No one to punish for destroyed e-mails

WEDNESDAY, APRIL 10, 2002

Attorneys for the federal government admit the Department of Interior destroyed evidence and information related to the Indian trust but have told a federal judge the Bush administration cannot be held accountable.

In a recent court filing, Secretary of Interior Gale Norton's defense team acknowledges e-mails contained on backup tapes were erased. "[I]t was a mistake not to retain newly created backup tapes," the attorneys wrote.

But the government says Norton and Assistant Secretary Neal McCaleb can't be held in contempt, face fines or be sent to jail because the tapes were overwritten during the Clinton administration. "Secretary Norton . . . cannot properly be held in contempt for matters that occurred months and even years before she assumed office," the government wrote.

And since the e-mails have been eliminated, there is no way to correct the problem. "[N]either the government nor the individuals respondents can restore the overwritten backup data," U.S. District Judge Royce Lamberth was told earlier this month.

At issue is a "pattern" of destruction special master Alan Balaran uncovered last year. According to a July 2001 report, government attorneys "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."

In response, attorneys representing 300,000 American Indians whose $500 million in annual assets are at the heart of a class action aimed at correcting more than a century of financial mismanagement are seeking contempt proceedings, fees and other sanctions. As part of a wider net cast upon nearly 50 government representatives, they targeted seven in particular for the destroyed e-mails.

But according to Norton's attorneys, the group cannot be punished because four no longer work for the government. These include former Assistant Attorney General Lois Schiffer and former Deputy Assistant Attorney General James Simon at the Department of Justice.

At the Interior, two others have left: former Deputy Solicitor Ed Cohen and Willa Perlmutter, a former subordinate now with the Washington, D.C., law firm of Patton Boggs. An internal probe of Perlmutter's handling of the case was rejected last year.

The other three have been recused since the Bush administration took office. Solicitor Bill Myers kicked subordinate Edith Blackwell off the case last fall while Charles Findlay and Phillip Brooks at Justice were fired from Norton's defense team in favor of two new sets of attorneys.

In addition to the plaintiffs' recent request, other motions for sanctions are pending. Lamberth last month agreed to fine the government on a related part of the case.

Related Documents:
Motion for Contempt (3/20) | Factual Addendum (3/20) | Balaran: Destroyed computer backups (7/27)

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Trust Reform, NCAI - http://130.94.214.68/main/pages/
issues/other_issues/trust_reform.asp