7_j i,_'i-,i 9 U.S. ['i!'-_;_i'2.F C{}{RT !,,.c._r:-!,:{ :_} S{}:;_i!i'C}':.\ iN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ?3 }i_2 12 PH 6' 02 NR",'_i3{-_ P'Si :i _: 3TCi7 '] ELOUISE PEPION COBELL, et al., ) CL {_ :,{ ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 (RCL) ) (Judge Lalnberth) GALE NORTON, Secretary of the Interior, et al., ) ) Defendants. ) ) INTERIOR DEFENDANTS' SECOND MOTION AND SUPPORTING MEMORANDUM FOR RELEASE OF THE REPORT OF THE SPECIAL MASTER REGARDING IT SECURITY AND ANY INFORMATION REPORTED TO THE COURT REGARDING THE SPECIAL MASTER'S INVESTIGATION OR REPORT Interior Defendants respectfully move for (1) release of the Special Master's report regarding his investigation of the Department of the Interior's information technology ("IT") security practices; and (2) provision to the parties of any information the Special Master reported to the Court regarding his investigation or report. On September 3, 2002, Interior Defendants filed their Motion For Release of the Report of the Special Master Regarding IT Security and any Information Reported to the Court Regarding the Special Master's Investigation or Report ("First Motion"). This Court denied the First Motion in an Order dated September 17, 2002. The Court stated that "[t]he Special Master, after a discussion of the status of his inquiry with the Court, agreed with the Court that the report he was in the midst of finalizing should not be submitted because it was directed largely at In accordance with Local Rule 7. l(m), counsel for Interior Defendants attempted to consult with counsel for Plaintiffs about this motion. Plaintiffs' counsel has not responded, and we presume Plaintiffs do not consent to this motion. difficulties within OST, and did not address BIA, CIO, and Secretarial difficulties." Order, Sept. 17, 2002, at 1. Rather, the Court stated, "a report addressing the Department's failure to fix IT security is the appropriate way to proceed." Id.__. (emphasis in original). The Court stated that "[t]he Special Master readily agrees, and he has no interim or other report to submit, nor will he have a report until he has conducted and completed all of the necessary fact-gathering." Id.___. at 1- 2. The First Motion also sought any information the Special Master reported to the Court regarding his IT investigation or report. See First Motion at 3-4. The February 24, 1999 Order appointing the Special Master requires that "[a]ny information reported to the [C]ourt by the [S]pecial [M]aster shall also be reported to counsel for the parties," Order, Feb. 24, 1999, at 3. Although the Order denying the First Motion establishes that the Special Master reported information about his IT investigation and report to the Court, see Order, Sept. 17, 2002, at 1 ("The Special Master, after a discussion of the status of his inquiry with the Court, agreed with the Court that the report he was in the midst of finalizing should not be submitted because it was directed largely at difficulties within OST, and did not address BIA, CIO, and Secretarial difficulties."); id__:. ("[H]ere the discussion with the Special Master indicated that he disagrees with OST's actions regarding providing funding for IT security"), the September 17, 2002 Order did not address Interior Defendants' request for such information. The Special Master has now concluded the additional investigation directed by the Court. His October 2002 Report stated that he "concluded [his] investigation into the IT security practices of the Department of the Interior with the deposition of former Assistant Secretary for Indian Affairs Kevin Gover," and that his "final report on this topic will soon issue." October 2 2002 Report of Special Master at 2 (Nov. 1, 2002). The Special Master's November 2002 Report stated: As reported in my October 2002 monthly report, I concluded the depositions related to my investigation into the IT security practices of the Department of the Interior. On November 22, 2002, Interior produced the final documents responsive to my various requests related to this investigation. Following review of those documents, I will issue my final report. November 2002 Report of Special Master at 3 (Dec. 2, 2002). The Special Master's subsequent monthly reports contain no mention of the IT security investigation or final report. In a January 2, 2003, letter to the Special Master, counsel for Interior Defendants noted their understanding that the Special Master had completed his IT security report, and requested that he issue the report and provide Interior Defendants with a copy. See Letter from John Warshawsky, Trial Attorney, Department of Justice, to Alan Balaran, Special Master (Jan. 2, 2003) (Exhibit 1). Counsel for Interior Defendants wrote again to the Special Master on February 27, 2003, this time asking that he advise them as to the approximate date on which he intended to release his IT security report. See Letter from Sandra P. Spooner, Deputy Director, Department of Justice, to Alan L. Balaran, Special Master (Feb. 27, 2003) (Exhibit 2). The Special Master has not responded to these inquiries. The Special Master's report will almost certainly provide information that will be helpful to the Interior Defendants as they proceed with resolving IT security matters and implementing trust reform, tn addition, the Special Master-Monitor is seeking to depose former Special Trustee Thomas Slonaker, and the report presumably will contain information that will be relevant to that deposition. Moreover, to the extent the report addresses issues that may be 3 relevant to the Phase 1.5 proceedings, Interior Defendants should be afforded the opportunity to address the report's findings as they prepare for trial. It has now been more than four months since the Special Master reported that he had concluded his investigation, and more than three months since he reported that Interior Defendants had produced the final documents related to this investigation. Federal Rule of Civil Procedure 53, pursuant to which the Special Master was appointed, requires the Special Master to file reports he has prepared with the clerk of the court and to "serve a copy of the report on each party." Fed. R. Civ. P. 53(e)(1). Accordingly, Interior Defendants respectfully request that a copy of the report be filed and served on the parties pursuant to Rule 53. Furthermore, as noted above, the February 24, 1999 Order appointing the Special Master requires that "[a]ny information reported to the [C]ourt by the [S]pecial [M]aster shall also be reported to counsel for the parties." Order, February 24, 1999, at 3. In accordance with this Order, any information that the Special Master reported to the Court regarding his IT investigation or report must also be reported to counsel for the parties. Accordingly, Interior Defendants also respectfully request that the Special Master provide to the parties ally 4 information (including any interim report or draft) he provided to the Court regarding his IT security investigation. Dated: March 12, 2003 Respectfully submitted, ROBERT D. McCALLUM Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director S_ P. SPOONER D.C. Bar No. 261495 Deputy Director JOHN T. STEMPLEWICZ Senior Trial Attorney CYNTHIA L. ALEXANDER Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUISE PEPION COBELL, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:96CV01285 ) GALE NORTON, Secretary of the Interior, et al., ) ) Defendants. ) ) ORDER Upon consideration of Interior Defendants' Second Motion For Release Of The Report Of The Special Master Regarding IT Security And Any Information Reported To The Court Regarding The Special Master's Investigation Or Report ("interior Defendants' Motion"), any responses thereto, and the record in this case, it is hereby ORDERED that Interior Defendant s' Motion is GRANTED. The report of the Special Master regarding the Department of the Interior's IT security practices shall be released and served on the parties, and the parties shall be provided with any information (including any interim report or draft) the Special Master provided to the Court regarding his investigation or report. SO ORDERED this __ day of ,2003. Royce C. Lamberth United States District Judge CC: Sandra P. Spooner Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 514-7194 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 202-318-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 202-822-0068 Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 ii_ U.S. Department of JustiCe Civil Division, Commercial Branch 1100 L Street, N.W., Room 10030 Washington, D.C. 20005 .Iohn Warshawsky Telephone: (202) 307-0010 Facsimile: (202) 514-9163 January2,2003 By Facsimile Mr. Alan Balaran Special Master 1717 Pennsylvania AVenue, N.W. Twelfth Floor Washington, D.C. 20006 Re: Cobell v. Norton - TMIP Steering Committee Investigation Dear Mr. Balaran: We understand that you have completed your investigation of the TMIP Steering Committee and that you have completed your report setting forth your findings and conclusions resulting from this investigation. Therefore, we request that you issue your report and that you provide us with a copy. Thank you for your consideration of this request. Very truly yo.urs, /_ n ,^tto% (.) Commercial Litigation Brar Civil Division cc: Mr. Dennis Gingold (by facsimile) Mr. Keith Harper (by facsimile) Exhibit 1 Def's 2nd Motion to Release SM's IT Security Report :_'************* _. Ji/Jl_- *',_*******:**_l_k** DATE _2B(_ **'-*** TIHE 14:45 ***_ MODE - 1_ TI_ISSION START-JAN-O_ 14:41 EN_J'AN-82 14:45 FILE NO. -71o STN _, ONE-TOU04/ STATION I,,12.I,E/TEL b{O. PRFi-S DORATION NO. ABBW NO. _1 OK ill 9986847? _2/_:?. 0(_:8:41 El< s 931825_ _2/Z_2 _:8_:45 OK a 98_ _2_ BE: 88:35 -D03/CI VIL DIUISION - *4,,*** - 2_2 514 916J- *,_*-****** FACSI1V!ILE Ti_ANSM]TTA_L TO: Mr. Alan L, Balaran [F_cstmHc uumber (202) 9R6-8477] Mr. Dennis M, Oingold [Facsimile number (202) 318-2372] Mr, Keith Harper [Facsimile number (202) 822-0068] Ffgm: 1ohn Warshawsky. Trial Attomcy United Sm_'s D_artm_t of Justice Commercial Litigation Branch, Civil Division 1100 L Street, N.W., Room 10030 Washington D.C. 20005 Office telephone: (202) 307-0()10 Facsimile number. (202) 514-9163 Pages fiIlCuding powr panel: 2 Comments; Date of ixall_.aission: Thursday, January 2, 2003 NOT_: THIS FA-CSI_LE IS INTEND]_DONLY FOR TEE ABOV_DE.qlONATI_D ADDRESSEE. IT MAY CONTAIN INFORMATION WHICH IS PRIVILEGED. CONFiDFNTIAI_ OR OTHERWISE PROTECTED FROM DI$CLOfU_ TO ANYONE OTI/F.R TITAN THE ADDRESSEE. yOU AKB NOT.. THE ADDRLrSSEI[ ANDHAVE RECEIVED TI{IS F_ACSD4ILE IN ERROR: (1) PLEASE DO NOT REVIEW, DISSEMINATE, OR OTHERWISE USE ANY OF THE TRANSMISSION, AND (2) PLEASE ADVISE THE SENDER OF THIS FACSIMILE IMMEDIATELY. -_ United States Department of Justice Civil Division Commercial Litigation Branch Sandra P. Spooner P.O. Box 875, Ben Franklin Station Tci: (202) 514-7194 Deputy Director Washington, D.C. 20044-0875 Fax: (202) 307-0494 Email:sandra. spooner_usdoj.gov February 27, 2003 BY FACSIMILE Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Ave., N.W. Twelfth Floor Washington, DC 20006 Re: Cobell v. Norton - TMIP Steering Committee Investigation Dear Mr. Balaran: On September 3, 2002, we filed a motion seeking release of your report regarding the IT security practices of the Department of the Interior and any information (including any interim report or draft) you provided to the Court regarding your investigation or report. On September 17, 2002, the Court denied our motion on the ground that your report should not be submitted because "it was directed largely at difficulties within OST, and did not address BIA, CIO, and Secretarial difficulties." Order, Sept. 17, 2002, at 1. The Court stated that "[i]n the Court's ~ view, a report addressing the Department's failure to fix IT security is the appropriate way to proceed." Id_..:. The Court further stated that "[t]he Special Master readily agrees, and he has no interim or other report to submit, nor will he have a report until he has conducted and completed all of the necessary fact-gathering." Id_.__. at 1-2. In accordance with the February 24, 1999 Order appointing you, which requires that "[a]ny information reported to the [C]ourt by the [S]pecial [M]aster shall also be reported to counsel for the parties," Order, Feb. 24, 1999, at 3, we also sought any information you reported to the Court regarding your IT investigation or report in our September 3 motion. The Court did not address this request in its September 17, 2002 Order. Your October 2002 Report stated that you "concluded your investigation into the IT security practices of the Department of the Interior with the deposition of former Assistant Exhibit 2 Def's 2nd Motion to Release Secretary for Indian Affairs Kevin Gover," and that your "final report on this topic will soon issue." October 2002 Report of Special Master at 2 (Nov. 1, 2002). Your November 2002 Report stated: As reported in my October 2002 monthly report, I concluded the depositions related to my investigation into the IT security practices of the Department of the Interior. On November 22, 2002, Interior produced the final documents responsive to my various requests related to this investigation. Following review of those documents, I will issue my final report. November 2002 Report of Special Master (Dec. 2, 2002). In a January 2, 2003, letter to you from John Warshawsky, we noted our understanding that you had completed your report on Interior's IT security, and requested that you issue your report and provide us with a copy. We received no response. As we have explained, Interior is actively involved in long term and short term planning to improve the security and integrity of information technology systems that house Indian trust data, with the ultimate goal of achieving A-130 compliance. See Letter from Sandra P. Spooner to Alan L. Balaran (Aug. 23, 2002). We again request that you issue your report so Interior may utilize any information you have gathered that may help guide its efforts. In addition, as you may be aware, the Special Master-Monitor is seeking to depose former Special Trustee Thomas Slonaker during the week of March 24, 2003, and the report may contain information that will be relevant to that deposition. We ask that you advise us as to the approximate date on which you intend to release your IT security report no later than next Tuesday, March 4, 2003. Thank you for your prompt consideration of this request. Very truly yours, FN cc: Dennis Gingold, Esq. Keith Harper, Esq. _oK*_***_ok**_** -COMM. J(1J_- **_o_**_ok**_**_ DATE FEB-LT?-2(3B3 *_ TIrE 16:35 *******_ IqODEE = HEEMORY _ISSION START=FEB-ir7 16'26; END=_B-Lz? 1fi'135 F I LE NO. -798 STN COMM. ONE-TOUCH/ STATIOH IqAMEE/TEL NO. PAGES IXJ_qTION HO. ABBR NO. (301 OK a 99868477 (_33/{_(33 0(3: 01: {;3{3 (a(_2 OK z 93182:372 003/00.3 {_ffi:Bl: 15 B03 OK & 5BP..2OOf_ g_3/_L_ _0:{_3:47 -DO.T/C I UIL DIUISION ***--****aec*******--**--******* _ - _ - :2S32 514 91F::_- **_c****** IMPORTANT: This'facsinal˘ is imtnd_ only for the us_ of the indh_dUal or entity to which it is a_d. It may contlda information 1hat h privileged, com'idential, or oth_'wLse protJected from disclosure under applicable law. If thc resdcr of this trtnsm_sion is not the inlendcd recipient or thc em]plo_ or egeat respousible for dolivc_ the tnmmr_sion to _ h_te_ted recipient, you sre hereby notified that any _fio_, dism'bution, copying or use of thia mmsar_sion or it's conten_ is s_tly prohibited, ffyou have received this I_an_nLuioa in error, ple..ase notify us by telepho-_,_g ead return, the ozi_m,1 tramn,Assion to ta at the adclre_ $ive_ below. FROM: Department of Justice Civil Division, Commercial Litigation Branch Corporate Financial Section P.O. Box 875, Ben Franklin Station Washington. DC 20044 Fax No.: 202 514-9163 Voice No.: 202 514-7194 Emai!: sandra,spooncr_azdoj ,_ v SENT BY: Sandra P. Spooncr TO: Alan L. Balaran, F_zq. FAX No.: 202 986-8477 Dennis M. GL:gold, Esq. 202 31g-2372 Kcith Harp_, Esq. 202-822-0068 DATE: February 27, 2003 NUMBER OF PAGES SENT ('INCLUDING COVER PAGE): 3 SPECIAL INSTRUCTIONS: CERTIFICATE OF SERVICE I declare under penalty of perjury that, on March 12, 2003 I served the foregoing Interior Defendants'Second Motion and Supporting Memorandum for Release of the Report of the Special Master Regarding IT Security and Any Information Reported to the Court Regarding the Special Master's Investigation or Report by facsimile in accordance with their written request of October 31, 2001 upon: Keith Harper, Esq. Dennis M Gingold, Esq. Native American Rights Fund Mark Kester Brown, Esq. 1712 N Street, N.W. 1275 Pennsylvania Avenue, N.W. Washington, D.C. 20036-2976 Ninth Floor (202) 822-0068 Washington, D.C. 20004 (202) 318-2372 By U.S. Mail upon: Elliott Levitas, Esq. 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 By facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 13th Floor Washington, D.C. 20006 (202) 986-8477 By Hand upon: Joseph S. Kieffer, llI Special Master Monitor 420 7 th Street, N.W. Apartment 705 Washington, D.C. 20004 (202) 478-1958 ,w t v // Kevln P. Kingston Y