Free Notice (Other) - District Court of Federal Claims - federal

Dec-16-04 04:21P Schumacherlaw

Case 1:79-cv-00458-ECH

Document 423-2

307-857 5965 Filed 12/17/2004

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U.S. Department of J ustice Environment and Natural Resources Division 90-2-20-978
Brtff D. Burton (202) 305-0212 Direct Dial (20 2j 353-202I Prlraary Telefux Natural Re~oJtrce~ Section P,O, Box 663 W~tshing~in, D,C 20044-0663

December ! 6, 2004

Steven D. Gordon Holland & Knight l.I.P 2099 Pennsylvania Ave., NW, Suite 100 Washington, DC 20006 Richard M. Berley Ziontz, Chestnut, Vamell, Berley & Slonim 2 t 01 Fourth Avenue, Suite 1230 Seattle, WA 9812 ! John Schumacher Law Office of John Schumacher 420 E. Washington Avenue Riverton, Wyoming 82501-4487 Shoskor)~ on~i Arapaho Tribes of the Wind River Reservation, Nos. 458-79L, 459-79L (Court of Federal Claims) (Hewitt) Dear Mr. Gordon, Mr. Berley, and Mr. Schumacher: Per our previous discussions, the Govermnent seeks to modify the interim production deadline of December 16, 2004, set out in paragraph l(a) of the Scheduling Order, dated August 27, 2004 ("Scheduling Order") and the request for production of documents deadline of December 20, 2004, set out in paragraph l(d) ofthe Scheduling Order. As you are aware, the parties previously agreed to extend the Tribes' document review and identification deadline approximately 5 weeks, to December 22, 2004. This extension was due to the large volume of documents involved~ and the discovery of additional document collections based on the Tribes' review ofSF-135s. As previously indicated the current production from MMS and the BIA Agency Office will require the scanning and coding of approximately 66,000 images. This process will take an estimated 4-6 weeks for the MMS collection and up to 8 weeks for the BIA Agency Office collection, t The scanned images will

The scanning/coding process is on-going at M_MS and the Government anticipates that scanning/coding will begin in early January at the BIA Agency Office.

Case 1:79-cv-00458-ECH Document 423-2 Dec-16-04 04:22P Schumacherlaw

Filed 12/17/2004 Page 2 of 3 P.03 307-857 5965

December 16, 2004 Page 2 then need to be quality checked by the Department of Interior2 and undergo due diligence review at the Department of Justice. In order to expedite the prodnction process, the Tribes and the United States agree for purposes of compliance with paragraph 1 (h) of the Scheduling Order and paragraph 4 of the August 2, 2001 Protective Order that all of the images shall be considered "Protected Material" whether marked with the words "'Protected Material", "Confidential", "Privileged" or similar designation or bearing no such designation.3 It is the Government's understanding that the parties have agreed to modi~ the following interim deadlines az follows: a. The final production deadline of December 16, 2004, in paragraph 1 (a) of the Scheduling Order is modified to March 31, 2005. The Government, however, shall produce the images and coding to the Tribes on a rolling basis starting on January 26, 2005. As soon as practicable, but not later than January 7, 2005, the Government will provide the Tribes with a test copy of approximately 25 images to help assure the images will be usable in the Tribes' Sununation program. The Government anticipates that the first production will consist of approximately 20,000 images and the Government will thereafter produce images to the Tribes on a tri-weeldy schedule with roughly equal amounts of images tbr each production. The Government, of course, cannot predict the exact number of images it can produce fbr each tri-weekly period. The production volume may vary depending on the scanning and coding rate and other obligations set out below; The Government will produce images to the Tribes prior to January 26, 2005 if the quality reviews arc completed at an earlier date. The changes to paragraph 1 (a) do not apply to additional documents which may be identified in SF- 135s from the BIA Agency Office. The (]overnment is atlempting to locate SF- 135s from the BIA Agency Office. If additional documents are identified in the SF-135s, the parties will agree on a schedule for privilege review, inspection, and production.b. The request for production deadlines of December 20, 2004, set out in paragraphs l(c) and ! (d) of the Scheduling Order are modified to January 21,2004. c, The current agreed inspection deadline of December 22, 2004, is modi fled to on or before 2 This quality check includes a secondary privilege review, a confidentiality review, and a technical review of the images to ensure they are readable and in the proper format. 3 As already indicated, the reviews by Justice and Interior will be greatly expedited if the parties agree all documents are covered by the confidential and privileged material provisions of the Protective Order. This will eliminate any delay caused by a page-by-page confidentiality review or concerns about inadvertent or unintended disclosure of privileged material. Defendant will still perform a confidentiality review on a subsequent date and provide the Tribes with final confidential designations.

Case 1:79-cv-00458-ECH Dec-16-04 04:22P SchumacherlawDocument

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December 16,2004 Page 3 January 26, 2004, to enable the Tribes to inspect approximately 14 boxcs at thc Fort Worth Federal Records Center that may relate to the Tribes. As Plaintiffs are aware, in this case it is difficult to establish final production dates with certainty due to many factors, including the volume of documents, competing interests of multiple litigating Tribes, obligations in other court orders, and logistical issues related to the storage and staging of boxes. Consex.luently, the parties have agreed to meet on January t 0, 2005, to discuss the feasibility of production schedules for additional collections of documents set out in the Scheduling Order. lfyou concur with modifying the interim production deadlines as set out in paragraphs a-A'c. above, please indicate your concurrence below, i will forward the agreement of the parties to the Court in accordance with paragraph l(g) of the Scheduling Order. Sincerely,

Brett D Burton Trial Attorney

Concur:

Terry Petrie Nicolette Romano Stephen Simpson