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MONDAY, JULY 30, 2001

The Department of Interior has not been preserving e-mails related to Indian trust funds despite being ordered several times to do so, a court-appointed investigator on Friday reported.

The department's Office of the Solicitor has regularly destroyed, overwritten or otherwise lost computer backups of internal e-mails for the past three years, revealed special master Alan Balaran in a 19-page legal opinion. Yet government witnesses reassured US District Judge Royce Lamberth the government was, in fact, preserving the documents all along.

The government "has ignored its duty to retain and preserve backup tapes of e-mail messages," wrote Balaran. As a result, he continued, the Interior "has sustained a policy of overwriting e-mail backup tapes and destroying potentially responsive evidence on the thin reed that they were under no obligation to do so."

Balaran's opinion is the latest in a series of blows the government has received regarding documents in the five-year-old Cobell v. Norton case. Records date back more than one hundred years and are non-existent in many cases.

Still, the government is under orders to produce and retain relevant documents -- although officials have often failed to do just that. In what was one of the case's most embarrassing moments, Lamberth in February 1999 slapped former Interior Secretary Bruce Babbitt, former Treasury Secretary Robert Rubin, and former Indian Affairs Assistant Secretary Kevin Gover with contempt-of-court charges for not producing records related to the five plaintiffs in the case.

Since then, the government has been cited for failing to produce records and, in some instances, destroying them. Just as the former Clinton officials were held in contempt, government lawyers covered up the destruction of 162 boxes of documents which Treasury employees shredded at a Washington, DC, area office.

The issue became so prevalent became so that Balaran found it necessary to issue special "anti-retaliation" orders to make it easier for government employees to come forward about document destruction. Even then, there is evidence the message hasn't reached every responsible agency and in April, the Federal Reserve -- whom Balaran said had an "abysmal" record on the trust fund -- had to be ordered not to destroy any documents without receiving approval first.

Despite the "spotty" compliance with court orders, the government has fought the issue. Keeping computer backups of e-mails was too costly, time-consuming and "unreasonable," they claimed.

But even though Balaran rejected those arguments nearly two years ago, the government kept disputing their duties, seeking "clarification" on the issue. Only after three attempts by the Cobell plaintiffs to gain access to the backups has the revelation of the destroyed e-mails now surfaced.

Since the destruction dates back more than three years, vital evidence may have been destroyed, noted Balaran. "It is impossible to assess the impact that defendant’s spoliation may have had," on the case, he said.

For their trouble, Balaran is awarding the Cobell plaintiffs legal fees. Previously, the government had to pay $600,000 for the 162 destroyed boxes.

Balaran is currently conducting an investigation into the records-keeping policies of the Interior. He is scheduled to interview, under oath, a number of top-level managers of trust fund documents.

Get the Opinion:
Balaran: Destroyed computer backups (7/27)

Relevant Links:
Office of the Special Trustee - http://www.ost.doi.gov
Trust Management Improvement Project - http://www.doi.gov/bia/trust/tmip.htm
Indian Trust: Cobell v. Norton - http://www.indiantrust.com

Related Trust Fund Document Stories:
Attempt to limit trust fund probe rejected (7/24)
Fed instructed to preserve documents (4/20)
Court investigator faults Federal Reserve (4/19)
More trust documents reported destroyed (3/16)
Trust fund investigation continues (3/9)
Norton's trust fund office to be investigated (2/13)
Records a continued source of problems in lawsuit (01/18)