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 up°n/.._ ''''_ _/ -- 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. oĢIntenor'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 2 (Pages 2 to 5) 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 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 3 (Pages 6 to 9) 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 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'? 4 (Pages 10 to 13) 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 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. 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 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 6 (Pages 18 to 21) 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 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. 7 (Pages 22 to 25) 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 26 Page 28 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 8 (Pages 26 to 29) 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 30 Page 32 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. 9 (Pages 30 to 33) 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 34 Page 36 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 10 (Pages 34 to 37) 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 38 Page 40 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 11 (Pages 38 to 41) 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 42 Page 44 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 12 (Pages 42 to 45) 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 46 Page 48 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 13 (Pages 46 to 49) 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 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 14 (Pages 50 to 53) 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. : ? ,: , ,: 15 (Pages 54 to 57) 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 ? 16 (Pages 58 to 61) 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 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 17 (Pages 62 to 65) 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'? 18 (Pages 66 to 69) 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 70 Page 72 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 19 (Pages 70 to 73) 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 74 Page 76 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 20 (Pages 74 to 77) 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 78 Page 80 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. 21 (Pages 78 to 81) 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 82 Page 84 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? 22 (Pages 82 to 85) 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 86 Page 88 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 23 (Pages 86 to 89) 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 90 Page 92 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. 24 (Pages 90 to 93) 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 94 Page 96 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 25 (Pages 94 to 97) Alderson Reporting Company, Inc. 1111 14th Street, N.W. Suite 400 t-800-FOR-DEPO Washington, DC 20005 Neal A. McCaleb CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER December 6, 2002 Washington, D.C. Page 98 Page 100 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 26 (Pages 98 to 101) 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 102 Page 104 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 27 (Pages 102 to 105) 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 106 Page 108 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. 28 (Pages 106 to 109) 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 110 Page 112 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 29 (Pages 110 to 113) 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 114 Page 116 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. 30 (Pages 114 to 117) 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 118 Page 120 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 31 (Pages 118 to 121) 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 122 Page 124 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 32 (Pages 122 to 125) 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 126 Page 128 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 33 (Pages 126 to 129) 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 130 Page 132 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 34 (Pages 130 to 133) 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 134 Page 136 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'? 35 (Pages 134 to 137) 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 138 Page 140 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 36 (Pages 138 to 141) 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 142 Page 144 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? :: : : 37 (Pages 142 to 145) 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 146 Page 148 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 fĨom 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 38 (Pages 146 to 149) Alderson Reporting Company, Inc. 11 ! 1 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 150 Page 152 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? 39 (Pages 150 to 153) 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 154 Page 156 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 40 (Pages 154 to 157) 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 158 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: IMPORTANT: This facsimile i_ int/'nded o_y for the use of thc individual or entity to which it is addressed. It may conmi_ infomt/on that is privileged, confidential, or othenv/se protected from disclosure under applicable law. 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