look, for example, at Rule 32 THERESA M. SORENSEN, OFFICIAL COURT REPORTER 7 1 of the Federal Rules of Civil Procedure, would not be 2 officers, directors, or managing agents of the Department. 3 Some are, some are not. 4 All of these things, Your Honor, as your November 5 28th order is structured, are now beyond the reach of those 6 who have to respond to your order to show cause to challenge. 7 We believe, Your Honor, that that -- 8 THE COURT: Well, they're only beyond the reach 9 because the Department, the defendants, purported to reserve 10 to themselves a right they didn't have. "We reserve the right 11 to comment on these reports whenever we please without moving 12 for an extension of time." Isn't that the language that the 13 Department used, in effect? "We'll tell you when we feel like 14 it what we think of your reports, and we reserve our right to 15 do that, but we're not going to move for an extension of 16 time." That's what the Department did, that's what the 17 defendants did as to the first three reports. 18 As to the fourth report, they didn't. They moved 19 for an extension of time. So by then, they figured out what 20 the proper response was. But for the first three, they said, 21 we're going to reserve a right that we don't have. 22 MR. NAGLE: In the first -- 23 THE COURT: Isn't that what happened? 24 MR. NAGLE: In the first three reports, Your Honor, 25 the defendants did respond. There were responses, of course, THERESA M. SORENSEN, OFFICIAL COURT REPORTER 8 1 but -- 2 THE COURT: Yes. 3 MR. NAGLE: -- submitted to each one, and there is a 4 footnote in those first three reports that does not -- I will 5 not quibble with the Court over the exact phrasing. It does 6 state that the defendants were reserving the right to provide 7 additional objections. 8 The footnote also notes -- 9 THE COURT: What do you think that means? 10 MR. NAGLE: Well -- 11 THE COURT: What does that mean to a court? You 12 think any party can just say, "We don't have to move for an 13 extension of time; we'll tell you when we feel like it on our 14 time table. We're not going to comply with your order that we 15 file our objections in ten days." 16 MR. NAGLE: I think this -- 17 THE COURT: Isn't that what the defendants told me 18 with that footnote? 19 MR. NAGLE: No, Your Honor, because I think it has 20 to be read against the backdrop of the order appointing the 21 court monitor issued April 16th -- yes -- April 16th of 2001. 22 I would respectfully direct the Court's attention to 23 the structure of that order and its language. Paragraph 2 of 24 the order on the second page says, "The report shall include" 25 -- that is, the reports of the court monitor -- "a summary of THERESA M. SORENSEN, OFFICIAL COURT REPORTER 9 1 the defendants' trust reform progress and any other matter Mr. 2 Keefer, the court monitor, deems pertinent to trust reform. 3 The parties shall be given prompt notice of the filing of any 4 report and shall have ten days from the date of notice to 5 submit any objections or comments to the report." 6 We move, however, then, to paragraph 5, the bottom 7 of the second page of the order, and I would quote: "In any 8 proceeding before this Court, Mr. Keefer's findings of facts 9 shall be reviewed de novo. Any -- 10 THE COURT: But that's a proceeding that occurs if 11 there has been an objection made. If there is no objection 12 made, then the report is adopted, isn't it, in effect? 13 MR. NAGLE: Well, I -- 14 THE COURT: If you don't object, what do you think 15 the report is there for? Just for amusement or what? 16 MR. NAGLE: Certainly not, Your Honor. I would ask 17 the Court to keep in mind the procedural stage of this case at 18 which the April 16th, 2001 appointment occurred. There was, 19 of course, an opinion issued by this Court in December of 20 1999. There were efforts subsequently underway to address the 21 trust reform obligations, the trust obligations I should say, 22 reflected in the Court's December 1999 order. 23 We come to the spring of 2001 and the Court, with 24 the consent of this Secretary of the Interior, as the Court 25 quite accurately pointed out in its initial remarks, agreed to THERESA M. SORENSEN, OFFICIAL COURT REPORTER 10 1 -- this Court appointed, with the Interior Secretary's 2 consent, a court monitor to, as the Court's own order puts it, 3 monitor and review all of the Interior defendants' trust 4 reform activities and file written reports of his findings 5 with the Court. 6 This case clearly was not at or I would say candidly 7 near its end in the spring of 2001 even with regard to the 8 remedy efforts then underway, which reach back to the December 9 1999 order issued by the Court. I think, Your Honor, if you 10 read the paragraph 2 that I quoted a moment ago together with 11 paragraph 5, the fair reading that the defendants adopted with 12 respect to those first three responses is they have the right 13 to seek and to obtain de novo review of factfindings whether 14 or not specific objections to individual facts are reflected 15 in the responses. 16 THE COURT: Well, what would be the point of making 17 objections, then, if you can always just come along and make 18 your objections later? Why would I have that requirement to 19 file your objections in ten days? And with each of those 20 reports, I put on an order the date of each of those reports, 21 July 11th, August 9th, whatever those dates are, September 22 17th, October 16th, October 19th, with each of those, I did 23 another order saying file your objections within ten days. 24 All of those orders are meaningless under your interpretation? 25 It didn't mean a thing that I said do that? THERESA M. SORENSEN, OFFICIAL COURT REPORTER 11 1 MR. NAGLE: No, Your Honor, they are not 2 meaningless. I think -- 3 THE COURT: What do they mean, then? They mean file 4 those objections you feel like it and reserve the rest of them 5 for when you get around to it? 6 MR. NAGLE: No, Your Honor. I am not suggesting 7 that defendants get to aggrandize to themselves any rights not 8 available to them under the law, but I am respectfully 9 pointing out to the Court that this court monitor, as I 10 believe the order itself reflects and the remarks of the Court 11 contemporaneously with his appointment reflects, this court 12 monitor was not appointed pursuant to Rule 53 of the Rules of 13 Civil Procedure. 14 THE COURT: I agree. He was appointed under the 15 inherent power of the Court. I agree. 16 MR. NAGLE: The inherent power of the Court. Even 17 had he been appointed under Rule 53, the Court would have 18 retained an independent obligation to review whatever findings 19 of fact he presented, even, Your Honor, in the absence of 20 specific objections from the defendant, and for that, I would 21 cite the Court to Livas, I guess it's pronounced, L-i-v-a-s, 22 Livas case, in the brief we filed yesterday from the 5th 23 Circuit. 24 I think, Your Honor -- 25 THE COURT: Where is that in your brief? THERESA M. SORENSEN, OFFICIAL COURT REPORTER 12 1 MR. NAGLE: It is -- 2 THE COURT: Oh, L-i-v-a-s. 3 MR. NAGLE: L-i-v-a-s, Livas, page 8 of our motion 4 of yesterday, Your Honor, page 8 of our memorandum. 5 The situation in which the Secretary and Assistant 6 Secretary McClaub now find themselves, Your Honor, is that 7 these reports, the statements contained in these reports are 8 now being adopted in toto by virtue of your November 28th 9 order for purposes of determining whether or not there has 10 been a demonstration by clear and convincing evidence that 11 those two defendants in their official capacities are in 12 contempt of this Court. We see nothing in the record 13 contemporaneous with the April 16th, 2001 appointment of the 14 Court monitor that refers to or I would respectfully submit 15 even contemplates the use of these reports in a contempt 16 proceeding, and Your Honor, when we looked at the due process 17 right that every individual -- 18 THE COURT: But the whole purpose of appointing the 19 court monitor and the whole purpose of my having those 20 discussions with the parties at the time was to see if it was 21 going to be necessary to have a contempt proceeding. That was 22 why I invited the parties in for that discussion. It all 23 resulted from Mr. Nessi's letter of February 23rd. That's 24 what led to the April 16th order, the discussion I had with 25 the parties about whether there was a way to first find out THERESA M. SORENSEN, OFFICIAL COURT REPORTER 13 1 the true facts through the court monitor before I entertained 2 another contempt proceeding that the plaintiffs were 3 suggesting I undertake then. So the whole point of the court 4 monitor being appointed was to lead to a possible contempt 5 proceeding. 6 MR. NAGLE: I can only respond, Your Honor, by 7 quoting the court monitor's own remarks in a prepared 8 statement that we attached to our motion of last night. If I 9 may quote that, the court monitor states his conclusions are 10 not evidence on which the Court may act, and a sentence or two 11 beyond that, "My conclusions and findings have not been 12 independently confirmed." 13 This court monitor does not have an adjudicatory 14 power under the order Your Honor issued pursuant to your 15 inherent authority. He did not conduct hearings as a special 16 master would and take testimony under oath. Specifically in 17 the order is contemplated and has, in fact, occurred, 18 substantial ex parte contact, ex parte contact which was, as 19 the Court observed in its opening remarks today, the product 20 of this Secretary's agreement to this order and her 21 Department's opening of its doors and making available a very 22 substantial number of people over the entire period of time 23 from April 16th right up to today. 24 THE COURT: No question that's true. I mean, that 25 part is right, that she did open it up and that is now we THERESA M. SORENSEN, OFFICIAL COURT REPORTER 14 1 found out the information. I agree. 2 MR. NAGLE: Your Honor -- 3 THE COURT: And she gets some credit for that. 4 MR. NAGLE: And the difficulty, Your Honor, the 5 difficulty that is created by the November 28th order's 6 reading of, if I may use this phrase, reading of the April 7 16th order is that now, a contempt trial is going forward and 8 that fundamental due process right of the putative contemnors 9 is largely foreclosed, and to no small degree, it is 10 foreclosed as a function of that very same spirit of openness 11 and access is now being used against them. 12 There are any number, in a de novo trial, there are 13 any number of circumstances. As this Court is well aware, 14 when an institutional, organizational defendant -- a 15 corporation, a government agency -- is responding to charges, 16 whether it's a contempt setting or even in a merits 17 proceeding, for the parties who are ultimately the named 18 defendants, perhaps the head of the agency, for example, in an 19 employment setting, to point out to the trier of fact why 20 statements of particular subordinate officials were perhaps 21 not within the scope of their authority, why as a matter of 22 evidentiary and procedural law those statements cannot be 23 deemed binding against the defendant in a merits proceeding 24 and I would submit, Your Honor, the respondent in a contempt 25 proceeding in which the due process concerns and the due THERESA M. SORENSEN, OFFICIAL COURT REPORTER 15 1 process obligations are all the more accentuated, and that, 2 Your Honor, is the difficulty that arises from the November 3 28th order that you have issued. 4 Really, it comes down to a fundamental question of 5 due process for the individuals that now have to respond to 6 that show cause order and go forward with a contempt trial. 7 THE COURT: All right. 8 Mr. Gingold. 9 MR. GINGOLD: Mr. Harper will address -- 10 THE COURT: All right. Mr. Harper. 11 MR. HARPER: Good afternoon, Your Honor. May it 12 please the Court, the due process rights that the defendants 13 seek to claim here does not include the right to ignore your 14 orders. Your order appointing Mr. Keefer was clear on its 15 face. It used mandatory language of "shall," traditional 16 mandatory language that objections shall be filed within ten 17 days. They did not do that. 18 They seek to look at the standard of review of that 19 order, de novo review, but as we demonstrated with the Rule 72 20 cases for magistrate judges, courts are very clear that 21 timeliness of objection is very different from standard of 22 review, and if you do not object within ten days with 23 magistrate judges, similar to this order appointing Mr. 24 Keefer, then there is no review. Those are accepted facts. 25 We would like to note a couple of things in regard THERESA M. SORENSEN, OFFICIAL COURT REPORTER 16 1 to statements of Mr. Nagle. 2 First, the notion that -- the Secretary did indeed 3 consent to the appointment of Mr. Keefer. But as the Court 4 will recall, the alternative was immediate considerations of 5 our show cause motions. And so she did so with impending -- 6 well, things that we will be considering shortly here. 7 I guess our final note is that we believe this 8 motion -- 9 THE COURT: Oh, I agree, she had some good reasons 10 to agree to it at the time. 11 MR. HARPER: The arguments proposed in the -- 12 THE COURT: But she did agree. I didn't exercise 13 independent authority. 14 MR. HARPER: That's right, and we -- 15 THE COURT: And for that, she gets some credit. 16 MR. HARPER: But the notion that she sort of agreed 17 solely out of, you know, benevolent desires we think is a 18 little bit stretching the record. 19 The reconsideration motion here involved largely 20 argues a straw man, and that is Rule 53 and whether or not 21 it's applicable. Nobody here has asserted that it is 22 applicable. But we have asserted by analogy that the Rule 72 23 cases are directly on point, something that the defendants 24 have failed to even address in their motion. 25 I will make a couple final notes, and that is that THERESA M. SORENSEN, OFFICIAL COURT REPORTER 17 1 in Mr. Keefer's statement, by the way, that has some obvious 2 authentication and other evidentiary issues, but above and 3 beyond that, if you read the statement, and I will note it 4 here -- directly after the quoted portion that the defendants 5 rely upon, Mr. Keefer says on page 11, quote, "It should first 6 be pointed out that the present administration has not 7 contested the accuracy of the reports for the most part. They 8 were required to respond to them within ten days. They have 9 addressed the fact that some of the activities did not occur 10 on their watch. They also have spoken about the affirmative 11 action they have taken to bring management reform to trust 12 reform as I am sure they will talk about with you today." 13 So he made very clear even to the ITMA at that time 14 that to the extent that the -- to the extent that there was de 15 novo review, that they have largely failed to object, put in 16 timely objections to his reports and they should be accepted. 17 So we once again do believe this motion is 18 frivolous, we believe that it should be denied, and we seek 19 the Court to do that here. 20 THE COURT: Let me ask you one problem with it, 21 though. When this case next travels upstairs, as it will, 22 there is a disadvantage in the contempt context to having the 23 defendants, if they are found in contempt, claim they didn't 24 get a full opportunity to have everything aired, and it makes 25 it an easy out for a Court of Appeals that doesn't want to THERESA M. SORENSEN, OFFICIAL COURT REPORTER 18 1 face difficult issues to remand it for that full opportunity 2 rather than facing difficult issues. 3 So it gives me some pause as to whether it might not 4 be in your interest, actually, to have the full airing and I 5 want you to comment on that. 6 MR. GINGOLD: Well, Your Honor, we do believe that 7 Mr. Keefer's reports are well grounded, they are based in I 8 think an extensive record that he -- 9 THE COURT: I mean, I can give them their worst 10 nightmare. 11 MR. GINGOLD: Yes. 12 THE COURT: That's what they are asking me to do. 13 MR. GINGOLD: And I think we believe that 14 fundamentally, though, one of the aspects of this case that we 15 think is that there has been a pattern and practice of 16 ignoring your orders, and this is just another example of 17 that. The order is very clear. And at some point, defendants 18 have to understand that there are consequences to not abiding 19 by orders, and the consequence here is that they cannot 20 object. So we believe that the waiver ought to be sustained 21 in this case and that Mr. Keefer's report should be accepted. 22 THE COURT: Okay. 23 Do you want to address Rule 72, the analogy of Rule 24 72? 25 MR. NAGLE: I think I can speak to that very THERESA M. SORENSEN, OFFICIAL COURT REPORTER 19 1 briefly, Your Honor, and I think the same problems with the 2 Rule 72 analogy obtain as I've already identified with regard 3 to Rule 53. Rule 73 speaks to magistrate judges, Rule 53 to 4 special masters. These are procedures in the Rules of Civil 5 Procedure that contemplate adjudicatory processes, whatever 6 waiver issues arise or whatever consequences befall a party 7 who fails to avail itself of the time period permitted in 8 either context to submit objections denominated as such to 9 specific findings or conclusions, and I would again 10 respectfully note that Livas case from the 5th Circuit. 11 This is not what the court monitor that you 12 appointed on April 16th, 2001 has done. That has not been an 13 adjudicatory process. And when the question on the table is 14 what status do those reports have for purposes of finding by 15 clear and convincing evidence contumacious conduct of the head 16 of a Cabinet agency, I respectfully submit, Your Honor, that 17 that fit cannot occur. It's just not an accurate metaphor or 18 an accurate analogy to compare the court monitor here either 19 to Rule 72 or to Rule 53. It's a basic due process problem. 20 THE COURT: I don't agree with that argument, but as 21 a matter of case management, the motion for reconsideration is 22 granted. I am going to allow a full trial on everything the 23 Secretary wants tried. She says you prove every sentence, so 24 I am going to let the plaintiffs prove every sentence. 25 MR. GINGOLD: Your Honor -- THERESA M. SORENSEN, OFFICIAL COURT REPORTER 20 1 THE COURT: And I know you're ready. 2 MR. GINGOLD: One question Your Honor. Since you've 3 expanded the nature of this proceeding, we have had before you 4 an issue dealing with information technology and security 5 which is under seal. 6 THE COURT: I am going to do a sealed hearing on 7 that on Monday. 8 MR. GINGOLD: Plaintiffs would like this Court to 9 consider under these circumstances that the order to show 10 cause be expanded. 11 THE COURT: I will do that on Monday. 12 MR. GINGOLD: Okay. 13 THE COURT: Under seal. 14 Now I will take the government's motion for an 15 enlargement of time. And explain to me why, when the 16 enlargement is caused by the government's own misconduct of 17 having again replaced their attorneys for the third time, I 18 should even consider it. 19 MR. NAGLE: Well, Your Honor, the enlargement of 20 time is a product of the scope of the issues and the nature of 21 the issues necessary to be tried. 22 THE COURT: All right. The first issue is from 23 Court Monitor Report 1 from July 11th. The second one is 24 August 9th. I just gave you those dates. So you've had 25 months. Now, because the other counsel are thrown out and you THERESA M. SORENSEN, OFFICIAL COURT REPORTER 21 1 come in, you think that gets you to start all over? That's 2 what happened last time. 3 MR. NAGLE: No, Your Honor. 4 THE COURT: How many times does the government get 5 to start all over with a new team? 6 MR. NAGLE: That's not -- 7 THE COURT: How is that fair to the plaintiffs? 8 MR. NAGLE: Well, it wouldn't be, but that's not the 9 basis of our motion, Your Honor. The basis of our motion is 10 that your order issued the day before yesterday and it 11 provides four specifications of the issues that need to be 12 tried. 13 THE COURT: So I shouldn't have given you that two 14 weeks in the first place because this could have been issued a 15 month ago. 16 MR. NAGLE: No, Your Honor. I would respectfully -- 17 THE COURT: That's all that argument means. 18 MR. NAGLE: Well, Your Honor, I would -- 19 THE COURT: You said I only gave you two days' 20 notice. I told you October 30th, didn't I, where this was 21 going to end up. You didn't believe me. You still don't 22 believe me. 23 MR. NAGLE: I would never -- I never, for the 24 record, Your Honor, I never discount any observations, THERESA M. SORENSEN, OFFICIAL COURT REPORTER 22 1 directions or comments from this Court, and I would 2 respectfully point out to the Court that as recently as the 3 day before yesterday, there were pending in this case not only 4 the show-cause motions filed in August and October to which 5 we, the new counsel, I acknowledge, on the contempt issues 6 responded on November 15th, but other motions as well. 7 It is only since the afternoon of Wednesday of this 8 week, the day before yesterday, that we have known exactly 9 what the specifications are on which we will now be going to 10 trial. Your Honor, I don't need to tell this Court that the 11 scope of what the plaintiffs had laid out in their motion for 12 show-cause order fairly read, read by a putative contemnor, I 13 would assure the Court, is a great deal broader than what you 14 have identified here, but that's not to say that what you've 15 identified is amenable to an expeditious straightforward 16 evidentiary presentation. 17 I would also say, Your Honor, that in this of all 18 cases, in this of all courts, the attorneys for the United 19 States are keenly aware of our duty to make diligent inquiries 20 into the facts and the law before we come into this court and 21 present witnesses and conduct a trial, and the real thrust of 22 our motion, Your Honor, that we filed yesterday is we can't do 23 it in two business days from Wednesday, November 30th to -- 24 I'm sorry -- November 28th to Monday, December 3rd. 25 We've asked for an extension of time to January 7th THERESA M. SORENSEN, OFFICIAL COURT REPORTER 23 1 mindful that the case has been going on for a long time in 2 total, mindful of the fact that the underlying claims of the 3 plaintiffs have their origins reaching back many years prior 4 to the filing of the civil action, and mindful of the fact 5 that these motions for show-cause orders have been pending for 6 some time. We are moving as efficiently as we can consistent 7 with our professional obligations as attorneys for the United 8 States and officers of this Court, Your Honor, and that is 9 what is the real need for the additional time. 10 We have asked for January 7th. We will do 11 everything necessary to be ready to go forward on that date on 12 the issues that you've specified in your order on Wednesday. 13 THE COURT: I want to ask the plaintiffs who their 14 witnesses are in light of my ruling today, and they may not be 15 ready to address that yet, but maybe they are since they've 16 been saying they're ready any time. I guess I will let you 17 reply in terms of why they couldn't begin the presentation of 18 their case since they have the burden ultimately, and maybe 19 you don't call your defense witnesses until later. But let me 20 hear from them about who their witnesses are and I will let 21 you address that. 22 MR. NAGLE: I appreciate that, Your Honor. And just 23 as a matter of procedure so the Court understands, obviously 24 we read your November 28th order and the precise terms 25 contained in it, and mindful of those terms, Mr. Lawrence and THERESA M. SORENSEN, OFFICIAL COURT REPORTER 24 1 Mr. Harris from the United States Attorney's Office will be 2 prepared to address the Court about who our witnesses will 3 likely be. 4 THE COURT: All right. I will come back to the 5 motion to enlarge time. Let's start with how you would start 6 presenting your case, if you know based on what I just ruled. 7 MR. GINGOLD: Your Honor -- 8 THE COURT: Should I take a recess and let you 9 caucus -- 10 MR. GINGOLD: No, Your Honor. We've been prepared 11 for this for a long time. We have a witness list, Your Honor. 12 We would intend to call -- 13 THE COURT: If you hold it up like that, I know I'm 14 going to cut it down already. That looks too long. 15 (Laughter.) 16 MR. GINGOLD: Well, we were originally going to have 17 rebuttal witnesses for a trial that was going to start on 18 Monday, Your Honor, so we have to be a little deft at this 19 point in time. 20 We would intend to call the Secretary of the 21 Interior, we would intend to call the Deputy Secretary of the 22 Interior, we would intend to call the Assistant Secretary and 23 their predecessors, Your Honor. We intend to call as many 24 people as we believe are appropriate based on the testimony 25 that we are hearing that we've identified as contemnors in THERESA M. SORENSEN, OFFICIAL COURT REPORTER 25 1 this case, and that means 39 government officials, Your Honor. 2 In addition, Your Honor, Brian Farrel, who is senior counsel 3 for the Department of the Treasury, and with regard to the 4 accuracy of quarterly reports, fraud, trial issues and witness 5 intimidation. With regard -- Stephen Griles, of course, since 6 he is not a contemnor, however, he is now the Deputy Secretary 7 of the Interior, who has made representations publicly before 8 large tribal organizations and otherwise that he is handling 9 what has been characterized in many different ways but as some 10 type of restructuring that this Court has stated may be 11 evidence of some positive movement in this case, which of 12 course plaintiffs believe is further evidence of fraud 13 perpetrated on this court, and we would want to discuss with 14 Mr. Griles everything that he knows and has done in that 15 regard in the good faith of his representations in his 16 declaration. 17 Further, Your Honor, Tommy Thompson. Tommy 18 Thompson, as this Court may recall from I believe both the 19 first contempt trial and with regard to the trial on the 20 merits during the summer of '99, was probably more involved 21 than any other official at the Department of Interior with 22 regard to execution and explanation of what was occurring with 23 regard to the high-level implementation plan. 24 Mr. Thompson, as you may note, is not identified by 25 plaintiffs as a potential contemnor. We believe, as this THERESA M. SORENSEN, OFFICIAL COURT REPORTER 26 1 Court noted during the course of the trial in the summer of 2 '99, that Mr. Thompson is a credible witness who speaks 3 without overstating positions. We believe he will cast a lot 4 of light on what has occurred during the course of the period 5 of time that this Court has identified in the order. 6 With regard to Mona Enfield -- as you know, Your 7 Honor, Mona Enfield herself is the -- is a motion for an order 8 to show cause. Mona Enfield has been retaliated against by 9 the Department of Interior for 20 months. As a matter of 10 fact, Your Honor, there is a clear link that we've been able 11 to identify at this point in time. 12 If you recall, the problems began unwinding with 13 regard to the Interior Department's material 14 misrepresentations in March of 2000. We had two hearings in 15 March of 2000. On March 7th, we had a temporary restraining 16 order hearing that this Court granted plaintiffs' motion. On 17 March 29th, we had a preliminary injunction hearing and a 18 number of representations were made to this Court. 19 As a result of the information provided by Ms. 20 Enfield, the entire issue regarding the information technology 21 and the serious problems that exist which go to the heart of 22 this trust were identified by Ms. Enfield. The continued 23 destruction of documents, the continued intimidation of 24 witnesses to this day, the need for the special master to 25 enter his own anti-reprisal order because of the palpable fear THERESA M. SORENSEN, OFFICIAL COURT REPORTER 27 1 felt by -- 2 THE COURT: None of those go to these four issues 3 that I -- 4 MR. GINGOLD: Yes, they are. Your Honor -- 5 THE COURT: -- put in this order. 6 MR. GINGOLD: Your Honor, we've talked about 7 expanding it with regard to -- 8 THE COURT: I understand, but I haven't expanded it 9 yet. 10 MR. GINGOLD: Your Honor, we've talked about the 11 fact that Trial 1 essentially was a fraud on the court. Trial 12 1 dealt with TAMS. Trial 1 -- 13 THE COURT: No, I didn't say anything about that, 14 either. In my order, I am talking about after the trial at 15 the time I had the case under submission, so I am not going to 16 reexamine trial testimony. I understood at the time of the 17 trial that TAMS might not work. I had a lot of 18 representations about how well it would work, but after the 19 trial and before I ruled, the Interior Department was given a 20 number of reports that showed very dramatically that TAMS was 21 flunking every test. The court monitor reported to me that 22 they had a meeting. He got a position paper, even, about what 23 do we tell Judge Lamberth, should we tell Judge Lamberth, all 24 this stuff. They never told me and I ruled. 25 I'm talking about going from that point forward THERESA M. SORENSEN, OFFICIAL COURT REPORTER 28 1 whether they -- what sort of obligation they had to tell me 2 that, whether they acted in contempt in not telling me that, 3 or whether it's sanctionable, but what I've done right now is 4 specify why that shouldn't be contempt. 5 They say in their papers sort of like, well, you 6 know, since they thought you were going to be told, it's just 7 a slip-up that you weren't told or whatever it is. We will 8 find out, I guess, at the trial what it is. But in any event, 9 clearly everybody concedes I was never told that it had failed 10 all these tests. But that is not -- that might go to what I 11 would have done if I had been told that before I ruled on 12 December 21st of '99; that doesn't go really to reopen the 13 first trial in terms of trial testimony. I haven't been 14 contemplating that in this order to show cause. I am 15 splitting the difference there because I don't think -- I 16 mean, I understood when I ruled that they were optimistic that 17 TAMS would work. We now know from EDS that TAMS is a total 18 failure, that it's never going to work. EDS basically has 19 told the Secretary, scrap the whole thing, you threw away all 20 those millions of dollars for nothing, start all over. I take 21 it that's what I read the EDS report to say, and I understand 22 that. 23 If I had understood before I ruled but after trial 24 that TAMS was failing every test, I might well have ruled a 25 different way, I understand, in December of '99, but I don't THERESA M. SORENSEN, OFFICIAL COURT REPORTER 29 1 see that there was anything at trial that I have been shown 2 that they knew at the time of trial, because they didn't know 3 all these failure tests, I don't think, at the time of trial 4 from what the court monitor discovered. 5 MR. GINGOLD: Let me see if I can clarify that issue 6 for Your Honor. 7 THE COURT: Okay. 8 MR. GINGOLD: During a deposition of Ms. Enfield in 9 October of last year that was presided over by the special 10 master, Mona Enfield explicitly testified under oath, and we 11 have cited that in our briefs, that she told Mr. Nessi and 12 others told Mr. Nessi of the problems during the course of the 13 trial. He had known during the trial. Basically Ms. Enfield 14 testified that the testimony of Mr. Nessi and others would 15 appear to be perjury, and that was during the trial. 16 THE COURT: I understand that there are those who 17 had that view, but in the cross-examination -- wasn't it by 18 Mr. Levitas? -- of Mr. Nessi, I clearly understood that Mr. 19 Nessi was painting a very rosy picture that might or might not 20 turn out to be true, and I don't take it that that is likely 21 to change or any facts about that are likely to change. What 22 changed to me was once he had these objective reports after 23 the trial showing that it was failing all these tests, -- 24 MR. GINGOLD: Your Honor, -- 25 THE COURT: -- whether I should have been told then THERESA M. SORENSEN, OFFICIAL COURT REPORTER 30 1 before I ruled. 2 MR. GINGOLD: Your Honor, I think you will note from 3 the record that during June and July and August, the entire 4 period of time during the trial and during the period of time 5 that the findings and conclusions were prepared by defendants 6 and submitted to this Court, there were user acceptance tests 7 performed in Billings, Montana, and they failed, and -- 8 THE COURT: But that was after the testimony. 9 MR. GINGOLD: Your Honor, there was continued 10 testimony from others during the trial on this issue, and Your 11 Honor -- 12 THE COURT: Yes, but not from Mr. Nessi. 13 MR. GINGOLD: Well, -- 14 THE COURT: I mean, my problem would be Nessi is the 15 one I relied on. 16 MR. GINGOLD: Your Honor, it was a PowerPoint 17 presentation that was presented to you. If you can recall, we 18 all sat -- 19 THE COURT: By who? 20 MR. GINGOLD: Well, it was Mr. Nessi. 21 THE COURT: Right. 22 MR. GINGOLD: But there were also explanations from 23 Mr. Orr, if you may recall, with regard to it because Mr. Orr 24 was significantly responsible for whatever was created. The 25 Interior Department did not create this; Artesia did. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 31 1 THE COURT: Right. 2 MR. GINGOLD: If you may recall, it was represented 3 to you by counsel for the government, Mr. Clark in particular, 4 that the data behind the screens that we were all viewing in a 5 PowerPoint presentation was, in his language, active data, 6 live data, programmed information. In fact, none of it was 7 true, Your Honor. 8 Your Honor, all of this required post-trial briefs, 9 which is a critical aspect of what this Court states it relied 10 on with regard to the December 21, '99 opinion. 11 Consequently, what we're looking at are 12 representations which at least one government employee has 13 stated under oath and has never been contradicted that the 14 government, the Department of Interior, knew and counsel 15 should have known that these problems existed during the 16 trial, Your Honor. 17 Your Honor, from our experience, when you're dealing 18 with the -- right at the beginning -- and let me go back to 19 June, I think it was June 7th, Your Honor, 1999, Your Honor 20 raised questions with lead trial counsel for the government, 21 Mr. Clark, regarding whether or not the litigation itself was 22 -- or the defense was a bad-faith defense. If you recall, and 23 I have the transcript with me, -- 24 THE COURT: Well, let me stop you there because the 25 way -- if you look at page 2 of my order to show cause, the THERESA M. SORENSEN, OFFICIAL COURT REPORTER 32 1 way I put the wording for that paragraph 3, I said, 2 "committing a fraud on the Court by failing to disclose the 3 true status of TAMS between September of '99 and December 21st 4 of '99." So I think what you're arguing right now is beyond 5 what I've specified for trial. You may be arguing to 6 reconsider that, but -- 7 MR. GINGOLD: No, Your Honor. I am arguing this in 8 the context of the statement you made a few moments ago where 9 inasmuch as the Secretary has thrown the gauntlet down and 10 we're going to have a discussion on Monday about where this is 11 going to go with regard to information technology, that's 12 directly related. 13 THE COURT: No, but I'm talking about the gauntlet 14 only on these four points in this order to show cause. 15 MR. GINGOLD: Well, with regard to this, Your Honor, 16 all the quarterly reports that occurred from September forward 17 -- actually from, I think it was March forward as a matter of 18 fact -- 19 THE COURT: March of 2000 forward. 20 MR. GINGOLD: March 2000. 21 THE COURT: I have committing a fraud as to those 22 reports. 23 MR. GINGOLD: That's right. And Your Honor, 24 specifically in that regard, we can't think of a single 25 disclosure to this Court dealing with the data security THERESA M. SORENSEN, OFFICIAL COURT REPORTER 33 1 problems that exist, dealing with the -- 2 THE COURT: Right. 3 MR. GINGOLD: -- electronic security. Ms. Enfield 4 would clearly be able to shed light on that, especially with 5 regard to something that isn't necessary in the civil contempt 6 trial, and that's with regard to intent, Your Honor, which, of 7 course, could have further implications as we go forward. So 8 we are dealing with situations that are actually fundamental 9 to the entire trust if it exists at all based on what we've 10 seen. 11 THE COURT: Well, but I -- for purposes of what I've 12 done in the order to show cause now, I am only talking about 13 these four things that I have specified. 14 MR. GINGOLD: Your Honor, with regard to the 15 quarterly reports, I think Ms. Enfield can shed light on the 16 fact they were not complete and accurate, which is one of the 17 requirements this Court has imposed. 18 THE COURT: Right. Yes. That may be. 19 MR. GINGOLD: Okay. 20 Tex Hall, Your Honor -- 21 THE COURT: But in terms of her talking about 22 retaliation, that is not something I have specified so far. 23 MR. GINGOLD: That's correct, Your Honor, and we 24 will be careful in how we proceed. We do have the other 25 motion pending, Your Honor. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 34 1 THE COURT: I understand. I understand. And I -- I 2 don't want to get into that here. Let's just talk about -- 3 but I understand I have some other motions I still have to 4 address. 5 MR. GINGOLD: Yes, Your Honor. We have a few. 6 THE COURT: I am trying to limit this to these four 7 court monitor reports and to what action occurs as a result of 8 the information reported by the court monitor and these frauds 9 on the Court where the court monitor developed that 10 information about the fraud on the Court. 11 MR. GINGOLD: We understand, Your Honor. 12 THE COURT: Alleged frauds on the Court, I better 13 say. I don't need a recusal motion at this point. 14 MR. GINGOLD: How about the fraud that has been 15 found, Your Honor. 16 THE COURT: No. That's their whole point. It can't 17 be found by the court monitor; it has to be found by me. 18 MR. GINGOLD: We hope to be able to demonstrate that 19 to you, Your Honor. 20 Your Honor, part of the extent of our witness list 21 will be dependent on how the Court determines Monday's 22 discussion. 23 THE COURT: Right. 24 MR. GINGOLD: In that regard, if we were going to -- 25 THE COURT: Well, maybe we'll have further THERESA M. SORENSEN, OFFICIAL COURT REPORTER 35 1 discussion -- 2 MR. GINGOLD: All right. Because the EDS issues -- 3 and including the project manager for EDS is certainly someone 4 we would want to speak to directly, Your Honor, and cross- 5 examine or examine depending if he's our witness or a hostile 6 witness or whatever he is going to be. But Your Honor, we are 7 prepared -- 8 THE COURT: This report is not too hostile to you. 9 MR. GINGOLD: Your Honor, it's not hostile, but it's 10 -- let me just, if I may, address that just a bit. The EDS 11 report is a limited report. It deals with just TAMS and BIA 12 data cleanup. 13 THE COURT: I understand, but they're going to have 14 -- next Thursday, they're going to have an expanded report. 15 MR. GINGOLD: Your Honor, based on what we've 16 reviewed of the EDS report, there is nothing new. 17 THE COURT: Right. 18 MR. GINGOLD: Especially -- 19 THE COURT: Well, the new thing is the Secretary 20 actually agreed with it. That's new. 21 MR. GINGOLD: Well, we would like to find out -- 22 THE COURT: Secretary Babbitt never agreed with 23 anything out of all those reports. 24 MR. GINGOLD: Secretary Babbitt had a different 25 personality, Your Honor, which we had an opportunity to THERESA M. SORENSEN, OFFICIAL COURT REPORTER 36 1 observe. The situation in this particular case, however, is 2 even representations with regards to agreement we would like 3 to discuss with the Secretary because we have had a lot of 4 statements made during the five and one-half years of this 5 litigation with regard to agreement to things that this Court 6 has said, with regard to orders that have been entered, with 7 regard to orders that have been drafted where, in fact, the 8 agreement in substance has -- there's not been any reality 9 between the two. 10 We believe it is critical that because of the 11 situation we're in now, which we cannot discuss right now, but 12 it is, in plaintiffs' opinion, as you know, a crisis, which, 13 by the way, the disingenuousness continues to this day, as we 14 pointed out in a brief that we filed yesterday. We -- 15 THE COURT: Let's leave all those sealed matters. 16 MR. GINGOLD: Okay. 17 THE COURT: I am going to unseal them next week. 18 MR. GINGOLD: Okay. 19 THE COURT: But let's leave them until next week. 20 MR. GINGOLD: But again, the fact that someone 21 concurs in this case has not resulted in positive action or 22 resolution of the problem, especially, Your Honor, when the 23 definition of terms seem to change to accommodate the 24 interests of the defendants. 25 Your Honor, one more thing. We filed this morning THERESA M. SORENSEN, OFFICIAL COURT REPORTER 37 1 and we served on defendants a notice of National Congress of 2 American Indians Resolution opposing the Department of 3 Interior's reorganization plan. The National Congress of 4 American Indians is the oldest Indian organization with regard 5 to more than 200 federally-registered tribes, and they 6 unanimously oppose the actions taken by the Secretary and Mr. 7 Griles and Mr. McClaub regarding the proposed reorganization 8 for a variety of reasons. 9 We will not discuss that right now, but it's 10 something that is important because to the extent that our 11 witness list is expanded based on the nature of the trial that 12 the Court envisions, the president of the National Congress of 13 American Indians may be a very valuable witness to assist this 14 Court in understanding the consequences of the proposals that 15 have been published in the Federal Register, Your Honor. 16 THE COURT: All right. 17 MR. GINGOLD: And I would like to give this to the 18 Clerk. 19 THE COURT: Okay. 20 Let's talk about the defendants witnesses and then 21 how that would impact on your motion to enlarge time. 22 MR. LAWRENCE: May it please the Court, Craig 23 Lawrence, Assistant United States Attorney for the defendants. 24 Your Honor, I will speak quickly and to the first two 25 specifications in this Court's order. The listing that Mr. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 38 1 Gingold has just given would cover any witnesses. I don't see 2 any witnesses beyond those that he has already listed that we 3 would call on the first two specifications. 4 MR. HARRIS: Good afternoon, Your Honor. Scott 5 Harris, U.S. Attorney's Office. 6 I don't believe with regard to the third and fourth 7 issues that are addressed that we would have a significant 8 number. It's possible that we may have a representative from 9 Datacom, the contractor, a couple of other Department of 10 Interior employees as well. 11 THE COURT: All right. Who is Datacom? Which one 12 are they? 13 MR. HARPER: Datacom has been working on the data 14 cleanup. 15 THE COURT: Okay. Oh, yes. Yes. Okay. 16 Let me see two government counsel and two 17 plaintiffs' counsel at the bench under seal for a moment. 18 MR. NAGLE: Is that on the sealed matter, Your 19 Honor? 20 THE COURT: Right. Right. Mr. Nagle, you can come, 21 too. 22 (Whereupon, a bench conference was held under seal, all 23 of which was reported and transcribed under separate cover.) 24 25 THERESA M. SORENSEN, OFFICIAL COURT REPORTER 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (Whereupon, a bench conference was heLd under seal, all 16 of which was reported and transcribed under separate cover.) 17 18 19 20 21 22 23 24 25 THERESA M. SORENSEN, OFFICIAL COURT REPORTER 40 1 (Whereupon, end of bench conference held under seal, all 2 of which was reported and transcribed under separate cover.) 3 THE COURT: I think I will have some further -- I 4 will grant the defendants an additional week and start the 5 trial on December 10th at ten a.m., and we may have some other 6 further proceedings about trying to limit the scope of the 7 issues and the scope of the witnesses next week at a time to 8 be made public by subsequent order. 9 I guess the one other thing that would be useful to 10 say today would be to the defendants. I said in my order I 11 don't understand exactly what the defendants' position is in 12 light of their filing of the seventh quarterly report but then 13 subsequently filing the EDS reports. In the seventh quarterly 14 report, the Secretary said on page 28, talking about the user 15 acceptance test and so on on page 27, said that users 16 concurred the design satisfies the core requirements, meaning 17 the TAMS design satisfies the core requirements previously 18 defined. All functionalities exist but are not performing 19 properly. But then the EDS report filed with me on November 20 12th says, there is a high risk the Interior network 21 infrastructure will be insufficient for current and future 22 support of TAMS. A network analysis has not been conducted 23 for the sub-projects or the Department as a whole. There is 24 no long-range plan for the network. The infrastructure team 25 has not been involved in overall planning for the sub- THERESA M. SORENSEN, OFFICIAL COURT REPORTER 41 1 projects, has not been able to help forecast impact on the 2 network for future requirements. And then in their high-level 3 recommendations, they make a number of recommendations. 4 I don't really understand how the Secretary can 5 stand by the seventh quarterly report as being accurate and 6 then turn around shortly thereafter and file this EDS report 7 which says the whole system is totally inadequate and isn't 8 going to work. So I don't know what it is we're going to try 9 in this trial, and I am hoping to get some more understanding 10 of that from the defendants. 11 Well, take data cleanup. In the seventh quarterly 12 report, the Secretary reports: pre-deployment data cleanup 13 continues in six regional offices and eight agencies. Data 14 cleanup continues to focus on eliminating data anomalies that 15 impact data migration activities. Data cleanup efforts 16 continue to correspond with the TAMS deployment schedules. 17 And then EDS comes along November 12th and says, 18 there is not a defined strategic direction and shared 19 understanding of the goals for TAMS and BIA data cleanup 20 projects. The DIA staff and external entities perceive there 21 to be a disconnect among DOI management as to the direction of 22 TAMS and BIA data cleanup as well as trust reform on the 23 whole. As a consequence of the above, it's difficult to 24 define the project scope and the objectives and set clear 25 priorities for TAMS and the BIA data cleanup. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 42 1 So the Secretary is telling me one thing in the 2 seventh quarterly report, and then EDS -- the Secretary files 3 it with me, I agree -- is saying the opposite, it looks like 4 to me on its face. Then the high-level recommendation from 5 EDS is immediately assess the nature and magnitude of the BIA 6 data cleanup issue. The DOI needs to move immediately to 7 accurately estimate the nature and magnitude of the BIA data 8 cleanup issues. This will require the Department to conduct a 9 statistically valid assessment of data-related issues. It 10 then requires DOI to develop a strategy and establish 11 priorities that balance its fiduciary responsibilities with 12 stakeholder interests and technical considerations. But 13 that's not what the Secretary told me in the seventh quarterly 14 report. So I don't really understand -- the Secretary files 15 both of those with me, but what is it that we're going to try 16 about the seventh quarterly report? I mean, the Secretary 17 tells me both things. They're totally inconsistent. What is 18 the Secretary telling me? And then what is it we're going to 19 try? Did she lie the first time or lie the second time? What 20 is it she's going to do? 21 MR. FADER: Your Honor, Matthew Fader for the 22 defendants. 23 The Secretary is prepared to address this in a 24 filing with the Court on Monday. 25 THE COURT: Okay. THERESA M. SORENSEN, OFFICIAL COURT REPORTER 43 1 MR. GINGOLD: Your Honor? In response to your 2 question, she lied both times. The fact of the matter is EDS 3 -- if you look at the source of information in EDS, it's based 4 on discussions. It's not based on reviewing reports; it's 5 based on discussions with individuals. The least due 6 diligence under the circumstances of this case certainly has 7 not been performed based on what has been reported by EDS, 8 Your Honor. And what they also point out is that they are 9 prepared to file an eighth report that will reflect the 10 seventh report if this limited report, which doesn't even deal 11 with the reporting period, Your Honor -- remember, the 12 reporting periods that were created again on a unilateral 13 basis by defendants cut off 30 days before they were supposed 14 to provide you information. The EDS report wasn't prepared in 15 the form that it was recently provided until November 12th. 16 What about what has occurred with regard with regard to the 17 progress through October 31st, Your Honor? The EDS doesn't do 18 that at all, nor does, of course, the other information that 19 they included, because all that is is what we've seen for five 20 and a half years, is, this is definitely what we might do in 21 the future, Your Honor. That's hardly a report on the status 22 of what you've ordered defendants to report to you on December 23 21, 1999. 24 THE COURT: All right. 25 Any other of the individual counsel want to speak THERESA M. SORENSEN, OFFICIAL COURT REPORTER 44 1 today? 2 MR. FENSTER: No, Your Honor. 3 THE COURT: I am sure you don't. 4 Okay. Anyone else? 5 All right. I will schedule a further public 6 proceeding after I have the sealed proceeding on Monday, and 7 I will put a website notice out when the further public 8 proceeding is held. 9 Anything else by the government or by the 10 plaintiffs? 11 MR. NAGLE: Nothing for the government, Your Honor. 12 THE COURT: Thank you very much, counsel. 13 (Whereupon, the proceedings in the above-entitled matter 14 were adjourned at 3:13 p.m., scheduled to reconvene on Monday, 15 December 3, 2001, at 10:00 a.m.) 16 17 18 CERTIFICATE OF REPORTER 19 I certify that the foregoing is a correct transcript 20 from the record of proceedings in the above-entitled matter. 21 22 ___________________________________ 23 Theresa M. Sorensen, CVR-CM 24 Official Court Reporter 25 THERESA M. SORENSEN, OFFICIAL COURT REPORTER